Description of Units. We may issue, in one or more series, units comprised of shares of our common stock or preferred stock, warrants to purchase common stock or preferred stock, debt securities or any combination of those securities. Each unit will be issued so that the holder of the unit is also the holder of each security included in the unit. Thus, the holder of a unit will have the rights and obligations of a holder of each included security. We may evidence units by unit certificates that we issue under a separate agreement. We may issue the units under a unit agreement between us and one or more unit agents. If we elect to enter into a unit agreement with a unit agent, the unit agent will act solely as our agent in connection with the units and will not assume any obligation or relationship of agency or trust for or with any registered holders of units or beneficial owners of units. We will indicate the name and address and other information regarding the unit agent in the applicable prospectus supplement relating to a particular series of units if we elect to use a unit agent. We will describe in the applicable prospectus supplement the terms of the series of units being offered, including: (i) the designation and terms of the units and of the securities comprising the units, including whether and under what circumstances those securities may be held or transferred separately; (ii) any provisions of the governing unit agreement that differ from those described herein; and (iii) any provisions for the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the units. The other provisions regarding our common stock, preferred stock, warrants and debt securities as described in this section will apply to each unit to the extent such unit consists of shares of our common stock, preferred stock, warrants and/or debt securities. We may sell the securities covered by this prospectus in one or more of the following ways from time to time: · to or through underwriters or dealers for resale to the purchasers; · directly to purchasers; · through agents or dealers to the purchasers; or · through a combination of any of these methods of sale. In addition, we may enter into derivative or other hedging transactions with third parties, or sell securities not covered by this prospectus to third parties in privately negotiated transactions. The applicable prospectus supplement may indicate that third parties may sell securities covered by this prospectus and the prospectus supplement, including in short sale transactions, in connection with those derivatives. If so, the third party may use securities we pledge or that are borrowed from us or others to settle those sales or to close out any related open borrowings of stock, and may use securities received from us in settlement of those derivatives to close out any related open borrowings of stock. The third party in those sale transactions will be an underwriter and, if applicable, will be identified in the prospectus supplement (or a post-effective amendment thereto). A prospectus supplement with respect to each series of securities will include, to the extent applicable: · the terms of the offering; · the name or names of any underwriters, dealers, remarketing firms, or agents and the terms of any agreement with those parties, including the compensation, fees, or commissions received by, and the amount of securities underwritten, purchased, or remarketed by, each of them, if any; · the public offering price or purchase price of the securities and an estimate of the net proceeds to be received by us from any such sale, as applicable; · any underwriting discounts or agency fees and other items constituting underwriters’ or agents’ compensation; · the anticipated delivery date of the securities, including any delayed delivery arrangements, and any commissions we may pay for solicitation of any such delayed delivery contracts; · that the securities are being solicited and offered directly to institutional investors or others; · any discounts or concessions to be allowed or reallowed or to be paid to agents or dealers; and · any securities exchange on which the securities may be listed. Any offer and sale of the securities described in this prospectus by us, any underwriters, or other third parties described above may be effected from time to time in one or more transactions, including, without limitation, privately negotiated transactions, either: · at a fixed public offering price or prices, which may be changed; · at market prices prevailing at the time of sale; · at prices related to prevailing market prices at the time of sale; or · at negotiated prices. Offerings of securities covered by this prospectus also may be made into an existing trading market for those securities in transactions at other than a fixed price, either: · on or through the facilities of the NASDAQ Capital Market or any other securities exchange or quotation or trading service on which those securities may be listed, quoted, or traded at the time of sale; and/or · to or through a market maker otherwise than on the NASDAQ Capital Market or those other securities exchanges or quotation or trading services. Those at-the-market offerings, if any, will be conducted by underwriters acting as our principal or agent, who may also be third-party sellers of securities as described above. In addition, we may sell some or all of the securities covered by this prospectus through: · purchases by a dealer, as principal, who may then resell those securities to the public for its account at varying prices determined by the dealer at the time of resale or at a fixed price agreed to with us at the time of sale; · block trades in which a dealer will attempt to sell as agent, but may position or resell a portion of the block as principal in order to facilitate the transaction; and/or · ordinary brokerage transactions and transactions in which a broker-dealer solicits purchasers. Any dealer may be deemed to be an underwriter, as that term is defined in the Securities Act of 1933 of the securities so offered and sold. In connection with offerings made through underwriters or agents, we may enter into agreements with those underwriters or agents pursuant to which we receive our outstanding securities in consideration for the securities being offered to the public for cash. In connection with these arrangements, the underwriters or agents also may sell securities covered by this prospectus to hedge their positions in any such outstanding securities, including in short sale transactions. If so, the underwriters or agents may use the securities received from us under those arrangements to close out any related open borrowings of securities. We may loan or pledge securities to a financial institution or other third party that in turn may sell the loaned securities or, in any event of default in the case of a pledge, sell the pledged securities using this prospectus and the applicable prospectus supplement. That financial institution or third party may transfer its short position to investors in our securities or in connection with a simultaneous offering of other securities covered by this prospectus. We may solicit offers to purchase the securities covered by this prospectus directly from, and we may make sales of such securities directly to, institutional investors or others, who may be deemed to be underwriters within the meaning of the Securities Act with respect to any resale of such securities. The securities may also be offered and sold, if so indicated in a prospectus supplement, in connection with a remarketing upon their purchase, in accordance with a redemption or repayment pursuant to their terms, or otherwise, by one or more remarketing firms acting as principals for their own accounts or as agents for us. If indicated in the applicable prospectus supplement, we may sell the securities through agents from time to time. We generally expect that any agent will be acting on a “best efforts” basis for the period of its appointment. If underwriters are used in any sale of any securities, the securities may be either offered to the public through underwriting syndicates represented by managing underwriters, or directly by underwriters. Unless otherwise stated in a prospectus supplement, the obligations of the underwriters to purchase any securities will be conditioned on customary closing conditions, and the underwriters will be obligated to purchase all of that series of securities, if any are purchased. Underwriters, dealers, agents, and remarketing firms may at the time of any offering of securities be entitled under agreements entered into with us to indemnification by us against certain civil liabilities, including liabilities under the Securities Act, or to contribution with respect to payments that the underwriters, dealers, agents, and remarketing firms may be required to make. Underwriters, dealers, agents, and remarketing agents may be customers of, engage in transactions with, or perform services in the ordinary course of business for us and/or our affiliates. Any underwriters to whom securities covered by this prospectus are sold by us for public offering and sale, if any, may make a market in the securities, but those underwriters will not be obligated to do so and may discontinue any market making at any time without notice.
