Common use of Issuance and Sale of Shares Clause in Contracts

Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through the Agent, ordinary shares (the “Placement Shares”) of the Company, $0.01 nominal value per share (the “Ordinary Shares”), up to an aggregate gross sales proceeds of $50,000,000; provided, however, that in no event shall the Company issue or sell through the Agent such number or dollar amount of Placement Shares that would (a) exceed the number or dollar amount of Ordinary Shares registered on the effective Registration Statement (defined below) pursuant to which the offering is being made, (b) exceed the number of authorized but unissued Ordinary Shares (less Ordinary Shares issuable upon exercise, conversion or exchange of any outstanding securities of the Company or otherwise reserved from the Company’s authorized share capital), (c) exceed the number or dollar amount of Ordinary Shares permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable) or (d) exceed the number or dollar amount of Ordinary Shares for which the Company has filed a Prospectus Supplement (defined below) (the lesser of (a), (b), (c) and (d), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on the amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the Agent shall have no obligation in connection with such compliance. The offer and sale of Placement Shares through the Agent will be effected pursuant to the Registration Statement (as defined below) filed by the Company and declared effective by the Securities and Exchange Commission (the “Commission”) on August 10, 2017, although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue Ordinary Shares. The Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) and the rules and regulations thereunder (the “Securities Act Regulations”), with the Commission a registration statement on Form S-3 (File No. 333-219567), including a base prospectus relating to certain securities, including the Placement Shares to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (collectively, the “Exchange Act”). The Company has prepared a prospectus supplement to the base prospectus included as part of the registration statement, which prospectus supplement relates to the Placement Shares to be issued from time to time by the Company (the “Prospectus Supplement”). The Company will furnish to the Agent, for use by the Agent, copies of the prospectus included as part of such registration statement, as supplemented by the Prospectus Supplement relating to the Placement Shares to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement Shares. Except where the context otherwise requires, such registration statement(s), including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act Regulations, is herein called the “Registration Statement.” The base prospectus or base prospectuses, including all documents incorporated therein by reference, included in the Registration Statement, as it may be supplemented, if necessary, by the Prospectus Supplement, in the form in which such prospectus or prospectuses and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act Regulations, together with the then issued Issuer Free Writing Prospectus(es) (defined below), is herein called the “Prospectus.” Any reference herein to the Registration Statement, any Prospectus Supplement, Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the documents, if any, incorporated by reference therein. Any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act on or after the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference. For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval system or any successor thereto (collectively, “XXXXX”).

Appears in 1 contract

Samples: Nabriva Therapeutics PLC

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Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell to or through the Agent, ordinary as sales agent or principal, shares of common stock (the “Placement Shares”) of the Company, par value $0.01 nominal value 0.0001 per share (the “Ordinary SharesCommon Stock”), up to an aggregate gross sales proceeds of $50,000,000; provided, however, that in no event shall the Company issue or sell through the Agent such number or dollar amount of Placement Shares that would (a) exceed the number or dollar amount of Ordinary Shares shares of Common Stock registered on the effective Registration Statement (defined below) pursuant to which the offering is being made, (b) exceed the number of authorized but unissued Ordinary Shares shares of Common Stock (less Ordinary Shares shares of Common Stock issuable upon exercise, conversion or exchange of any outstanding securities of the Company or otherwise reserved from the Company’s authorized share capitalcapital stock), (c) exceed the number or dollar amount of Ordinary Shares shares of Common Stock permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable) or (d) exceed the number or dollar amount of Ordinary Shares shares of Common Stock for which the Company has filed a Prospectus Supplement (defined below) (the lesser of (a), (b), (c) and (d), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on the amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the Agent shall have no obligation in connection with such compliance. The offer and sale of Placement Shares through the Agent will be effected pursuant to the Registration Statement (as defined below) filed by the Company and declared effective by the Securities and Exchange Commission (the “Commission”) on August 10April 21, 20172023, although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue Ordinary SharesCommon Stock. The Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) ), and the rules and regulations thereunder (the “Securities Act Regulations”), with the Commission a registration statement on Form S-3 S- 3 (File No. 333-219567271230), including a base prospectus prospectus, relating to certain securities, including the Placement Shares to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (collectively, the “Exchange Act”). The Company has prepared a prospectus supplement to the base prospectus included as part of the registration statement, which prospectus supplement relates to the Placement Shares to be issued from time to time by the Company (the “Prospectus Supplement”). The Company will furnish to the Agent, for use by the Agent, copies of the prospectus included as part of such registration statement, as supplemented by the Prospectus Supplement relating to the Placement Shares to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement Shares. Except where the context otherwise requires, such registration statement(s), including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act Regulations, is herein called the “Registration Statement.” The base prospectus or base prospectuses, including all documents incorporated therein by reference, included in the Registration Statement, as it may be supplemented, if necessary, by the Prospectus Supplement, in the form in which such prospectus or prospectuses and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act Regulations, together with the then issued Issuer Free Writing Prospectus(es) (defined below), is herein called the “Prospectus.” Any reference herein to the Registration Statement, any Prospectus Supplement, Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the documents, if any, incorporated by reference therein. Any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act on or after the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference. For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval system or any successor thereto (collectively, “XXXXX”).

Appears in 1 contract

Samples: BigBear.ai Holdings, Inc.

Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through the Designated Agent, ordinary shares of common stock of the Company, par value $0.01 per share (the “Common Stock”) having an aggregate gross sales price of up to $160,000,000 (the “Placement Shares”) of the Company, $0.01 nominal value per share (the “Ordinary Shares”), up to an aggregate gross sales proceeds of $50,000,000; provided, however, that in no event shall the Company issue or sell through the Agent Agents such number or dollar amount of Placement Shares that would (a) exceed the number or dollar amount of Ordinary Shares shares of Common Stock registered on the effective Registration Statement (defined below) pursuant to which the offering is being made, (b) exceed the number of authorized but unissued Ordinary Shares shares of Common Stock (less Ordinary Shares shares of Common Stock issuable upon exercise, conversion or exchange of any outstanding securities of the Company or otherwise reserved from the Company’s authorized share capitalcapital stock), (c) exceed the number or dollar amount of Ordinary Shares shares of Common Stock permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable) or (d) exceed the number or dollar amount of Ordinary Shares shares of Common Stock for which the Company has filed a Prospectus Supplement (defined below) (the lesser of (a), (b), (c) and (d), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on the amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the Agent Agents shall have no obligation in connection with such compliance. The offer and sale of Placement Shares through the Designated Agent will be effected pursuant to the Registration Statement (as defined below) filed by the Company and which was declared effective by the Securities and Exchange Commission (the “Commission”) automatically upon filing on August 10March 22, 20172021, although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue Ordinary SharesCommon Stock. The Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) and the rules and regulations thereunder (the “Securities Act Regulations”), with the Commission a registration statement on Form S-3 (File No. 333-219567254550), including a base prospectus prospectus, relating to certain securities, including the Placement Shares to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amendedamended (the “Exchange Act”), and the rules and regulations thereunder (collectively, the “Exchange Act”)thereunder. The Company has prepared a prospectus or a prospectus supplement to the base prospectus included as part of the registration statement, which prospectus or prospectus supplement relates to the Placement Shares to be issued from time to time by the Company (the “Prospectus Supplement”). The Company will furnish to the each Agent, for use by the such Agent, copies of the prospectus included as part of such registration statement, as supplemented supplemented, by the Prospectus Supplement Supplement, relating to the Placement Shares to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement Shares. Except where the context otherwise requires, such registration statement(s), including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act Regulations, is herein called the “Registration Statement.” The base prospectus or base prospectuses, including all documents incorporated therein by reference, included in the Registration Statement, as it may be supplemented, if necessary, by the Prospectus Supplement, in the form in which such prospectus or prospectuses and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act Regulations, together with the then issued Issuer Free Writing Prospectus(es) (defined below), is herein called the “Prospectus.” Any reference herein to the Registration Statement, any Prospectus Supplement, Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the documents, if any, incorporated by reference thereintherein (the “Incorporated Documents”), including, unless the context otherwise requires, the documents, if any, filed as exhibits to such Incorporated Documents. Any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act on or after the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference. For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval system, or if applicable, the Interactive Data Electronic Application system or any successor thereto when used by the Commission (collectively, “XXXXX”).

Appears in 1 contract

Samples: Ocugen, Inc.

Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through the Agent, ordinary up to $8,350,000 shares of common stock (the shares to be offered and sold hereunder being referred to as the “Placement Shares”) of the Company, par value $0.01 nominal value 0.001 per share (the “Ordinary SharesCommon Stock”), up to an aggregate gross sales proceeds of $50,000,000; provided, however, that in no event shall the Company issue or sell through the Agent such number or dollar amount of Placement Shares that would (a) exceed the number or dollar amount of Ordinary Shares shares of Common Stock registered on the effective Registration Statement (defined below) pursuant to which the offering is being made, (b) exceed the number of authorized but unissued Ordinary Shares (less Ordinary Shares issuable upon exercise, conversion or exchange shares of any outstanding securities of the Company or otherwise reserved from the Company’s authorized share capital)Common Stock, (c) exceed the number or dollar amount of Ordinary Shares shares of Common Stock permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable) or (d) exceed the number or dollar amount of Ordinary Shares Common Stock for which the Company has filed a Prospectus Supplement (defined below) (the lesser of (a), (b), (c) and (d), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on the amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the Agent shall have no obligation in connection with such compliance. The offer issuance and sale of Placement Shares through the Agent will be effected pursuant to the Registration Statement (as defined below) filed by the Company and declared effective by the Securities and Exchange Commission (the “Commission”) on August 10April 22, 20172013, although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue Ordinary Placement Shares. The Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) and the rules and regulations thereunder (the “Securities Act RegulationsAct”), with the Commission a registration statement on Form S-3 (File No. 333-219567187801), including a base prospectus prospectus, relating to certain securities, including the Placement Shares to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amendedamended (the “Exchange Act”), and the rules and regulations thereunder (collectively, the “Exchange Act”)thereunder. The Company has prepared a prospectus supplement to the base prospectus included as part of the registration statement, which prospectus supplement relates to the Placement Shares to be issued from time to time by the Company (the “Prospectus Supplement”). The Company will furnish to the Agent, for use by the Agent, copies of the base prospectus included as part of such registration statement, as supplemented by the Prospectus Supplement Supplement, relating to the Placement Shares to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement Shares. Except where the context otherwise requires, such registration statement(s), including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement statement(s) pursuant to Rule 430B of the Securities Act RegulationsAct, is herein called the “Registration Statement.” The base prospectus or base prospectuses, including all documents incorporated therein by reference, included in the Registration Statement, as it may be supplemented, if necessary, supplemented by the Prospectus Supplement, in the form in which such prospectus or prospectuses and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act RegulationsAct, together with the then issued Issuer Free Writing Prospectus(es) (defined below), is herein called the “Prospectus.” Any reference herein to the Registration Statement, any Prospectus Supplement, Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the documents, if any, incorporated by reference thereintherein (the “Incorporated Documents”), including, unless the context otherwise requires, the documents, if any, filed as exhibits to such Incorporated Documents. Any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act on or after the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference. For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval System, or if applicable, the Interactive Data Electronic Application system or any successor thereto when used by the Commission (collectively, “XXXXXEXXXX”).

Appears in 1 contract

Samples: Sales Agreement (Cyclacel Pharmaceuticals, Inc.)

Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through the Agent, ordinary 800,000 shares (the “Placement Shares”) of the Company’s 10.875% Series A Cumulative Redeemable Preferred Stock, $0.01 nominal no par value per share (the “Ordinary SharesPreferred Stock”), up to an aggregate gross sales proceeds of $50,000,000; provided, provided however, that in no event shall the Company issue or sell through the Agent such number or dollar amount of Placement Shares that would (a) exceed would cause the Company to not satisfy the eligibility requirements for use of Form S-3 (including Instruction I.B.6. thereof) under the Securities Act of 1933, as amended (the “Securities Act”), (b) exceeds the number or dollar amount of Ordinary Shares shares of Preferred Stock registered on the effective Registration Statement (as defined below) pursuant to which the offering is being made, or (bc) exceed exceeds the number of authorized but unissued Ordinary Shares (less Ordinary Shares issuable upon exercise, conversion or exchange of any outstanding securities shares of the Company or otherwise reserved from the Company’s authorized share capital), (c) exceed the number or dollar amount of Ordinary Shares permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable) or (d) exceed the number or dollar amount of Ordinary Shares for which the Company has filed a Prospectus Supplement (defined below) Preferred Stock (the lesser of (a), (b), (c) and (dc), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on the amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the Agent shall have no obligation in connection with such compliance. The offer issuance and sale of Placement Shares through the Agent will be effected pursuant to the Registration Statement (as defined below) filed by the Company and declared effective by the Securities and Exchange Commission (the “Commission”) on August 10, 2017), although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement (as defined below) to issue Ordinary Placement Shares. The Company has also entered into a separate At Market Issuance Sales Agreement, dated as of even date herewith (the “Alternative Sales Agreement”), pursuant to which it may, from time to time during the term of such Alternative Sales Agreement, issue and sell through or to JMP Securities LLC (“Alternative Agent”), acting as agent and/or principal, the Placement Shares. The Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) and the rules and regulations thereunder (the “Securities Act Regulations”), with the Commission a registration 873040 statement on Form S-3 (File No. 333-219567201462), including a base prospectus prospectus, relating to certain securities, including the Placement Shares Shares, to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amendedamended (the “Exchange Act”), and the rules and regulations thereunder (collectively, the “Exchange ActAct Regulations”). The Company has prepared a prospectus supplement specifically relating to the Placement Shares (the “Prospectus Supplement”) to the base prospectus included as part of the such registration statement, which prospectus supplement relates to the Placement Shares to be issued from time to time by the Company (the “Prospectus Supplement”). The Company will furnish to the Agent, for use by the Agent, copies of the prospectus included as part of such registration statement, as supplemented by the Prospectus Supplement Supplement, relating to the Placement Shares to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement Shares. Except where the context otherwise requires, such registration statement(s)statement, including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act Regulations, is herein called the “Registration Statement.” The base prospectus or base prospectusesprospectus, including all documents incorporated or deemed incorporated therein by referencereference to the extent such information has not been superseded or modified in accordance with Rule 412 under the Securities Act (as qualified by Rule 430B(g) of the Securities Act), included in the Registration Statement, as it may be supplemented, if necessary, supplemented by the Prospectus Supplement, in the form in which such base prospectus or prospectuses and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act Regulations, together with the then issued Issuer Free Writing Prospectus(es) (defined below), is herein called the “Prospectus.” Any reference herein to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus amendment or supplement thereto shall be deemed to refer to and include the documents, if any, documents incorporated or deemed incorporated by reference therein. Any , and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement, Statement or the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing after the execution hereof of any document under with the Exchange Act on or after Commission deemed to be incorporated by reference therein (the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference“Incorporated Documents”). For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval System, or if applicable, the Interactive Data Electronic Application system or any successor thereto when used by the Commission (collectively, “XXXXX”).

Appears in 1 contract

Samples: Adcare Health Systems, Inc

Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through the Agent, ordinary shares of common stock (the “Placement Shares”) of the Company, par value $0.01 nominal value 0.001 per share (the “Ordinary SharesCommon Stock), ) up to an aggregate gross sales proceeds offering price of $50,000,00020,000,000; provided, however, that in no event shall the Company issue or sell through the Agent such number or dollar amount of Placement Shares that would (a) exceed the number or dollar amount of Ordinary Shares shares of Common Stock registered on the effective Registration Statement (defined below) pursuant to which the offering is being made, (b) exceed the number of authorized but unissued Ordinary Shares (less Ordinary Shares issuable upon exercise, conversion or exchange shares of any outstanding securities of the Company or otherwise reserved from the Company’s authorized share capital)Common Stock, (c) exceed the number or dollar amount of Ordinary Shares shares of Common Stock permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable) or (d) exceed the number or dollar amount of Ordinary Shares shares of Common Stock for which the Company has filed a Prospectus Supplement (defined below) (the lesser of (a), (b), (c) and (d), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on the amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the Agent shall have no obligation in connection with such compliance. The offer issuance and sale of Placement Shares through the Agent will be effected pursuant to the Registration Statement (as defined below) filed by the Company and declared effective by the Securities and Exchange Commission (the “Commission”) on August 10April 29, 20172019, although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue Ordinary any Placement Shares. The Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) and the rules and regulations thereunder (the “Securities Act RegulationsAct”), with the Commission a registration statement on Form S-3 (File No. 333-219567230258), including a base prospectus prospectus, relating to certain securities, including the Placement Shares to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (collectively, the “Exchange Act”). The Company has prepared a prospectus supplement to the base prospectus included as part of the registration statement, which prospectus supplement relates to the Placement Shares to be issued from time to time by the Company (the “Prospectus Supplement”). The Company will furnish to the Agent, for use by the Agent, copies of the prospectus included as part of such registration statement, as supplemented by the Prospectus Supplement Supplement, relating to the Placement Shares to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement Shares. Except where the context otherwise requires, such registration statement(s), including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act RegulationsAct, is herein called the “Registration Statement.” The base prospectus or base prospectuses, including all documents incorporated therein by reference, to the extent such information has not been superseded or modified in accordance with Rule 412 under the Securities Act (as qualified by Rule 430B(g) of the Securities Act), included in the Registration Statement, as it may be supplemented, if necessary, by the Prospectus Supplement, in the form in which such prospectus or prospectuses and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act Regulations), together with the then issued Issuer Free Writing Prospectus(es) (as defined below), is herein called the “Prospectus.” Any reference herein to the Registration Statement, any Prospectus Supplement, Prospectus or any Issuer Free Writing Prospectus (defined below) shall be deemed to refer to and include the documents, if any, incorporated by reference thereintherein (the “Incorporated Documents”), including, unless the context otherwise requires, the documents, if any, filed as exhibits to such Incorporated Documents. Any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act on or after the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference. For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval system, or if applicable, the Interactive Data Electronic Applications system or any successor thereto when used by the Commission (collectively, “XXXXX”).

Appears in 1 contract

Samples: Infinity Pharmaceuticals, Inc.

Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through the AgentAgent (defined above), ordinary shares of Class A common stock (the “Placement Shares”) of the Company, par value $0.01 nominal value 0.00001 per share (the “Ordinary SharesCommon Stock”), up to an aggregate gross sales proceeds of $50,000,000; provided, however, that in no event shall the Company issue or sell through the Agent such number or dollar amount of Placement Shares that would (a) exceed the number or dollar amount of Ordinary Shares shares of Common Stock registered on the effective Registration Statement (defined below) filed with the Securities and Exchange Commission (the “Commission”) pursuant to which the offering is being made, (b) exceed the number of authorized but unissued Ordinary Shares shares of Common Stock (less Ordinary Shares shares of Common Stock issuable upon exercise, conversion or exchange of any outstanding securities of the Company or otherwise reserved from the Company’s authorized share capitalcapital stock), (c) exceed the number or dollar amount of Ordinary Shares shares of Common Stock permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable) or (d) exceed the number or dollar amount of Ordinary Shares shares of Common Stock for which the Company has filed a Prospectus Supplement (defined below) (the lesser of (a), (b), (c) and (d), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 ‎1 on the amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the Agent shall have no obligation in connection with such compliance. The offer and sale of Placement Shares through the Agent will be effected pursuant to the Registration Statement (as defined below) filed by the Company and declared effective by the Securities and Exchange Commission (the “Commission”) on August 10, 2017, although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue Ordinary Placement Shares. The Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) and the rules and regulations thereunder (the “Securities Act Regulations”), with the Commission a registration statement on Form S-3 (File No. 333-219567267230), including a base prospectus prospectus, relating to certain securities, including the Placement Shares to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amendedamended (the “Exchange Act”), and the rules and regulations thereunder (collectively, the “Exchange Act”)thereunder. The Company has prepared a prospectus supplement to the base prospectus included as part of the registration statement, which prospectus supplement relates to the Placement Shares to be issued from time to time by the Company (the “Prospectus Supplement”). The Company will furnish to the Agent, for use by the Agent, copies of the prospectus included as part of such registration statement, as supplemented by the Prospectus Supplement Supplement, relating to the Placement Shares to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement Shares. Except where the context otherwise requires, such registration statement(s), including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act Regulations, is herein called the “Registration Statement.” The base prospectus or base prospectuses, including all documents incorporated therein by reference, included in the Registration Statement, as it may be supplemented, if necessary, by the Prospectus Supplement, in the form in which such prospectus or prospectuses and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act Regulations, together with the then issued Issuer Free Writing Prospectus(es) (defined below), is herein called the “Prospectus.” Any reference herein to the Registration Statement, any Prospectus Supplement, Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the documents, if any, incorporated by reference thereintherein (the “Incorporated Documents”), including, unless the context otherwise requires, the documents, if any, filed as exhibits to such Incorporated Documents. Any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act on or after the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference. For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval system, or if applicable, the Interactive Data Electronic Application system or any successor thereto when used by the Commission (collectively, “XXXXXEXXXX”).

Appears in 1 contract

Samples: Sales Agreement (Momentus Inc.)

Issuance and Sale of Shares. The (a) On the basis of the representations, warranties and agreements of the Company herein contained and subject to all the terms and conditions of this Sales Agreement (the “Agreement”), the Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through the Agent, ordinary Sales Agent shares of common stock (the “Placement Shares”) of the Company, par value $0.01 nominal value 0.001 per share (the “Ordinary SharesCommon Stock”), up to an aggregate gross sales proceeds of $50,000,000; provided, however, that in no event shall the Company issue or sell through the Sales Agent such number or dollar amount of Placement Shares that would exceed (ai) exceed the number or dollar amount of Ordinary Shares shares of Common Stock registered on the effective Registration Statement (as defined below) pursuant to which the offering is being made, (bii) exceed the number of authorized but unissued Ordinary Shares shares of Common Stock (less Ordinary Shares shares of Common Stock issuable upon exercise, conversion or exchange of any outstanding securities of the Company or otherwise reserved from the Company’s authorized share capitalcapital stock), (ciii) exceed the number or dollar amount of Ordinary Shares shares of Common Stock permitted to be sold by the Company under Form S-3 (including General Instruction I.B.6 I.B.6. thereof, if applicable), (iv) the number of shares of Common Stock permitted to be sold under Nasdaq rules and regulations or (dv) exceed the number or dollar amount of Ordinary Shares shares of Common Stock for which the Company has filed a Prospectus Supplement (as defined below) (the lesser of clauses (ai), (bii), (ciii) and (div), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on the number or dollar amount of Placement Shares that may be issued and sold under this Agreement shall be the sole responsibility of the Company and that the Sales Agent shall have no obligation in connection with such compliance. The offer issuance and sale of Placement Shares through the Sales Agent will be effected pursuant to the Registration Statement (as defined below) filed by the Company and declared effective by with the U.S. Securities and Exchange Commission (the “Commission”) on August 10February 4, 20172022, and which became effective on February 17, 2022, although nothing in this Agreement shall be construed as requiring the Company to use issue shares of Common Stock. Notwithstanding anything to the Registration Statement to issue Ordinary Shares. The Company has filedcontrary in this Agreement, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) and the rules and regulations thereunder (the “Securities Act Regulations”), with the Commission a registration statement on Form S-3 (File No. 333-219567), including a base prospectus relating to certain securities, including the Placement Shares to be issued from time to time by the Company, and which incorporates by reference documents parties hereto agree that the Company has filed or will file in accordance with shall have the provisions of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (collectively, the “Exchange Act”). The Company has prepared a prospectus supplement right to the base prospectus included as part of the registration statement, which prospectus supplement relates to the Placement Shares to be issued from time to time by the Company (the “Prospectus Supplement”). The Company will furnish to the Agent, for use by the Agent, copies of the prospectus included as part of such registration statement, as supplemented by the Prospectus Supplement relating to the Placement Shares to be issued from time to time by the Company. The Company may file appoint one or more additional registration statements from time sales agents to time that will contain a base prospectus issue and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to sell through the Placement Shares. Except where the context otherwise requires, Sales Agent and such registration statement(s), including all documents filed as part thereof or incorporated by reference thereinother sales agents shares of Common Stock, and including any information contained the parties hereto agree to act in good faith and to use their commercially reasonable best efforts to enter into a Prospectus (as defined below) subsequently filed with new or amended and restated Sales Agreement among the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of parties hereto and such registration statement pursuant to Rule 430B of the Securities Act Regulations, is herein called the “Registration Statement.” The base prospectus or base prospectuses, including all documents incorporated therein by reference, included in the Registration Statement, as it may be supplemented, if necessary, by the Prospectus Supplementadditional sales agent(s), in the customary and standard form in which such prospectus or prospectuses and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act Regulations, together with the then issued Issuer Free Writing Prospectus(es) (defined below), is herein called the “Prospectus.” Any reference herein to the Registration Statement, any Prospectus Supplement, Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the documents, if any, incorporated by reference therein. Any reference herein to substantially on the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act on or after the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference. For purposes of this Agreement, all references to which shall provide the Registration Statement, rights and obligations of the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis parties hereto and Retrieval system or any successor thereto (collectively, “XXXXX”such additional sales agent(s).

Appears in 1 contract

Samples: Sales Agreement (LiveOne, Inc.)

Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through the AgentAgents, ordinary acting severally, shares (the “Placement Shares”) of the Company’s common stock, par value $0.01 nominal value 0.00001 per share (the “Ordinary SharesCommon Stock), ) up to an aggregate gross sales proceeds offering price of $50,000,000; provided80,000,000, provided however, that in no event shall the Company issue or sell through the Agent Agents such number or dollar amount of Placement Shares that would (a) exceed exceeds the number or dollar amount of Ordinary Shares shares of Common Stock registered on the effective Registration Statement (as defined below) pursuant to which the offering is being made, (b) exceed exceeds the number of shares or dollar amount registered on the Prospectus (as defined below) or (c) exceeds the number of authorized but unissued Ordinary Shares (less Ordinary Shares issuable upon exercise, conversion or exchange shares of any outstanding securities of the Company or otherwise reserved from the Company’s authorized share capital), (c) exceed the number or dollar amount of Ordinary Shares permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable) or (d) exceed the number or dollar amount of Ordinary Shares for which the Company has filed a Prospectus Supplement (defined below) Common Stock (the lesser of (a), (b), (c) and (dc), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on the amount number of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the Agent Agents shall have no obligation in connection with such compliance. The offer issuance and sale of any Placement Shares sold through the Agent Agents will be effected pursuant to the Registration Statement (as defined below) filed by the Company and declared effective by the Securities and Exchange Commission (the “Commission”) on August 10, 2017, although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue Ordinary Shares). The Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) and the rules and regulations thereunder (the “Securities Act Regulations”), with the Commission a registration statement on Form S-3 (File No. 333-219567218916), (the “Current Registration Statement”), including a base prospectus prospectus, relating to certain securities, including the Placement Shares to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amendedamended (the “Exchange Act”), and the rules and regulations thereunder (collectively, the “Exchange ActAct Regulations”). The Company has prepared a prospectus supplement to the base prospectus included as part of the such registration statement, which prospectus supplement relates statement specifically relating to the Placement Shares to be issued from time to time by the Company (the “Prospectus Supplement”). The Company will furnish to the AgentAgents, for use by the AgentAgents, copies of the prospectus included as part of such registration statement, as supplemented by the Prospectus Supplement Supplement, relating to the Placement Shares to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement Shares. Except where the context otherwise requires, such registration statement(s)statement, and any post-effective amendment thereto, including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act RegulationsRegulations or any subsequent registration statement on Form S-3 filed pursuant to Rule 415(a)(6) under the Securities Act by the Company to cover any securities registered pursuant the Current Registration Statement, including any Placement Shares, as a result of the end of the three-year period described in Rule 415(a)(5) of the Securities Act, is herein called the “Registration Statement.” The base prospectus or base prospectusesprospectus, including all documents incorporated therein by reference, included in the Registration Statement, as it may be supplemented, if necessary, supplemented by the Prospectus Supplement, in the form in which such prospectus or prospectuses and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act Regulations, together with the then issued Issuer Free Writing Prospectus(es) (defined below), is herein called the “Prospectus.” Any reference herein to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus amendment or supplement thereto shall be deemed to refer to and include the documents, if any, documents incorporated by reference therein. Any , and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement, Statement or the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing after the execution hereof of any document under with the Exchange Act on or after Commission deemed to be incorporated by reference therein (the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference“Incorporated Documents”). For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval System, or if applicable, the Interactive Data Electronic Application system or any successor thereto when used by the Commission (collectively, “XXXXX”).