Appears in 2 contracts
Samples: Sales Agreement, At Market Issuance Sales Agreement
Description of Units. The following describes certain general terms and provisions that will apply to the units. The particular terms and provisions of units offered by a prospectus supplement, and the extent to which the general terms and provisions described below apply to such units, will be described in such prospectus supplement. We may issue, in one or more series, issue units comprised that will consist of shares of our common stock or preferred stock, warrants to purchase common stock or preferred stock, debt securities or any combination of those debt securities, preferred shares, common shares, warrants and subscription receipts issued by us, or other securities of an entity affiliated or not affiliated with us. Each Unless otherwise specified in the applicable prospectus supplement, each unit will be issued so that the holder of the unit is also the holder of each security included in the unit. Thus, the holder of a unit will have the rights and obligations of a holder of each included security. We may evidence units by unit certificates that we issue under a separate agreement. We may issue the units Units will be issued under a unit agreement between us the Bank and one or more a unit agentsagent named therein. If we elect The statements below relating to enter into a any unit agreement and the units to be issued thereunder are summaries of certain anticipated provisions thereof, are not complete and are subject to, and qualified by reference to all provisions of the applicable units. The applicable prospectus supplement will include details of the unit agreement with a unit agent, the unit agent will act solely as our agent in connection with respect to the units and will not assume any obligation or relationship of agency or trust for or with any registered holders of units or beneficial owners of unitsbeing offered. We will indicate the name and address and other information regarding the unit agent in Reference is made to the applicable prospectus supplement relating to a particular series of units if we elect to use a unit agent. We which will describe in the applicable accompany this prospectus supplement for the terms and other information with respect to the offering of the series of units being offered, includingunits. Those terms may include: (i) • the designation and the terms of the units and any combination of the debt securities, preferred shares, common shares, warrants and subscription receipts issued by us, or other securities comprising of an entity affiliated or not affiliated with us constituting the units, including and whether and under what circumstances those the debt securities, preferred shares, common shares, warrants and subscription receipts issued by us, or other securities of an entity affiliated or not affiliated with us or other securities may be held or transferred traded separately; (ii) • any provisions additional terms of the governing unit agreement that differ from those described hereinagreement; and (iii) • any additional provisions for the issuance, payment, settlement, transfer or exchange of the units or of the debt securities, preferred shares, common shares, warrants and subscription receipts issued by us, or other securities of an entity affiliated or not affiliated with us constituting the units. We will offer units that consist of or include debt or equity securities of third parties only under circumstances where there is an available exemption from the registration requirements for such third party securities under the Securities Act at the time we offer such units. An investment in units may involve special risks, including risks associated with indexed securities and currency-related risks if the securities comprising the unitsunits are linked to an index or are payable in or otherwise linked to a non-U.S. dollar currency. TAX CONSEQUENCES The other provisions regarding our common stock, preferred stock, warrants and following summary describes the material U.S. federal income tax consequences of the ownership of debt securities and common shares by “U.S. Holders” (as described defined below) as of the date hereof. This section is the opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, our special U.S. federal income tax counsel. Except where noted, this summary deals only with debt securities and common shares held as capital assets and which are denominated in this section will apply to each unit or determined by reference to the extent such unit consists of shares of our common stock, preferred stock, warrants and/or debt securitiesU.S. dollar. We may sell the securities covered by this prospectus in one or more This summary does not represent a detailed description of the following ways from time U.S. federal income tax consequences applicable to time: · holders subject to or through underwriters or dealers for resale to special treatment under the purchasers; · directly to purchasers; · through agents or dealers to the purchasers; or · through a combination of any of these methods of sale. In addition, we may enter into derivative or other hedging transactions with third parties, or sell securities not covered by this prospectus to third parties in privately negotiated transactions. The applicable prospectus supplement may indicate that third parties may sell securities covered by this prospectus and the prospectus supplement, including in short sale transactions, in connection with those derivatives. If so, the third party may use securities we pledge or that are borrowed from us or others to settle those sales or to close out any related open borrowings of stock, and may use securities received from us in settlement of those derivatives to close out any related open borrowings of stock. The third party in those sale transactions will be an underwriter and, if applicable, will be identified in the prospectus supplement (or a post-effective amendment thereto). A prospectus supplement with respect to each series of securities will include, to the extent applicable: · the terms of the offering; · the name or names of any underwriters, dealers, remarketing firms, or agents and the terms of any agreement with those parties, including the compensation, fees, or commissions received by, and the amount of securities underwritten, purchased, or remarketed by, each of them, if any; · the public offering price or purchase price of the securities and an estimate of the net proceeds to be received by us from any such sale, as applicable; · any underwriting discounts or agency fees and other items constituting underwriters’ or agents’ compensation; · the anticipated delivery date of the securities, including any delayed delivery arrangements, and any commissions we may pay for solicitation of any such delayed delivery contracts; · that the securities are being solicited and offered directly to institutional investors or others; · any discounts or concessions to be allowed or reallowed or to be paid to agents or dealers; and · any securities exchange on which the securities may be listed. Any offer and sale of the securities described in this prospectus by us, any underwriters, or other third parties described above may be effected from time to time in one or more transactionsU.S. federal income tax laws, including, without limitation, privately negotiated transactionsdealers in securities or currencies, either: · at financial institutions, regulated investment companies, real estate investment trusts, tax-exempt entities, insurance companies, persons holding the securities as a fixed public offering price part of a hedging, integrated, conversion or pricesconstructive sale transaction or a straddle, which traders in securities that elect to use a xxxx-to-market method of accounting for their securities holdings, persons liable for alternative minimum tax, persons who own or are deemed to own 10% or more of the Bank’s voting stock, partnerships or other pass-through entities for U.S. federal income tax purposes or U.S. Holders whose “functional currency” is not the U.S. dollar. Furthermore, the summary below is based upon the provisions of the Internal Revenue Code of 1986, as amended (the “Code”), and regulations, rulings and judicial decisions thereunder as of the date hereof, and such authorities may be changed; · at market prices prevailing at the time of sale; · at prices related repealed, revoked or modified (possibly with retroactive effect) so as to prevailing market prices at the time of sale; or · at negotiated prices. Offerings of securities covered by this prospectus also may be made into an existing trading market for result in U.S. federal income tax consequences different from those securities in transactions at other than a fixed price, either: · on or through the facilities of the NASDAQ Capital Market or any other securities exchange or quotation or trading service on which those securities may be listed, quoted, or traded at the time of sale; and/or · to or through a market maker otherwise than on the NASDAQ Capital Market or those other securities exchanges or quotation or trading services. Those at-the-market offerings, if any, will be conducted by underwriters acting as our principal or agent, who may also be third-party sellers of securities as described above. In addition, we may sell some or all of the securities covered by this prospectus through: · purchases by a dealer, as principal, who may then resell those securities to the public for its account at varying prices determined by the dealer at the time of resale or at a fixed price agreed to with us at the time of sale; · block trades in which a dealer will attempt to sell as agent, but may position or resell a portion of the block as principal in order to facilitate the transaction; and/or · ordinary brokerage transactions and transactions in which a broker-dealer solicits purchasers. Any dealer may be deemed to be an underwriter, as that term is defined in the Securities Act of 1933 of the securities so offered and sold. In connection with offerings made through underwriters or agents, we may enter into agreements with those underwriters or agents pursuant to which we receive our outstanding securities in consideration for the securities being offered to the public for cash. In connection with these arrangements, the underwriters or agents also may sell securities covered by this prospectus to hedge their positions in any such outstanding securities, including in short sale transactions. If so, the underwriters or agents may use the securities received from us under those arrangements to close out any related open borrowings of securities. We may loan or pledge securities to a financial institution or other third party that in turn may sell the loaned securities or, in any event of default in the case of a pledge, sell the pledged securities using this prospectus and the applicable prospectus supplement. That financial institution or third party may transfer its short position to investors in our securities or in connection with a simultaneous offering of other securities covered by this prospectus. We may solicit offers to purchase the securities covered by this prospectus directly from, and we may make sales of such securities directly to, institutional investors or others, who may be deemed to be underwriters within the meaning of the Securities Act with respect to any resale of such securities. The securities may also be offered and sold, if so indicated in a prospectus supplement, in connection with a remarketing upon their purchase, in accordance with a redemption or repayment pursuant to their terms, or otherwise, by one or more remarketing firms acting as principals for their own accounts or as agents for us. If indicated in the applicable prospectus supplement, we may sell the securities through agents from time to time. We generally expect that any agent will be acting on a “best efforts” basis for the period of its appointment. If underwriters are used in any sale of any securities, the securities may be either offered to the public through underwriting syndicates represented by managing underwriters, or directly by underwriters. Unless otherwise stated in a prospectus supplement, the obligations of the underwriters to purchase any securities will be conditioned on customary closing conditions, and the underwriters will be obligated to purchase all of that series of securities, if any are purchased. Underwriters, dealers, agents, and remarketing firms may at the time of any offering of securities be entitled under agreements entered into with us to indemnification by us against certain civil liabilities, including liabilities under the Securities Act, or to contribution with respect to payments that the underwriters, dealers, agents, and remarketing firms may be required to make. Underwriters, dealers, agents, and remarketing agents may be customers of, engage in transactions with, or perform services in the ordinary course of business for us and/or our affiliates. Any underwriters to whom securities covered by this prospectus are sold by us for public offering and sale, if any, may make a market in the securities, but those underwriters will not be obligated to do so and may discontinue any market making at any time without noticediscussed below.
Appears in 1 contract
Samples: Calculation Agency Agreement (Toronto Dominion Bank)
Description of Units. We may issue, in one or more series, units comprised of shares of our common stock or preferred stock, warrants to purchase common stock or preferred stock, debt securities or any combination of those securities. Each unit will be issued so that the holder of the unit is also the holder of each security included in the unit. Thus, the holder of a unit will have the rights and obligations of a holder of each included security. We may evidence units by unit certificates that we issue under a separate agreement. We may issue the units under a unit agreement between us and one or more unit agents. If we elect to enter into a unit agreement with a unit agent, the unit agent will act solely as our agent in connection with the units and will not assume any obligation or relationship of agency or trust for or with any registered holders of units or beneficial owners of units. We will indicate the name and address and other information regarding the unit agent in the applicable prospectus supplement relating to a particular series of units if we elect to use a unit agent. We will describe in the applicable prospectus supplement the terms of the series of units being offered, including: (i) the designation and terms of the units and of the securities comprising the units, including whether and under what circumstances those securities may be held or transferred separately; (ii) any provisions of the governing unit agreement that differ from those described herein; and (iii) any provisions for the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the units. The other provisions regarding our common stock, preferred stock, warrants and debt securities as described in this section will apply to each unit to the extent such unit consists of shares of our common stock, preferred stock, warrants and/or debt securities. We may sell the securities covered by this prospectus in one or more of the following ways from time to time: · to or through underwriters or dealers for resale to the purchasers; · directly to purchasers; · through agents or dealers to the purchasers; or · through a combination of any of these methods of sale. In addition, we may enter into derivative or other hedging transactions with third parties, or sell securities not covered by this prospectus to third parties in privately negotiated transactions. The applicable prospectus supplement may indicate that third parties may sell securities covered by this prospectus and the prospectus supplement, including in short sale transactions, in connection with those derivatives. If so, the third party may use securities we pledge or that are borrowed from us or others to settle those sales or to close out any related open borrowings of stock, and may use securities received from us in settlement of those derivatives to close out any related open borrowings of stock. The third party in those sale transactions will be an underwriter and, if applicable, will be identified in the prospectus supplement (or a post-effective amendment thereto). A prospectus supplement with respect to each series of securities will include, to the extent applicable: · the terms of the offering; · the name or names of any underwriters, dealers, remarketing firms, or agents and the terms of any agreement with those parties, including the compensation, fees, or commissions received by, and the amount of securities underwritten, purchased, or remarketed by, each of them, if any; · the public offering price or purchase price of the securities and an estimate of the net proceeds to be received by us from any such sale, as applicable; · any underwriting discounts or agency fees and other items constituting underwriters’ or agents’ compensation; · the anticipated delivery date of the securities, including any delayed delivery arrangements, and any commissions we may pay for solicitation of any such delayed delivery contracts; · that the securities are being solicited and offered directly to institutional investors or others; · any discounts or concessions to be allowed or reallowed or to be paid to agents or dealers; and · any securities exchange on which the securities may be listed. Any offer and sale of the securities described in this prospectus by us, any underwriters, or other third parties described above may be effected from time to time in one or more transactions, including, without limitation, privately negotiated transactions, either: · at a fixed public offering price or prices, which may be changed; · at market prices prevailing at the time of sale; · at prices related to prevailing market prices at the time of sale; or · at negotiated prices. Offerings of securities covered by this prospectus also may be made into an existing trading market for those securities in transactions at other than a fixed price, either: · on or through the facilities of the NASDAQ Capital Market or any other securities exchange or quotation or trading service on which those securities may be listed, quoted, or traded at the time of sale; and/or · to or through a market maker otherwise than on the NASDAQ Capital Market or those other securities exchanges or quotation or trading services. Those at-the-market offerings, if any, will be conducted by underwriters acting as our principal or agent, who may also be third-party sellers of securities as described above. In addition, we may sell some or all of the securities covered by this prospectus through: · purchases by a dealer, as principal, who may then resell those securities to the public for its account at varying prices determined by the dealer at the time of resale or at a fixed price agreed to with us at the time of sale; · block trades in which a dealer will attempt to sell as agent, but may position or resell a portion of the block as principal in order to facilitate the transaction; and/or · ordinary brokerage transactions and transactions in which a broker-dealer solicits purchasers. Any dealer may be deemed to be an underwriter, as that term is defined in the Securities Act of 1933 of the securities so offered and sold. In connection with offerings made through underwriters or agents, we may enter into agreements with those underwriters or agents pursuant to which we receive our outstanding securities in consideration for the securities being offered to the public for cash. In connection with these arrangements, the underwriters or agents also may sell securities covered by this prospectus to hedge their positions in any such outstanding securities, including in short sale transactions. If so, the underwriters or agents may use the securities received from us under those arrangements to close out any related open borrowings of securities. We may loan or pledge securities to a financial institution or other third party that in turn may sell the loaned securities or, in any event of default in the case of a pledge, sell the pledged securities using this prospectus and the applicable prospectus supplement. That financial institution or third party may transfer its short position to investors in our securities or in connection with a simultaneous offering of other securities covered by this prospectus. We may solicit offers to purchase the securities covered by this prospectus directly from, and we may make sales of such securities directly to, institutional investors or others, who may be deemed to be underwriters within the meaning of the Securities Act with respect to any resale of such securities. The securities may also be offered and sold, if so indicated in a prospectus supplement, in connection with a remarketing upon their purchase, in accordance with a redemption or repayment pursuant to their terms, or otherwise, by one or more remarketing firms acting as principals for their own accounts or as agents for us. If indicated in the applicable prospectus supplement, we may sell the securities through agents from time to time. We generally expect that any agent will be acting on a “best efforts” basis for the period of its appointment. If underwriters are used in any sale of any securities, the securities may be either offered to the public through underwriting syndicates represented by managing underwriters, or directly by underwriters. Unless otherwise stated in a prospectus supplement, the obligations of the underwriters to purchase any securities will be conditioned on customary closing conditions, and the underwriters will be obligated to purchase all of that series of securities, if any are purchased. Underwriters, dealers, agents, and remarketing firms may at the time of any offering of securities be entitled under agreements entered into with us to indemnification by us against certain civil liabilities, including liabilities under the Securities Act, or to contribution with respect to payments that the underwriters, dealers, agents, and remarketing firms may be required to make. Underwriters, dealers, agents, and remarketing agents may be customers of, engage in transactions with, or perform services in the ordinary course of business for us and/or our affiliates. Any underwriters to whom securities covered by this prospectus are sold by us for public offering and sale, if any, may make a market in the securities, but those underwriters will not be obligated to do so and may discontinue any market making at any time without notice.