Appears in 1 contract

Samples: Pluristem Therapeutics Inc

Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through or to the AgentAgents, ordinary as sales agents or principals, shares of common stock (the shares to be offered and sold hereunder being referred to as the “Placement Shares”) of the Company, par value $0.01 nominal value 0.0002 per share (the “Ordinary SharesCommon Stock”), up to an aggregate gross sales proceeds of $50,000,000; provided, however, that in no event shall the Company issue or sell through or to the Agent Agents such number or dollar amount of Placement Shares that would (a) exceed the number or dollar amount of Ordinary Shares shares of Common Stock registered on the effective Registration Statement (as defined below) pursuant to which the offering is being made, (b) exceed the number of authorized but unissued Ordinary Shares (less Ordinary Shares issuable upon exercise, conversion or exchange shares of any outstanding securities of the Company or otherwise reserved from the Company’s authorized share capital)Common Stock, (c) exceed the number or dollar amount of Ordinary Shares shares of Common Stock permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable) or (d) exceed the number or dollar amount of Ordinary Shares Common Stock for which the Company has filed a Prospectus Supplement (as defined below) (the lesser of (a), (b), (c) and (d), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on the number or the dollar amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the Agent Agents shall have no obligation in connection with such compliance. The offer issuance and sale of Placement Shares through or to the Agent Agents will be effected pursuant to the Registration Statement (as defined below) filed by the Company and declared effective by the Securities and Exchange Commission (the “Commission”) on August 10May 4, 20172020, although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue Ordinary the Placement Shares. .The Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) amended, and the rules and regulations thereunder (the “Securities Act RegulationsAct”), with the Commission a registration statement on Form S-3 (File No. 333-219567237808), including a base prospectus prospectus, relating to certain securities, including the Placement Shares to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amendedamended (the “Exchange Act”), and the rules and regulations thereunder (collectively, the “Exchange Act”)thereunder. The Company has prepared a prospectus supplement to the base prospectus included as part of the registration statement, which prospectus supplement relates to the Placement Shares to be issued from time to time by the Company pursuant to this Agreement (the “Prospectus Supplement”). The Company will furnish to the AgentAgents, for use by the AgentAgents, copies of the base prospectus included as part of such registration statement, as supplemented by the Prospectus Supplement Supplement, relating to the Placement Shares to be issued from time to time by the Company. The Company may file file, if necessary, one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement Shares. Except where the context otherwise requires, such registration statement(s), and any post-effective amendment thereto, including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement statement(s) pursuant to Rule 430B of the Securities Act, or any subsequent registration statement on Form S-3 filed pursuant to Rule 415(a)(6) under the Securities Act Regulationsby the Company to cover any Placement Shares, is herein called the “Registration Statement.” The base prospectus or base prospectuses, including all documents incorporated or deemed incorporated therein by reference, included in the Registration Statement, as it may be supplemented, if necessary, supplemented by the Prospectus Supplement, in the form in which such prospectus or prospectuses and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act RegulationsAct, together with the then issued Issuer Free Writing Prospectus(es) (defined below), is herein called the “Prospectus.” Any reference herein to the Registration Statement, any Prospectus Supplement, Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the documents, if any, incorporated by reference thereintherein (the “Incorporated Documents”), including, unless the context otherwise requires, the documents, if any, filed as exhibits to such Incorporated Documents. Any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act on or after the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference. For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval System, or if applicable, the Interactive Data Electronic Application system or any successor thereto when used by the Commission (collectively, “XXXXXEXXXX”).

Appears in 1 contract

Samples: Heat Biologics, Inc.

Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through the Agent, ordinary up to $50,000,000 of shares of common stock (the “Placement Shares”) of the Company, par value $0.01 nominal value 0.001 per share (the “Ordinary SharesCommon Stock”), up to an aggregate gross sales proceeds of $50,000,000; provided, however, that in no event shall the Company issue or sell through the Agent such number or dollar amount of Placement Shares that would (a) exceed the number or dollar amount of Ordinary Shares shares of Common Stock registered on the effective Registration Statement (defined below) pursuant to which the offering is being made, made or (b) exceed the number of authorized but unissued Ordinary Shares shares of Common Stock (less Ordinary Shares issuable upon exercise, conversion or exchange of any outstanding securities of the Company or otherwise reserved from the Company’s authorized share capital), (c) exceed the number or dollar amount of Ordinary Shares permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable) or (d) exceed the number or dollar amount of Ordinary Shares for which the Company has filed a Prospectus Supplement (defined below) (the lesser of (a), (b), (c) and (d), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on the amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the Agent shall have no obligation in connection with such compliance. The offer issuance and sale of Placement Shares through the Agent will be effected pursuant to the Registration Statement (as defined below) filed by the Company and declared effective by the Securities and Exchange Commission (the “Commission”) on August 10July 20, 20172012, although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue Ordinary SharesCommon Stock. The Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) and the rules and regulations thereunder (the “Securities Act Regulations”), with the Commission a registration statement on Form S-3 (File No. 333-219567182476), including a base prospectus prospectus, relating to certain securities, including the Placement Shares to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amendedamended (the “Exchange Act”), and the rules and regulations thereunder (collectively, the “Exchange Act”)thereunder. The Company has prepared a prospectus supplement to the base prospectus included as part of the registration statement, which prospectus supplement relates to the Placement Shares to be issued from time to time by the Company (the “Prospectus Supplement”). The Company will furnish to the Agent, for use by the Agent, copies of the prospectus included as part of such registration statement, as supplemented by the Prospectus Supplement Supplement, relating to the Placement Shares to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement Shares. Except where the context otherwise requires, such registration statement(s), including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act Regulations, is herein called the “Registration Statement.” The base prospectus or base prospectuses, including all documents incorporated therein by reference, included in the Registration Statement, as it may be supplemented, if necessary, by the Prospectus Supplement, in the form in which such prospectus or prospectuses and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act Regulations, together with the then issued Issuer Free Writing Prospectus(es) (defined below), is herein called the “Prospectus.” Any reference herein to the Registration Statement, any Prospectus Supplement, Prospectus or any Issuer Free Writing Prospectus (defined below) shall be deemed to refer to and include the documents, if any, incorporated by reference thereintherein (the “Incorporated Documents”), including, unless the context otherwise requires, the documents, if any, filed as exhibits to such Incorporated Documents. Any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act on or after the most-most recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference. For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval System, or if applicable, the Interactive Data Electronic Application system or any successor thereto when used by the Commission (collectively, “XXXXX”).

Appears in 1 contract

Samples: Provectus Biopharmaceuticals, Inc.

Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through or to the Agent, as sales agent or principal, ordinary shares (the “Placement Shares”) of the Company, $par value NIS 0.01 nominal value per share (the “Ordinary Shares”), up to an aggregate gross sales proceeds of $50,000,000; provided, however, that in no event shall the Company issue or sell through or to the Agent such number or dollar amount of Placement Shares that would (a) exceed the number or dollar amount of Ordinary Shares registered on the effective Registration Statement (defined below) pursuant to which the offering is being made, (b) exceed the number of authorized but unissued Ordinary Shares (less Ordinary Shares issuable upon exercise, conversion or exchange of any outstanding securities of the Company or otherwise reserved from the Company’s authorized share capitalcapital stock), (c) exceed the number or dollar amount of Ordinary Shares permitted to be sold under Form S-3 F-3 (including General Instruction I.B.6 I.B.5 thereof, if applicable) or (d) exceed the number or dollar amount of Ordinary Shares for which the Company has filed a Prospectus Supplement (defined below) (the lesser of (a), (b), (c) and (d), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on the amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the Agent shall have no obligation in connection with such compliance. The offer and sale of Placement Shares through or to the Agent will be effected pursuant to the Registration Statement (as defined below) filed by the Company and which will be declared effective by the Securities and Exchange Commission (the “Commission”) on August 10, 2017), although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue Ordinary Placement Shares. The Company has filedfiled or will file, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) and the rules and regulations thereunder (the “Securities Act Regulations”), with the Commission a registration statement on Form S-3 (File No. 333-219567)F-3, including a base prospectus prospectus, relating to certain securities, including the Placement Shares to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amendedamended (the “Exchange Act”), and the rules and regulations thereunder (collectively, the “Exchange Act”)thereunder. The Company has prepared a prospectus or a prospectus supplement to the base prospectus included as part of the registration statement, which prospectus or prospectus supplement relates to the Placement Shares to be issued from time to time by the Company (the “Prospectus Supplement”). The Company will furnish to the Agent, for use by the Agent, copies of the prospectus included as part of such registration statement, as supplemented supplemented, by the Prospectus Supplement Supplement, relating to the Placement Shares to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement Shares. Except where the context otherwise requires, such registration statement(s), including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act Regulations, is herein called the “Registration Statement.” The base prospectus or base prospectuses, including all documents incorporated therein by reference, included in the Registration Statement, as it may be supplemented, if necessary, by the Prospectus Supplement, in the form in which such prospectus or prospectuses and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act Regulations, together with the then issued Issuer Free Writing Prospectus(es) (defined below), is herein called the “Prospectus.” Any reference herein to the Registration Statement, any Prospectus Supplement, Prospectus or any Issuer Free Writing Prospectus (defined below) shall be deemed to refer to and include the documents, if any, incorporated by reference thereintherein (the “Incorporated Documents”), including, unless the context otherwise requires, the documents, if any, filed as exhibits to such Incorporated Documents. Any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act on or after the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference. For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval system, or if applicable, the Interactive Data Electronic Application system or any successor thereto when used by the Commission (collectively, “XXXXX”).

Appears in 1 contract

Samples: Gamida Cell Ltd.

Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through or to the Agent, ordinary as sales agent or principal, shares (the “Placement Shares”) of the Company’s Common Stock, par value $0.01 nominal value per share (the “Ordinary SharesCommon Stock”), up to an aggregate gross sales proceeds of $50,000,000; provided, however, that in no event shall the Company issue or sell through the Agent such number or dollar amount of Placement Shares that would (a) exceed the number or dollar amount of Ordinary Shares shares of Common Stock registered on the currently effective Registration Statement (defined below) pursuant to which the offering is being made, (b) exceed the number of authorized but unissued Ordinary Shares shares of Common Stock (less Ordinary Shares shares of Common Stock issuable upon exercise, conversion or exchange of any outstanding securities of the Company or otherwise reserved from the Company’s authorized share capitalcapital stock), (c) exceed the number or dollar amount of Ordinary Shares shares of Common Stock permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable) or (d) exceed the number or dollar amount of Ordinary Shares shares of Common Stock for which the Company has filed a Prospectus Supplement (defined below) (the lesser of (a), (b), (c) and (d), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on the amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the Agent shall have no obligation in connection with such compliance. The offer and sale of Placement Shares through the Agent will be effected pursuant to the Registration Statement (as defined below) filed by the Company and declared effective by the Securities and Exchange Commission (the “Commission”) on August 10, 2017), although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue Ordinary Placement Shares. The Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) and the rules and regulations thereunder thereunder, with the Securities and Exchange Commission (the “Securities Act RegulationsCommission), with the Commission ) a registration statement on Form S-3 (File No. 333-219567262447), including a base prospectus prospectus, relating to certain securities, including the Placement Shares Common Stock to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the DB2/ 46767468.11 Securities Exchange Act of 1934, as amendedamended (the “Exchange Act”), and the rules and regulations thereunder (collectively, the “Exchange Act”)thereunder. The Company has prepared a prospectus or a prospectus supplement to the base prospectus included as part of the registration statement, which prospectus or prospectus supplement relates to the Placement Shares to be issued from time to time by the Company (the “Prospectus Supplement”)Company. The Company will furnish to the Agent, for use by the Agent, copies of the prospectus included as part of such registration statement, as supplemented by the Prospectus Supplement Supplement, relating to the Placement Shares to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement Shares. Except where the context otherwise requires, such registration statement(s), including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act Regulations, is herein called the “Registration Statement.” The base prospectus or base prospectuses, including all documents incorporated therein by reference, included in the Registration Statement, as it may be supplemented, if necessary, by the Prospectus Supplement, in the form in which such prospectus or prospectuses and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act Regulations, together with the then issued Issuer Free Writing Prospectus(es) (defined below), is herein called the “Prospectus.” Any reference herein to the Registration Statement, any Prospectus Supplement, Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the documents, if any, incorporated by reference therein. Any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act on or after the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference. For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval system or any successor thereto (collectively, “XXXXX”).

Appears in 1 contract

Samples: Agreement (SEACOR Marine Holdings Inc.)

Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through the AgentUnivest, ordinary acting as sales agent, shares (the “Placement Shares”) of the Company’s common stock, par value $0.01 nominal value 0.001 per share (the “Ordinary SharesCommon Stock”), up to an aggregate gross sales proceeds sale price of $50,000,0002,030,000; provided, provided however, that in no event shall the Company issue or sell through the Agent Univest such number or dollar amount of Placement Shares that would (a) exceed would cause the Company to not satisfy the eligibility requirements for use of Form S-3 (including Instruction I.B.6. thereof, if applicable), (b) exceeds the number or dollar amount of Ordinary Shares shares of Common Stock registered on the effective Registration Statement (as defined below) pursuant to which the offering is being made, made or (bc) exceed exceeds the number of authorized but unissued Ordinary Shares (less Ordinary Shares issuable upon exercise, conversion or exchange shares of any outstanding securities of the Company or otherwise reserved from the Company’s authorized share capital), (c) exceed the number or dollar amount of Ordinary Shares permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable) or (d) exceed the number or dollar amount of Ordinary Shares for which the Company has filed a Prospectus Supplement (defined below) Common Stock (the lesser of (a), (b), (c) and (dc), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on the amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the Agent Univest shall have no obligation in connection with such compliancecompliance if acting in accordance with any Placement Notice (as defined below) that has not been suspended or terminated by the Company. The offer issuance and sale of the Placement Shares through the Agent Univest will be effected pursuant to the Registration Statement (as defined below) filed by the Company and declared effective by the Securities and Exchange Commission (the “Commission”) on August 10, 2017), although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue Ordinary any Placement Shares. The Company agrees that whenever it determines to sell Placement Shares directly to Univest as principal it will enter into a separate written agreement containing the terms and conditions of each sale. The Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) ), and the rules and regulations thereunder (the “Securities Act Regulations”), with the Commission a registration statement on Form S-3 (File No. 333-219567228749), including a base prospectus prospectus, relating to certain securities, including the Placement Shares to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amendedamended (the “Exchange Act”), and the rules and regulations thereunder (collectively, thereunder. Such base prospectus in the form in which it appears in such registration statement is hereinafter called the “Exchange Act”). Base Prospectus.” The Company has prepared and will file with the Commission a prospectus supplement to the base prospectus included as part of the registration statementBase Prospectus, which prospectus supplement specifically relates to the Placement Shares to be issued from time to time by the Company (the “Prospectus Supplement”). The Company will furnish to the AgentUnivest, for use by the AgentUnivest, copies of the prospectus included as part of such registration statementBase Prospectus, as supplemented by the Prospectus Supplement relating to the Placement Shares to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement Shares. Except where the context otherwise requires, such registration statement(s)statement, including all amendments thereto and all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act Regulations, is herein called the “Registration Statement.” The base prospectus or base prospectusesBase Prospectus, including all documents incorporated therein by reference, included in the Registration Statement, as it may be supplemented, if necessary, supplemented by the Prospectus Supplement, in the form in which such prospectus or prospectuses and/or Base Prospectus and Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act Regulations, together with the then issued Issuer Free Writing Prospectus(es) (defined below), is herein called the “Prospectus.” Any reference herein to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus amendment or supplement thereto shall be deemed to refer to and include the documents, if any, documents incorporated by reference therein. Any , and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement, Statement or the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing after the execution hereof of any document under with the Exchange Act on or after Commission deemed to be incorporated by reference therein (the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference“Incorporated Documents”). For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant to on its Electronic Data Gathering Analysis and Retrieval System, or if applicable, the Interactive Data Electronic Application system or any successor thereto when used by the Commission (collectively, “XXXXXEXXXX”).

Appears in 1 contract

Samples: Houston American Energy Corp

Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through the Agent, ordinary shares of common stock of the Company, par value $0.001 per share (the “Common Stock”) up to an aggregate offering price of $40,000,000 (such shares of Common Stock issued and sold or to be issued and sold through the Agent pursuant to a Placement Notice and this Agreement, the “Placement Shares”) of the Company, $0.01 nominal value per share (the “Ordinary Shares”), up to an aggregate gross sales proceeds of $50,000,000; provided, however, that in no event shall the Company issue or sell through the Agent such number or dollar amount of Placement Shares that would (a) exceed the number or dollar amount of Ordinary Shares shares of Common Stock registered on the effective Registration Statement (defined below) pursuant to which the offering is being made, (b) exceed the number of authorized but unissued Ordinary Shares shares of Common Stock (less Ordinary Shares shares of Common Stock issuable upon exercise, conversion or exchange of any outstanding securities of the Company or otherwise reserved from the Company’s authorized share capitalcapital stock), (c) exceed the number or dollar amount of Ordinary Shares shares of Common Stock permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable) or (d) exceed the number or dollar amount of Ordinary Shares shares of Common Stock for which the Company has filed a Prospectus Supplement (defined below) (the lesser of (a), (b), (c) and (d), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on the amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the Agent shall have no obligation in connection with such compliance. The offer and sale of Placement Shares through the Agent will be effected pursuant to the Registration Statement (as defined below) filed by the Company and declared effective by the Securities and Exchange Commission (the “Commission”) on August 10December 7, 20172016, although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue Ordinary SharesCommon Stock. The Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) and the rules and regulations thereunder (collectively, the “Securities Act Regulations”), with the Commission a registration statement on Form S-3 (File No. 333-219567214500), including a base prospectus prospectus, relating to certain securities, including the Placement Shares to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amendedamended (the “Exchange Act”), and the rules and regulations thereunder (collectively, the “Exchange Act”)thereunder. The Company has prepared a prospectus or a prospectus supplement to the base prospectus included as part of the registration statement, which prospectus or prospectus supplement relates to the Placement Shares to be issued from time to time by the Company (the “Prospectus Supplement”). The Company will furnish to the Agent, for use by the Agent, copies of the prospectus included as part of such registration statement, as supplemented supplemented, by the Prospectus Supplement Supplement, relating to the Placement Shares to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement Shares. Except where the context otherwise requires, such registration statement(s), including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act Regulations, is herein called the “Registration Statement.” The base prospectus or base prospectuses, including all documents incorporated therein by reference, included in the Registration Statement, as it may be supplemented, if necessary, by the Prospectus Supplement, in the form in which such prospectus or prospectuses and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act Regulations, together with the then issued Issuer Free Writing Prospectus(es) (defined below), is herein called the “Prospectus.” Any reference herein to the Registration Statement, any Prospectus Supplement, Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the documents, if any, incorporated by reference thereintherein (the “Incorporated Documents”), including, unless the context otherwise requires, the documents, if any, filed as exhibits to such Incorporated Documents. Any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act on or after the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference. For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval system, or if applicable, the Interactive Data Electronic Application system or any successor thereto when used by the Commission (collectively, “XXXXX”).

Appears in 1 contract

Samples: Tetraphase Pharmaceuticals Inc

Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell to or through the Agent, ordinary as sales agent or principal, shares of common stock (the “Placement Shares”) of the Company, par value $0.01 nominal value 0.0001 per share (the “Ordinary SharesCommon Stock”), up to an aggregate gross sales proceeds of $50,000,000; provided, however, that in no event shall the Company issue or sell through the Agent such number or dollar amount of Placement Shares that would (a) exceed the number or dollar amount of Ordinary Shares shares of Common Stock registered on the effective Registration Statement (defined below) pursuant to which the offering is being made, (b) exceed the number of authorized but unissued Ordinary Shares shares of Common Stock (less Ordinary Shares shares of Common Stock issuable upon the exercise, conversion or exchange of any outstanding securities of the Company or otherwise reserved from the Company’s authorized share capitalcapital stock), (c) exceed the number or dollar amount of Ordinary Shares shares of Common Stock permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable) or (d) exceed the number or dollar amount of Ordinary Shares shares of Common Stock for which the Company has filed a Prospectus Supplement (defined below) (the lesser of (a), (b), (c) and (d), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on the amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the Agent shall have no obligation in connection with such compliance. The offer and sale of Placement Shares through the Agent will be effected pursuant to the Registration Statement (as defined below) filed by the Company and which will be declared effective by the Securities and Exchange Commission (the “Commission”) on August 10, 2017), although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue Ordinary SharesCommon Stock. The Company has filedfiled or will file, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) ), and the rules and regulations thereunder (the “Securities Act Regulations”), with the Commission a registration statement on Form S-3 (File No. 333-219567)S-3, including a base prospectus prospectus, relating to certain securities, including the Placement Shares Common Stock, to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amendedamended (the “Exchange Act”), and the rules and regulations thereunder (collectively, the “Exchange Act”)thereunder. The Company has prepared a prospectus supplement to the base prospectus included as part of the registration statement, which prospectus supplement relates to the Placement Shares to be issued from time to time by the Company (the “Prospectus SupplementSales Agreement Prospectus”). The Company will furnish to the Agent, for use by the Agent, copies of the prospectus included as part of such registration statement, as may be supplemented by the Prospectus Supplement any prospectus supplement relating to the Placement Shares to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement Shares. Except where the context otherwise requires, such registration statement(s), including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act Regulations, and any one or more additional effective registration statements on Form S-3 from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a “Prospectus Supplement”), with respect to the Placement Shares, is herein called the “Registration Statement.” The Sales Agreement Prospectus and any base prospectus or base prospectusesprospectuses constituting part of the Sales Agreement Prospectus, if any, including all documents incorporated therein by reference, included in the Registration Statement, as it they may be supplemented, if necessary, by the a Prospectus Supplement, in the form in which such prospectus or prospectuses and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act Regulations, together with the then issued Issuer Free Writing Prospectus(es) (as defined below), is herein called the “Prospectus.” Any reference herein to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the documents, if any, incorporated by reference thereintherein (the “Incorporated Documents”), including, unless the context otherwise requires, the documents, if any, filed as exhibits to such Incorporated Documents. Any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act on or after the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference. For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval system, or if applicable, the Interactive Data Electronic Application system or any successor thereto when used by the Commission (collectively, “XXXXX”).

Appears in 1 contract

Samples: Codexis, Inc.

Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through the Agent, ordinary shares of common stock (the “Placement Shares”) of the Company, par value $0.01 nominal value 0.0001 per share (the “Ordinary SharesCommon Stock”), up to an aggregate gross sales proceeds offering price of $50,000,000; provided, however, that in no event shall the Company issue or sell through the Agent such number or dollar amount of Placement Shares that would (a) exceed the number or dollar amount of Ordinary Shares shares of Common Stock registered on the effective Registration Statement (as defined below) pursuant to which the offering is being made, (b) exceed the number of authorized but unissued Ordinary Shares (less Ordinary Shares issuable upon exerciseshares of Common Stock, conversion or exchange of any outstanding securities of the Company or otherwise reserved from the Company’s authorized share capital), (c) exceed the number or dollar amount of Ordinary Shares permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable) or (d) exceed the number or dollar amount shares of Ordinary Shares Common Stock for which the Company has filed a Prospectus Supplement (as defined below) (the lesser of (a), (b), and (c) and (d), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on the amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the Agent shall have no obligation in connection with such compliance. The offer and sale of Placement Shares through the Agent will be effected pursuant to the Registration Statement (as defined below) filed by the Company and declared effective by the Securities and Exchange Commission (the “Commission”) on August 10February 12, 20172019, although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue Ordinary SharesCommon Stock. The Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) amended, and the rules and regulations thereunder (collectively, the “Securities Act RegulationsAct”), with the Commission a registration statement on Form S-3 (File No. 333-219567229085), including a base prospectus prospectus, relating to certain securities, including the Placement Shares Shares, to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (collectively, the “Exchange Act”). The Company has prepared a prospectus supplement to the base prospectus included as part of the registration statement, which prospectus supplement relates to the Placement Shares to be issued from time to time by the Company (the “Prospectus Supplement”). The Company will furnish to the Agent, for use by the Agent, copies of the prospectus included as part of such registration statement, as supplemented by the Prospectus Supplement Supplement, relating to the Placement Shares to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement Shares. Except where the context otherwise requires, such registration statement(s), including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement pursuant to Rule Rules 430B of or 462(b) under the Securities Act RegulationsAct, is herein called the “Registration Statement.” The base prospectus or base prospectuses, including all documents incorporated therein by reference, included in the Registration Statement, as it may be supplemented, if necessary, by the Prospectus Supplement, in the form in which such prospectus or prospectuses and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act Regulations), together with the then issued Issuer Free Writing Prospectus(es) (as defined below), is herein called the “Prospectus.” Any reference herein to the Registration Statement, any Prospectus Supplement, Prospectus the Prospectus, or any Issuer Free Writing Prospectus shall be deemed to refer to and include the documents, if any, incorporated by reference therein. Any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act on or after the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference. For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval system or any successor thereto (collectively, “XXXXX”).

Appears in 1 contract

Samples: Ocular Therapeutix, Inc

Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through the Agent, ordinary Agent shares of common stock (the “Placement Shares”) of the Company, par value $0.01 nominal value 0.001 per share (the “Ordinary SharesCommon Stock”), up to an aggregate gross sales proceeds of $50,000,000; provided, however, that in no event shall the Company issue or sell through the Agent such number or dollar amount of Placement Shares that would (a) exceed the number or dollar amount of Ordinary Shares shares of Common Stock registered on the effective Registration Statement (defined below) pursuant to which the offering is being made, (b) exceed the number of authorized but unissued Ordinary Shares (less Ordinary Shares issuable upon exercise, conversion or exchange shares of any outstanding securities of the Company or otherwise reserved from the Company’s authorized share capital)Common Stock, (c) exceed the number or dollar amount of Ordinary Shares shares of Common Stock permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable) or (d) exceed the number or dollar amount of Ordinary Shares shares of Common Stock for which the Company has filed a Prospectus Supplement (defined below) (the lesser of (a), (b), (c) and (d), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on the amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the Agent shall have no obligation in connection with such compliance. The offer issuance and sale of Placement Shares through the Agent will be effected pursuant to the Registration Statement (as defined below) filed by the Company and declared effective by the Securities and Exchange Commission (the “Commission”) on August 10February 11, 20172019, although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue Ordinary any Placement Shares. The Company has filedfiled or will file, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) ), and the rules and regulations thereunder (the “Securities Act Regulations”), with the Commission a registration statement on Form S-3 (File No. 333-219567)229045, including a base prospectus prospectus, relating to certain securities, including the Placement Shares to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amendedamended (the “Exchange Act”), and the rules and regulations thereunder (collectively, the “Exchange Act”)thereunder. The Company has prepared a prospectus or a prospectus supplement to the base prospectus included as part of the registration statement, which prospectus or prospectus supplement relates to the Placement Shares to be issued from time to time by the Company (the “Prospectus Supplement”). The Company will furnish to the Agent, for use by the Agent, copies of the prospectus included as part of such registration statement, as supplemented by the Prospectus Supplement Supplement, relating to the Placement Shares to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement Shares. Except where the context otherwise requires, such registration statement(s), including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act Regulations, is herein called the “Registration Statement.” The base prospectus or base prospectuses, including all documents incorporated therein by reference, included in the Registration Statement, as it may be supplemented, if necessary, by the Prospectus Supplement, in the form in which such prospectus or prospectuses and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act Regulations, together with the then issued Issuer Free Writing Prospectus(es) (defined below), is herein called the “Prospectus.” Any reference herein to the Registration Statement, any Prospectus Supplement, Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the documents, if any, incorporated by reference thereintherein (the “Incorporated Documents”), including, unless the context otherwise requires, the documents, if any, filed as exhibits to such Incorporated Documents. Any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act on or after the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference. For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis Gathering, Analysis, and Retrieval system, or if applicable, the Interactive Data Electronic Application system or any successor thereto when used by the Commission (collectively, “XXXXX”).