Appears in 1 contract
Samples: Capital on Demand Sales Agreement
Description of Units. The following description, together with the additional information we may include in any applicable prospectus supplement and related free writing prospectus, summarizes the material terms and provisions of the units that we may offer under this prospectus. We may issue, issue units consisting of any combination of the other types of securities offered under this prospectus in one or more series, units comprised of shares of our common stock or preferred stock, warrants to purchase common stock or preferred stock, debt securities or any combination of those securities. Each We will issue each unit will be issued so that the holder of the unit is also the holder of each security included in the unit. ThusAs a result, the holder of a unit will have the rights and obligations of a holder of each included security. The unit agreement under which a unit is issued may provide that the securities included in the unit may not be held or transferred separately, at any time or at any time before a specified date. We may evidence each series of units by unit certificates that we will issue under a separate agreement. We may issue the units under a unit agreement between us and one or more unit agents. If we elect to enter into a unit agreement agreements with a unit agent, the . Each unit agent will act solely as our agent in connection with the units and will not assume any obligation or relationship of agency be a bank or trust for or with any registered holders of units or beneficial owners of unitscompany that we select. We will indicate the name and address and other information regarding the of any unit agent in the applicable prospectus supplement relating to a particular series of units. The summary below and that contained in any prospectus supplement is qualified in its entirety by reference to all of the provisions of the unit agreement and/or unit certificate, and depositary arrangements, if applicable. We urge you to read the applicable prospectus supplements and any related free writing prospectuses related to the units if that we elect may offer under this prospectus, as well as the complete unit agreement and/or unit certificate, and depositary arrangements, as applicable, that contain the terms of the units. We will file as exhibits to use the registration statement of which this prospectus is a part, or will incorporate by reference from reports that we file with the SEC, the form of unit agentagreement and/or unit certificate, and depositary arrangements, as applicable, that contain the terms of the particular series of units we are offering, and any supplemental agreements, before the issuance of such units. We will describe in the applicable prospectus supplement the terms of the series of units being offered, including: (i) ● the designation and terms of the units and of the securities comprising the units, including whether and under what circumstances those securities may be held or transferred separately; (ii) any provisions of the governing unit agreement that differ from those described herein; and (iii) ● any provisions for the issuance, payment, settlement, transfer transfer, or exchange of the units or of the securities comprising composing the units. The other provisions regarding our common stock, preferred stock, warrants and debt securities as described in this section will apply to each unit to ; ● whether the extent such unit consists of shares of our common stock, preferred stock, warrants and/or debt securities. We may sell the securities covered by this prospectus in one or more of the following ways from time to time: · to or through underwriters or dealers for resale to the purchasers; · directly to purchasers; · through agents or dealers to the purchasers; or · through a combination of any of these methods of sale. In addition, we may enter into derivative or other hedging transactions with third parties, or sell securities not covered by this prospectus to third parties in privately negotiated transactions. The applicable prospectus supplement may indicate that third parties may sell securities covered by this prospectus and the prospectus supplement, including in short sale transactions, in connection with those derivatives. If so, the third party may use securities we pledge or that are borrowed from us or others to settle those sales or to close out any related open borrowings of stock, and may use securities received from us in settlement of those derivatives to close out any related open borrowings of stock. The third party in those sale transactions units will be an underwriter and, if applicable, will be identified issued in the prospectus supplement (fully registered or a post-effective amendment thereto). A prospectus supplement with respect to each series of securities will include, to the extent applicable: · the global form; and ● any other terms of the offering; · the name or names of any underwriters, dealers, remarketing firms, or agents and the terms of any agreement with those parties, including the compensation, fees, or commissions received by, and the amount of securities underwritten, purchased, or remarketed by, each of them, if any; · the public offering price or purchase price of the securities and an estimate of the net proceeds to be received by us from any such sale, as applicable; · any underwriting discounts or agency fees and other items constituting underwriters’ or agents’ compensation; · the anticipated delivery date of the securities, including any delayed delivery arrangements, and any commissions we may pay for solicitation of any such delayed delivery contracts; · that the securities are being solicited and offered directly to institutional investors or others; · any discounts or concessions to be allowed or reallowed or to be paid to agents or dealers; and · any securities exchange on which the securities may be listed. Any offer and sale of the securities described in this prospectus by us, any underwriters, or other third parties described above may be effected from time to time in one or more transactions, including, without limitation, privately negotiated transactions, either: · at a fixed public offering price or prices, which may be changed; · at market prices prevailing at the time of sale; · at prices related to prevailing market prices at the time of sale; or · at negotiated prices. Offerings of securities covered by this prospectus also may be made into an existing trading market for those securities in transactions at other than a fixed price, either: · on or through the facilities of the NASDAQ Capital Market or any other securities exchange or quotation or trading service on which those securities may be listed, quoted, or traded at the time of sale; and/or · to or through a market maker otherwise than on the NASDAQ Capital Market or those other securities exchanges or quotation or trading services. Those at-the-market offerings, if any, will be conducted by underwriters acting as our principal or agent, who may also be third-party sellers of securities as described above. In addition, we may sell some or all of the securities covered by this prospectus through: · purchases by a dealer, as principal, who may then resell those securities to the public for its account at varying prices determined by the dealer at the time of resale or at a fixed price agreed to with us at the time of sale; · block trades in which a dealer will attempt to sell as agent, but may position or resell a portion of the block as principal in order to facilitate the transaction; and/or · ordinary brokerage transactions and transactions in which a broker-dealer solicits purchasers. Any dealer may be deemed to be an underwriter, as that term is defined in the Securities Act of 1933 of the securities so offered and sold. In connection with offerings made through underwriters or agents, we may enter into agreements with those underwriters or agents pursuant to which we receive our outstanding securities in consideration for the securities being offered to the public for cash. In connection with these arrangements, the underwriters or agents also may sell securities covered by this prospectus to hedge their positions in any such outstanding securities, including in short sale transactions. If so, the underwriters or agents may use the securities received from us under those arrangements to close out any related open borrowings of securities. We may loan or pledge securities to a financial institution or other third party that in turn may sell the loaned securities or, in any event of default in the case of a pledge, sell the pledged securities using this prospectus and the applicable prospectus supplement. That financial institution or third party may transfer its short position to investors in our securities or in connection with a simultaneous offering of other securities covered by this prospectus. We may solicit offers to purchase the securities covered by this prospectus directly from, and we may make sales of such securities directly to, institutional investors or others, who may be deemed to be underwriters within the meaning of the Securities Act with respect to any resale of such securities. The securities may also be offered and sold, if so indicated in a prospectus supplement, in connection with a remarketing upon their purchase, in accordance with a redemption or repayment pursuant to their terms, or otherwise, by one or more remarketing firms acting as principals for their own accounts or as agents for us. If indicated in the applicable prospectus supplement, we may sell the securities through agents from time to time. We generally expect that any agent will be acting on a “best efforts” basis for the period of its appointment. If underwriters are used in any sale of any securities, the securities may be either offered to the public through underwriting syndicates represented by managing underwriters, or directly by underwriters. Unless otherwise stated in a prospectus supplement, the obligations of the underwriters to purchase any securities will be conditioned on customary closing conditions, and the underwriters will be obligated to purchase all of that series of securities, if any are purchased. Underwriters, dealers, agents, and remarketing firms may at the time of any offering of securities be entitled under agreements entered into with us to indemnification by us against certain civil liabilities, including liabilities under the Securities Act, or to contribution with respect to payments that the underwriters, dealers, agents, and remarketing firms may be required to make. Underwriters, dealers, agents, and remarketing agents may be customers of, engage in transactions with, or perform services in the ordinary course of business for us and/or our affiliates. Any underwriters to whom securities covered by this prospectus are sold by us for public offering and sale, if any, may make a market in the securities, but those underwriters will not be obligated to do so and may discontinue any market making at any time without noticeunits.
Appears in 1 contract
Samples: Equity Distribution Agreement
Description of Units. We may issueissue units comprised of common stock, preferred stock, warrants, or any combination thereof. Units may be issued in one or more series, units comprised of shares of our independently or together with common stock, preferred stock or preferred stockwarrants, warrants and the units may be attached to purchase common stock or preferred stockseparate from such securities. We may issue units directly or under a unit agreement to be entered into between us and a unit agent. We will name any unit agent in the applicable prospectus supplement. Any unit agent will act solely as our agent in connection with the units of a particular series and will not assume any obligation or relationship of agency or trust for or with any holders or beneficial owners of units. Below is a description of certain general terms and provisions of the units that we may offer. Particular terms of the units will be described in the applicable unit agreements and the applicable prospectus supplement for the units. We urge you to read the applicable prospectus supplements related to the units that we sell under this prospectus, debt securities or any combination as well as the complete unit agreements that contain the terms of those securitiesthe units. Each unit will be issued so that the holder of the unit is also the holder of each security included in the unit. Thus, the holder of a unit will have the rights and obligations of a holder of each included security. We The unit agreement under which a unit is issued may evidence units by provide that the securities included in the unit certificates that we issue under may not be held or transferred separately, at any time, or at any time before a separate agreementspecified date. We may issue units in such amounts and in such numerous distinct series as we determine. We will incorporate by reference into the registration statement of which this prospectus is a part the form of unit agreement, including a form of unit certificate, if any, that describes the terms of the series of units under a unit agreement between us and one or more unit agentswe are offering before the issuance of the related series of units. If we elect to enter into a unit agreement with a unit agent, the unit agent will act solely as our agent in connection with The following summaries of material provisions of the units and will not assume any obligation or relationship of agency or trust for or with any registered holders of units or beneficial owners of units. We will indicate the name and address and other information regarding the unit agent agreements are subject to, and qualified in their entirety by reference to, all the provisions of the unit agreement applicable prospectus supplement relating to a particular series of units if we elect units. The provisions described in this section, as well as those described under “Description of Capital Stock” and “Description of Warrants” will apply to use a each unit agentand to any common stock, preferred stock or warrant included in each unit, respectively. We will describe in the applicable prospectus supplement the terms of the series of units being offeredunits, includingincluding the following: (i) • the designation and terms of the units and of the securities comprising the units, including whether and under what circumstances those securities may be held or transferred separately; (ii) • any provisions of the governing unit agreement that differ from those described hereinin this section; and (iii) • any provisions for the issuance, payment, settlement, transfer transfer, or exchange of the units or of the securities comprising the units. The other provisions regarding our common stock, preferred stock, warrants and debt securities as described in this section will apply to each unit to the extent such unit consists of shares of our common stock, preferred stock, warrants and/or debt securities. We may sell the securities covered by this prospectus in one or more of the following ways from time to time: · to or through underwriters or dealers for resale to the purchasers; · directly to purchasers; · through agents or dealers to the purchasers; or · through a combination of any of these methods of sale. In addition, we may enter into derivative or other hedging transactions with third parties, or sell securities not covered by this prospectus to third parties in privately negotiated transactions. The applicable prospectus supplement may indicate that third parties may sell securities covered by this prospectus and the prospectus supplement, including in short sale transactions, in connection with those derivatives. If so, the third party may use securities we pledge or that are borrowed from us or others to settle those sales or to close out any related open borrowings of stock, and may use securities received from us in settlement of those derivatives to close out any related open borrowings of stock. The third party in those sale transactions will be an underwriter and, if applicable, will be identified in the prospectus supplement (or a post-effective amendment thereto). A prospectus supplement with respect to each series of securities will include, to the extent applicable: · the terms of the offering; · the name or names of any underwriters, dealers, remarketing firms, or agents and the terms of any agreement with those parties, including the compensation, fees, or commissions received by, and the amount of securities underwritten, purchased, or remarketed by, each of them, if any; · the public offering price or purchase price of the securities and an estimate of the net proceeds to be received by us from any such sale, as applicable; · any underwriting discounts or agency fees and other items constituting underwriters’ or agents’ compensation; · the anticipated delivery date of the securities, including any delayed delivery arrangements, and any commissions we may pay for solicitation of any such delayed delivery contracts; · that the securities are being solicited and offered directly to institutional investors or others; · any discounts or concessions to be allowed or reallowed or to be paid to agents or dealers; and · any securities exchange on which the securities may be listed. Any offer and sale of the securities described in this prospectus by us, any underwriters, or other third parties described above may be effected from time to time in one or more transactions, including, without limitation, privately negotiated transactions, either: · at a fixed public offering price or prices, which may be changed; · at market prices prevailing at the time of sale; · at prices related to prevailing market prices at the time of sale; or · at negotiated prices. Offerings of securities covered by this prospectus also may be made into an existing trading market for those securities in transactions at other than a fixed price, either: · on or through the facilities of the NASDAQ Capital Market or any other securities exchange or quotation or trading service on which those securities may be listed, quoted, or traded at the time of sale; and/or · to or through a market maker otherwise than on the NASDAQ Capital Market or those other securities exchanges or quotation or trading services. Those at-the-market offerings, if any, will be conducted by underwriters acting as our principal or agent, who may also be third-party sellers of securities as described above. In addition, we may sell some or all of the securities covered by this prospectus through: · purchases by a dealer, as principal, who may then resell those securities to the public for its account at varying prices determined by the dealer at the time of resale or at a fixed price agreed to with us at the time of sale; · block trades in which a dealer will attempt to sell as agent, but may position or resell a portion of the block as principal in order to facilitate the transaction; and/or · ordinary brokerage transactions and transactions in which a broker-dealer solicits purchasers. Any dealer may be deemed to be an underwriter, as that term is defined in the Securities Act of 1933 of the securities so offered and sold. In connection with offerings made through underwriters or agents, we may enter into agreements with those underwriters or agents pursuant to which we receive our outstanding securities in consideration for the securities being offered to the public for cash. In connection with these arrangements, the underwriters or agents also may sell securities covered by this prospectus to hedge their positions in any such outstanding securities, including in short sale transactions. If so, the underwriters or agents may use the securities received from us under those arrangements to close out any related open borrowings of securities. We may loan or pledge securities to a financial institution or other third party that in turn may sell the loaned securities or, in any event of default in the case of a pledge, sell the pledged securities using this prospectus and the applicable prospectus supplement. That financial institution or