Appears in 1 contract

Samples: Sales Agreement (HTG Molecular Diagnostics, Inc)

Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through the Agent, ordinary acting as agent and/or principal, of shares (the “Placement Shares”) of the Company’s common shares of beneficial interest, par value $0.01 nominal value per share (the “Ordinary Common Shares”), ” having a maximum aggregate value of up to an aggregate gross sales proceeds of $50,000,000; provided, however, that in no event shall the Company issue or sell through the Agent such number or dollar amount of Placement Shares that would (a) exceed the number or dollar amount of Ordinary Shares registered on the effective Registration Statement (defined below) pursuant to which the offering is being made, (b) exceed the number of authorized but unissued Ordinary Shares (less Ordinary Shares issuable upon exercise, conversion or exchange of any outstanding securities of the Company or otherwise reserved from the Company’s authorized share capital), (c) exceed the number or dollar amount of Ordinary Shares permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable) or (d) exceed the number or dollar amount of Ordinary Shares for which the Company has filed a Prospectus Supplement (defined below) 100,000,000 (the lesser of (a), (b), (c) and (d), the Maximum AmountShares”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations limitation set forth in this Section 1 on the amount number of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company Company, and that the Agent shall have no obligation in connection with such compliance. The offer issuance and sale of Placement Shares through the Agent will be effected pursuant to the Registration Statement (as defined below) filed by the Company and declared effective by with the Securities and Exchange Commission (the “Commission”) which became effective upon filing with the Commission on August 10January 4, 2017, although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue Ordinary Shares. The Company agrees that whenever it determines to sell Shares directly to the Agent as principal it will enter into a separate written agreement containing the terms and conditions of such sale. The Company and the Operating Partnership have entered into sales agreements, each dated December 28, 2017, with Barclays Capital Inc., BTIG, LLC, Cantor Fitzgeraxx & Xx., Citigroup Global Markets Inc., Stifel, Xxxxxxxx & Xxxxxny, Incorporated and Wells Faxxx Xecurities, LLC and may also enter into additional sales agreements on or after the date hereof (collectively, the “Other Sales Agreements”) with additional sales agents (collectively, the “Alternative Agents”) for the issuance and sale from time to time to or through the Alternative Agents of the Shares on the terms to be set forth in the Other Sales Agreements. This Agreement and the Other Sales Agreements are collectively referred to herein as the “Sales Agreements.” The aggregate dollar amount of Shares that may be sold pursuant to the Sales Agreements shall not exceed $100,000,000; provided, however, that in no event shall the Company issue or sell through the Agent and the Alternative Agents such number of Shares that would exceed the number of authorized but unissued Common Shares. The Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) amended, and the rules and regulations thereunder (collectively, the “Securities Act RegulationsAct”), with the Commission a an automatic shelf registration statement on Form S-3 S-3ASR (File No. 333-219567215418), including a base prospectus prospectus, relating to certain securities, including the Placement Common Shares to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (collectively, the “Exchange Act”). The Company has prepared a prospectus supplement specifically relating to the Shares (the “Prospectus Supplement”) to the base prospectus included as part of the such registration statement, which prospectus supplement relates to the Placement Shares to be issued from time to time by the Company (the “Prospectus Supplement”). The Company will furnish to the Agent, for use by the Agent, copies of the prospectus included as part of such registration statement, as supplemented by the Prospectus Supplement Supplement, relating to the Placement Shares to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement Shares. Except where the context otherwise requires, such registration statement(s)statement, on each date and time that such registration statement and any post-effective amendment thereto became or becomes effective, including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act RegulationsAct, is herein called the “Registration Statement.” The base prospectus or base prospectuses, including all documents incorporated therein by reference, included in the Registration Statement, as it may be supplemented, if necessary, supplemented by the Prospectus Supplement, in the form in which such prospectus or prospectuses and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act RegulationsAct, together with the then issued Issuer any “issuer free writing prospectus” (a “Free Writing Prospectus(esProspectus”), as defined in Rule 433 of the Securities Act (“Rule 433”), relating to the Shares that (i) is required to be filed with the Commission by the Company or (defined belowii) is exempt from filing pursuant to Rule 433(d)(5)(i), in each case in the form filed or required to be filed with the Commission or, if not required to be filed, in the form retained in the Company’s records pursuant to Rule 433(g), is herein called the “Prospectus.” The Company may file one or more additional registration statements (which shall be the Registration Statement) from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be the Prospectus Supplement), with respect to the Shares. Any reference herein to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus amendment or supplement thereto shall be deemed to refer to and include the documents, if any, documents incorporated by reference therein. Any , and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement, Statement or the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing after the execution hereof of any document under with the Exchange Act on or after the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and Commission deemed to be incorporated therein by referencereference therein. For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent any copy filed with the Commission pursuant to its Electronic Data Gathering Analysis Gathering, Analysis, and Retrieval system or any successor thereto (collectively, XXXXXEDGAR”).

Appears in 1 contract

Samples: Chatham Lodging Trust

Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through the Agent, ordinary shares of common stock (the “Placement Shares”) of the Company, par value $0.01 nominal value 0.001 per share (the “Ordinary SharesCommon Stock”), up to an aggregate gross sales proceeds of $50,000,000; provided, however, that in no event shall the Company issue or sell through the Agent such number or dollar amount of Placement Shares that would (a) exceed the number or dollar amount of Ordinary Shares shares of Common Stock registered on the effective Registration Statement (defined below) pursuant to which the offering is being made, (b) exceed the number of authorized but unissued Ordinary Shares (less Ordinary Shares issuable upon exercise, conversion or exchange shares of any outstanding securities of the Company or otherwise reserved from the Company’s authorized share capital)Common Stock, (c) exceed the number or dollar amount of Ordinary Shares shares of Common Stock permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable) or (d) exceed the number or dollar amount of Ordinary Shares shares of Common Stock for which the Company has filed a Prospectus Supplement (defined below) (the lesser of (a), (b), (c) and (d), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on the amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the Agent shall have no obligation in connection with such compliance; provided the Agent follows the trading instructions provided by the Company pursuant to any Placement Notice in all material respects. The offer issuance and sale of Placement Shares through the Agent will be effected pursuant to the Registration Statement (as defined below) filed by the Company and declared effective by the Securities and Exchange Commission (the “Commission”) on August 10July 29, 20172015, although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue Ordinary SharesCommon Stock. The Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) and the rules and regulations thereunder (the “Securities Act Regulations”), with the Commission a registration statement on Form S-3 (File No. 333-219567205806), including a base prospectus prospectus, relating to certain securities, including the Placement Shares to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amendedamended (the “Exchange Act”), and the rules and regulations thereunder (collectively, the “Exchange Act”)thereunder. The Company has prepared a prospectus supplement to the base prospectus included as part of the registration statement, which prospectus supplement specifically relates to the Placement Shares to be issued from time to time by the Company (the “Prospectus Supplement”). The Company will furnish to the Agent, for use by the Agent, copies of the prospectus included as part of such registration statement, as supplemented supplemented, by the Prospectus Supplement Supplement, relating to the Placement Shares to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement Shares. Except where the context otherwise requires, such registration statement(s), including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act Regulations, is herein called the “Registration Statement.” The base prospectus or base prospectuses, including all documents incorporated therein by reference, included in the Registration Statement, as it may be supplemented, if necessary, by the Prospectus Supplement, in the form in which such prospectus or prospectuses and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act Regulations, together with the then issued Issuer Free Writing Prospectus(es) (defined below), is herein called the “Prospectus.” Any reference herein to the Registration Statement, any Prospectus Supplement, Prospectus or any Issuer Free Writing Prospectus (defined below) shall be deemed to refer to and include the documents, if any, incorporated by reference thereintherein (the “Incorporated Documents”), including, unless the context otherwise requires, the documents, if any, filed as exhibits to such Incorporated Documents. Any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act on or after the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference. For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval System, or if applicable, the Interactive Data Electronic Application system or any successor thereto when used by the Commission (collectively, “XXXXXEXXXX”).

Appears in 1 contract

Samples: Cytosorbents Corp

Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may at its sole discretion issue and sell through the Agent, up to $75,000,000 of ordinary shares (the “Placement Shares”) of the Company, par value $0.01 nominal value per share (the “Ordinary Shares”), up to an aggregate gross sales proceeds of $50,000,000; provided, however, that in no event shall the Company issue or sell through the Agent such number or dollar amount of Placement Shares that would (a) exceed the number or dollar amount of Ordinary Shares registered on pursuant to the effective Registration Statement (defined below) pursuant to which the offering is being made, (b) exceed the number of authorized but unissued Ordinary Shares (less Ordinary Shares issuable upon exercise, conversion or exchange of any outstanding securities of the Company or otherwise reserved from the Company’s authorized share capital), (c) exceed the number or dollar amount of Ordinary Shares permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable) or (d) exceed the number or dollar amount of Ordinary Shares for which the Company has filed a Prospectus Supplement (defined below) (the lesser of (a), (b), (c) and (d), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on the amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the Agent shall have no obligation in connection with such compliance. The offer and sale of Placement Shares through the Agent will be effected pursuant to the Registration Statement (as defined below) filed by the Company and declared effective by the Securities and Exchange Commission (the “Commission”) on August 10February 12, 20172020, although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue Ordinary Shares. The Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) ), and the rules and regulations thereunder (the “Securities Act Regulations”), with the Commission a registration statement on Form S-3 (File No. 333-219567236193), including a base prospectus prospectus, relating to certain securities, including the Placement Shares to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amendedamended (the “Exchange Act”), and the rules and regulations thereunder (collectively, the “Exchange Act”)thereunder. The Company has prepared a prospectus or a prospectus supplement to the base prospectus included as part of the registration statementRegistration Statement, which prospectus or prospectus supplement relates to the Placement Shares to be issued from time to time by the Company (the “Prospectus Supplement”). The Company will furnish to the Agent, for use by the Agent, copies of the prospectus included as part of such registration statementthe Registration Statement, as supplemented supplemented, by the Prospectus Supplement Supplement, relating to the Placement Shares to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement Shares. Except where the context otherwise requires, such registration statement(s), including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act Regulations, is herein called the “Registration Statement.” The base prospectus or base prospectuses, including all documents incorporated therein by reference, included in the Registration Statement, as it may be supplemented, if necessary, by the Prospectus Supplement, in the form in which such prospectus or prospectuses and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act Regulations, together with the then issued Issuer Free Writing Prospectus(es) (defined below), is herein called the “Prospectus.” Any reference herein to the Registration Statement, any Prospectus Supplement, Prospectus or any Issuer Free Writing Prospectus (defined below) shall be deemed to refer to and include the documents, if any, incorporated by reference thereintherein (the “Incorporated Documents”), including, unless the context otherwise requires, the documents, if any, filed as exhibits to such Incorporated Documents. Any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act on or after the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference. For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval system, or if applicable, the Interactive Data Electronic Application system or any successor thereto when used by the Commission (collectively, “XXXXXEXXXX”).

Appears in 1 contract

Samples: Sales Agreement (Osmotica Pharmaceuticals PLC)

Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through the Agent, up to $50,000,000 of ordinary shares (the “Placement Shares”) of the Companyshares, par value $0.01 nominal value 0.00001 per share (the “Ordinary Shares”), up to an aggregate gross sales proceeds of $50,000,000; provided, however, that in no event shall the Company issue or sell through the Agent such number of Ordinary Shares (the “Placement Shares”) or dollar amount of Placement Shares that would (a) exceed the number or dollar amount of Ordinary Shares registered on the effective Registration Statement (defined below) pursuant to which the offering is being made, (b) exceed the number of authorized but unissued Ordinary Shares (less Ordinary Shares issuable upon exercise, conversion or exchange of any outstanding securities of the Company or otherwise reserved from the Company’s authorized share capital)Shares, (c) exceed the number or dollar amount of Ordinary Shares permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable) or (d) exceed the number or dollar amount of Ordinary Shares for which the Company has filed a Prospectus Supplement (defined below) (the lesser least of (a), (b), (c) and (d), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on the amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the Agent shall have no obligation in connection with such compliance. The offer issuance and sale of Placement Shares through the Agent will be effected pursuant to the Registration Statement (as defined below) filed by the Company and which will be declared effective by the Securities and Exchange Commission (the “Commission”) on August 10, 2017), although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue Ordinary any Placement Shares. The Company has filedfiled or will file, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) and the rules and regulations thereunder (the “Securities Act Regulations”), with the Commission a registration statement on Form S-3 (File No. 333-219567)S-3, including a one or more base prospectus prospectuses, relating to certain securities, including the Placement Shares Shares, to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amendedamended (the “Exchange Act”), and the rules and regulations thereunder (collectively, the “Exchange Act”)thereunder. The Company has prepared a prospectus or a prospectus supplement to the base prospectus included as part of the registration statement, which prospectus or prospectus supplement relates to the Placement Shares to be issued from time to time by the Company (the “Prospectus Supplement”). The Company will furnish to the Agent, for use by the Agent, copies of the prospectus included as part of such registration statement, as supplemented (if necessary) by the Prospectus Supplement Supplement, relating to the Placement Shares to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement Shares. Except where the context otherwise requires, such registration statement(s), including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act Regulations, is herein called the “Registration Statement.” The base prospectus or base prospectuses, including all documents incorporated therein by reference, included in the Registration Statement, as it may be supplemented, if necessary, by the Prospectus Supplement, in the form in which such prospectus or prospectuses and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act Regulations, together with the then issued Issuer Free Writing Prospectus(es) (defined below), is herein called the “Prospectus.” Any reference herein to the Registration Statement, any Prospectus Supplement, Prospectus or any Issuer Free Writing Prospectus (defined below) shall be deemed to refer to and include the documents, if any, incorporated by reference thereintherein (the “Incorporated Documents”), including, unless the context otherwise requires, the documents, if any, filed as exhibits to such Incorporated Documents. Any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act on or after the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference. For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval System, or if applicable, the Interactive Data Electronic Application system or any successor thereto when used by the Commission (collectively, “XXXXX”).

Appears in 1 contract

Samples: Sales Agreement (Theravance Biopharma Cayman Holdings, Inc.)

Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through the AgentMLV, ordinary shares (the “Placement Shares”) of the Company’s common stock, par value $0.01 nominal value 0.001 per share (the “Ordinary SharesCommon Stock”), up to an aggregate gross sales proceeds offering price of $50,000,000; , provided, however, that in no event shall the Company issue or sell through the Agent MLV such number or dollar amount of Placement Shares that would (a) exceed would cause the Company to not satisfy the eligibility requirements for use of Form S-3, (b) exceeds the number or dollar amount of Ordinary Shares shares of Common Stock registered on the effective Registration Statement (as defined below) pursuant to which the offering is being made, made or (bc) exceed exceeds the number of authorized but unissued Ordinary Shares (less Ordinary Shares issuable upon exercise, conversion or exchange of any outstanding securities shares of the Company or otherwise reserved from the Company’s authorized share capital), (c) exceed the number or dollar amount of Ordinary Shares permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable) or (d) exceed the number or dollar amount of Ordinary Shares for which the Company has filed a Prospectus Supplement (defined below) Common Stock (the lesser of (a), (b), (c) and (dc), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on the amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the Agent MLV shall have no obligation in connection with such compliance. The offer issuance and sale of Placement Shares through the Agent MLV will be effected pursuant to the Registration Statement (as defined below) to be filed by the Company and to be declared effective by the Securities and Exchange Commission (the “Commission”) on August 10, 2017), although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue Ordinary any Placement Shares. The Company has filedshall file, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) ), and the rules and regulations thereunder (the “Securities Act Regulations”), with the Commission a registration statement on Form S-3 (File No. 333-219567)S-3, including a base prospectus relating to certain securities, including the Placement Shares to be issued from time to time by the CompanyShares, and which incorporates by reference reference, to the extent provided for under Form S-3, documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amendedamended (the “Exchange Act”), and the rules and regulations thereunder (collectivelythereunder. Following the date that such registration statement is declared effective by the Commission, the “Exchange Act”). The Company has prepared a prospectus supplement to the base prospectus included as part of the registration statement, which prospectus supplement relates to the Placement Shares to be issued from time to time by the Company (the “Prospectus Supplement”). The Company will furnish to the AgentMLV, for use by the AgentMLV, copies of the prospectus included as part of such registration statement, as supplemented by the Prospectus Supplement statement relating to the Placement Shares to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement Shares. Except where the context otherwise requires, such registration statement(s)statement, including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act Regulations, is herein called the “Registration Statement.” The base prospectus or base prospectusesrelating to the Placement Shares, including all documents incorporated therein by reference, included in the Registration Statement, as it may be supplemented, if necessary, by the Prospectus Supplementsupplemented from time to time, in the form in which such prospectus or prospectuses and/or Prospectus Supplement any prospectus supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act Regulations, together with the then issued Issuer Free Writing Prospectus(es) (defined below), Regulations is herein called the “Prospectus.” Any reference herein to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus amendment or supplement thereto shall be deemed to refer to and include the documents, if any, documents incorporated by reference therein. Any , and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement, Statement or the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing after the execution hereof of any document under with the Exchange Act on or after Commission deemed to be incorporated by reference therein (the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference“Incorporated Documents”). For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval System, or if applicable, the Interactive Data Electronic Application system or any successor thereto when used by the Commission (collectively, “XXXXX”).

Appears in 1 contract

Samples: Geron Corp

Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through or to the AgentAgents, ordinary as sales agents or principal, shares (the “Placement Shares”) of the Company’s Common Shares, par value $0.01 nominal value 0.0001 per share (the “Ordinary Common Shares”), up to an aggregate gross sales proceeds of $50,000,000; provided, provided however, that in no event shall the Company issue or sell through the Agent Agents such number of Placement Shares that (a) exceeds the number of shares or dollar amount of Placement Shares that would (a) exceed the number or dollar amount of Ordinary Common Shares registered on the effective Registration Statement (as defined below) pursuant to which the offering is being made, made or (b) exceed exceeds the number of authorized but unissued Ordinary Shares (less Ordinary Shares issuable upon exercise, conversion or exchange of any outstanding securities of the Company or otherwise reserved from the Company’s authorized share capital), (c) exceed the number shares or dollar amount of Ordinary Shares permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable) or (d) exceed the number or dollar amount of Ordinary Shares for which the Company has filed a the ATM Prospectus Supplement (as defined below) (the lesser of (a), (b), (c) and (d), b) the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on the number or dollar amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the Agent Agents shall have no obligation in connection with such compliance. The offer issuance and sale of Placement Shares through the Agent Agents will be effected pursuant to the Registration Statement (as defined below) filed by the Company and declared effective by the Securities and Exchange Commission (the “Commission”) on August 10, 2017), although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue Ordinary any Placement Shares. The Company has filedfiled or will file, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) ), and the rules and regulations thereunder (the “Securities Act Regulations”)thereunder, with the Commission Commission, a registration statement on Form S-3 (File No. 333-219567)S-3, including (a) a base prospectus relating to certain securitiessecurities (including the Common Shares) to be issued from time to time by the Company (the “Base Prospectus”), including and (b) a prospectus supplement to the Base Prospectus included as part of such registration statement (the “ATM Prospectus”) specifically relating to the offer and sale C:\Users\xxxxxxxxxx\Downloads\PANL - ATM Sales Agreement (7.2.21).docx of some or all of the Placement Shares to be issued from time to time by the CompanyCompany in a Placement (as defined below), and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amendedamended (the “Exchange Act”), and the rules and regulations thereunder (collectively, the “Exchange Act”). The Company has prepared a prospectus supplement to the base prospectus included as part of the registration statement, which prospectus supplement relates to the Placement Shares to be issued from time to time by the Company (the “Prospectus Supplement”)thereunder. The Company will furnish to the AgentAgents, for use by the AgentAgents, copies of the prospectus Base Prospectus included as part of such registration statement, as supplemented by statement and the ATM Prospectus Supplement relating to the Placement Shares to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to time that will contain a base prospectus offer and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to sale of the Placement Shares. Except where the context otherwise requires, such registration statement(s)statement, and any post-effective amendment thereto, including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act, or any subsequent registration statement on Form S-3 filed by the Company pursuant to Rule 415(a)(6) under the Securities Act Regulationsto cover the issuance and sale of any Placement Shares or any subsequent registration statement on Form S-3 filed by the Company pursuant to Rule 462(b) under the Securities Act for the issuance and sale of any Placement Shares, is herein called the “Registration Statement.” The base prospectus or base prospectusesBase Prospectus and the ATM Prospectus, including all documents incorporated or deemed incorporated therein by referencereference to the extent such information has not been superseded or modified in accordance with Rule 412 under the Securities Act (as qualified by Rule 430B(g) of the Securities Act), included in the Registration Statement, as it may be supplemented, if necessary, supplemented by the Prospectus Supplementany prospectus supplement, in the form in which such Base Prospectus, ATM Prospectus and/or prospectus or prospectuses and/or Prospectus Supplement supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act Regulations, together with the then issued Issuer Free Writing Prospectus(es) (defined below), is herein called the “Prospectus.” Any reference herein to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus amendment or supplement thereto shall be deemed to refer to and include the documents, if any, documents incorporated by reference therein. Any , and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement, Statement or the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing after the execution hereof of any document under with the Exchange Act on or after Commission incorporated by reference therein (the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference“Incorporated Documents”). For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval System, or if applicable, the Interactive Data Electronic Application system or any successor thereto when used by the Commission (collectively, “XXXXX”).

Appears in 1 contract

Samples: Pangaea Logistics Solutions Ltd.

Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through the Agent, ordinary up to $75,000,000 of shares of common stock (the “Placement Shares”) of the Company, par value $0.01 nominal value 0.001 per share (the “Ordinary SharesCommon Stock”), up to an aggregate gross sales proceeds of $50,000,000; provided, however, that in no event shall the Company issue or sell through the Agent such number or dollar amount of Placement Shares that would (a) exceed the number or dollar amount of Ordinary Shares shares of Common Stock registered on the effective Registration Statement (defined below) pursuant to which the offering is being made, (b) exceed the number of authorized but unissued Ordinary Shares (less Ordinary Shares issuable upon exercise, conversion or exchange and unreserved shares of any outstanding securities of the Company or otherwise reserved from the Company’s authorized share capital)Common Stock, (c) exceed the number or dollar amount of Ordinary Shares shares of Common Stock permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable) or (d) exceed the number or dollar amount of Ordinary Shares shares of Common Stock for which the Company has filed a Prospectus Supplement (defined below) (the lesser of (a), (b), (c) and (d), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on the amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the Agent shall have no obligation in connection with such compliance. The offer issuance and sale of Placement Shares through the Agent will be effected pursuant to the Registration Statement (as defined below) filed by the Company and which will be declared effective by the Securities and Exchange Commission (the “Commission”) on August 10, 2017), although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue Ordinary SharesCommon Stock. The Company has filedfiled or will file, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) ), and the rules and regulations thereunder (the “Securities Act Regulations”), with the Commission a registration statement on Form S-3 (File No. 333-219567)S-3, including a one or more base prospectus prospectuses, relating to certain securities, including the Placement Shares to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amendedamended (the “Exchange Act”), and the rules and regulations thereunder (collectively, the “Exchange Act”)thereunder. The Company has prepared a prospectus or prospectus supplement to the base prospectus included as part of the registration statement, which prospectus or prospectus supplement specifically relates to the Placement Shares to be issued from time to time by the Company (the “Prospectus Supplement”). The Company will furnish to the Agent, for use by the Agent, copies of the prospectus included as part of such registration statement, as supplemented supplemented, if necessary, by the Prospectus Supplement Supplement, relating to the Placement Shares to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement Shares. Except where the context otherwise requires, such registration statement(s), including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act Regulations, is herein called the “Registration Statement.” The base prospectus or base prospectuses, including all documents incorporated therein by reference, included in the Registration Statement, as it may be supplemented, if necessary, by the Prospectus Supplement, in the form in which such prospectus or prospectuses and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act Regulations, together with the then issued Issuer Free Writing Prospectus(es) (defined below), is herein called the “Prospectus.” Any reference herein to the Registration Statement, any Prospectus Supplement, Prospectus or any Issuer Free Writing Prospectus (defined below) shall be deemed to refer to and include the documents, if any, incorporated by reference thereintherein (the “Incorporated Documents”), including, unless the context otherwise requires, the documents, if any, filed as exhibits to such Incorporated Documents. Any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act on or after the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference. For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval System, or if applicable, the Interactive Data Electronic Application system or any successor thereto when used by the Commission (collectively, “XXXXX”).

Appears in 1 contract

Samples: Relypsa Inc

Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through the AgentMLV, ordinary acting as agent and/or principal, common shares (the “Placement Shares”) of the Company, $0.01 nominal value per share Company (the “Ordinary Common Shares”), up to an aggregate gross sales proceeds of $50,000,000; provided, ) provided however, that in no event shall the Company issue or sell through the Agent MLV such number or dollar amount of Placement Shares that would (a) exceed would cause the number or dollar amount Company to not satisfy the eligibility requirements for use of Ordinary Form S-3, (b) the aggregate offering price of which exceeds the maximum aggregate offering price of Common Shares registered on the effective Registration Statement (as defined below) pursuant to which the offering is being made, or (bc) exceed exceeds the number of authorized but unissued Ordinary Shares (less Ordinary Shares issuable upon exercise, conversion or exchange of any outstanding securities of the Company or otherwise reserved from the Company’s authorized share capital), (c) exceed the number or dollar amount of Ordinary Shares permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable) or (d) exceed the number or dollar amount of Ordinary Placement Shares for which the Company has filed a Prospectus Supplement (as defined below) has been filed with the United States Securities and Exchange Commission (the “Commission”) (the lesser of (a), (b), and (c) and (d), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on the amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the Agent MLV shall have no obligation in connection with such compliance, provided that MLV strictly follows the trading instructions provided pursuant to any Placement Notice (defined below). The offer issuance and sale of Placement Shares through the Agent MLV will be effected pursuant to the Registration Statement (as defined below) filed by the Company and declared effective by the Securities and Exchange Commission (the “Commission”) on August 10, 2017, although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue Ordinary Common Shares. The Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) ), and the rules and regulations promulgated thereunder (the “Securities Act Regulations”), with the Commission a registration statement on Form S-3 (File No. 333-219567172009), including a base shelf prospectus (in the form in which it has most recently been filed with the Commission on or prior to the date of this Agreement, the “Base Prospectus”), relating to certain securitiessecurities of the Company, including the Placement Common Shares to be issued as Placement Shares from time to time by the CompanyCompany pursuant to this Agreement, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amendedamended (the “Exchange Act”), and the rules and regulations promulgated thereunder (collectively, the “Exchange ActAct Regulations”). The Company has prepared or will prepare from time to time a prospectus supplement specifically relating to the Placement Shares (the “Prospectus Supplement”) to the base prospectus included as part of the such registration statement, which prospectus supplement relates to the Placement Shares to be issued from time to time by the Company (the “Prospectus Supplement”). The Company will furnish to the AgentMLV, for use by the AgentMLV, copies of the prospectus Base Prospectus included as part of such registration statementthe Registration Statement (as defined below), as supplemented by the Prospectus Supplement Supplement, relating to the Placement Shares to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement Shares. Except where the context otherwise requires, such registration statement(s)statement, including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act Regulations, is herein called the “Registration Statement.” The base prospectus or base prospectuses, including all documents incorporated therein by reference, included in the Registration Statement, Base Prospectus as it may be supplemented, if necessary, supplemented by the Prospectus Supplement, in the form in which such prospectus or prospectuses and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act Regulations, together with the then issued Issuer Free Writing Prospectus(es) (as defined below), is herein called the “Prospectus.” Any reference herein to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus amendment or supplement thereto shall be deemed to refer to and include the documents, if any, documents incorporated by reference therein. Any , and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement, Statement or the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing after the execution hereof of any document under the Exchange Act on or after the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference. For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant deemed to its Electronic Data Gathering Analysis and Retrieval system or any successor thereto be incorporated by reference therein (collectively, the XXXXXIncorporated Documents”).