third party may transfer its short position to investors in our securities or in connection with a simultaneous offering of other securities covered by this prospectus. We may solicit offers to purchase the securities covered by this prospectus directly from, and we may make sales of such securities directly to, institutional investors or others, who may be deemed to be underwriters within the meaning of the Securities Act with respect to any resale of such securities. The securities may also be offered and sold, if so indicated in a prospectus supplement, in connection with a remarketing upon their purchase, in accordance with a redemption or repayment pursuant to their terms, or otherwise, by one or more remarketing firms acting as principals for their own accounts or as agents for us. If indicated in the applicable prospectus supplement, we may sell the securities through agents from time to time. We generally expect that any agent will be acting on a “best efforts” basis for the period of its appointment. If underwriters are used in any sale of any securities, the securities may be either offered to the public through underwriting syndicates represented by managing underwriters, or directly by underwriters. Unless otherwise stated in a prospectus supplement, the obligations of the underwriters to purchase any securities will be conditioned on customary closing conditions, and the underwriters will be obligated to purchase all of that series of securities, if any are purchased. Underwriters, dealers, agents, and remarketing firms may at the time of any offering of securities be entitled under agreements entered into with us to indemnification by us against certain civil liabilities, including liabilities under the Securities Act, or to contribution with respect to payments that the underwriters, dealers, agents, and remarketing firms may be required to make. Underwriters, dealers, agents, and remarketing agents may be customers of, engage in transactions with, or perform services in the ordinary course of business for us and/or our affiliates. Any underwriters to whom securities covered by this prospectus are sold by us for public offering and sale, if any, may make a market in the securities, but those underwriters will not be obligated to do so and may discontinue any market making at any time without notice.
Appears in 1 contract
Samples: Dealer Manager Agreement
Description of Units. Below is a description of certain general terms and provisions of the units that we may offer. Particular terms of the units will be described in the applicable unit agreements and the applicable prospectus supplement for the units. We urge you to read the applicable prospectus supplements related to the units that we sell under this prospectus, as well as the complete unit agreements that contain the terms of the units. We may issueissue units comprised of our common stock, our preferred stock, debt securities, warrants, rights, purchase contracts, or any combination of such securities under this prospectus. Units may be issued in one or more series, units comprised of independently or together with shares of our common stock or preferred stock, warrants to purchase common stock or our preferred stock, debt securities securities, warrants, rights or purchase contracts, and the units may be attached to or separate from such securities. We may issue units directly or under a unit agreement to be entered into between us and a unit agent. We will name any combination unit agent in the applicable prospectus supplement. Any unit agent will act solely as our agent in connection with the units of those securitiesa particular series and will not assume any obligation or relationship of agency or trust for or with any holders or beneficial owners of units. Each unit will be issued so that the holder of the unit is also the holder of each security included in the unit. Thus, the holder of a unit will have the rights and obligations of a holder of each included security. We may evidence units by unit certificates that we issue under a separate agreement. We may issue the units under a unit agreement between us and one or more unit agents. If we elect to enter into a unit agreement with a unit agent, the unit agent will act solely as our agent in connection with the units and will not assume any obligation or relationship of agency or trust for or with any registered holders of units or beneficial owners of units. We will indicate the name and address and other information regarding the unit agent in the applicable prospectus supplement relating to a particular series of units if we elect to use a unit agent. We will describe in the applicable prospectus supplement the terms of the series of units being offeredunits, includingincluding the following: (i) ● the designation and terms of the units and of the securities comprising the units, including whether and under what circumstances those securities may be held or transferred separately; (ii) ● the price or prices at which the units will be issued; ● the date, if any, on and after which the securities included in the units will be separately transferable; ● any provisions of the governing unit agreement that differ from those described hereinin this section; and (iii) ● any provisions for the issuance, payment, settlement, transfer transfer, or exchange of the units or of the securities comprising the units. The other provisions regarding our common stock, preferred stock, warrants and debt securities as described in this section will apply to each unit to the extent such unit consists of shares of our common stock, preferred stock, warrants and/or debt securities. We may sell the securities covered being offered by this prospectus in one separately or more of the following ways from time to timetogether: · to or through underwriters or dealers for resale to the purchasers; · ● directly to purchasers; · ● through agents agents; ● to or dealers through underwriters; ● through dealers; ● in “at-the-market” offerings (as defined in Rule 415 under the Securities Act); ● through a block trade in which the broker or dealer engaged to handle the purchasersblock trade will attempt to sell the securities as agent, but may position and resell a portion of the block as principal to facilitate the transaction; or · ● through a combination of any of these methods of sale; or ● through any other method permitted by applicable law and described in a prospectus supplement. In addition, we may enter into derivative or other hedging transactions with third parties, or sell issue the securities not covered being offered by this prospectus to third parties in privately negotiated transactionsas a dividend or distribution. The applicable prospectus supplement We may indicate that third parties may sell securities covered by this prospectus and effect the prospectus supplement, including in short sale transactions, in connection with those derivatives. If so, the third party may use securities we pledge or that are borrowed from us or others to settle those sales or to close out any related open borrowings of stock, and may use securities received from us in settlement of those derivatives to close out any related open borrowings of stock. The third party in those sale transactions will be an underwriter and, if applicable, will be identified in the prospectus supplement (or a post-effective amendment thereto). A prospectus supplement with respect to each series of securities will include, to the extent applicable: · the terms of the offering; · the name or names of any underwriters, dealers, remarketing firms, or agents and the terms of any agreement with those parties, including the compensation, fees, or commissions received by, and the amount of securities underwritten, purchased, or remarketed by, each of them, if any; · the public offering price or purchase price distribution of the securities and an estimate of the net proceeds to be received by us from any such sale, as applicable; · any underwriting discounts or agency fees and other items constituting underwriters’ or agents’ compensation; · the anticipated delivery date of the securities, including any delayed delivery arrangements, and any commissions we may pay for solicitation of any such delayed delivery contracts; · that the securities are being solicited and offered directly to institutional investors or others; · any discounts or concessions to be allowed or reallowed or to be paid to agents or dealers; and · any securities exchange on which the securities may be listed. Any offer and sale of the securities described in this prospectus by us, any underwriters, or other third parties described above may be effected from time to time in one or more transactions, including, without limitation, privately negotiated transactions, either: · ● at a fixed public offering price or prices, which may be changedchanged from time to time; · ● at market prices prevailing at the time times of sale; · ● at prices related to prevailing market prices at the time of saleprices; or · ● at negotiated prices. Offerings of securities covered by this prospectus also For example, we