Appears in 1 contract

Samples: Midway Gold Corp

Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through the AgentAgents, ordinary shares (the “Placement Shares”) of the Companyshares, $par value NIS 0.01 nominal value per share (the “Ordinary Shares”), up to an aggregate gross sales proceeds of $50,000,000the Company; provided, provided however, that in no event shall the Company issue or sell through the Agent Agents such number or dollar amount of Ordinary Shares (the “Placement Shares Shares”) that would (a) exceed exceeds the number or dollar amount of Ordinary Shares registered on pursuant to the effective Registration Statement (as defined below) pursuant to which the offering is being will be made, (b) exceed exceeds the number or dollar amount of Ordinary Shares allowed to be sold under Form F-3 (including General Instruction I.B.5. thereof, if applicable), (c) exceeds the number of authorized but unissued Ordinary Shares (less Ordinary Shares issuable upon exercise, conversion or exchange of any outstanding securities of the Company or otherwise reserved from the Company’s authorized share capital), (c) exceed the number or dollar amount of Ordinary Shares permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable) or (d) exceed exceeds the number or dollar amount of Ordinary Shares for which the Company has filed a Prospectus Supplement (defined below) (the lesser of (a), (b), (c) and (d), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on the amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the Agent Agents shall have no obligation in connection with such compliance; provided the Agents follows the trading instructions provided by the Company pursuant to any Placement Notice in all material respects. The offer issuance and sale of Placement Shares through the Agent will be effected pursuant to the Registration Statement (as defined below) filed by the Company and declared effective by the Securities and Exchange Commission (the “Commission”) on August 10April 2, 20172018, although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue any Ordinary Shares. The Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) amended, and the rules and regulations thereunder (the “Securities Act RegulationsAct”), with the Commission a registration statement on Form S-3 F-3 (File No. 333-219567223923), including a base prospectus prospectus, relating to certain securities, including the Placement Ordinary Shares to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (collectively, the “Exchange Act”). The Company has prepared a prospectus supplement to the base prospectus included as part of the registration statement, which prospectus supplement relates to the Placement Shares to be issued from time to time by the Company (the “Prospectus Supplement”). The Company will furnish to the Agent, for use by the Agent, copies of the prospectus included as part of such registration statement, as supplemented by the Prospectus Supplement Supplement, relating to the Placement Shares to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable supplement (which shall be a Prospectus Supplement), ) with respect to the Placement Shares. Except where the context otherwise requires, such registration statement(s), including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement statement(s) pursuant to Rule 430B of the Securities Act RegulationsAct, is herein called the “Registration Statement.” The base prospectus or base prospectuses, including all documents incorporated therein by reference, included in the Registration Statement, as it may be supplemented, if necessary, by the Prospectus Supplement, in the form in which such prospectus or prospectuses and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act RegulationsAct, together with the then any issued Issuer Free Writing Prospectus(es) (as defined below), is herein called the “Prospectus.” Any reference herein to the Registration Statement, any Prospectus Supplement, Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the documents, if any, incorporated by reference thereintherein (the “Incorporated Documents”), including, unless the context otherwise requires, the documents, if any, filed as exhibits to such Incorporated Documents. Any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act on or after the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference. For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval System, or if applicable, the Interactive Data Electronic Application system or any successor thereto when used by the Commission (collectively, “XXXXX”).

Appears in 1 contract

Samples: Sales Agreement (Galmed Pharmaceuticals Ltd.)

Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through the AgentAgents, ordinary shares of common stock having an aggregate gross sales price of up to $500,000,000.00 (the “Placement Shares”) of the Company, par value $0.01 nominal value 0.0001 per share (the “Ordinary SharesCommon Stock”), up to an aggregate gross sales proceeds of $50,000,000; provided, however, that in no event shall the Company issue or sell through the Agent Agents such number or dollar amount of Placement Shares that would (a) exceed the number or dollar amount of Ordinary Shares shares of Common Stock registered on the effective Registration Statement (as defined below) pursuant to which the offering is being made, (b) exceed the number of authorized but unissued Ordinary Shares shares of Common Stock (less Ordinary Shares shares of Common Stock issuable upon exercise, conversion or exchange of any outstanding securities of the Company or otherwise reserved from the Company’s authorized share capitalcapital stock), (c) exceed the number or dollar amount of Ordinary Shares shares of Common Stock permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable) or (d) exceed the number or dollar amount of Ordinary Shares shares of Common Stock for which the Company has filed a Prospectus Supplement (as defined below) (the lesser of (a), (b), (c) and (d), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on the amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the Agent Agents shall have no obligation in connection with such compliance. The offer and sale of Placement Shares through the Agent Agents will be effected pursuant to the Registration Statement (as defined below) filed by the Company and which will be declared effective by the Securities and Exchange Commission (the “Commission”) on August 10, 2017), although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement (as defined below) to issue Ordinary SharesCommon Stock. The Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) ), and the rules and regulations thereunder (the “Securities Act Regulations”), with the Commission a registration statement on Form S-3 (File No. 333-219567258428), including a base prospectus prospectus, relating to certain securities, including the Placement Shares to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amendedamended (the “Exchange Act”), and the rules and regulations thereunder (collectively, the “Exchange Act”)thereunder. The Company has prepared a prospectus or a prospectus supplement to the base prospectus included as part of the registration statement, which prospectus or prospectus supplement relates to the Placement Shares to be issued from time to time by the Company (the “Prospectus Supplement”). The Company will furnish to the AgentAgents, for use by the AgentAgents, copies of the prospectus included as part of such registration statement, as supplemented supplemented, by the Prospectus Supplement Supplement, relating to the Placement Shares to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement Shares. Except where the context otherwise requires, such registration statement(s), including all documents filed as part thereof or incorporated by reference or deemed incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act Regulations, is herein called the “Registration Statement.” The base prospectus or base prospectuses, including all documents incorporated therein by referencereference or deemed incorporated by reference therein, included in the Registration Statement, as it may be supplemented, if necessary, by the Prospectus Supplement, in the form in which such prospectus or prospectuses and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act Regulations, together with the then issued Issuer Free Writing Prospectus(es) ), if any, (as defined below), is herein called called, collectively, the “Prospectus.” Any reference herein to the Registration Statement, any Prospectus Supplement, Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the documents, if any, incorporated by reference thereinand deemed to be incorporated by reference therein (the “Incorporated Documents”), including, unless the context otherwise requires, the documents, if any, filed as exhibits to such Incorporated Documents. Any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act on or after the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference. For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval system, or if applicable, the Interactive Data Electronic Application system or any successor thereto when used by the Commission (collectively, “XXXXXEXXXX”).

Appears in 1 contract

Samples: Sales Agreement (fuboTV Inc. /FL)

Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through the AgentAgent (defined above), ordinary shares of common stock (the “Placement Shares”) of the Company, par value $0.01 nominal value 0.0001 per share (the “Ordinary SharesCommon Stock”), up to an aggregate gross sales proceeds of $50,000,000; provided, however, that in no event shall the Company issue or sell through the Agent such number or dollar amount of Placement Shares that would (a) exceed the number or dollar amount of Ordinary Shares shares of Common Stock registered on the effective Registration Statement (defined below) filed with the Securities and Exchange Commission (the “Commission”) pursuant to which the offering is being made, (b) exceed the number of authorized but unissued Ordinary Shares shares of Common Stock (less Ordinary Shares shares of Common Stock issuable upon exercise, conversion or exchange of any outstanding securities of the Company or otherwise reserved from the Company’s authorized share capitalcapital stock), (c) exceed the number or dollar amount of Ordinary Shares shares of Common Stock permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable) or (d) exceed the number or dollar amount of Ordinary Shares shares of Common Stock for which the Company has filed a Prospectus Supplement (defined below) (the lesser of (a), (b), (c) and (d), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 ‎1 on the amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the Agent shall have no obligation in connection with such compliance. The offer and sale of Placement Shares through the Agent will be effected pursuant to the Registration Statement (as defined below) filed by the Company and declared which automatically became effective by the Securities and Exchange Commission (the “Commission”) on August 10, 2017upon filing, although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue Ordinary Placement Shares. The Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) and the rules and regulations thereunder (the “Securities Act Regulations”), with the Commission a registration statement on Form S-3 (File No. 333-219567253139), including a base prospectus prospectus, relating to certain securities, including the Placement Shares to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amendedamended (the “Exchange Act”), and the rules and regulations thereunder (collectively, the “Exchange Act”)thereunder. The Company has prepared a prospectus supplement to the base prospectus included as part of the registration statement, which prospectus supplement relates to the Placement Shares to be issued from time to time by the Company (the “Prospectus Supplement”). The Company will furnish to the Agent, for use by the Agent, copies of the prospectus included as part of such registration statement, as supplemented by the Prospectus Supplement Supplement, relating to the Placement Shares to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement Shares. Except where the context otherwise requires, such registration statement(s), including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act Regulations, is herein called the “Registration Statement.” The base prospectus or base prospectuses, including all documents incorporated therein by reference, included in the Registration Statement, as it may be supplemented, if necessary, by the Prospectus Supplement, in the form in which such prospectus or prospectuses and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act Regulations, together with the then issued Issuer Free Writing Prospectus(es) (defined below), is herein called the “Prospectus.” Any reference herein to the Registration Statement, any Prospectus Supplement, Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the documents, if any, incorporated by reference thereintherein (the “Incorporated Documents”), including, unless the context otherwise requires, the documents, if any, filed as exhibits to such Incorporated Documents. Any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act on or after the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference. For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval system, or if applicable, the Interactive Data Electronic Application system or any successor thereto when used by the Commission (collectively, “XXXXXEXXXX”).

Appears in 1 contract

Samples: Sales Agreement (SITIME Corp)

Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through or to the Agent, ordinary as agent or principal, shares (the “Placement Shares”) of common stock of the Company, $0.01 nominal 0.001 par value per share (the “Ordinary SharesCommon Stock”), up to an aggregate gross sales proceeds of $50,000,000; provided, however, that in no event shall the Company issue or sell sell, through or to Agent, Placement Shares for an aggregate gross sales proceeds that would exceed (a) the Agent such number or dollar amount of Placement Shares that would (a) exceed the number or dollar amount shares of Ordinary Shares Common Stock registered on the effective Registration Statement (as defined below) pursuant to which the offering is being made), (b) exceed the number of authorized but unissued Ordinary Shares (less Ordinary Shares issuable upon exerciseshares of Common Stock, conversion or exchange of any outstanding securities of the Company or otherwise reserved from the Company’s authorized share capital), (c) exceed the number or dollar amount of Ordinary Shares shares of Common Stock permitted to be sold under Form S-3 (including General Instruction I.B.6 thereofS-3, if applicable) or (d) exceed the number or dollar amount of Ordinary Shares shares of Common Stock for which the Company has filed a Prospectus Supplement (as defined below) (the lesser least of (a), (b), (c) and (d), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on the amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the Agent shall have no obligation in connection with such compliance. The offer issuance and sale of Placement Shares through the Agent hereunder will be effected pursuant to the Registration Statement (and at no earlier time than such time as defined below) filed by the Company and Registration Statement shall have been declared effective by the Securities and Exchange Commission (the “Commission”) on August 10, 2017), although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue Ordinary any Placement Shares. The As of the date hereof, the Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) amended, and the rules and regulations thereunder (the “Securities Act RegulationsAct”), with the Commission a registration statement on Form S-3 (File No. 333-219567)S-3, including a base prospectus prospectus, relating to certain securities, including the Placement Shares to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (collectively, the “Exchange Act”). The Company has prepared a prospectus supplement to the base prospectus included as part of the registration statement, which prospectus supplement statement relates solely to the Placement Shares to be issued from time to time by the Company (the “Prospectus SupplementPlacement Prospectus”). The Company will furnish to the Agent, for use by the Agent, copies of the prospectus included as part of such registration statement, as supplemented by the Prospectus Supplement relating to the Placement Shares to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement SharesProspectus. Except where the context otherwise requires, such registration statement(s)statement, and any post-effective amendment thereto, including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B or 462(b) under the Securities Act or any subsequent registration statement on Form S-3 filed pursuant to Rule 415(a)(6) under the Securities Act by the Company to cover any Placement Shares, as a result of the end of the three-year period described in Rule 415(a)(5) of the Securities Act RegulationsAct, is herein called the “Registration Statement.” The base prospectus or base prospectusesPlacement Prospectus, including all documents incorporated therein by reference, to the extent such information has not been superseded or modified in accordance with Rule 412 under the Securities Act (as qualified by Rule 430B(g) of the Securities Act), included in the Registration Statement, as it may be supplemented, if necessary, supplemented by the Prospectus Supplement, in the form in which such one or more prospectus or prospectuses and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act Regulations, supplements together with the any then issued Issuer Free Writing Prospectus(es) Prospectus (defined below), is herein called the “Prospectus.” Any reference herein to the Registration Statement, the Prospectus or any amendment or supplement thereto shall be deemed to refer to and include the documents incorporated by reference therein, and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement or the Prospectus Supplementshall be deemed to refer to and include the filing after the execution hereof of any document with the Commission deemed to be incorporated by reference therein. Any reference herein to the Registration Statement, the Placement Prospectus, the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the documents, if any, incorporated by reference thereintherein (the “Incorporated Documents”), including, unless the context otherwise requires, the documents, if any, filed as exhibits to such Incorporated Documents. Any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplementthe Placement Prospectus, the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act on or after the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference. For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent any copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval system, or if applicable, the Interactive Data Electronic Application system or any successor thereto when used by the Commission (collectively, “XXXXX”).

Appears in 1 contract

Samples: Actinium Pharmaceuticals, Inc.

Issuance and Sale of Shares. The Company agrees parties agree that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it the Company may issue and sell through the Agent, ordinary (i) shares (the “Common Shares”) of the Company’s Class A common stock, par value $0.0001 per share (the “Common Stock”) and (ii) shares (the “Preferred Shares,” and together with the Common Shares, the Placement “Placement Shares”) of the Company, 9.75% Series A Cumulative Redeemable Preferred Stock par value $0.01 nominal value 0.0001 per share (the “Ordinary SharesPreferred Stock), up to an aggregate gross sales proceeds of $50,000,000) through the Agent; provided, provided however, that in no event shall the Company issue or and sell through the Agent such number of Placement Shares that (a) exceeds the number of shares or dollar amount of Placement Shares that would (a) exceed Common Stock and/or the number of shares or dollar amount of Ordinary Shares registered on Preferred Stock covered by the effective Registration Statement (as defined below) pursuant to which the offering is being made, made or (b) exceed exceeds the number of authorized but unissued Ordinary Shares (less Ordinary Shares issuable upon exercise, conversion or exchange of any outstanding securities of the Company or otherwise reserved from the Company’s authorized share capital), (c) exceed the number shares or dollar amount of Ordinary Shares permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable) or (d) exceed covered by the number or dollar amount of Ordinary Shares for which the Company has filed a Prospectus Supplement (as defined below) (the lesser of (a), ) or (b), (c) and (d), being the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on the amount number of Placement Common Shares and Preferred Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the Agent shall have no obligation in connection with such compliance. The offer issuance and sale of Placement Shares through the Agent will be effected affected pursuant to the Registration Statement (as defined below) filed by the Company and declared effective by the Securities and Exchange Commission (the “Commission”) on August 10, 2017), although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue Ordinary any Placement Shares. The Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) amended, and the rules and regulations thereunder (Reg No. 333-238588) (the “Securities Act RegulationsAct”), with the Securities and Exchange Commission (the “Commission”), a registration statement on Form S-3 (File No. 333-219567)S-3, including a base prospectus prospectus, relating to certain securities, including the Placement Shares to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amended, amended and the rules and regulations thereunder (collectively, the “Exchange Act”). The Company has prepared a will, if necessary, prepare one or more prospectus supplement supplements to the base prospectus included as part of the such registration statement, which prospectus supplement relates statement specifically relating to the Placement Shares to be issued from time to time by the Company (collectively, the “Prospectus Supplement”). The Company will furnish to the Agent, for use by the Agent, copies of the prospectus included as part of such registration statement, as supplemented by the Prospectus Supplement Supplement, relating to the Placement Shares to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement Shares. Except where the context otherwise requires, such registration statement(s)statement, and any post-effective amendment thereto, including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act RegulationsAct, is herein called the “Registration Statement.” The base prospectus or base prospectusesprospectus, including all documents incorporated or deemed incorporated therein by referencereference to the extent such information has not been superseded or modified in accordance with Rule 412 under the Securities Act (as qualified by Rule 430B(g) of the Securities Act), included in the Registration Statement, as it may be supplemented, if necessary, supplemented by the Prospectus Supplement, in the form in which such prospectus or prospectuses and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act Regulations, together with the then issued Issuer Free Writing Prospectus(es) (defined below), is herein called the “Prospectus.” Any reference herein to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus amendment or supplement thereto shall be deemed to refer to and include the documents, if any, documents incorporated by reference therein. Any , and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement, Statement or the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing after the execution hereof of any document under with the Exchange Act on or after Commission incorporated by reference therein (the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference“Incorporated Documents”). For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval System, or if applicable, the Interactive Data Electronic Application system or any successor thereto when used by the Commission (collectively, “XXXXXEXXXX”).

Appears in 1 contract

Samples: Chicken Soup for the Soul Entertainment, Inc.

Issuance and Sale of Shares. The Company agrees that, from time proposes to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through the Agent, ordinary as sales agent shares (the “Placement Shares”) of the Company’s common stock, par value $0.01 nominal value 0.001 per share (the “Ordinary SharesCommon Stock”), having an aggregate offering price of up to an aggregate gross sales proceeds of $50,000,000; provided, however, that in no event shall the Company issue or sell through the Agent such number or dollar amount of Placement Shares that would (a) exceed the number or dollar amount of Ordinary Shares registered 35,000,000 on the effective Registration Statement (defined below) pursuant to which the offering is being made, (b) exceed the number of authorized but unissued Ordinary Shares (less Ordinary Shares issuable upon exercise, conversion or exchange of any outstanding securities of the Company or otherwise reserved from the Company’s authorized share capital), (c) exceed the number or dollar amount of Ordinary Shares permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable) or (d) exceed the number or dollar amount of Ordinary Shares for which the Company has filed a Prospectus Supplement (defined below) (the lesser of (a), (b), (c) and (d), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations terms set forth in Section 4 of this Section 1 on the amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the Agent shall have no obligation in connection with such complianceAgreement. The offer issuance and sale of Placement Shares through the Agent will be effected pursuant to the Registration Statement (as defined below) filed by the Company and declared effective by the Securities and Exchange Commission (the “Commission”) on August 10). The Company, 2017, although nothing the Adviser and the Administrator have also entered into or may in the future enter into one or more sales agreements in substantially similar form to this Agreement (the “Sales Agreements”) dated of even date herewith, with Cantor Xxxxxxxxxx & Co. and Ladenburg Xxxxxxxx & Co. Inc. (the “Other Agents”). The aggregate offering price of Shares that may be sold collectively pursuant to this Agreement and the Sales Agreements shall be construed not exceed $35,000,000. The Company has entered into an amended and restated investment advisory and management agreement, dated as requiring of June 22, 2005 (the “Investment Advisory Agreement”), with the Adviser under the Advisers Act. The Company to use has entered into an administration agreement, dated as of June 22, 2005 (the Registration Statement to issue Ordinary Shares“Administration Agreement”), with the Administrator. The Company has filed, in accordance with pursuant to the provisions of the Securities Act of 1933, as amended (the “Securities 1933 Act”) and the rules and regulations thereunder (the “Securities Act Regulations”), with the Commission a registration statement on Form S-3 N-2 (File No. 333-219567204996), including a base prospectus relating to which registered the offer and sale of certain securities, including the Placement Shares securities to be issued from time to time by the Company, and which incorporates by reference documents that including the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, Shares. The registration statement as amended, including the exhibits and schedules thereto, at the rules time it became effective and regulations thereunder (collectively, the “Exchange Act”). The Company has prepared a prospectus supplement to the base prospectus included as part of the registration statement, which prospectus supplement relates to the Placement Shares to be issued from time to time by the Company (the “Prospectus Supplement”). The Company will furnish to the Agent, for use by the Agent, copies of the prospectus included as part of such registration statement, as supplemented by the Prospectus Supplement relating to the Placement Shares to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement Shares. Except where the context otherwise requires, such registration statement(s), including all documents filed as part thereof or incorporated by reference thereinany post-effective amendment thereto, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) 497 under the Securities 1933 Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B of 430C under the Securities 1933 Act Regulations, is herein called hereinafter referred to as the “Registration Statement.” The base Company may file one or more registration statements after the date hereof which may be referred to as the Registration Statement, only to the extent that such registration statement relates to the Common Stock offered and sold pursuant to this Agreement. The prospectus or base prospectuses, including all documents incorporated therein by reference, included in the Registration StatementStatement at the time it became or becomes effective is hereinafter referred to as the “Base Prospectus.” The Company has prepared and will file with the Commission in accordance with Rule 497 under the 1933 Act, as it may be supplemented, if necessary, by a prospectus supplement (the Prospectus Supplement, ”) supplementing the Base Prospectus in connection with offers and sales of the form in which such prospectus or prospectuses and/or Shares. The Base Prospectus and the most recent Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) 497 under the Securities 1933 Act Regulations, together with the then issued Issuer Free Writing Prospectus(es) (defined below), is herein called at each Applicable Time and each Settlement Date are hereinafter referred to collectively as the “Prospectus.” Any reference herein to the Registration Statement, any Prospectus Supplement, Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the documents, if any, incorporated by reference therein. Any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act on or after the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference. For purposes of All references in this Agreement, all references Agreement to the Registration Statement, the Prospectus or any amendments or supplements to any amendment or supplement thereto of the foregoing, shall be deemed to include the most recent any copy thereof filed with the Commission pursuant to its Electronic Data Gathering Gathering, Analysis and Retrieval system or any successor thereto (collectively, “XXXXX”).

Appears in 1 contract

Samples: Sales Agreement (Gladstone Investment Corporation\de)

Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell to or through the Agent, ordinary as sales agent or principal, shares of common stock (the “Placement Shares”) of the Company, par value $0.01 nominal value 0.001 per share (the “Ordinary SharesCommon Stock”), up to an aggregate gross sales proceeds of $50,000,000; provided, however, that in no event shall the Company issue or sell through the Agent such number or dollar amount of Placement Shares that would (a) exceed the number or dollar amount of Ordinary Shares shares of Common Stock registered on the effective Registration Statement (defined below) pursuant to which the offering is being made, (b) exceed the number of authorized but unissued Ordinary Shares shares of Common Stock (less Ordinary Shares shares of Common Stock issuable upon exercise, conversion or exchange of any outstanding securities of the Company or otherwise reserved from the Company’s authorized share capitalcapital stock), (c) exceed the number or dollar amount of Ordinary Shares shares of Common Stock permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable) or (d) exceed the number or dollar amount of Ordinary Shares shares of Common Stock for which the Company has filed a Prospectus Supplement (defined below) (the lesser of (a), (b), (c) and (d), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on the amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the Agent shall have no obligation in connection with such compliance; provided that the Agent follows the trading instructions provided by the Company pursuant to any Placement Notice in all material respects. The offer and sale of Placement Shares through the Agent will be effected pursuant to the Registration Statement (as defined below) filed by the Company and declared effective by the Securities and Exchange Commission (the “Commission”) on August 10January 4, 20172021, although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue Ordinary SharesCommon Stock. The Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) ), and the rules and regulations thereunder (the “Securities Act Regulations”), with the Commission a registration statement on Form S-3 (File No. 333-219567251652), including a base prospectus prospectus, relating to certain securities, including the Placement Shares to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amendedamended (the “Exchange Act”), and the rules and regulations thereunder (collectively, the “Exchange Act”)thereunder. The Company has prepared a prospectus or a prospectus supplement to the base prospectus included as part of the registration statement, which prospectus or prospectus supplement relates to the Placement Shares to be issued from time to time by the Company (the “Prospectus Supplement”). The Company will furnish to the Agent, for use by the Agent, copies of the prospectus included as part of such registration statement, as supplemented by the Prospectus Supplement Supplement, relating to the Placement Shares to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement Shares. Except where the context otherwise requires, such registration statement(s), including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act Regulations, and any one or more additional effective registration statements on Form S-3 from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement Shares, is herein called the “Registration Statement.” The base prospectus or base prospectuses, including all documents incorporated therein by reference, included in the Registration Statement, as it may be supplemented, if necessary, by the Prospectus Supplement, in the form in which such prospectus or prospectuses and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act Regulations, together with the then issued Issuer Free Writing Prospectus(es) (as defined below), is herein called the “Prospectus.” Any reference herein to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the documents, if any, incorporated by reference thereintherein (the “Incorporated Documents”), including, unless the context otherwise requires, the documents, if any, filed as exhibits to such Incorporated Documents. Any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act on or after the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference. For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval system, or if applicable, the Interactive Data Electronic Application system or any successor thereto when used by the Commission (collectively, “XXXXXEXXXX”).

Appears in 1 contract

Samples: Sales Agreement (Sanara MedTech Inc.)

Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through the Agent, ordinary shares of common stock (the “Placement Shares”) of the Company, par value $0.01 nominal value 0.0001 per share (the “Ordinary SharesCommon Stock”), up to an aggregate gross sales proceeds of $50,000,000; provided, however, that in no event shall the Company issue or sell through the Agent such number or dollar amount of Placement Shares that would (a) exceed the number or dollar amount of Ordinary Shares shares of Common Stock registered on the effective Registration Statement (as defined below) pursuant to which the offering is being made, (b) exceed the number of authorized but unissued Ordinary Shares (less Ordinary Shares issuable upon exercise, conversion or exchange shares of any outstanding securities of the Company or otherwise reserved from the Company’s authorized share capital)Common Stock, (c) exceed the number or dollar amount of Ordinary Shares shares of Common Stock permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable) or (d) exceed the number or dollar amount of Ordinary Shares shares of Common Stock for which the Company has filed a Prospectus Supplement (defined below) (the lesser of (a), (b), (c) and (d), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on the amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the Agent shall have no obligation in connection with such compliance; provided that the Agent follows, in all material respects, the trading instructions provided pursuant to any Placement Notice (as defined below). The offer issuance and sale of Placement Shares through the Agent will be effected pursuant to the Registration Statement (as defined below) filed by the Company and declared effective by the Securities and Exchange Commission (the “Commission”) on August 10June 5, 20172014, although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue Ordinary SharesCommon Stock. The Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) ), and the rules and regulations thereunder (the “Securities Act Regulations”), with the Commission a registration statement on Form S-3 (File No. 333-219567196374), including a base prospectus prospectus, relating to certain securities, including the Placement Shares to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amendedamended (the “Exchange Act”), and the rules and regulations thereunder (collectively, the “Exchange Act”)thereunder. The Company has prepared a prospectus or a prospectus supplement to the base prospectus included as part of the registration statement, which prospectus or prospectus supplement relates to the Placement Shares to be issued from time to time by the Company (the “Prospectus Supplement”). The Company will furnish to the Agent, for use by the Agent, copies of the prospectus included as part of such registration statement, as supplemented by the Prospectus Supplement Supplement, relating to the Placement Shares to be issued from time to time by the Company. The Company may may, in its sole discretion, file one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement Shares. Except where the context otherwise requires, such registration statement(s), including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act Regulations, is herein called the “Registration Statement.” The base prospectus or base prospectuses, including all documents incorporated therein by reference, included in the Registration Statement, as it may be supplemented, if necessary, by the Prospectus Supplement, in the form in which such prospectus or prospectuses and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act Regulations, together with the then issued Issuer Free Writing Prospectus(es) (defined below), is herein called the “Prospectus.” Any reference herein to the Registration Statement, any Prospectus Supplement, Prospectus or any Issuer Free Writing Prospectus (defined below) shall be deemed to refer to and include the documents, if any, incorporated by reference thereintherein (the “Incorporated Documents”), including, unless the context otherwise requires, the documents, if any, filed as exhibits to such Incorporated Documents. Any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act on or after the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference. For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval System, or if applicable, the Interactive Data Electronic Application system or any successor thereto when used by the Commission (collectively, “XXXXX”).