may be made engage in at-the-market offerings into an existing trading market for those in accordance with Rule 415(a)(4) under the Securities Act. We may also sell securities in transactions at through a rights offering, forward contracts or similar arrangements. In any distribution of subscription rights to stockholders, if all of the underlying securities are not subscribed for, we may then sell the unsubscribed securities directly to third parties or may engage the services of one or more underwriters, dealers or agents, including standby underwriters, to sell the unsubscribed securities to third parties. The securities issued and sold under this prospectus will have no established trading market, other than our common stock, which is listed on The Nasdaq Capital Market. Any shares of our common stock sold pursuant to this prospectus will be eligible for listing and trading on The Nasdaq Capital Market, subject to official notice of issuance. Any underwriters to whom securities are sold by us for public offering and sale may make a fixed pricemarket in the securities, either: · but the underwriters will not be obligated to do so and may discontinue any market making at any time without notice. The securities, other than our common stock, may or may not be listed on or through the facilities of the NASDAQ Capital Market or any other a national securities exchange or quotation other trading market. We will set forth in a prospectus supplement: ● the terms of any underwriting or trading service on other agreement that we reach relating to sales under this prospectus; ● the method of distribution of the securities; ● the names of any agents, underwriters or dealers, including any managing underwriters, used in the offering of securities; ● the terms of any direct sales, including the terms of any bidding or auction process, or the terms of any other transactions; ● any delayed delivery obligations to take the securities; ● the compensation payable to agents, underwriters and dealers, which those securities may be listedin the form of discounts, quotedconcessions or commissions; ● any activities that may be undertaken by agents, underwriters and dealers to stabilize, maintain or traded at otherwise affect the time of sale; and/or · to or through a market maker otherwise than on the NASDAQ Capital Market or those other securities exchanges or quotation or trading services. Those at-the-market offerings, if any, will be conducted by underwriters acting as our principal or agent, who may also be third-party sellers of securities as described above. In addition, we may sell some or all price of the securities covered by this prospectus through: · purchases by a dealer, as principal, who may then resell those securities securities; and ● any indemnification and contribution obligations owing to the public for its account at varying prices determined by the dealer at the time of resale or at a fixed price agreed to with us at the time of sale; · block trades in which a dealer will attempt to sell as agent, but may position or resell a portion of the block as principal in order to facilitate the transaction; and/or · ordinary brokerage transactions and transactions in which a broker-dealer solicits purchasers. Any dealer may be deemed to be an underwriter, as that term is defined in the Securities Act of 1933 of the securities so offered and sold. In connection with offerings made through underwriters or agents, we may enter into agreements with those underwriters or agents pursuant to which we receive our outstanding securities in consideration for the securities being offered to the public for cash. In connection with these arrangements, the underwriters or agents also may sell securities covered by this prospectus to hedge their positions in any such outstanding securities, including in short sale transactionsand dealers. If so, the underwriters or agents may use the securities received from us under those arrangements we sell directly to close out any related open borrowings of securities. We may loan or pledge securities to a financial institution or other third party that in turn may sell the loaned securities or, in any event of default in the case of a pledge, sell the pledged securities using this prospectus and the applicable prospectus supplement. That financial institution or third party may transfer its short position to investors in our securities or in connection with a simultaneous offering of other securities covered by this prospectus. We may solicit offers to purchase the securities covered by this prospectus directly from, and we may make sales of such securities directly to, institutional investors or others, who they may be deemed to be underwriters within the meaning of the Securities Act with respect to any resale of such the securities. The securities may also be offered and sold, if so Unless otherwise indicated in a prospectus supplement, in connection with a remarketing upon their purchaseif we sell through an agent, in accordance with a redemption or repayment pursuant to their terms, or otherwise, by one or more remarketing firms acting as principals for their own accounts or as agents for us. If indicated in the applicable prospectus supplement, we may sell the securities through agents from time to time. We generally expect that any such agent will be acting on a “best efforts” efforts basis for the period of its appointment. Any agent may be deemed to be an “underwriter” of the securities as that term is defined in the Securities Act. If underwriters are a dealer is used in any the sale of any the securities, we or an underwriter will sell securities to the dealer, as principal. The dealer may resell the securities may be either offered to the public through underwriting syndicates represented at varying prices to be determined by managing underwriters, or directly by underwriters. Unless otherwise stated in a prospectus supplement, the obligations of the underwriters to purchase any securities will be conditioned on customary closing conditions, and the underwriters will be obligated to purchase all of that series of securities, if any are purchased. Underwriters, dealers, agents, and remarketing firms may dealer at the time of any offering of securities be entitled under agreements entered into resale. To the extent permitted by and in accordance with us to indemnification by us against certain civil liabilities, including liabilities Regulation M under the Securities Exchange Act, in connection with an offering an underwriter may engage in over-allotments, stabilizing transactions, short covering transactions and penalty bids. Over-allotments involve sales in excess of the offering size, which creates a short position. Stabilizing transactions permit bids to purchase the underlying security so long as the stabilizing bids do not exceed a specified maximum. Short covering transactions involve purchases of the securities in the open market after the distribution is completed to cover short positions. Penalty bids permit the underwriters to reclaim a selling concession from a dealer when the securities originally sold by the dealer are purchased in a covering transaction to cover short positions. Those activities may cause the price of the securities to be higher than it would be otherwise. If commenced, the underwriters may discontinue any of the activities at any time. To the extent permitted by and in accordance with Regulation M under the Exchange Act, any underwriters who are qualified market makers on The Nasdaq Capital Market may engage in passive market making transactions in the securities on The Nasdaq Capital Market during the business day prior to the pricing of an offering, before the commencement of offers or to contribution sales of the securities. Passive market makers must comply with applicable volume and price limitations and must be identified as passive market makers. In general, a passive market maker must display its bid at a price not in excess of the highest independent bid for such security; if all independent bids are lowered below the passive market maker’s bid, however, the passive market maker’s bid must then be lowered when certain purchase limits are exceeded. The specific terms of any lock-up provisions in respect to payments that of any given offering will be described in the applicable prospectus supplement. The underwriters, dealers, agents, dealers and remarketing firms may be required to make. Underwriters, dealers, agents, and remarketing agents may be customers of, engage in transactions withwith us, or perform services for us, in the ordinary course of business for us and/or our affiliateswhich they receive compensation. Any underwriters to whom No securities covered by may be sold under this prospectus are sold by us for public offering without delivery, in paper format or in electronic format, or both, of the applicable prospectus supplement describing the method and sale, if any, may make a market in terms of the securities, but those underwriters will not be obligated to do so and may discontinue any market making at any time without noticeoffering.