Appears in 1 contract

Samples: Sales Agreement (Cancer Genetics, Inc)

Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through the Agent, ordinary Agents shares of Common Stock having aggregate gross sales proceeds of up to $150,000,000 (the “Placement Shares”) of the Company, $0.01 nominal value per share (the “Ordinary Shares”), up to an aggregate gross sales proceeds of $50,000,000; provided, however, that in no event shall the Company issue or sell through the Agent Agents such number or dollar amount of Placement Shares that would (a) exceed the number or dollar amount of Ordinary Shares shares of Common Stock registered on the effective Registration Statement (defined below) pursuant to which the offering is being made, (b) exceed the number of authorized but unissued Ordinary Shares shares of Common Stock (less Ordinary Shares shares of Common Stock issuable upon exercise, conversion or exchange of any outstanding securities of the Company or otherwise reserved from the Company’s authorized share capitalcapital stock), (c) exceed the number or dollar amount of Ordinary Shares shares of Common Stock permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable) or (d) exceed the number or dollar amount of Ordinary Shares shares of Common Stock for which the Company has filed a Sales Agreement Prospectus Supplement (defined below) (the lesser of (a), (b), (c) and (d), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on the amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the Agent Agents shall have no obligation in connection with such compliance. The offer and sale of Placement Shares through the Designated Agent (as defined below) will be effected pursuant to the Registration Statement (as defined below) filed by the Company and which will be declared effective by the Securities and Exchange Commission prior to the issuance of any Placement Notices (defined below) by the “Commission”) on August 10, 2017Company, although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue Ordinary SharesCommon Stock. The Company has filedfiled or will file, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) ), and the rules and regulations thereunder (the “Securities Act Regulations”), with the Commission a registration statement on Form S-3 (File No. 333-219567)S-3, including (i) a base prospectus prospectus, relating to certain securities, including securities and (ii) a prospectus (the “Sales Agreement Prospectus”) relating to the Placement Shares to be issued from time to time by the Company, and each of which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amendedamended (the “Exchange Act”), and the rules and regulations thereunder (collectively, the “Exchange Act”). The Company has prepared a prospectus supplement to the base prospectus included as part of the registration statement, which prospectus supplement relates to the Placement Shares to be issued from time to time by the Company (the “Prospectus Supplement”)thereunder. The Company will furnish to the AgentAgents, for use by the AgentAgents, copies of the prospectus included as part of such registration statement, as supplemented by the Sales Agreement Prospectus Supplement relating to the Placement Shares to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to time that will may contain a prospectus relating to the Placement Shares and/or a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect supplement relating to the Placement Shares, which in each case shall be a Sales Agreement Prospectus. Except where the context otherwise requires, such registration statement(s), including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act Regulations, is herein called the “Registration Statement.” The Sales Agreement Prospectus and any base prospectus or base prospectusesprospectuses constituting part of the Sales Agreement Prospectus, if any, including all documents incorporated therein by reference, reference or included in the Registration Statement, as it may be supplemented, if necessary, by the Prospectus Supplement, in the form in which such prospectus or prospectuses and/or Sales Agreement Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act RegulationsCommission, together with the any then issued Issuer Free Writing Prospectus(es) (defined below), is herein called the “Prospectus.” Any reference herein to the Registration Statement, any Prospectus SupplementSales Agreement Prospectus, Prospectus or any Issuer Free Writing Prospectus (defined below), and any amendments and supplements thereto, shall be deemed to refer to and include the documents, if any, incorporated by reference thereintherein (the “Incorporated Documents”), including, unless the context otherwise requires, the documents, if any, filed as exhibits to such Incorporated Documents. Any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus SupplementSales Agreement Prospectus, the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act on or after the most-recent effective date of the Registration Statement, or the date of the Prospectus SupplementSales Agreement Prospectus, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference. For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval system, or if applicable, the Interactive Data Electronic Application system or any successor thereto when used by the Commission (collectively, “XXXXX”).

Appears in 1 contract

Samples: Sales Agreement (RAPT Therapeutics, Inc.)

Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through the Agent, ordinary up to $75,000,000 of shares of common stock (the “Placement Shares”) of the Company, par value $0.01 nominal value 0.0001 per share (the “Ordinary SharesCommon Stock”), up to an aggregate gross sales proceeds of $50,000,000; provided, however, that in no event shall the Company issue or sell through the Agent such number or dollar amount of Placement Shares that would (a) exceed the number or dollar amount of Ordinary Shares shares of Common Stock registered on the effective Registration Statement (defined below) pursuant to which the offering is being made, (b) exceed the number of authorized but unissued Ordinary Shares (less Ordinary Shares issuable upon exercise, conversion or exchange shares of any outstanding securities of the Company or otherwise reserved from the Company’s authorized share capital)Common Stock, (c) exceed the number or dollar amount of Ordinary Shares shares of Common Stock permitted to be sold under Form S-3 (including General Instruction I.B.6 I.B.6. thereof, if applicable) or (d) exceed the number or dollar amount of Ordinary Shares shares of Common Stock for which the Company has filed a Prospectus Supplement (defined below) (the lesser of (a), (b), (c) and (d), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on the amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the Agent shall have no obligation in connection with such compliance. The offer issuance and sale of Placement Shares through the Agent will be effected pursuant to the Registration Statement (as defined below) filed by the Company and at no earlier time than such time as the Registration Statement shall have been declared effective by the Securities and Exchange Commission (the “Commission”) on August 10, 2017), although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue Ordinary SharesCommon Stock. The Company has filedfiled or will file, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) and the rules and regulations thereunder (the “Securities Act Regulations”), with the Commission a registration statement on Form S-3 (File No. 333-219567)S-3, including a base prospectus prospectus, relating to certain securities, including the Placement Shares to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amendedamended (the “Exchange Act”), and the rules and regulations thereunder (collectively, the “Exchange Act”)thereunder. The Company has prepared a prospectus supplement to the base prospectus included as part of the registration statement, which prospectus supplement relates to the Placement Shares to be issued from time to time by the Company (the “Prospectus Supplement”). The Company will furnish to the Agent, for use by the Agent, copies of the prospectus included as part of such registration statement, as supplemented by the Prospectus Supplement Supplement, relating to the Placement Shares to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to time that will contain a one or more base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), prospectuses with respect to the Placement Shares. Except where the context otherwise requires, such registration statement(s), including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act Regulations, is herein called the “Registration Statement.” The base prospectus or base prospectuses, including all documents incorporated therein by reference, included in the Registration Statement, as it may be supplemented, if necessary, by the any Prospectus Supplement, in the form in which such prospectus or prospectuses and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act Regulations, together with the then issued Issuer Free Writing Prospectus(es) (defined below), is herein called the “Prospectus.” Any reference herein to the Registration Statement, any Prospectus Supplement, Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the documents, if any, incorporated by reference thereintherein (the “Incorporated Documents”), including, unless the context otherwise requires, the documents, if any, filed as exhibits to such Incorporated Documents. Any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act on or after the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference. For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval System, or if applicable, the Interactive Data Electronic Application system or any successor thereto when used by the Commission (collectively, “XXXXX”).

Appears in 1 contract

Samples: Sales Agreement (Vital Therapies Inc)

Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, Agreement and on the terms and subject to the conditions set forth herein, it may issue and sell through MLV, the Agentlesser of $20,000,000 of the Company’s common stock, ordinary par value $0.001 per share (the “Common Stock”), or 19.9% of the number of shares of the Common Stock outstanding on the date hereof (the “Placement Shares”) of the Company, $0.01 nominal value per share (the “Ordinary Shares”), up to an aggregate gross sales proceeds of $50,000,000; provided, however, that in no event shall the Company issue or sell through the Agent MLV such number or dollar amount of Placement Shares that would (a) exceed would cause the Company not to satisfy the eligibility requirements for use of Form S-3 (including instruction I.B.6 thereof), (b) exceeds the number or dollar amount of Ordinary Shares shares of Common Stock registered on the effective Registration Statement (as defined below) pursuant to which the offering is being made, or (bc) exceed exceeds the number of authorized but unissued Ordinary Shares (less Ordinary Shares issuable upon exercise, conversion or exchange shares of any outstanding securities of the Company or otherwise reserved from the Company’s authorized share capital), (c) exceed the number or dollar amount of Ordinary Shares permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable) or (d) exceed the number or dollar amount of Ordinary Shares for which the Company has filed a Prospectus Supplement (defined below) Common Stock (the lesser of (a), (b), ) or (c) and (d), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on the amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the Agent MLV shall have no obligation in connection with such compliance. The offer issuance and sale of Placement Shares through the Agent MLV will be effected pursuant to the Registration Statement (as defined below) filed by the Company and declared effective by the Securities and Exchange Commission (the “Commission”) on August 10, 2017), although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue Ordinary any Placement Shares. The Company has filedwill file, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) ), and the rules and regulations thereunder (the “Securities Act Regulations”), with the Commission a registration statement on Form S-3 (File No. 333-219567)substantially in the Form presented to MLV, including a base prospectus and which shall incorporate by reference the documents set forth on Schedule 5 hereto, relating to certain securities, including the Placement Shares to be issued from time to time by the Company, and which incorporates will incorporate by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amendedamended (the “Exchange Act”), and the rules and regulations thereunder (collectively, the “Exchange Act”). The Company has prepared a prospectus supplement to the base prospectus included as part of the registration statement, which prospectus supplement relates to the Placement Shares to be issued from time to time by the Company (the “Prospectus Supplement”)thereunder. The Company will furnish to the AgentMLV, for use by the AgentMLV, copies of the prospectus included as part of such registration statement, as supplemented by the Prospectus Supplement statement relating to the Placement Shares to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement Shares. Except where the context otherwise requires, such registration statement(s)statement, including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act Regulations, is herein called the “Registration Statement.” The base prospectus or base prospectusesprospectus, including all documents incorporated therein by reference, included in the Registration Statement, as it may be supplemented, if necessary, by the Prospectus Supplement, in the form in which such prospectus or prospectuses and/or Prospectus Supplement have has most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act Regulations, together with the any then issued Issuer Free Writing Prospectus(es) (defined below), is herein called the “Prospectus.” Any reference herein to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus amendment or supplement thereto shall be deemed to refer to and include the documents, if any, documents incorporated by reference therein. Any , and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement, Statement or the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing after the execution hereof of any document under with the Exchange Act on or after Commission deemed to be incorporated by reference therein (the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference“Incorporated Documents”). For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval System, or if applicable, the Interactive Data Electronic Application system or any successor thereto when used by the Commission (collectively, “XXXXX”).

Appears in 1 contract

Samples: Cytokinetics Inc

Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through the AgentEvercore, ordinary acting as agent and/or principal, shares (the "Placement Shares") of the Company's common shares, $0.01 nominal no par value per share (the “Ordinary "Common Shares"), having an aggregate offering price of up to an aggregate gross sales proceeds of $US$50,000,000; provided, however, that in no event shall the Company issue or sell through the Agent such number or dollar amount of Placement Shares that would (a) exceed the number or dollar amount of Ordinary Shares registered on the effective Registration Statement (defined below) pursuant to which the offering is being made, (b) exceed the number of authorized but unissued Ordinary Shares (less Ordinary Shares issuable upon exercise, conversion or exchange of any outstanding securities of the Company or otherwise reserved from the Company’s authorized share capital), (c) exceed the number or dollar amount of Ordinary Shares permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable) or (d) exceed the number or dollar amount of Ordinary Shares for which the Company has filed a Prospectus Supplement (defined below) (the lesser of (a), (b), (c) and (d), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations limitation set forth in this Section 1 on the amount number of Placement Common Shares issued and sold under this Agreement shall be the sole responsibility of the Company Company, and that the Agent Evercore shall have no obligation in connection with such compliance. The offer issuance and sale of Placement Common Shares through the Agent Evercore will be effected pursuant to the Registration Statement (as defined below) filed by the Company and declared effective by the Securities and Exchange Commission (the "Commission”) on August 10, 2017"), although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement (as defined below) to issue Ordinary the Common Shares. The Company has filed, in accordance with the provisions of prepared and filed a registration statement on Form F-3 (File No. 333-237810) under the Securities Act of 1933, as amended (the "Securities Act”) and the rules and regulations thereunder (the “Securities Act Regulations”"), with the Commission a registration statement on Form S-3 (File No. 333-219567), including a base prospectus relating to certain securities, including the Placement Shares to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder (collectivelythe "Securities Act Regulations"), the “Exchange Act”). The Company has prepared a prospectus supplement and such amendments to such registration statement (including post-effective amendments) as may have been required to the base prospectus included as part date of the registration statement, which prospectus supplement relates to the Placement Shares to be issued from time to time by the Company (the “Prospectus Supplement”)this Agreement. The Company will furnish to the Agent, for use by the Agent, copies of the prospectus included as part of such Such registration statement, as supplemented amended (including any post-effective amendments), has been declared effective by the Prospectus Supplement Commission. Such registration statement, at any given time, including amendments thereto to such time (including post-effective amendments), the exhibits and any schedules thereto at such time, the documents incorporated by reference therein pursuant to Item 6 of Form F-3 under the Securities Act at such time and the documents and information otherwise deemed to be a part thereof or included therein by Rule 430B under the Securities Act or otherwise pursuant to the Securities Act Regulations at such time, is herein called the "Registration Statement." The Company is filing with the Commission pursuant to Rule 424 under the Securities Act a final prospectus supplement relating to the Placement Common Shares (the "Prospectus Supplement") to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to time that will contain a form of base prospectus and related included in the Registration Statement in the form heretofore delivered to Evercore. Such base prospectus or prospectus supplementin the form in which it appears in the Registration Statement is hereinafter called the "Base Prospectus." Such Prospectus Supplement, if applicable (in the form in which it shall be a Prospectus Supplement), with respect to the Placement Shares. Except where the context otherwise requires, such registration statement(s), including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) (including the Base Prospectus as so supplemented), as may be further supplemented from time to time, is hereinafter called the "Prospectus." Any reference herein to the Base Prospectus, the Prospectus Supplement or the Prospectus shall be deemed to include the documents incorporated by reference therein. For purposes of this Agreement, "free writing prospectus" has the meaning set forth in Rule 405 under the Securities Act. "Permitted Free Writing Prospectuses" means the documents, if any, listed on Schedule 1 hereto, and "broadly available road show" means a "bona fide electronic road show" as defined in Rule 433(h)(5) under the Securities Act Regulations or deemed that has been made available without restriction to be a part of such registration statement pursuant any person. The terms "supplement", "amendment", and "amend" as used herein with respect to Rule 430B of the Securities Act Regulations, is herein called the “Registration Statement.” The base prospectus or base prospectuses, including all documents incorporated therein by reference, included in the Registration Statement, as it may be supplementedthe Base Prospectus, if necessary, by the Prospectus Supplement, in Supplement or the form in which such prospectus or prospectuses and/or Prospectus Supplement have most recently been shall include all documents subsequently filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Exchange Act Regulationsof 1934, as amended (the "Exchange Act"), that are deemed to be incorporated by reference therein (the "Incorporated Documents"). Each party covenants to the other party that (i) it will not undertake any act, advertisement, solicitation, conduct or negotiation directly or indirectly in furtherance of the sale of the Placement Shares in Canada; (ii) it will not undertake an offer or sale of any Placement Shares through the facilities of the Toronto Stock Exchange ("TSX") or any other Canadian trading market (together with the then issued Issuer Free Writing Prospectus(esTSX, a "Canadian Market"); and (iii) (defined below), is herein called the “Prospectus.” Any reference herein to the Registration Statement, any Prospectus Supplement, Prospectus it will not undertake an offer or any Issuer Free Writing Prospectus shall be deemed to refer to and include the documents, if any, incorporated by reference therein. Any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing sale of any document under the Exchange Act on or after the most-recent effective date of the Registration StatementPlacement Shares to any person that it knows or has reason be believe is in Canada or has been pre-arranged with a buyer in Canada, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference. For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment person who it knows or supplement thereto shall be deemed has reason to include believe is acting on the most recent copy filed with behalf of persons in Canada or to any person whom it knows or has reason to believe intends to reoffer, resell or deliver the Commission Placement Shares in Canada through the facilities of a Canadian Market or to any persons in Canada or acting on the behalf of persons in Canada, in each case pursuant to its Electronic Data Gathering Analysis and Retrieval system or any successor thereto (collectively, “XXXXX”)this Agreement.

Appears in 1 contract

Samples: Trillium Therapeutics Inc.

Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through the AgentMLV, ordinary up to 2,000,000 shares (the “Placement Shares”) of the Company’s 7.75% Series A Cumulative Redeemable Preferred Shares, par value $0.01 nominal value per share (the “Ordinary Series A Preferred Shares”), up to an aggregate gross sales proceeds 2,000,000 shares of the Company’s 8.375% Series B Cumulative Redeemable Preferred Shares, par value $50,000,000; provided0.01 per share (the “Series B Preferred Shares”) and up to 2,000,000 shares of the Company’s 8.875% Series C Cumulative Redeemable Preferred Shares, par value $0.01 per share (the “Series C Preferred Shares,” together with the Series A Preferred Shares and Series B Preferred Shares, the “Preferred Shares”) provided however, that in no event shall the Company issue or sell through the Agent MLV such number or dollar amount of Placement Shares that would (a) would cause the Company to not satisfy the eligibility requirements for use of Form S-3, (b) the aggregate offering price of which would exceed the number or dollar amount remaining maximum aggregate offering price of Ordinary Shares securities of the Company registered on the effective Registration Statement (as defined below) pursuant to which the offering is being made, or (bc) exceed exceeds the number of authorized but unissued Ordinary Shares (less Ordinary Shares issuable upon exercise, conversion or exchange of any outstanding securities of the Company or otherwise reserved from the Company’s authorized share capital), (c) exceed the number or dollar amount but unissued preferred shares of Ordinary Shares permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable) or (d) exceed the number or dollar amount of Ordinary Shares for which the Company has filed a Prospectus Supplement (defined below) beneficial interest (the lesser of (a), (b), and (c) and (d), the “Maximum Amount”); provided further, that in no event shall the Company issue or sell through MLV such number of Series A Preferred Shares, Series B Preferred Shares or Series C Preferred Shares, as applicable, that exceeds the number of the Company’s authorized but unissued Series A Preferred Shares, Series B Preferred Shares or Series C Preferred Shares, respectively (each, a “Maximum Series Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on the amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the Agent MLV shall have no obligation in connection with such compliance. The offer issuance and sale of Placement Shares through the Agent MLV will be effected pursuant to the Registration Statement (as defined below) filed by the Company and declared effective by the Securities and Exchange Commission (the “Commission”) on August 10, 2017), although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue Ordinary Preferred Shares. The Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) and the rules and regulations thereunder (the “Securities Act Regulations”), with the Commission a registration statement on Form S-3 (File No. 333-219567175901), including a base prospectus prospectus, relating to certain securities, including the Placement Shares to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amendedamended (the “Exchange Act”), and the rules and regulations thereunder (collectively, the “Exchange ActAct Regulations”). The Company has prepared a prospectus supplement specifically relating to the Placement Shares (the “Prospectus Supplement”) to the base prospectus included as part of the such registration statement, which prospectus supplement relates to the Placement Shares to be issued from time to time by the Company (the “Prospectus Supplement”). The Company will furnish to the AgentMLV, for use by the AgentMLV, copies of the prospectus included as part of such registration statement, as supplemented by the Prospectus Supplement Supplement, relating to the Placement Shares to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement Shares. Except where the context otherwise requires, such registration statement(s)statement, including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act Regulations, is herein called the “Registration Statement.” The base prospectus or base prospectusesprospectus, including all documents incorporated therein by reference, included in the Registration Statement, as it may be supplemented, if necessary, supplemented by the Prospectus Supplement, in the form in which such prospectus or prospectuses and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act Regulations, together with the then issued Issuer Free Writing Prospectus(es) (defined below), is herein called the “Prospectus.” Any reference herein to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus amendment or supplement thereto shall be deemed to refer to and include the documents, if any, documents incorporated by reference therein. Any , and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement, Statement or the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing after the execution hereof of any document under with the Exchange Act on or after Commission deemed to be incorporated by reference therein (the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference“Incorporated Documents”). For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval System, or if applicable, the Interactive Data Electronic Application system or any successor thereto when used by the Commission (collectively, “XXXXX”).

Appears in 1 contract

Samples: RAIT Financial Trust

Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through or to the Agent, ordinary as agent or principal, shares of common stock (the “Placement Shares”) of the Company, par value $0.01 nominal value 0.001 per share (the “Ordinary SharesCommon Stock”), up to an aggregate gross sales proceeds of $50,000,000; provided, however, that in no event shall the Company issue or sell through the Agent such number or dollar amount of Placement Shares that would (a) exceed the number or dollar amount of Ordinary Shares shares of Common Stock registered on the effective Registration Statement (defined below) pursuant to which the offering is being made, (b) exceed the number of authorized but unissued Ordinary Shares shares of Common Stock (less Ordinary Shares shares of Common Stock issuable upon exercise, conversion or exchange of any outstanding securities of the Company or otherwise reserved from the Company’s authorized share capitalcapital stock), (c) exceed the number or dollar amount of Ordinary Shares shares of Common Stock permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable) or (d) exceed the number or dollar amount of Ordinary Shares shares of Common Stock for which the Company has filed a Prospectus Supplement (defined below) (the lesser of (a), (b), (c) and (d), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on the amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the Agent shall have no obligation in connection with such compliance. The offer and sale of Placement Shares through the Agent will be effected pursuant to the Registration Statement (as defined below) filed by the Company and declared effective by the Securities and Exchange Commission (the “Commission”) on August 10October 20, 20172020, although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue Ordinary SharesCommon Stock. The Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) ), and the rules and regulations thereunder (the “Securities Act Regulations”), with the Commission a registration statement on Form S-3 (File No. 333-219567249426), including a base prospectus prospectus, relating to certain securities, including the Placement Shares to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amendedamended (the “Exchange Act”), and the rules and regulations thereunder (collectively, the “Exchange Act”)thereunder. The Company has prepared a prospectus or a prospectus supplement to the base prospectus included as part of the registration statement, which prospectus or prospectus supplement relates to the Placement Shares to be issued from time to time by the Company (the “Prospectus Supplement”). The Company will furnish to the Agent, for use by the Agent, copies of the prospectus included as part of such registration statement, as supplemented supplemented, by the Prospectus Supplement Supplement, relating to the Placement Shares to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement Shares. Except where the context otherwise requires, such registration statement(s), including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act Regulations, is herein called the “Registration Statement.” The base prospectus or base prospectuses, including all documents incorporated therein by reference, included in the Registration Statement, as it may be supplemented, if necessary, by the Prospectus Supplement, in the form in which such prospectus or prospectuses and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act Regulations, together with the then issued Issuer Free Writing Prospectus(es) (defined below), is herein called the “Prospectus.” Any reference herein to the Registration Statement, any Prospectus Supplement, Prospectus or any Issuer Free Writing Prospectus (defined below) shall be deemed to refer to and include the documents, if any, incorporated by reference thereintherein (the “Incorporated Documents”), including, unless the context otherwise requires, the documents, if any, filed as exhibits to such Incorporated Documents. Any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act on or after the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference. For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval system, or if applicable, the Interactive Data Electronic Application system or any successor thereto when used by the Commission (collectively, “XXXXX”).

Appears in 1 contract

Samples: Sales Agreement (BioCardia, Inc.)

Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through the AgentLeerink, ordinary shares (the “Placement Shares”) of the Company’s common stock, par value $0.01 nominal value 0.001 per share (the “Ordinary SharesCommon Stock”), up to an aggregate gross sales proceeds of $50,000,000; provided, however, that in no event shall the Company issue or sell through the Agent Leerink such number or dollar amount of Placement Shares that would (a) would cause the Company to exceed the limitations set forth in General Instruction I.B.6 of Form S-3, (b) exceeds the number or dollar amount of Ordinary Shares shares of Common Stock registered on the effective Registration Statement (as defined below) pursuant to which the offering is being made, or (bc) exceed exceeds the number of authorized but unissued Ordinary Shares shares of Common Stock (less Ordinary Shares shares of Common Stock issuable upon exercise, conversion or exchange of any outstanding securities of the Company or otherwise reserved from the Company’s authorized share capital), (c) exceed the number or dollar amount of Ordinary Shares permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable) or (d) exceed the number or dollar amount of Ordinary Shares for which the Company has filed a Prospectus Supplement (defined belowcapital stock) (the lesser of (a), (b), (c) and (d), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on the amount number of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the Agent Leerink shall have no obligation in connection with such compliance. The offer issuance and sale of Placement Shares through the Agent Leerink will be effected pursuant to the Registration Statement (as defined below) filed by the Company and declared effective by the Securities and Exchange Commission (the “Commission”) on August 10, 2017, although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue Ordinary Shares). The Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) amended, and the rules and regulations thereunder (the “Securities Act RegulationsAct”), with the Securities and Exchange Commission (the “Commission”), a registration statement on Form S-3 (File No. 333-219567221837), including a base prospectus relating to certain securities, including the Placement Shares to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (collectively, the “Exchange Act”). The Company has prepared will prepare a prospectus supplement to the base prospectus included as part of the such registration statement, which prospectus supplement relates statement specifically relating to the Placement Shares to be issued from time to time by the Company (the “Prospectus Supplement”). The Company will furnish to the AgentLeerink, for use by the AgentLeerink, copies of the prospectus included as part of such registration statement, as supplemented by the Prospectus Supplement Supplement, relating to the Placement Shares to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement Shares. Except where the context otherwise requires, such registration statement(s)statement, including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act RegulationsAct, is herein called the “Registration Statement.” The base prospectus or base prospectusesrelating to the Placement Shares, including all documents incorporated or deemed incorporated therein by referencereference to the extent such information has not been superseded or modified in accordance with Rule 412 under the Securities Act (as qualified by Rule 430B(g) of the Securities Act), included in the Registration Statement, as it may be supplemented, if necessary, supplemented by the Prospectus Supplement, in the form in which such prospectus or prospectuses and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act Regulations, together with the then issued Issuer Free Writing Prospectus(es) (defined below)Act, is herein called the “Prospectus.” Any reference herein to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus amendment or supplement thereto shall be deemed to refer to and include the documents, if any, documents incorporated or deemed incorporated by reference therein. Any , and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement, Statement or the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing after the execution hereof of any document under with the Exchange Act on or after Commission deemed to be incorporated by reference therein (the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference“Incorporated Documents”). For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis Gathering, Analysis, and Retrieval system, or if applicable, the Interactive Data Electronic Application system or any successor thereto when used by the Commission (collectively, “XXXXX”).

Appears in 1 contract

Samples: Sales Agreement (Aveo Pharmaceuticals Inc)

Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through the Agent, ordinary shares of common stock (the “Placement Shares”) of the Company, $0.01 nominal no par value per share (the “Ordinary SharesCommon Stock”), up to an aggregate gross sales proceeds of $50,000,000; provided, however, that in no event shall the Company issue or sell through the Agent such number or dollar amount of Placement Shares that would (a) exceed the number or dollar amount of Ordinary Shares shares of Common Stock registered on the effective Registration Statement (defined below) pursuant to which the offering is being made, (b) exceed the number of authorized but unissued Ordinary Shares shares of Common Stock (less Ordinary Shares shares of Common Stock issuable upon exercise, conversion or exchange of any outstanding securities of the Company or otherwise reserved from the Company’s authorized share capitalcapital stock), (c) exceed the number or dollar amount of Ordinary Shares shares of Common Stock permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable) or (d) exceed the number or dollar amount of Ordinary Shares shares of Common Stock for which the Company has filed a Prospectus Supplement (defined below) (the lesser of (a), (b), (c) and (d), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on the amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the Agent shall have no obligation in connection with such compliance. The offer and sale of Placement Shares through the Agent will be effected pursuant to the Registration Statement (as defined below) filed by the Company and declared effective by the Securities and Exchange Commission (the “Commission”) on August 10October 3, 20172016, although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue Ordinary SharesCommon Stock. The Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) and the rules and regulations thereunder (the “Securities Act Regulations”), with the Commission a registration statement on Form S-3 (File No. 333-219567213808), including a base prospectus prospectus, relating to certain securities, including the Placement Shares to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amendedamended (the “Exchange Act”), and the rules and regulations thereunder (collectively, the “Exchange Act”)thereunder. The Company has prepared a prospectus or a prospectus supplement to the base prospectus included as part of the registration statement, which prospectus or prospectus supplement relates to the Placement Shares to be issued from time to time by the Company (the “Prospectus Supplement”). The Company will furnish to the Agent, for use by the Agent, copies of the prospectus included as part of such registration statement, as supplemented supplemented, by the Prospectus Supplement Supplement, relating to the Placement Shares to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement Shares. Except where the context otherwise requires, such registration statement(s), including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act Regulations, is herein called the “Registration Statement.” The base prospectus or base prospectuses, including all documents incorporated therein by reference, included in the Registration Statement, as it may be supplemented, if necessary, by the Prospectus Supplement, in the form in which such prospectus or prospectuses and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act Regulations, together with the then issued Issuer Free Writing Prospectus(es) (defined below), is herein called the “Prospectus.” Any reference herein to the Registration Statement, any Prospectus Supplement, Prospectus or any Issuer Free Writing Prospectus (defined below) shall be deemed to refer to and include the documents, if any, incorporated by reference thereintherein (the “Incorporated Documents”), including, unless the context otherwise requires, the documents, if any, filed as exhibits to such Incorporated Documents. Any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act on or after the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference. For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval system, or if applicable, the Interactive Data Electronic Application system or any successor thereto when used by the Commission (collectively, “XXXXX”).

Appears in 1 contract

Samples: Manitex International, Inc.

Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through the Agent, ordinary shares American Depositary Shares (the “ADSs” and the “Placement Shares”), each representing twenty (20) of the Company’s ordinary shares, $0.01 nominal no par value per share (the “Ordinary Shares”), up to an aggregate gross sales proceeds of $50,000,000; provided, however, that in no event shall the Company issue or sell through the Agent such number or dollar amount of Placement Shares that would (a) exceed the number or dollar amount of Ordinary Shares ADSs registered on the effective Registration Statement (defined below) pursuant to which the offering of such Placement Shares is being made, (b) exceed the number of authorized but unissued Ordinary Shares or ADSs (less Ordinary Shares or ADSs issuable upon exercise, conversion or exchange of any outstanding securities of the Company or otherwise reserved from the Company’s authorized share capitalcapital stock), (c) exceed the number or dollar amount of Ordinary Shares ADSs permitted to be sold under Form S-3 F-3 (including General Instruction I.B.6 I.B.5 thereof, if applicable) or (d) exceed the number or dollar amount of Ordinary Shares ADSs for which the Company has filed a Prospectus Supplement (defined below) (the lesser of (a), (b), (c) and (d), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations limitation set forth in this Section 1 on the number or dollar amount of Placement Shares ADSs issued and sold under this Agreement shall be the sole responsibility of the Company Company, and that the Agent shall have no obligation in connection with such compliance. The offer and sale of Placement Shares ADSs through the Agent will be effected pursuant to the Registration Statement (as defined below) to be filed by the Company and which will have been declared effective by the Securities and Exchange Commission (the “Commission”) on August 10, 2017), although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue Ordinary Shares. The Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) and the rules and regulations thereunder (the “Securities Act Regulations”), with the Commission a registration statement on Form S-3 (File No. 333-219567), including a base prospectus relating to certain securities, including the Placement Shares to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (collectively, the “Exchange Act”). The Company has prepared a prospectus supplement to the base prospectus included as part of the registration statement, which prospectus supplement relates to the Placement Shares to be issued from time to time by the Company (the “Prospectus Supplement”). The Company will furnish to the Agent, for use by the Agent, copies of the prospectus included as part of such registration statement, as supplemented by the Prospectus Supplement relating to the Placement Shares to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement Shares. Except where the context otherwise requires, such registration statement(s), including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with to issue the Commission ADSs. The ADSs are to be issued pursuant to Rule 424(b) under that certain deposit agreement (the Securities Act Regulations or deemed “Deposit Agreement”), dated as of February 14, 2019, among the Company, the Bank of New York Mellon as depositary (the “Depositary”), and the holders and beneficial owners from time to be a part time of such registration statement the ADSs. Each ADS will represent the right to receive twenty Ordinary Shares deposited pursuant to Rule 430B of the Securities Act Regulations, is herein called the “Registration StatementDeposit Agreement.” The base prospectus or base prospectuses, including all documents incorporated therein by reference, included in the Registration Statement, as it may be supplemented, if necessary, by the Prospectus Supplement, in the form in which such prospectus or prospectuses and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act Regulations, together with the then issued Issuer Free Writing Prospectus(es) (defined below), is herein called the “Prospectus.” Any reference herein to the Registration Statement, any Prospectus Supplement, Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the documents, if any, incorporated by reference therein. Any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act on or after the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference. For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval system or any successor thereto (collectively, “XXXXX”).

Appears in 1 contract

Samples: Sales Agreement (Chemomab Therapeutics Ltd.)

Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through the Agent, ordinary shares of common stock (the “Placement Shares”) of the Company, par value $0.01 nominal value 0.001 per share (the “Ordinary SharesCommon Stock), ) up to an aggregate gross sales proceeds offering price of $50,000,00075,000,000; provided, however, that in no event shall the Company issue or sell through the Agent such number or dollar amount of Placement Shares that would (a) exceed the number or dollar amount of Ordinary Shares shares of Common Stock registered on the effective Registration Statement (defined below) pursuant to which the offering is being made, (b) exceed the number of authorized but unissued Ordinary Shares shares of Common Stock (less Ordinary Shares shares of Common Stock issuable upon exercise, conversion or exchange of any outstanding securities of the Company or otherwise reserved from the Company’s authorized share capitalcapital stock), (c) exceed the number or dollar amount of Ordinary Shares shares of Common Stock permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable) or (d) exceed the number or dollar amount of Ordinary Shares shares of Common Stock for which the Company has filed a Prospectus Supplement (defined below) (the lesser of (a), (b), (c) and (d), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on the amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the Agent shall have no obligation in connection with such compliance. The offer and sale of Placement Shares through the Agent will be effected pursuant to the Registration Statement (as defined below) filed by the Company and which will be declared effective by the Securities and Exchange Commission (the “Commission”) on August 10, 2017), although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue Ordinary SharesCommon Stock. The Company has filedfiled or will file, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) and the rules and regulations thereunder (the “Securities Act RegulationsAct”), with the Commission a registration statement on Form S-3 (File No. 333-219567)S-3, including a base prospectus prospectus, relating to certain securities, including the Placement Shares to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (collectively, the “Exchange Act”). The Company has prepared a prospectus supplement to the base prospectus included as part of the registration statement, which prospectus supplement relates to the Placement Shares to be issued from time to time by the Company (the “Prospectus Supplement”). The Company will furnish to the Agent, for use by the Agent, copies of the prospectus included as part of such registration statement, as supplemented by the Prospectus Supplement relating to the Placement Shares to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement Shares. Except where the context otherwise requires, such registration statement(s), including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act RegulationsAct, is herein called the “Registration Statement.” The base prospectus or base prospectuses, including all documents incorporated therein by reference, included in the Registration Statement, as it may be supplemented, if necessary, by the Prospectus Supplement, in the form in which such prospectus or prospectuses and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act Regulations), together with the then issued Issuer Free Writing Prospectus(es) (as defined below), is herein called the “Prospectus.” Any reference herein to the Registration Statement, any Prospectus Supplement, Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the documents, if any, incorporated by reference thereintherein (the “Incorporated Documents”), including, unless the context otherwise requires, the documents, if any, filed as exhibits to such Incorporated Documents. Any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act on or after the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference. For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis Gathering, Analysis, and Retrieval system, or if applicable, the Interactive Data Electronic Applications system or any successor thereto when used by the Commission (collectively, “XXXXX”).

Appears in 1 contract

Samples: Achillion Pharmaceuticals Inc

Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through the Agent, ordinary shares of common stock of the Company, par value $0.001 per share (the “Common Stock”) with an aggregate offering price of up to $30.0 million (the “Placement Shares”) of the Company, $0.01 nominal value per share (the “Ordinary Shares”), up to an aggregate gross sales proceeds of $50,000,000; provided, however, that in no event shall the Company issue or sell through the Agent such number or dollar amount of Placement Shares that would (a) exceed the number or dollar amount of Ordinary Shares shares of Common Stock registered on the effective Registration Statement (defined below) pursuant to which the offering is being made, (b) exceed the number of authorized but unissued Ordinary Shares (less Ordinary Shares issuable upon exercise, conversion or exchange shares of any outstanding securities of the Company or otherwise reserved from the Company’s authorized share capital)Common Stock, (c) exceed the number or dollar amount of Ordinary Shares shares of Common Stock permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable) or ), (d) exceed the number or dollar amount of Ordinary Shares shares of Common Stock for which the Company has filed a Prospectus Supplement (defined below) or (e) exceed the aggregate dollar amount of Placement Shares (the lesser of (a), (b), (c), (d) and (de), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on the amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the Agent shall have no obligation in connection with such compliance. The offer issuance and sale of Placement Shares through the Agent will be effected pursuant to the Registration Statement (as defined below) filed by the Company and declared effective by the Securities and Exchange Commission (the “Commission”) on August 10May 6, 20172015, although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue Ordinary SharesCommon Stock. The Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) and the rules and regulations thereunder (the “Securities Act Regulations”), with the Commission a registration statement on Form S-3 (File No. 333-219567202807), including a base prospectus prospectus, relating to certain securities, including the Placement Shares to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amendedamended (the “Exchange Act”), and the rules and regulations thereunder (collectively, the “Exchange Act”)thereunder. The Company has prepared a prospectus or a prospectus supplement to the base prospectus included as part of the registration statement, which prospectus or prospectus supplement relates to the Placement Shares to be issued from time to time by the Company (the “Prospectus Supplement”). The Company will furnish to the Agent, for use by the Agent, copies of the prospectus included as part of such registration statement, as supplemented by the Prospectus Supplement Supplement, relating to the Placement Shares to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement Shares. Except where the context otherwise requires, such registration statement(s), including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act Regulations, is herein called the “Registration Statement.” The base prospectus or base prospectuses, including all documents incorporated therein by reference, included in the Registration Statement, as it may be supplemented, if necessary, supplemented by the Prospectus Supplement, in the form in which such prospectus or prospectuses and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act Regulations, together with the then issued Issuer Free Writing Prospectus(es) (defined below), is herein called the “Prospectus.” Any reference herein to the Registration Statement, any Prospectus Supplement, Prospectus or any Issuer Free Writing Prospectus (defined below) shall be deemed to refer to and include the documents, if any, incorporated by reference thereintherein (the “Incorporated Documents”), including, unless the context otherwise requires, the documents, if any, filed as exhibits to such Incorporated Documents. Any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act on or after the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference. For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval System, or if applicable, the Interactive Data Electronic Application system or any successor thereto when used by the Commission (collectively, “XXXXX”).

Appears in 1 contract

Samples: Sales Agreement (Egalet Corp)

Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through the Agent, ordinary shares (the “Placement Shares”) of the Company, $0.01 nominal no par value per share (the “Ordinary Shares”), up to an aggregate gross sales proceeds of $50,000,000; provided, however, that in no event shall the Company issue or sell through the Agent such number or dollar amount of Placement Shares that would (a) exceed the number or dollar amount of Ordinary Shares registered on the effective Registration Statement (as defined below) pursuant to which the offering is being made, (b) exceed the number of authorized but unissued Ordinary Shares (less Ordinary Shares issuable upon exercise, conversion or exchange of any outstanding securities of the Company or otherwise reserved from the Company’s authorized share capital), (c) exceed the number or dollar amount of Ordinary Shares permitted to be sold under Form S-3 F-3 (including General Instruction I.B.6 I.B.5 thereof, if applicable) or (d) exceed the number or dollar amount of Ordinary Shares for which the Company has filed a Prospectus Supplement (as defined below) (the lesser of (a), (b), (c) and (d), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on the amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the Agent shall have no obligation in connection with such compliance. The offer and sale of Placement Shares through the Agent will be effected pursuant to the Registration Statement (as defined below) filed by the Company and which will be declared effective by the United States Securities and Exchange Commission (the “Commission”) on August 10, 2017), although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue Ordinary Shares. The Company has filedfiled or will file, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) ), and the rules and regulations thereunder (the “Securities Act Regulations”), with the Commission a registration statement on Form S-3 (File No. 333-219567)F-3, including a base prospectus prospectus, relating to certain securities, including the Placement Shares to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amendedamended (the “Exchange Act”), and the rules and regulations thereunder (collectively, the “Exchange Act”)thereunder. The Company has prepared a prospectus or a prospectus supplement to the base prospectus included as part of the registration statement, which prospectus or prospectus supplement relates to the Placement Shares to be issued from time to time by the Company (the “Prospectus Supplement”). The Company will furnish to the Agent, for use by the Agent, copies of the prospectus included as part of such registration statement, as supplemented supplemented, by the Prospectus Supplement Supplement, relating to the Placement Shares to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement Shares. Except where the context otherwise requires, such registration statement(s), including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act Regulations, is herein called the “Registration Statement.” The base prospectus or base prospectuses, including all documents incorporated therein by reference, included in the Registration Statement, as it may be supplemented, if necessary, by the Prospectus Supplement, in the form in which such prospectus or prospectuses and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act Regulations, together with the then issued Issuer Free Writing Prospectus(es) (as defined below), is herein called the “Prospectus.” Any reference herein to the Registration Statement, any Prospectus Supplement, Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the documents, if any, incorporated by reference thereintherein (the “Incorporated Documents”), including, unless the context otherwise requires, the documents, if any, filed as exhibits to such Incorporated Documents. Any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act on or after the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference. For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval system, or if applicable, the Interactive Data Electronic Application system or any successor thereto when used by the Commission (collectively, “XXXXX”).

Appears in 1 contract

Samples: Sales Agreement (PolyPid Ltd.)

Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through the Agent, ordinary up to $150 million of the Company’s common shares of beneficial interest, $0.01 par value per share (the “Placement Shares”) of the Company, $0.01 nominal value per share (the “Ordinary Shares”), up to an aggregate gross sales proceeds of $50,000,000; provided, provided however, that in no event shall the Company issue or sell through the Agent such number or dollar amount of Placement Shares that would (a) exceed exceeds the number or dollar amount of Ordinary Shares the Company’s common shares of beneficial interest, $0.01 par value per share (the “Common Shares”), registered on the effective Registration Statement (as defined below) pursuant to which the offering is being made, or (b) exceed exceeds the number of authorized but unissued Ordinary Common Shares (less Ordinary Shares issuable upon exercise, conversion or exchange provided for in its Declaration of any outstanding securities of the Company or otherwise reserved from the Company’s authorized share capital), (c) exceed the number or dollar amount of Ordinary Shares permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable) or (d) exceed the number or dollar amount of Ordinary Shares for which the Company has filed a Prospectus Supplement (defined below) Trust (the lesser of (a), (b), (c) and (db), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on the number or dollar amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the Agent shall have no obligation in connection with such compliance. The offer issuance and sale of Placement Shares through the Agent will be effected pursuant to the Registration Statement (as defined below) filed by the Company and declared effective by the Securities and Exchange Commission (the “Commission”) on August 10, 2017), although nothing in this Agreement shall be construed as (i) requiring the Company to use the Registration Statement to issue Ordinary Sharesany Placement Shares or (ii) limiting in any way the Company’s ability to issue or sell Common Shares or other securities of the Company in other transactions, and in such event, Agent shall have no right to any commissions, fee or other payment with respect to any such transactions. The Company has also entered into separate at market issuance sales agreements, each dated as of even date herewith (the “Alternative Distribution Agreements”), pursuant to which it may, from time to time during the term of such Alternative Distribution Agreements, issue and sell through or to MLV & Co. LLC, KeyBanc Capital Markets Inc., and RBC Capital Markets, LLC (each, an “Alternative Agent”), as sales agent and/or principal, Placement Shares up to the Maximum Amount. The aggregate dollar amount of Placement Shares that may be sold pursuant to this Agreement and the Alternative Distribution Agreements shall not exceed the Maximum Amount. The Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) amended, and the rules and regulations thereunder (the “Securities Act RegulationsAct”), with the Securities and Exchange Commission (the “Commission”), a registration statement on Form S-3 (File No. 333-219567197842), including a base prospectus prospectus, relating to certain securities, including the Placement Shares to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (collectively, the “Exchange Act”). The Company has prepared a prospectus supplement to the base prospectus included as part of the such registration statement, which prospectus supplement relates statement specifically relating to the Placement Shares to be issued from time to time by the Company (the “Prospectus Supplement”). The Company will furnish to the Agent, for use by the Agent, copies of the base prospectus included as part of such registration statement, as supplemented by the Prospectus Supplement Supplement, relating to the Placement Shares to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement Shares. Except where the context otherwise requires, such registration statement(s)statement, including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act RegulationsAct, is herein called the “Registration Statement.” The base prospectus or base prospectusesprospectus, including all documents incorporated or deemed incorporated therein by referencereference to the extent such information has not been superseded or modified in accordance with Rule 412 under the Securities Act (as qualified by Rule 430B(g) of the Securities Act), included in the Registration Statement, as it may be supplemented, if necessary, supplemented by the Prospectus Supplement, in the form in which such base prospectus or prospectuses and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act Regulations, together with the then issued Issuer Free Writing Prospectus(es) (defined below)Act, is herein called the “Prospectus.” Any reference herein to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus amendment or supplement thereto shall be deemed to refer to and include the documents, if any, documents incorporated or deemed incorporated by reference therein. Any , and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement, Statement or the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing after the execution hereof of any document under with the Exchange Act on or after Commission deemed to be incorporated by reference therein (the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference“Incorporated Documents”). For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval System, or if applicable, the Interactive Data Electronic Application system or any successor thereto when used by the Commission (collectively, “XXXXX”).

Appears in 1 contract

Samples: Physicians Realty Trust

Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through MLV, shares of (a) the AgentCompany’s 10.75% Series C Cumulative Redeemable Preferred Stock, ordinary par value $0.0001 per share (the “Preferred Stock”) and (b) shares of the Company’s common stock, par value $0.0001 per share (the “Common Stock” and together with the Preferred Stock, the “Placement Shares”) of the Company, $0.01 nominal value per share (the “Ordinary Shares”), up to an aggregate gross sales proceeds of $50,000,000; provided, provided however, that in no event shall the Company issue or sell through the Agent MLV such number or dollar amount of Placement Shares that would (a) exceed exceeds the number of shares of either Common Stock or dollar amount of Ordinary Shares Preferred Stock, as applicable, registered on the effective Registration Statement (as defined below) pursuant to which the offering is being made, or (b) exceed exceeds the number of authorized but unissued Ordinary Shares (less Ordinary Shares issuable upon exercise, conversion or exchange shares of any outstanding securities of the Company or otherwise reserved from the Company’s authorized share capital)Common Stock or Preferred Stock, (c) exceed the number or dollar amount of Ordinary Shares permitted to be sold under Form S-3 (including General Instruction I.B.6 thereofas applicable, if applicable) or (d) exceed the number or dollar amount of Ordinary Shares for which the Company has filed a Prospectus Supplement (defined below) (the lesser of (a), (b), (c) and (db), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on the amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the Agent MLV shall have no obligation in connection with such compliance. The offer issuance and sale of Placement Shares through the Agent MLV will be effected pursuant to the Registration Statement (as defined below) filed by the Company and declared effective by the Securities and Exchange Commission (the “Commission”) on August 10, 2017), although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue Ordinary Placement Shares. The Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) and the rules and regulations thereunder (the “Securities Act Regulations”), with the Commission a registration statement on Form S-3 (File No. 333-219567183750), including a base prospectus prospectus, relating to certain securities, including the Placement Shares to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amendedamended (the “Exchange Act”), and the rules and regulations thereunder (collectively, the “Exchange ActAct Regulations”). The Company has prepared a prospectus supplement specifically relating to the Placement Shares (the “Prospectus Supplement”) to the base prospectus included as part of the such registration statement, which prospectus supplement relates to the Placement Shares to be issued from time to time by the Company (the “Prospectus Supplement”). The Company will furnish to the AgentMLV, for use by the AgentMLV, copies of the prospectus included as part of such registration statement, as supplemented by the Prospectus Supplement Supplement, relating to the Placement Shares to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement Shares. Except where the context otherwise requires, such registration statement(s)statement, including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act Regulations, is herein called the “Registration Statement.” The base prospectus or base prospectusesprospectus, including all documents incorporated therein by reference, included in the Registration Statement, as it may be supplemented, if necessary, supplemented by the Prospectus Supplement, in the form in which such prospectus or prospectuses and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act Regulations, together with the then issued Issuer Free Writing Prospectus(es) (defined below), is herein called the “Prospectus.” Any reference herein to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus amendment or supplement thereto shall be deemed to refer to and include the documents, if any, documents incorporated by reference therein. Any , and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement, Statement or the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing after the execution hereof of any document under with the Exchange Act on or after Commission deemed to be incorporated by reference therein (the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference“Incorporated Documents”). For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval System, or if applicable, the Interactive Data Electronic Application system or any successor thereto when used by the Commission (collectively, “XXXXXEXXXX”).

Appears in 1 contract

Samples: Common Stock (Miller Energy Resources, Inc.)

Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through the Agent, ordinary shares shares, no par value, of the Company (the “Placement Shares”) of the Company, $0.01 nominal value per share (the “Ordinary Shares”"Common Stock"), up to an aggregate gross sales proceeds of $50,000,000; provided, however, that in no event shall the Company issue or sell through the Agent such number or dollar amount of shares of Common Stock (the "Placement Shares Shares") that would (a) exceed the number or dollar amount of Ordinary Shares shares of Common Stock registered on the effective Registration Statement (defined below) pursuant to which the offering is being made, (b) exceed the number of authorized but unissued Ordinary Shares shares of Common Stock (less Ordinary Shares shares of Common Stock issuable upon exercise, conversion or exchange of any outstanding securities of the Company or otherwise reserved from the Company’s 's authorized share capitalcapital stock), (c) exceed the number or dollar amount of Ordinary Shares shares of Common Stock permitted to be sold under Form S-3 F-3 (including General Instruction I.B.6 I.B.5 thereof, if applicable) or (d) exceed the number or dollar amount of Ordinary Shares shares of Common Stock for which the Company has filed a Prospectus Supplement (defined below) (the lesser of (a), (b), (c) and (d), the "Maximum Amount"). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on the amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the Agent shall have no obligation in connection with such compliance. compliance The offer and sale of Placement Shares through the Agent will be effected pursuant to the Registration Statement (as defined below) filed by the Company and which will be declared effective by the Securities and Exchange Commission (the "Commission”) on August 10, 2017"), although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue Ordinary SharesCommon Stock. The Company has filedfiled or will file, in accordance with the provisions of the Securities Act of 1933, as amended (the "Securities Act") and the rules and regulations thereunder (the "Securities Act Regulations"), with the Commission a registration statement on Form S-3 (File No. 333-219567)F-3, including a base prospectus prospectus, relating to certain securities, including the Placement Shares to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amendedamended (the "Exchange Act"), and the rules and regulations thereunder (collectively, the “Exchange Act”)thereunder. The Company has prepared a prospectus or a prospectus supplement to the base prospectus included as part of the registration statement, which prospectus or prospectus supplement relates to the Placement Shares to be issued from time to time by the Company (the "Prospectus Supplement"). The Company will furnish to the Agent, for use by the Agent, copies of the prospectus included as part of such registration statement, as supplemented supplemented, by the Prospectus Supplement any prospectus supplement relating to the Placement Shares to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement Shares. Except where the context otherwise requires, such registration statement(s), including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act Regulations, is herein called the "Registration Statement." The base prospectus or base prospectuses, including all documents incorporated therein by reference, included in the Registration Statement, as it may be supplemented, if necessary, by the Prospectus Supplement, in the form in which such prospectus or prospectuses and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act Regulations, together with the then issued Issuer Free Writing Prospectus(es) (defined below), is herein called the "Prospectus." Any reference herein to the Registration Statement, any Prospectus Supplement, Prospectus or any Issuer Free Writing Prospectus (defined below) shall be deemed to refer to and include the documents, if any, incorporated by reference thereintherein (the "Incorporated Documents"), including, unless the context otherwise requires, the documents, if any, filed as exhibits to such Incorporated Documents. Any reference herein to the terms "amend,” “" "amendment" or "supplement" with respect to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act on or after the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference. For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval system, or if applicable, the Interactive Data Electronic Application system or any successor thereto when used by the Commission (collectively, "XXXXX").

Appears in 1 contract

Samples: Portage Biotech Inc.

Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through the Agent, ordinary shares (the “Placement Shares”) of the Company’s common stock, par value $0.01 nominal value 0.001 per share (the “Ordinary SharesCommon Stock”), up to an aggregate gross sales proceeds of $50,000,000; provided, however, that in no event shall the Company issue or sell through the Agent such number of Placement Shares that (a) would cause the Company not to satisfy the eligibility requirements for use of Form S-3 (including under Instruction I.B.6. thereto, to the extent applicable), (b) exceeds the number of shares or dollar amount of Placement Shares that would (a) exceed the number or dollar amount of Ordinary Shares Common Stock registered on the effective Registration Statement and included in the Prospectus (each as defined below) pursuant to which the offering is being made, or (bc) exceed exceeds the number of authorized but unissued Ordinary Shares (less Ordinary Shares issuable upon exercise, conversion or exchange shares of any outstanding securities of the Company or otherwise reserved from the Company’s authorized share capital), (c) exceed the number or dollar amount of Ordinary Shares permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable) or (d) exceed the number or dollar amount of Ordinary Shares for which the Company has filed a Prospectus Supplement (defined below) Common Stock (the lesser of (a), (b), (c) and (dc), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on the amount number of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the Agent shall have no obligation in connection with such compliance. The offer issuance and sale of Placement Shares through the Agent will be effected pursuant to the Registration Statement (as defined below) filed by the Company and declared effective by the Securities and Exchange Commission (the “Commission”) on August 10, 2017), although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue Ordinary any Placement Shares. The Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) amended, and the rules and regulations thereunder (the “Securities Act RegulationsAct”), with the Securities and Exchange Commission (the “Commission”), a registration statement on Form S-3 (File No. 333-219567256627), including a base prospectus relating to certain securitiessecurities of the Company, including the Placement Shares to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (collectively, the “Exchange Act”). The Company has prepared a prospectus supplement to the base prospectus included as part of the such registration statement, which prospectus supplement relates statement specifically relating to the Placement Shares to be issued from time to time by the Company (the “Prospectus SupplementSupplement ”). The Company will furnish to the Agent, for use by the Agent, copies of the prospectus included as part of such registration statement, as supplemented supplemented, if at all, by the Prospectus Supplement Supplement, relating to the Placement Shares to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement Shares. Except where the context otherwise requires, such registration statement(s)statement, including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act RegulationsAct, is herein called the “Registration Statement.” The base prospectus or base prospectusesprospectus, including all documents incorporated or deemed incorporated therein by referencereference to the extent such information has not been superseded or modified in accordance with Rule 412 under the Securities Act (as qualified by Rule 430B(g) of the Securities Act), included in the Registration Statement, as it may be supplemented, if necessary, supplemented by the Prospectus Supplement, in the form in which such prospectus or prospectuses and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act Regulations, together with the then issued Issuer Free Writing Prospectus(es) (defined below)Act, is herein called the “Prospectus.” Any reference herein to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus amendment or supplement thereto shall be deemed to refer to and include the documents, if any, documents incorporated or deemed incorporated by reference therein. Any , and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement, Statement or the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing after the execution hereof of any document under with the Exchange Act on or after Commission deemed to be incorporated by reference therein (collectively, the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference“Incorporated Documents”). For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval System, or if applicable, the Interactive Data Electronic Application system or any successor thereto when used by the Commission (collectively, “XXXXX”).

Appears in 1 contract

Samples: Moleculin Biotech, Inc.

Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through the Agent, ordinary common shares (the “Placement Shares”) ), no par value, of the Company, $0.01 nominal value per share Company (the “Ordinary SharesCommon Stock”), up to an aggregate gross sales proceeds of $50,000,000; provided, however, that in no event shall the Company issue or sell through the Agent such number or dollar amount of Placement Shares that would (a) exceed the number or dollar amount of Ordinary Shares shares of Common Stock registered on the effective Registration Statement (defined below) pursuant to which the offering is being made, (b) exceed the number of authorized but unissued Ordinary Shares shares of Common Stock (less Ordinary Shares shares of Common Stock issuable upon exercise, conversion or exchange of any outstanding securities of the Company or otherwise reserved from the Company’s authorized share capitalcapital stock), (c) exceed the number or dollar amount of Ordinary Shares shares of Common Stock permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable) or (d) exceed the number or dollar amount of Ordinary Shares shares of Common Stock for which the Company has filed a Prospectus Supplement (defined below) prospectus or prospectus supplement relating to the Placement Shares (the lesser of (a), (b), (c) and (d), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on the amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the Agent shall have no obligation in connection with such compliance; provided that the Agent follows, in all material respects, the trading instructions provided pursuant to any Placement Notice (as defined below). The offer and sale of Placement Shares through the Agent will be effected pursuant to the Registration Statement (as defined below) to be filed by the Company and only after such Registration Statement has been declared effective by the Securities and Exchange Commission (the “Commission”) on August 10, 2017), although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue Ordinary SharesCommon Stock. The Company has filedprepared and has filed or will file, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) ), and the rules and regulations thereunder (the “Securities Act Regulations”), with the Commission a registration statement on Form S-3 (File No. 333-219567)S-3, including a base prospectus prospectus, relating to certain securities, including as well as a prospectus relating specifically to the Placement Shares to be issued from time to time by the CompanyCompany through the Agent, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amendedamended (the “Exchange Act”), and the rules and regulations thereunder (collectively, the “Exchange Act”). The Company has prepared a prospectus supplement to the base prospectus included as part of the registration statement, which prospectus supplement relates to the Placement Shares to be issued from time to time by the Company (the “Prospectus Supplement”)thereunder. The Company will furnish to the Agent, for use by the Agent, copies of the prospectus included as part of such registration statement, as supplemented by the Prospectus Supplement relating to the Placement Shares to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to time that will contain a prospectus relating to the Placement Shares, or a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect supplement relating to the Placement Shares. Except where the context otherwise requires, all such registration statement(s), as any of them may be amended from time to time, including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) prospectus or a prospectus supplement relating to the Placement Shares subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement statement(s) pursuant to Rule 430B of the Securities Act Regulations, is herein called the “Registration Statement.” The base prospectus and prospectus supplement relating to the Placement Shares, or base prospectusesthe prospectus relating to the Placement Shares (as the case may be), including all documents incorporated therein by reference, included in the Registration Statement, as it any such prospectus or prospectus supplement may be supplemented, if necessary, by the Prospectus Supplement, in the form in which such prospectus or prospectuses and/or Prospectus Supplement have prospectus supplement has most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act Regulations, together with the then issued Issuer Free Writing Prospectus(es) (defined below), is herein called the “Prospectus.” Any reference herein to the Registration Statement, any Prospectus Supplement, Prospectus or any Issuer Free Writing Prospectus (defined below) shall be deemed to refer to and include the documents, if any, incorporated by reference thereintherein (the “Incorporated Documents”), including, unless the context otherwise requires, the documents, if any, filed as exhibits to such Incorporated Documents. Any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act on or after the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference. For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval system, or if applicable, the Interactive Data Electronic Application system or any successor thereto when used by the Commission (collectively, “XXXXX”).