Appears in 1 contract
Description of Units. We may issueissue units comprised of common stock, preferred stock, warrants, or any combination thereof. Units may be issued in one or more series, units comprised of shares of our independently or together with common stock, preferred stock or preferred stockwarrants, warrants and the units may be attached to purchase common stock or preferred stockseparate from such securities. We may issue units directly or under a unit agreement to be entered into between us and a unit agent. We will name any unit agent in the applicable prospectus supplement. Any unit agent will act solely as our agent in connection with the units of a particular series and will not assume any obligation or relationship of agency or trust for or with any holders or beneficial owners of units. Below is a description of certain general terms and provisions of the units that we may offer. Particular terms of the units will be described in the applicable unit agreements and the applicable prospectus supplement for the units. We urge you to read the applicable prospectus supplements related to the units that we sell under this prospectus, debt securities or any combination as well as the complete unit agreements that contain the terms of those securitiesthe units. Each unit will be issued so that the holder of the unit is also the holder of each security included in the unit. Thus, the holder of a unit will have the rights and obligations of a holder of each included security. We The unit agreement under which a unit is issued may evidence units by provide that the securities included in the unit certificates that we issue under may not be held or transferred separately, at any time, or at any time before a separate agreementspecified date. We may issue units in such amounts and in such numerous distinct series as we determine. We will incorporate by reference into the registration statement of which this prospectus is a part the form of unit agreement, including a form of unit certificate, if any, that describes the terms of the series of units under a unit agreement between us and one or more unit agentswe are offering before the issuance of the related series of units. If we elect to enter into a unit agreement with a unit agent, the unit agent will act solely as our agent in connection with The following summaries of material provisions of the units and will not assume any obligation or relationship of agency or trust for or with any registered holders of units or beneficial owners of units. We will indicate the name and address and other information regarding the unit agent agreements are subject to, and qualified in their entirety by reference to, all the provisions of the unit agreement applicable prospectus supplement relating to a particular series of units if we elect units. The provisions described in this section, as well as those described under “Description of Capital Stock” and “Description of Warrants” will apply to use a each unit agentand to any common stock, preferred stock or warrant included in each unit, respectively. We will describe in the applicable prospectus supplement the terms of the series of units being offeredunits, includingincluding the following: (i) • the designation and terms of the units and of the securities comprising the units, including whether and under what circumstances those securities may be held or transferred separately; (ii) • any provisions of the governing unit agreement that differ from those described hereinin this section; and (iii) • any provisions for the issuance, payment, settlement, transfer transfer, or exchange of the units or of the securities comprising the units. The other provisions regarding our common stock, preferred stock, warrants and debt securities as described in this section will apply to each unit to the extent such unit consists of shares of our common stock, preferred stock, warrants and/or debt securities. We may sell the securities covered by this prospectus in one or more of the following ways from time to time: · to or through underwriters or dealers for resale to the purchasers; · directly to purchasers; · through agents or dealers to the purchasers; or · through a combination of any of these methods of sale. In addition, we may enter into derivative or other hedging transactions with third parties, or sell securities not covered by this prospectus to third parties in privately negotiated transactions. The applicable accompanying prospectus supplement may indicate that third parties may sell securities covered by this prospectus and will describe the prospectus supplement, including manner in short sale transactions, in connection with those derivatives. If so, the third party may use securities we pledge or that are borrowed from us or others to settle those sales or to close out any related open borrowings of stock, and may use securities received from us in settlement of those derivatives to close out any related open borrowings of stock. The third party in those sale transactions will be an underwriter and, if applicable, will be identified in the prospectus supplement (or a post-effective amendment thereto). A prospectus supplement with respect to each series of securities will include, to the extent applicable: · the terms of the offering; · the name or names of any underwriters, dealers, remarketing firms, or agents and the terms of any agreement with those parties, including the compensation, fees, or commissions received by, and the amount of securities underwritten, purchased, or remarketed by, each of them, if any; · the public offering price or purchase price of the securities and an estimate of the net proceeds to be received by us from any such sale, as applicable; · any underwriting discounts or agency fees and other items constituting underwriters’ or agents’ compensation; · the anticipated delivery date of the securities, including any delayed delivery arrangements, and any commissions we may pay for solicitation of any such delayed delivery contracts; · that the securities are being solicited and offered directly to institutional investors or others; · any discounts or concessions to be allowed or reallowed or to be paid to agents or dealers; and · any securities exchange on which the securities may be listed. Any offer and sale of the securities described in this prospectus by us, any underwriters, or other third parties described above may be effected from time to time in one or more transactions, including, without limitation, privately negotiated transactions, either: · at a fixed public offering price or prices, which may be changed; · at market prices prevailing at the time of sale; · at prices related to prevailing market prices at the time of sale; or · at negotiated prices. Offerings of securities covered by this prospectus also may be made into an existing trading market for those securities in transactions at other than a fixed price, either: · on or through the facilities of the NASDAQ Capital Market or any other securities exchange or quotation or trading service on which those securities may be listed, quoted, or traded at the time of sale; and/or · to or through a market maker otherwise than on the NASDAQ Capital Market or those other securities exchanges or quotation or trading services. Those at-the-market offerings, if any, offered thereby will be conducted by underwriters acting as our principal or agent, who may also be third-party sellers of securities as described above. In addition, we may sell some or all of the securities covered by this prospectus through: · purchases by a dealer, as principal, who may then resell those securities to the public for its account at varying prices determined by the dealer at the time of resale or at a fixed price agreed to with us at the time of sale; · block trades in which a dealer will attempt to sell as agent, but may position or resell a portion of the block as principal in order to facilitate the transaction; and/or · ordinary brokerage transactions and transactions in which a broker-dealer solicits purchasers. Any dealer may be deemed to be an underwriter, as that term is defined in the Securities Act of 1933 of the securities so offered and sold. In connection with offerings made through underwriters or agents, we may enter into agreements with those underwriters or agents pursuant to which we receive our outstanding securities in consideration for the securities being offered to the public for cash. In connection with these arrangements, the underwriters or agents also may sell securities covered by this prospectus to hedge their positions in any such outstanding securities, including in short sale transactions. If so, the underwriters or agents may use the securities received from us under those arrangements to close out any related open borrowings of securities. We may loan or pledge securities to a financial institution or other third party that in turn may sell the loaned securities or, in any event of default in the case of a pledge, sell the pledged securities using this prospectus and the applicable prospectus supplement. That financial institution or third party may transfer its short position to investors in our securities or in connection with a simultaneous offering of other securities covered by this prospectus. We may solicit offers to purchase the securities covered by this prospectus directly from, and we may make sales of such securities directly to, institutional investors or others, who may be deemed to be underwriters within the meaning of the Securities Act with respect to any resale of such securities. The securities may also be offered and sold, if so indicated in a prospectus supplement, in connection with a remarketing upon their purchase, in accordance with a redemption or repayment pursuant to their terms, or otherwise, by one or more remarketing firms acting as principals for their own accounts or as agents for us. If indicated in the applicable prospectus supplement, we may sell the securities through agents from time to time. We generally expect that any agent will be acting on a “best efforts” basis for the period of its appointment. If underwriters are used in any sale of any securities, the securities may be either offered to the public through underwriting syndicates represented by managing underwriters, or directly by underwriters. Unless otherwise stated in a prospectus supplement, the obligations of the underwriters to purchase any securities will be conditioned on customary closing conditions, and the underwriters will be obligated to purchase all of that series of securities, if any are purchased. Underwriters, dealers, agents, and remarketing firms may at the time of any offering of securities be entitled under agreements entered into with us to indemnification by us against certain civil liabilities, including liabilities under the Securities Act, or to contribution with respect to payments that the underwriters, dealers, agents, and remarketing firms may be required to make. Underwriters, dealers, agents, and remarketing agents may be customers of, engage in transactions with, or perform services in the ordinary course of business for us and/or our affiliates. Any underwriters to whom securities covered by this prospectus are sold by us for public offering and sale, if any, may make a market in the securities, but those underwriters will not be obligated to do so and may discontinue any market making at any time without noticeissued.
Appears in 1 contract
Samples: Dealer Manager Agreement