Appears in 1 contract

Samples: Zomedica Pharmaceuticals Corp.

Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through the AgentCowen, ordinary acting as agent and/or principal, shares (the “Placement Shares”) of the Company’s common stock, par value $0.01 nominal value 0.00001 per share (the “Ordinary SharesCommon Stock”), having an aggregate offering price of up to an aggregate gross sales proceeds of $50,000,000; provided, however, that in no event shall the Company issue or sell through the Agent Cowen such number or dollar amount of Placement Shares that would (a) exceed the number or dollar amount of Ordinary Shares shares of Common Stock registered on the effective Registration Statement (defined below) pursuant to which the offering is being made, (b) exceed the number of authorized but unissued Ordinary Shares shares of Common Stock (less Ordinary Shares shares of Common Stock issuable upon exercise, conversion or exchange of any outstanding securities of the Company or otherwise reserved from the Company’s authorized share capitalcapital stock), (c) exceed the number or dollar amount of Ordinary Shares shares of Common Stock permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable) or (d) exceed the number or dollar amount of Ordinary Shares shares of Common Stock for which the Company has filed a Prospectus Supplement (defined below) (the lesser of (a), (b), (c) and (d), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations limitation set forth in this Section 1 on the amount number of Placement Shares shares of Common Stock issued and sold under this Agreement shall be the sole responsibility of the Company Company, and that the Agent Cowen shall have no obligation in connection with such compliance. The offer issuance and sale of Placement Shares Common Stock through the Agent Cowen will be effected effectuated pursuant to the Registration Statement (as defined below) filed by the Company and declared effective by the Securities and Exchange Commission (the “Commission”) on August 10, 2017), although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement (as defined below) to issue Ordinary Sharesthe Common Stock. The Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) amended, and the rules and regulations thereunder (collectively, the “Securities Act RegulationsAct”), with the Commission a registration statement on Form S-3 (File No. 333-219567265987), including a base prospectus prospectus, relating to certain securities, including the Placement Shares Common Stock, to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (collectively, the “Exchange Act”). The Company has prepared a prospectus supplement specifically relating to the Placement Shares (the “Prospectus Supplement”) to the base prospectus included as part of the such registration statement, which prospectus supplement relates to the Placement Shares to be issued from time to time by the Company (the “Prospectus Supplement”). The Company will furnish has furnished to the AgentCowen, for use by the AgentCowen, copies of the prospectus included as part of such registration statement, as supplemented by the Prospectus Supplement Supplement, relating to the Placement Shares to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement Shares. Except where the context otherwise requires, such registration statement(s)statement, and any post-effective amendment thereto, as amended when it became effective, including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B or 462(b) of the Securities Act, or any subsequent registration statement on Form S-3 filed pursuant to Rule 415(a)(6) under the Securities Act Regulationsby the Company with respect to the Placement Shares, is herein called the “Registration Statement.” The base prospectus or base prospectusesprospectus, including all documents incorporated therein by reference, included in the Registration Statement, as it may be supplemented, if necessary, supplemented by the Prospectus Supplement, in the form in which such prospectus or prospectuses and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act RegulationsAct, together with any “issuer free writing prospectus,” as defined in Rule 433 under the then issued Issuer Securities Act (“Rule 433”), relating to the Placement Shares that (i) is consented to by Cowen, hereinafter referred to as a “Permitted Free Writing Prospectus(esProspectus,” (ii) is required to be filed with the Commission by the Company or (defined belowiii) is exempt from filing pursuant to Rule 433(d)(5)(i), in each case in the form filed or required to be filed with the Commission or, if not required to be filed, in the form retained in the Company’s records pursuant to Rule 433(g), is herein called the “Prospectus.” Any reference herein to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus amendment or supplement thereto shall be deemed to refer to and include the documents, if any, documents incorporated by reference therein. Any , and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement, Statement or the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing after the execution hereof of any document under with the Exchange Act on or after the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and Commission deemed to be incorporated therein by referencereference therein. For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent any copy filed with the Commission pursuant to its the Electronic Data Gathering Analysis and Retrieval system or any successor thereto System (collectively, “XXXXX”).

Appears in 1 contract

Samples: Common Stock Sales Agreement (Alpha Teknova, Inc.)

Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through the Agent, ordinary up to $150 million of the Company’s common shares of beneficial interest, $0.01 par value per share (the “Placement Shares”) of the Company, $0.01 nominal value per share (the “Ordinary Shares”), up to an aggregate gross sales proceeds of $50,000,000; provided, provided however, that in no event shall the Company issue or sell through the Agent such number or dollar amount of Placement Shares that would (a) exceed exceeds the number or dollar amount of Ordinary Shares the Company’s common shares of beneficial interest, $0.01 par value per share (the “Common Shares”), registered on the effective Registration Statement (as defined below) pursuant to which the offering is being made, or (b) exceed exceeds the number of authorized but unissued Ordinary Common Shares (less Ordinary Shares issuable upon exercise, conversion or exchange provided for in its Declaration of any outstanding securities of the Company or otherwise reserved from the Company’s authorized share capital), (c) exceed the number or dollar amount of Ordinary Shares permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable) or (d) exceed the number or dollar amount of Ordinary Shares for which the Company has filed a Prospectus Supplement (defined below) Trust (the lesser of (a), (b), (c) and (db), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on the number or dollar amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the Agent shall have no obligation in connection with such compliance. The offer issuance and sale of Placement Shares through the Agent will be effected pursuant to the Registration Statement (as defined below) filed by the Company and declared effective by the Securities and Exchange Commission (the “Commission”) on August 10, 2017), although nothing in this Agreement shall be construed as (i) requiring the Company to use the Registration Statement to issue Ordinary Sharesany Placement Shares or (ii) limiting in any way the Company’s ability to issue or sell Common Shares or other securities of the Company in other transactions, and in such event, Agent shall have no right to any commissions, fee or other payment with respect to any such transactions. The Company has also entered into separate at market issuance sales agreements, each dated as of even date herewith (the “Alternative Distribution Agreements”), pursuant to which it may, from time to time during the term of such Alternative Distribution Agreements, issue and sell through or to MLV & Co. LLC, JMP Securities LLC, and RBC Capital Markets, LLC (each, an “Alternative Agent”), as sales agent and/or principal, Placement Shares up to the Maximum Amount. The aggregate dollar amount of Placement Shares that may be sold pursuant to this Agreement and the Alternative Distribution Agreements shall not exceed the Maximum Amount. The Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) amended, and the rules and regulations thereunder (the “Securities Act RegulationsAct”), with the Securities and Exchange Commission (the “Commission”), a registration statement on Form S-3 (File No. 333-219567197842), including a base prospectus prospectus, relating to certain securities, including the Placement Shares to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (collectively, the “Exchange Act”). The Company has prepared a prospectus supplement to the base prospectus included as part of the such registration statement, which prospectus supplement relates statement specifically relating to the Placement Shares to be issued from time to time by the Company (the “Prospectus Supplement”). The Company will furnish to the Agent, for use by the Agent, copies of the base prospectus included as part of such registration statement, as supplemented by the Prospectus Supplement Supplement, relating to the Placement Shares to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement Shares. Except where the context otherwise requires, such registration statement(s)statement, including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act RegulationsAct, is herein called the “Registration Statement.” The base prospectus or base prospectusesprospectus, including all documents incorporated or deemed incorporated therein by referencereference to the extent such information has not been superseded or modified in accordance with Rule 412 under the Securities Act (as qualified by Rule 430B(g) of the Securities Act), included in the Registration Statement, as it may be supplemented, if necessary, supplemented by the Prospectus Supplement, in the form in which such base prospectus or prospectuses and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act Regulations, together with the then issued Issuer Free Writing Prospectus(es) (defined below)Act, is herein called the “Prospectus.” Any reference herein to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus amendment or supplement thereto shall be deemed to refer to and include the documents, if any, documents incorporated or deemed incorporated by reference therein. Any , and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement, Statement or the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing after the execution hereof of any document under with the Exchange Act on or after Commission deemed to be incorporated by reference therein (the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference“Incorporated Documents”). For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval System, or if applicable, the Interactive Data Electronic Application system or any successor thereto when used by the Commission (collectively, “XXXXX”).

Appears in 1 contract

Samples: Physicians Realty Trust

Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through or to the Agent, ordinary as agent or principal, shares (the “Placement Shares”) of common stock of the Company, $0.01 nominal 0.0001 par value per share (the “Ordinary SharesCommon Stock”), up to an aggregate gross sales proceeds of $50,000,000; provided, however, that in no event shall the Company issue or sell sell, through or to Agent, Placement Shares for an aggregate gross sales proceeds that would exceed (a) the Agent such number or dollar amount of Placement Shares that would (a) exceed the number or dollar amount shares of Ordinary Shares Common Stock registered on the effective Registration Statement (as defined below) pursuant to which the offering is being made), (b) exceed the number of authorized but unissued Ordinary Shares (less Ordinary Shares issuable upon exercise, conversion or exchange shares of any outstanding securities of the Company or otherwise reserved from the Company’s authorized share capital)Common Stock, (c) exceed the number or dollar amount of Ordinary Shares shares of Common Stock permitted to be sold under Form S-3 (S-3, including General Instruction I.B.6 thereofof Form S-3, if applicable) or (d) exceed the number or dollar amount of Ordinary Shares shares of Common Stock for which the Company has filed a Prospectus Supplement (as defined below) (the lesser least of (a), (b), (c) and (d), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on the amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the Agent shall have no obligation in connection with such compliance. The offer issuance and sale of Placement Shares through the Agent hereunder will be effected pursuant to the Registration Statement (as defined below) filed by the Company and declared effective by the Securities and Exchange Commission (the “Commission”) on August 10, 2017), although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue Ordinary any Placement Shares. The As of the date hereof, the Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) amended, and the rules and regulations thereunder (the “Securities Act RegulationsAct”), with the Commission a registration statement on Form S-3 (File No. 333-219567269631), including a base prospectus prospectus, relating to certain securities, including the Placement Shares to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (collectively, the “Exchange Act”). The Company has prepared a prospectus supplement to the base prospectus included as part of the registration statement, which prospectus supplement relates statement specifically relating to the Placement Shares to be issued from time to time by the Company (the “Prospectus Supplement”). The Company will furnish to the Agent, for use by the Agent, copies of the base prospectus included as part of such registration statement, as supplemented by the Prospectus Supplement relating to the Placement Shares to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect relating to the Placement Shares. Except where the context otherwise requires, such registration statement(s)statement, and any post-effective amendment thereto, including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B or 462(b) under the Securities Act or any subsequent registration statement on Form S-3 filed pursuant to Rule 415(a)(6) under the Securities Act by the Company to cover any Placement Shares, as a result of the end of the three-year period described in Rule 415(a)(5) of the Securities Act RegulationsAct, is herein called the “Registration Statement.” The base prospectus or base prospectusesprospectus, including all documents incorporated therein by reference, to the extent such information has not been superseded or modified in accordance with Rule 412 under the Securities Act (as qualified by Rule 430B(g) of the Securities Act), included in the Registration Statement, as it may be supplemented, if necessary, supplemented by the Prospectus Supplementone or more prospectus supplements, in the form in which such prospectus or prospectuses and/or Prospectus Supplement have has most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act RegulationsAct, together with the any then issued Issuer Free Writing Prospectus(es) Prospectus (defined below), is herein called the “Prospectus.” Any reference herein to the Registration Statement, the Prospectus or any amendment or supplement thereto shall be deemed to refer to and include the documents incorporated by reference therein, and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement or the Prospectus shall be deemed to refer to and include the filing after the execution hereof of any document with the Commission deemed to be incorporated by reference therein. Any reference herein to the Registration Statement, the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the documents, if any, incorporated by reference thereintherein (the “Incorporated Documents”), including, unless the context otherwise requires, the documents, if any, filed as exhibits to such Incorporated Documents. Any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act on or after the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference. For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent any copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval system, or if applicable, the Interactive Data Electronic Application system or any successor thereto when used by the Commission (collectively, “XXXXXEXXXX”).

Appears in 1 contract

Samples: BioRestorative Therapies, Inc.

Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through the Agent, ordinary shares of common stock (the “Placement Shares”) of the Company, par value $0.01 nominal value 0.001 per share (the “Ordinary SharesCommon Stock), ) up to an aggregate gross sales proceeds offering price of $50,000,000; provided, however, that in no event shall the Company issue or sell through the Agent such number or dollar amount of Placement Shares that would (a) exceed the number or dollar amount of Ordinary Shares shares of Common Stock registered on the effective Registration Statement (defined below) pursuant to which the offering is being made, (b) exceed the number of authorized but unissued Ordinary Shares (less Ordinary Shares issuable upon exercise, conversion or exchange shares of any outstanding securities of the Company or otherwise reserved from the Company’s authorized share capital)Common Stock, (c) exceed the number or dollar amount of Ordinary Shares shares of Common Stock permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable) or (d) exceed the number or dollar amount of Ordinary Shares shares of Common Stock for which the Company has filed a Prospectus Supplement (defined below) (the lesser of (a), (b), (c) and (d), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on the amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the Agent shall have no obligation in connection with such compliance. The offer issuance and sale of Placement Shares through the Agent will be effected pursuant to the Registration Statement (as defined below) filed by the Company and declared effective by the Securities and Exchange Commission (the “Commission”) on August 10April 28, 20172016, although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue Ordinary SharesCommon Stock. The Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) and the rules and regulations thereunder (the “Securities Act Regulations”), with the Commission a registration statement on Form S-3 (File No. 333-219567209661), including a base prospectus prospectus, relating to certain securities, including the Placement Shares to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amendedamended (the “Exchange Act”), and the rules and regulations thereunder (collectively, the “Exchange Act”)thereunder. The Company has prepared a prospectus supplement to the base prospectus included as part of the registration statement, which prospectus supplement relates to the Placement Shares to be issued from time to time by the Company (the “Prospectus Supplement”). The Company will furnish to the Agent, for use by the Agent, copies of the prospectus included as part of such registration statement, as supplemented by the Prospectus Supplement Supplement, relating to the Placement Shares to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement Shares. Except where the context otherwise requires, such registration statement(s), including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act Regulations, is herein called the “Registration Statement.” The base prospectus or base prospectuses, including all documents incorporated therein by reference, included in the Registration Statement, as it may be supplemented, if necessary, by the Prospectus Supplement, in the form in which such prospectus or prospectuses and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act Regulations, together with the then issued Issuer Free Writing Prospectus(es) (as defined below), is herein called the “Prospectus.” Any reference herein to the Registration Statement, any Prospectus Supplement, Prospectus or any Issuer Free Writing Prospectus (defined below) shall be deemed to refer to and include the documents, if any, incorporated by reference thereintherein (the “Incorporated Documents”), including, unless the context otherwise requires, the documents, if any, filed as exhibits to such Incorporated Documents. Any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act on or after the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference. For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval System, or if applicable, the Interactive Data Electronic Application system or any successor thereto when used by the Commission (collectively, “XXXXX”).

Appears in 1 contract

Samples: Infinity Pharmaceuticals, Inc.

Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through MLV, as sales agent for the AgentCompany, ordinary shares (the “Placement Shares”) of the Company’s common stock, par value $0.01 nominal value 0.001 per share (the “Ordinary SharesCommon Stock”), up to an aggregate gross sales proceeds of $50,000,000; provided, however, that in no event shall the Company issue or sell through the Agent MLV such number or dollar amount of Placement Shares that would (a) exceed would cause the Company or the offering of the Placement Shares to fail to satisfy the eligibility and transaction requirements for use of Form S-3 (including, if applicable, Instruction I.B.6 thereof), (b) exceeds the number or dollar amount of Ordinary Shares shares of Common Stock registered on the effective Registration Statement (as defined below) pursuant to which the offering is being made, (bc) exceed exceeds the number of authorized but unissued Ordinary Shares (less Ordinary Shares issuable upon exercise, conversion or exchange shares of any outstanding securities of the Company or otherwise reserved from the Company’s authorized share capital)Common Stock under its charter, or (cd) exceed exceeds the number or dollar amount of Ordinary Shares permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable) or (d) exceed the number or dollar amount shares of Ordinary Shares Common Stock for which the Company has filed a Prospectus Supplement (as defined below) (the lesser least of (a), (b), (c) ), and (d), ) the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on the number or dollar amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the Agent MLV shall have no obligation in connection with such compliance. The offer issuance and sale of Placement Shares through the Agent MLV will be effected pursuant to the Registration Statement (as defined below) filed by the Company and declared effective by the Securities and Exchange Commission (the “Commission”) on August 10February 24, 2017, 2014 although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue Ordinary Sharesany Placement Shares or other shares of Common Stock. MLV and the Company are sometimes referred to herein individually as a “Party” and collectively as the “Parties.” The Company has filedfiled with the Commission, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) amended, and the rules and regulations thereunder (collectively, the “Securities Act RegulationsAct”), with the Commission a registration statement on Form S-3 (File No. 333-219567193832), including a base prospectus (the “Base Prospectus”), relating to certain securitiessecurities of the Company, including the Placement Shares Shares, to be issued from time to time by the CompanyCompany pursuant to Rule 415 under the Securities Act, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (collectively, the “Exchange Act”). The Company has prepared a prospectus supplement to the base prospectus included as part of the registration statement, which prospectus supplement relates specifically relating to the Placement Shares to be issued from time to time by the Company (the “Prospectus Supplement”)) to the Base Prospectus. The Company will furnish to the AgentMLV, for use by the AgentMLV, copies of the prospectus Base Prospectus included as part of such registration statement, as supplemented by the Prospectus Supplement Supplement, relating to the Placement Shares to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement Shares. Except where the context otherwise requires, such registration statement(s)statement, including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act RegulationsAct, is herein called the “Registration Statement.” The base prospectus or base prospectuses, including all documents incorporated therein by reference, included in the Registration StatementBase Prospectus, as it may be supplemented, if necessary, supplemented by the Prospectus Supplement, in the form in which such prospectus or prospectuses and/or Prospectus Supplement have most recently been is filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act Regulations, together with the then issued Issuer Free Writing Prospectus(es) (defined below), is herein called the “Prospectus.” Any reference herein to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus amendment or supplement thereto shall be deemed to refer to and include the documents, if any, documents incorporated or deemed incorporated by reference therein. Any therein (the “Incorporated Documents”), and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement, Statement or the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing after the execution hereof of any document under with the Exchange Act on or after the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and Commission deemed to be incorporated therein by referencereference therein. For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto thereto, or any Issuer Free Writing Prospectus (as defined below) (other than any Issuer Free Writing Prospectus that, pursuant to Rule 433, is not required to be filed with the Commission) shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval System, or if applicable, the Interactive Data Electronic Application system or any successor thereto when used by the Commission (collectively, “XXXXX”).

Appears in 1 contract

Samples: Gastar Exploration Inc.

Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through the Agent, ordinary Agents shares (the “Placement Shares”) of the Company’s common stock, par value $0.01 nominal value 0.001 per share (the “Ordinary SharesCommon Stock), up to an aggregate gross sales proceeds of $50,000,000; provided, ) provided however, that in no event shall the Company issue or sell through the Agent Agents such number or dollar amount of Placement Shares that would (a) exceed exceeds the number or dollar amount of Ordinary Shares shares of Common Stock registered on the effective Registration Statement (as defined below) pursuant to which the offering is being made, or (b) exceed exceeds the number of authorized but unissued Ordinary Shares (less Ordinary Shares issuable upon exercise, conversion or exchange shares of any outstanding securities of the Company or otherwise reserved from the Company’s authorized share capital), (c) exceed the number or dollar amount of Ordinary Shares permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable) or (d) exceed the number or dollar amount of Ordinary Shares for which the Company has filed a Prospectus Supplement (defined below) Common Stock (the lesser of (a), (b), (c) and (db), the “Maximum Amount”). In addition, in no event shall the Company issue or sell Placement Shares through the Agents in a number and in a manner that would require the Company to obtain stockholder approval under NASDAQ Listing Rule 5635 without first obtaining such stockholder approval. Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on the amount number of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the Agent Agents shall have no obligation in connection with such compliance. The offer issuance and sale of Placement Shares through the Agent Agents will be effected pursuant to the Registration Statement (as defined below) filed by the Company and declared effective by the Securities and Exchange Commission (the “Commission”) on August 10, 2017), although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue Ordinary Placement Shares. Through the date of this Agreement, the Company has sold 2,238,172 shares under the Original Agreement for aggregate gross proceeds of $16,783,645. The Company has filedfiled with the Commission, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) and the rules and regulations thereunder (the “Securities Act Regulations”), with respect to sales of Placement Shares prior to the Commission effectiveness of the registration statement to be initially filed on or about August 18, 2016, a registration statement on Form S-3 (File No. 333-219567189935), and, with respect to sales of Placement Shares on or after the effectiveness of the registration statement to be initially filed on or about August 18, 2016, the registration statement on Form S-3 to be initially filed on or about August 18, 2016, including a base prospectus prospectus, relating to certain securities, including and a prospectus relating to the Placement Shares to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amendedamended (the “Exchange Act”), and the rules and regulations thereunder (collectively, the “Exchange ActAct Regulations”). The Company has prepared will, if necessary, prepare a prospectus supplement to the base prospectus included as part of the registration statement, which prospectus supplement relates to the Placement Shares to be issued from time to time by the Company (the “Prospectus Supplement”)) to the prospectus included as part of each such registration statement specifically relating to the Placement Shares. The Company will furnish to the AgentAgents, for use by the AgentAgents, copies of the prospectus included as part of each such registration statement, as supplemented supplemented, if at all, by the Prospectus Supplement Supplement, relating to the Placement Shares to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement Shares. Except where the context otherwise requires, each such registration statement(s)statement, and any post-effective amendment thereto, including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of each such registration statement pursuant to Rule 430B of the Securities Act Regulations, is Regulations are collectively herein called the “Registration Statement.” The base prospectus or base prospectusesrelating to the Placement Shares, including all documents incorporated therein by reference, included in the Registration Statement, as it may be supplemented, if necessary, supplemented by the Prospectus Supplement, if any, in the form in which such prospectus or prospectuses and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act Regulations, together with the then issued Issuer Free Writing Prospectus(es) (as defined belowin Section 25 hereof), is herein called the “Prospectus.” Any reference herein to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus amendment or supplement thereto shall be deemed to refer to and include the documents, if any, documents incorporated by reference therein. Any , and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement, Statement or the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing after the execution hereof of any document under with the Exchange Act on or after Commission deemed to be incorporated by reference therein (the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference“Incorporated Documents”). For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval System, or if applicable, the Interactive Data Electronic Application system or any successor thereto when used by the Commission (collectively, “XXXXXEXXXX”).

Appears in 1 contract

Samples: Original Sales Agreement (Fortress Biotech, Inc.)

Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through the Agent, ordinary shares of common stock (the “Placement Shares”) of the Company, par value $0.01 nominal value 0.0001 per share (the “Ordinary SharesCommon Stock”), up to an aggregate gross sales proceeds offering price of $50,000,00040,000,000; provided, however, that in no event shall the Company issue or sell through the Agent such number or dollar amount of Placement Shares that would (a) exceed the number or dollar amount of Ordinary Shares shares of Common Stock registered on the effective Registration Statement (as defined below) pursuant to which the offering is being made, (b) exceed the number of authorized but unissued Ordinary Shares (less Ordinary Shares issuable upon exerciseshares of Common Stock, conversion or exchange of any outstanding securities of the Company or otherwise reserved from the Company’s authorized share capital), (c) exceed the number or dollar amount of Ordinary Shares permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable) or (d) exceed the number or dollar amount shares of Ordinary Shares Common Stock for which the Company has filed a Prospectus Supplement (as defined below) (the lesser of (a), (b), and (c) and (d), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on the amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the Agent shall have no obligation in connection with such compliance. The offer and sale of Placement Shares through the Agent will be effected pursuant to the Registration Statement (as defined below) filed by the Company and declared effective by the Securities and Exchange Commission (the “Commission”) on August 10April 28, 20172016, although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue Ordinary SharesCommon Stock. The Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) amended, and the rules and regulations thereunder (collectively, the “Securities Act RegulationsAct”), with the Commission a registration statement on Form S-3 (File No. 333-219567210777), including a base prospectus prospectus, relating to certain securities, including the Placement Shares Shares, to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (collectively, the “Exchange Act”). The Company has prepared a prospectus supplement to the base prospectus included as part of the registration statement, which prospectus supplement relates to the Placement Shares to be issued from time to time by the Company (the “Prospectus Supplement”). The Company will furnish to the Agent, for use by the Agent, copies of the prospectus included as part of such registration statement, as supplemented by the Prospectus Supplement Supplement, relating to the Placement Shares to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement Shares. Except where the context otherwise requires, such registration statement(s), including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act Regulations430B, is herein called the “Registration Statement.” The base prospectus or base prospectuses, including all documents incorporated therein by reference, included in the Registration Statement, as it may be supplemented, if necessary, by the Prospectus Supplement, in the form in which such prospectus or prospectuses and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act Regulations), together with the then issued Issuer Free Writing Prospectus(es) (as defined below), is herein called the “Prospectus.” Any reference herein to the Registration Statement, any Prospectus Supplement, Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the documents, if any, incorporated by reference therein. Any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act on or after the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference. For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval system or any successor thereto (collectively, “XXXXX”).

Appears in 1 contract

Samples: Ocular Therapeutix, Inc

Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through the Agent, ordinary shares (the “Placement Shares”) of the Company’s common stock, par value $0.01 nominal value 0.0001 per share (the “Ordinary SharesCommon Stock”), up to an aggregate gross sales proceeds of $50,000,000; provided, provided however, that in no event shall the Company issue or sell through the Agent such number or dollar amount of Placement Shares that would (a) exceed exceeds the number or dollar amount of Ordinary Shares shares of Common Stock registered on the effective Registration Statement (as defined below) pursuant to which the offering is being made, (b) exceed exceeds the number of shares or dollar amount registered on the Prospectus (as defined below), (c) exceeds the number of authorized but unissued Ordinary Shares shares of Common Stock (less Ordinary Shares shares of Common Stock issuable upon exercise, conversion or exchange of any outstanding securities of the Company or otherwise reserved from the Company’s authorized share capital), capital stock) or (cd) exceed exceeds the number or dollar amount of Ordinary Shares shares of Common Stock permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable) or (d) exceed the number or dollar amount of Ordinary Shares for which the Company has filed a Prospectus Supplement (defined below) (the lesser of (a), (b), (c) and (d), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on the amount number of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the Agent shall have no obligation in connection with such compliance. The offer issuance and sale of Placement Shares through the Agent will be effected pursuant to the Registration Statement (as defined below) filed by the Company and declared effective by the Securities and Exchange Commission (the “Commission”) on August 10, 2017), although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue Ordinary any Placement Shares. The On the date of this Agreement, the Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) amended, and the rules and regulations thereunder (collectively, the “Securities Act RegulationsAct”), with the Securities and Exchange Commission (the “Commission”), a registration statement on Form S-3 (File No. 333-219567the “Current Registration Statement”), including a base prospectus prospectus, relating to certain securities, including the Placement Shares to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (collectively, the “Exchange Act”). The Company has prepared a prospectus supplement to the base prospectus included as part of the such registration statement, which prospectus supplement relates statement specifically relating to the Placement Shares to be issued from time to time by the Company (the “Prospectus Supplement”). The Company will furnish to the Agent, for use by the Agent, copies of the prospectus relating to the Placement Shares included as part of such registration statement, as supplemented by the Prospectus Supplement relating to the Placement Shares to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplementSupplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement Sharesany. Except where the context otherwise requires, such registration statement(s)statement, and any post-effective amendment thereto, including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act Regulationsor any subsequent registration statement on Form S-3 filed pursuant to Rule 415(a)(6) under the Securities Act by the Company to cover any securities registered pursuant the Current Registration Statement, including any Placement Shares, as a result of the end of the three-year period described in Rule 415(a)(5) of the Securities Act, is herein called the “Registration Statement.” The base prospectus or base prospectusesspecifically relating to the Placement Shares, including all documents incorporated or deemed incorporated therein by referencereference to the extent such information has not been superseded or modified in accordance with Rule 412 under the Securities Act (as qualified by Rule 430B(g) of the Securities Act), included in the Registration Statement, as it may be supplemented, if necessary, supplemented by the Prospectus Supplement, in the form in which such prospectus or prospectuses and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act Regulations, together with the then issued Issuer Free Writing Prospectus(es) (defined below)Act, is herein called the “Prospectus.” Any reference herein to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus amendment or supplement thereto shall be deemed to refer to and include the documents, if any, documents incorporated or deemed incorporated by reference therein. Any , and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement, Statement or the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing after the execution hereof of any document under with the Exchange Act on or after Commission deemed to be incorporated by reference therein (the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference“Incorporated Documents”). For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval system, or if applicable, the Interactive Data Electronic Application system or any successor thereto when used by the Commission (collectively, “XXXXX”).

Appears in 1 contract

Samples: Bionano Genomics, Inc

Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through the AgentMLV, ordinary acting as agent and/or principal, shares (the "Placement Shares") of the Company's common stock, $0.01 nominal 0.001 par value per share (the “Ordinary Shares”"Common Stock"), up to an aggregate gross sales proceeds of $50,000,000; provided, however, that in no event shall the Company issue or sell through the Agent MLV such number or dollar amount of Placement Shares that would (a) would cause the Company to exceed the limitations set forth in General Instruction I.B.6. of Form S-3, to the extent applicable to the Company, (b) exceeds the number or dollar amount of Ordinary Shares shares of Common Stock registered on the effective Registration Statement (as defined below) pursuant to which the offering is being made, or (bc) exceed exceeds the number of authorized but unissued Ordinary Shares (less Ordinary Shares issuable upon exercise, conversion or exchange of any outstanding securities shares of the Company or otherwise reserved from the Company’s authorized share capital), (c) exceed the number or dollar amount of Ordinary Shares permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable) or (d) exceed the number or dollar amount of Ordinary Shares for which the Company has filed a Prospectus Supplement (defined below) 's Common Stock (the lesser of (a), (b), and (c) and (d), the "Maximum Amount"). The Company agrees that if MLV determines that MLV will purchase any Placement Shares on a principal basis (other than as a "riskless principal"), then the Company will enter into a separate underwriting or similar agreement in form and substance satisfactory to both the Company and MLV covering such purchase. Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations limitation set forth in this Section 1 on the amount number of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company Company, and that the Agent MLV shall have no obligation in connection with such compliance. The offer issuance and sale of Placement Shares through the Agent MLV will be effected pursuant to the Registration Statement (as defined below) that became automatically effective when filed by the Company and declared effective by with the Securities and Exchange Commission (the "Commission”) on August 10, 2017"), although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue Ordinary Placement Shares. The Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) amended, and the rules and regulations promulgated thereunder (collectively, the "Securities Act Regulations”Act"), with the Commission a registration statement Registration Statement on Form S-3 (File No. 333-219567)S-3, including a base prospectus prospectus, relating to certain securities, including the Placement Shares to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (collectively, the "Exchange Act"). The Company has prepared a prospectus supplement to the base prospectus included as part of the such registration statement, which prospectus supplement relates statement specifically relating to the Placement Shares to be issued from time to time by the Company (the "Prospectus Supplement"). The Company will furnish to the Agent, for use by the Agent, copies of the prospectus included as part of such registration statement, as supplemented by the Prospectus Supplement Supplement, relating to the Placement Shares to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement Shares. Except where the context otherwise requires, such registration statement(s)statement, as amended when it became effective, including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B or 462(b) of the Securities Act RegulationsAct, is as well as any comparable successor registration statement filed by the Company for the sale of shares of its Common Stock, including the Placement Shares, collectively are herein called the "Registration Statement." The base prospectus or base prospectusesprospectus, including all documents incorporated therein by reference, included in the Registration Statement, as it may be supplemented, if necessary, supplemented by the Prospectus Supplement, in the form in which such prospectus or prospectuses and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act RegulationsAct, together with the then issued Issuer Free Writing Prospectus(es) (defined belowas define herein), is herein called the "Prospectus." Any reference herein to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus amendment or supplement thereto shall be deemed to refer to and include the documents, if any, documents incorporated by reference therein. Any , and any reference herein to the terms "amend,” “" "amendment" or "supplement" with respect to the Registration Statement, any Prospectus Supplement, Statement or the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing after the execution hereof of any document under with the Exchange Act on or after Commission deemed to be incorporated by reference therein (the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference"Incorporated Documents"). For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent any copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval system or any successor thereto System or, if applicable, the Interactive Data Electronic Applications (collectively, "XXXXX").

Appears in 1 contract

Samples: Power REIT

Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through the Agent, ordinary Agent shares of common stock (the “Placement Shares”) of the Company, par value $0.01 nominal value 0.001 per share (the “Ordinary SharesCommon Stock”), up to an aggregate gross sales proceeds of $50,000,000; provided, however, that in no event shall the Company issue or sell through the Agent such number or dollar amount of Placement Shares that would (a) exceed the number or dollar amount of Ordinary Shares shares of Common Stock registered on the effective Registration Statement (defined below) pursuant to which the offering is being made, (b) exceed the number of authorized but unissued Ordinary Shares (less Ordinary Shares issuable upon exercise, conversion or exchange shares of any outstanding securities of the Company or otherwise reserved from the Company’s authorized share capital)Common Stock, (c) exceed the number or dollar amount of Ordinary Shares shares of Common Stock permitted to be sold under Form S-3 (including General Instruction I.B.6 I.B.6. thereof, if applicable) or (d) exceed the number or dollar amount of Ordinary Shares shares of Common Stock for which the Company has filed a Prospectus Supplement (defined below) (the lesser of (a), (b), (c) and (d), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on the amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the Agent shall have no obligation in connection with such compliance. The offer and sale of Placement Shares through the Agent will be effected pursuant to the Registration Statement to be filed by the Company and which will become automatically effective under Rule 462(e) of the Securities Act (as defined below) filed by the Company and declared effective by upon filing with the Securities and Exchange Commission (the “Commission”) on August 10, 2017), although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue Ordinary SharesCommon Stock. The Company has filedfiled or will file, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) and the rules and regulations thereunder (the “Securities Act Regulations”), with the Commission a registration statement on Form S-3 (File No. 333-219567)S-3, including a base prospectus relating to certain securities, including the Placement Shares to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amendedamended (the “Exchange Act”), and the rules and regulations thereunder (collectively, the “Exchange Act”)thereunder. The Company has prepared a prospectus supplement to the base prospectus included as part of the such registration statement, which prospectus supplement relates to the Placement Shares to be issued from time to time by the Company (the “Prospectus SupplementPlacement Share Prospectus”). The Company will furnish to the Agent, for use by the Agent, copies of the prospectus included as part of such registration statementPlacement Share Prospectus, as supplemented supplemented, if at all, by the Prospectus Supplement any prospectus supplement relating to the Placement Shares to be issued from time to time by the CompanyShares. The Company may file one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus SupplementProspectus), with respect to the Placement Shares. Except where the context otherwise requires, such registration statement(s), including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B or 462(b) of the Securities Act Regulations, is herein called the “Registration Statement.” The Placement Share Prospectus, any base prospectus or base prospectusesprospectuses relating to the Placement Shares, including all documents incorporated therein by reference, included in the Registration Statement, as it may be supplemented, if necessary, by the Prospectus Supplementa prospectus supplement, in the form in which such prospectus or prospectuses and/or Prospectus Supplement prospectus supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act Regulations, together with the then issued Issuer Free Writing Prospectus(es) (defined below), is herein called the “Prospectus.” Any reference herein to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the documents, if any, incorporated by reference thereintherein (the “Incorporated Documents”), including, unless the context otherwise requires, the documents, if any, filed as exhibits to such Incorporated Documents. Any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplementthe Placement Share Prospectus, the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act on or after the most-recent effective date of the Registration Statement, or the date of the Prospectus SupplementPlacement Share Prospectus, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference. For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval system, or if applicable, the Interactive Data Electronic Application system or any successor thereto when used by the Commission (collectively, “XXXXX”).

Appears in 1 contract

Samples: Sales Agreement (Cytokinetics Inc)

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Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell to or through the AgentBTIG, ordinary as sales agent and/or principal, up to that number of shares (the “Placement Shares”) of the Company’s common stock, par value $0.01 nominal value 0.0001 per share (the “Ordinary Common Stock”), having an aggregate offering price of $11,000,000 (the “Shares”), up to an aggregate gross sales proceeds of $50,000,000; provided, however, that in no event shall the Company issue or sell to or through the Agent BTIG such number or dollar amount of Placement Shares that would (a) cause the Company not to satisfy the eligibility requirements for use of Form S-3 (including, for so long as applicable, General Instruction I.B.6. of Form S-3), (b) exceed the number or dollar amount of Ordinary Shares registered on shares of Common Stock then available for offer and sale under the currently effective Registration Statement (as defined below) pursuant to which the offering hereunder is being made, made or (bc) exceed the number of authorized but unissued Ordinary Shares (less Ordinary Shares issuable upon exercise, conversion or exchange shares of any outstanding securities of the Company or otherwise reserved from the Company’s authorized share capital), (c) exceed the number or dollar amount of Ordinary Shares permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable) or (d) exceed the number or dollar amount of Ordinary Shares for which the Company has filed a Prospectus Supplement (defined below) Common Stock (the lesser of (a), (b), (c) and (dc), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto Parties acknowledge and agree that compliance with the limitations set forth in this Section 1 on the amount Maximum Amount of Placement Shares that may be issued and sold under this Agreement shall be the sole responsibility of the Company Company, and that the Agent BTIG shall have no obligation in connection with such compliance. The offer issuance and sale of Placement Shares to or through the Agent BTIG will be effected pursuant to the Registration Statement (as defined below) filed by the Company and which was declared effective under the Securities Act (as defined below) by the U.S. Securities and Exchange Commission (the “Commission”) on August 10, 2017), although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue Ordinary offer and sell Shares. The Company has prepared and filed, in accordance with the provisions of the Securities Act of 1933, as amended amended, and the rules and regulations promulgated thereunder (collectively, the “Securities Act”) and the rules and regulations thereunder (the “Securities Act Regulations”), with the Commission Commission, not earlier than three years prior to the date hereof, a shelf registration statement on Form S-3 (File No. 333-219567212546), including a base prospectus relating prospectus, with respect to offerings of certain securitiessecurities of the Company, including the Placement Shares to be issued from time to time by the CompanyShares, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (collectively, the “Exchange Act”). The Company has prepared a prospectus supplement to the base prospectus included as part of such registration statement at the registration statement, which prospectus supplement relates time it became effective specifically relating to the Placement offering of the Shares pursuant to be issued from time to time by the Company this Agreement (the “Prospectus Supplement”). The Company will furnish to the AgentBTIG, for use by the AgentBTIG, copies of the base prospectus included as part of such registration statementstatement at the time it became effective, as supplemented by the Prospectus Supplement relating to the Placement Shares to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement Shares. Except where the context otherwise requires, such registration statement(s)statement, as declared effective by the Commission, including the information, if any, deemed pursuant to Rule 430B or 430C under the Securities Act, as applicable, to be part of the registration statement at the time of its effectiveness and all documents filed as part thereof or incorporated by reference therein, and including any information contained in a the Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act RegulationsAct, is collectively, are herein called the “Registration Statement.,The and the base prospectus or base prospectusesincluded in the registration statement at the time it became effective, including all documents incorporated therein by reference, included reference to the extent such information has not been superseded or modified in accordance with Rule 412 under the Registration StatementSecurities Act (as qualified by Rule 430B(g) of the Securities Act), as it may be supplemented, if necessary, supplemented by the Prospectus Supplement, in the form in which such prospectus or prospectuses and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act RegulationsAct, together with any “issuer free writing prospectus”, as defined in Rule 433 under the then issued Issuer Free Writing Prospectus(esSecurities Act (“Rule 433”), relating to the Shares that (i) is required to be filed with the Commission by the Company or (defined belowii) is exempt from filing pursuant to Rule 433(d)(5)(i), in each case, in the form filed or required to be filed with the Commission or, if not required to be filed, in the form retained in the Company’s records pursuant to Rule 433(g), is herein called the “Prospectus.” If the Company has filed an abbreviated registration statement to register additional securities of the Company pursuant to Rule 462(b) under the Securities Act, then any reference to the Registration Statement in this Agreement shall also be deemed to include such abbreviated registration statement filed by the Company pursuant to Rule 462(b) under the Securities Act. Any reference herein to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus amendment or supplement thereto shall be deemed to refer to and include the documents, if any, documents incorporated by reference therein. Any , and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement, Statement or the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing after the execution hereof of any document under with the Exchange Act on Commission deemed to be incorporated by reference therein (such documents incorporated or after deemed to be incorporated by reference are herein called the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference“Incorporated Documents”). For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent any copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval system, or if applicable, the Interactive Data Electronic Applications system or any successor thereto when used by the Commission (collectively, “XXXXX”).

Appears in 1 contract

Samples: Sales Agreement (Pulmatrix, Inc.)

Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through the AgentAgents, ordinary common shares (the “Placement Shares”) of the Company, $0.01 nominal no par value per share (the “Ordinary Common Shares”), up to an aggregate gross sales proceeds of $50,000,000; provided, however, that in no event shall the Company issue or sell through the Agent Agents such number or dollar amount of Placement Shares that would (a) exceed the number or dollar amount of Ordinary Common Shares registered on the effective Registration Statement (defined below) pursuant to which the offering is being made, (b) exceed the number of authorized but unissued Ordinary Common Shares (less Ordinary Common Shares issuable upon exercise, conversion or exchange of any outstanding securities of the Company or otherwise reserved from the Company’s authorized share capitalcapital stock), (c) exceed the number or dollar amount of Ordinary Common Shares permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable) or (d) exceed the number or dollar amount of Ordinary Common Shares for which the Company has filed a Prospectus Supplement (defined below) (the lesser of (a), (b), (c) and (d), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on the amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the Agent Agents shall have no obligation in connection with such compliance. The offer issuance and sale of Placement Shares through the Agent Agents will be effected pursuant to the Registration Statement (as defined below) filed by the Company and declared effective by the United States Securities and Exchange Commission (the “Commission”) on August 10December 26, 20172018 (the “Effective Date”), although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue Ordinary Common Shares. The Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) and the rules and regulations thereunder (the “Securities Act Regulations”), with the Commission a registration statement on Form S-3 (File No. 333-219567228158), including a base prospectus (the “Base Prospectus”), relating to certain securities, including the Placement Shares to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amendedamended (the “Exchange Act”), and the rules and regulations thereunder (collectively, the “Exchange Act”)thereunder. The Company has prepared a prospectus or a prospectus supplement to the base prospectus included as part of the registration statement, which prospectus or prospectus supplement relates to the Placement Shares to be issued from time to time by the Company (the “Prospectus Supplement”). The Company will furnish to the Agent, for use by the Agent, copies of the prospectus included as part of such registration statement, as supplemented supplemented, by the Prospectus Supplement Supplement, relating to the Placement Shares to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement Shares. Except where the context otherwise requires, such registration statement(s), including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act Regulations, is herein called the “Registration Statement.” The base prospectus or base prospectuses, including all documents incorporated therein by reference, included in the Registration Statement, as it may be supplemented, if necessary, by the Prospectus Supplement, in the form in which such prospectus or prospectuses and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act Regulations, together with the then issued Issuer Free Writing Prospectus(es) (defined below), is herein called the “Prospectus.” Any reference herein to the Registration Statement, any Prospectus Supplement, Prospectus or any Issuer Free Writing Prospectus (defined below) shall be deemed to refer to and include the documents, if any, incorporated by reference thereintherein (the “Incorporated Documents”), including, unless the context otherwise requires, the documents, if any, filed as exhibits to such Incorporated Documents. Any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act on or after the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference. For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval system, or if applicable, the Interactive Data Electronic Application system or any successor thereto when used by the Commission (collectively, “XXXXX”).

Appears in 1 contract

Samples: Sales Agreement (Energy Fuels Inc)

Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through the Agent, ordinary Agent shares of common stock (the “Placement Shares”) of the Company, par value $0.01 nominal value 0.0001 per share (the “Ordinary SharesCommon Stock”), up to an aggregate gross sales proceeds of $50,000,000; provided, however, that in no event shall the Company issue or sell through the Agent such number or dollar amount of Placement Shares that would (a) exceed the number or dollar amount of Ordinary Shares shares of Common Stock registered on the effective Registration Statement (as defined below) pursuant to which the offering is being made, (b) exceed the number of authorized but unissued Ordinary Shares (less Ordinary Shares issuable upon exerciseunissued, conversion or exchange of any outstanding securities of the Company subscribed for, or otherwise reserved from the Company’s authorized share capital)committed to be issued shares of Common Stock, (c) exceed the number or dollar amount of Ordinary Shares shares of Common Stock permitted to be sold under Form S-3 (including General Instruction I.B.6 I.B.6. thereof, if applicable) or (d) exceed the number or dollar amount of Ordinary Shares shares of Common Stock for which the Company has filed a Controlled Equity Prospectus Supplement (as defined below) (the lesser of (a), (b), (c) and (d), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on the amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the Agent shall have no obligation in connection with such compliance. The offer issuance and sale of Placement Shares through the Agent will be effected pursuant to the Registration Statement (as defined below) filed by the Company and to be declared effective by the Securities and Exchange Commission (the “Commission”) on August 10, 2017), although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue Ordinary SharesCommon Stock. The Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) and the rules and regulations thereunder (the “Securities Act Regulations”), with the Commission a registration statement on Form S-3 (File No. 333-219567)S-3, including one or more base prospectuses, a base prospectus supplement specifically relating to certain securities, including the Placement Shares to be issued from time to time by the CompanyCompany (together with the applicable base prospectus, the “Controlled Equity Prospectus”), and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amendedamended (the “Exchange Act”), and the rules and regulations thereunder (collectivelythereunder. Following the date that such registration statement is declared effective by the Commission, the “Exchange Act”). The Company has prepared a prospectus supplement to the base prospectus included as part of the registration statement, which prospectus supplement relates to the Placement Shares to be issued from time to time by the Company (the “Prospectus Supplement”). The Company will furnish to the Agent, for use by the Agent, copies of the prospectus Controlled Equity Prospectus included as part of such registration statement, as supplemented by the Prospectus Supplement relating to the Placement Shares to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement)applicable, with respect to the Placement SharesShares to be issued by the Company. Except where the context otherwise requires, such registration statement(s), as amended when such registration statement(s) become effective, including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B or Rule 462(b) of the Securities Act Regulations, is herein called the “Registration Statement.” The base prospectus Controlled Equity Prospectus or base prospectusesother prospectus, including all documents incorporated therein by reference, included in the Registration Statement, as it may be supplemented, if necessary, by the Prospectus Supplementany prospectus supplement, in the form in which such Controlled Equity Prospectus, other prospectus or prospectuses and/or Prospectus Supplement prospectus supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act Regulations, together with the then issued Issuer Free Writing Prospectus(es) (as defined below), is herein called the “Prospectus.” Any reference herein to the Registration Statement, any Prospectus Supplement, Prospectus Statement or any Issuer Free Writing the Prospectus shall be deemed to refer to and include the documents, if any, incorporated by reference thereintherein (the “Incorporated Documents”), including, unless the context otherwise requires, the documents, if any, filed as exhibits to such Incorporated Documents. Any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement, Statement or the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act on or after the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference. For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval System, or if applicable, the Interactive Data Electronic Application system or any successor thereto when used by the Commission (collectively, “XXXXX”).

Appears in 1 contract

Samples: Sales Agreement (Neothetics, Inc.)

Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through the Agent, ordinary shares American Depositary Shares (the “ADSs” and the “Placement Shares”), each representing twenty (20) of the Company’s ordinary shares, $0.01 nominal no par value per share (the “Ordinary Shares”), up to an aggregate gross sales proceeds of $50,000,000; provided, however, that in no event shall the Company issue or sell through the Agent such number or dollar amount of Placement Shares that would (a) exceed the number or dollar amount of Ordinary Shares ADSs registered on the effective Registration Statement (defined below) pursuant to which the offering of such Placement Shares is being made, (b) exceed the number of authorized but unissued Ordinary Shares or ADSs (less Ordinary Shares or ADSs issuable upon exercise, conversion or exchange of any outstanding securities of the Company or otherwise reserved from the Company’s authorized share capitalcapital stock), (c) exceed the number or dollar amount of Ordinary Shares ADSs permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable) or (d) exceed the number or dollar amount of Ordinary Shares ADSs for which the Company has filed a Prospectus Supplement (defined below) (the lesser of (a), (b), (c) and (d), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations limitation set forth in this Section 1 on the number or dollar amount of Placement Shares ADSs issued and sold under this Agreement shall be the sole responsibility of the Company Company, and that the Agent shall have no obligation in connection with such compliance. The offer and sale of Placement Shares ADSs through the Agent will be effected pursuant to the Registration Statement (as defined below) to be filed by the Company and which will have been declared effective by the Securities and Exchange Commission (the “Commission”) on August 10, 2017), although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue Ordinary Shares. The Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) and the rules and regulations thereunder (the “Securities Act Regulations”), with the Commission a registration statement on Form S-3 (File No. 333-219567), including a base prospectus relating to certain securities, including the Placement Shares to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (collectively, the “Exchange Act”). The Company has prepared a prospectus supplement to the base prospectus included as part of the registration statement, which prospectus supplement relates to the Placement Shares to be issued from time to time by the Company (the “Prospectus Supplement”). The Company will furnish to the Agent, for use by the Agent, copies of the prospectus included as part of such registration statement, as supplemented by the Prospectus Supplement relating to the Placement Shares to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement Shares. Except where the context otherwise requires, such registration statement(s), including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with to issue the Commission ADSs. The ADSs are to be issued pursuant to Rule 424(b) under that certain deposit agreement (the Securities Act Regulations or deemed “Deposit Agreement”), dated as of February 14, 2019, among the Company, the Bank of New York Mellon as depositary (the “Depositary”), and the holders and beneficial owners from time to be a part time of such registration statement the ADSs. Each ADS will represent the right to receive twenty Ordinary Shares deposited pursuant to Rule 430B of the Securities Act Regulations, is herein called the “Registration StatementDeposit Agreement.” The base prospectus or base prospectuses, including all documents incorporated therein by reference, included in the Registration Statement, as it may be supplemented, if necessary, by the Prospectus Supplement, in the form in which such prospectus or prospectuses and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act Regulations, together with the then issued Issuer Free Writing Prospectus(es) (defined below), is herein called the “Prospectus.” Any reference herein to the Registration Statement, any Prospectus Supplement, Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the documents, if any, incorporated by reference therein. Any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act on or after the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference. For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval system or any successor thereto (collectively, “XXXXX”).

Appears in 1 contract

Samples: Sales Agreement (Chemomab Therapeutics Ltd.)

Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through the AgentMLV, ordinary shares (the “Placement Shares”) of the Company’s 10.875% Series A Cumulative Redeemable Preferred Stock, $0.01 nominal no par value per share (the “Ordinary SharesPreferred Stock”), up to an aggregate gross sales proceeds of $50,000,000; provided, provided however, that in no event shall the Company issue or sell through the Agent MLV such number or dollar amount of Placement Shares that would (a) exceed would cause the Company to not satisfy the eligibility requirements for use of Form S-3 (including Instruction I.B.6. thereof) under the Securities Act of 1933, as amended (the “Securities Act”), (b) exceeds the number or dollar amount of Ordinary Shares shares of Preferred Stock registered on the effective Registration Statement (as defined below) pursuant to which the offering is being made, or (bc) exceed exceeds the number of authorized but unissued Ordinary Shares (less Ordinary Shares issuable upon exercise, conversion or exchange shares of any outstanding securities of the Company or otherwise reserved from the Company’s authorized share capital), (c) exceed the number or dollar amount of Ordinary Shares permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable) or (d) exceed the number or dollar amount of Ordinary Shares for which the Company has filed a Prospectus Supplement (defined below) Preferred Stock (the lesser of (a), (b), (c) and (dc), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on the amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the Agent MLV shall have no obligation in connection with such compliance. The offer issuance and sale of Placement Shares through the Agent MLV will be effected pursuant to the Registration Statement (as defined below) filed by the Company and declared effective by the Securities and Exchange Commission (the “Commission”) on August 10, 2017), although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue Ordinary Placement Shares. The Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) and the rules and regulations thereunder (the “Securities Act Regulations”), with the Commission a registration statement on Form S-3 (File No. 333-219567184534), including a base prospectus prospectus, relating to certain securities, including the Placement Shares to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amendedamended (the “Exchange Act”), and the rules and regulations thereunder (collectively, the “Exchange ActAct Regulations”). The Company has prepared a prospectus supplement specifically relating to the Placement Shares (the “Prospectus Supplement”) to the base prospectus included as part of the such registration statement, which prospectus supplement relates to the Placement Shares to be issued from time to time by the Company (the “Prospectus Supplement”). The Company will furnish to the AgentMLV, for use by the AgentMLV, copies of the prospectus included as part of such registration statement, as supplemented by the Prospectus Supplement Supplement, relating to the Placement Shares to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement Shares. Except where the context otherwise requires, such registration statement(s)statement, including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act Regulations, is herein called the “Registration Statement.” The base prospectus or base prospectusesprospectus, including all documents incorporated therein by reference, included in the Registration Statement, as it may be supplemented, if necessary, supplemented by the Prospectus Supplement, in the form in which such prospectus or prospectuses and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act Regulations, together with the then issued Issuer Free Writing Prospectus(es) (defined below), is herein called the “Prospectus.” Any reference herein to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus amendment or supplement thereto shall be deemed to refer to and include the documents, if any, documents incorporated by reference therein. Any , and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement, Statement or the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing after the execution hereof of any document under with the Exchange Act on or after Commission deemed to be incorporated by reference therein (the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference“Incorporated Documents”). For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval System, or if applicable, the Interactive Data Electronic Application system or any successor thereto when used by the Commission (collectively, “XXXXX”).

Appears in 1 contract

Samples: Adcare Health Systems Inc

Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through the Agent, ordinary shares of common stock (the shares to be offered and sold hereunder being referred to as the “Placement Shares”) of the Company, par value $0.01 nominal value per share (the “Ordinary SharesCommon Stock”), up to an aggregate gross sales proceeds of $50,000,000; provided, however, that in no event shall the Company issue or sell through the Agent such number or dollar amount of Placement Shares that would (a) exceed the number or dollar amount of Ordinary Shares shares of Common Stock registered on the effective Registration Statement (as defined below) pursuant to which the offering is being made, (b) exceed the number of authorized but unissued Ordinary Shares (less Ordinary Shares issuable upon exercise, conversion or exchange shares of any outstanding securities of the Company or otherwise reserved from the Company’s authorized share capital)Common Stock, (c) exceed the number or dollar amount of Ordinary Shares shares of Common Stock permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable) or (d) exceed the number or dollar amount of Ordinary Shares Common Stock for which the Company has filed a Prospectus Supplement (as defined below) (the lesser of (a), (b), (c) and (d), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on the number or the dollar amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the Agent shall have no obligation in connection with such compliance. The offer issuance and sale of Placement Shares through the Agent will be effected pursuant to the Registration Statement (as defined below) filed by the Company and declared effective by the Securities and Exchange Commission (the “Commission”) on August 10November 20, 20172014, although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue Ordinary the Placement Shares. The Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) and the rules and regulations thereunder (the “Securities Act RegulationsAct”), with the Commission a registration statement on Form S-3 (File No. 333-219567199219), including a base prospectus prospectus, relating to certain securities, including the Placement Shares to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amendedamended (the “Exchange Act”), and the rules and regulations thereunder (collectively, the “Exchange Act”)thereunder. The Company has prepared a prospectus supplement to the base prospectus included as part of the registration statement, which prospectus supplement relates to the Placement Shares to be issued from time to time by the Company pursuant to this Agreement (the “Prospectus Supplement”). The Company will furnish to the Agent, for use by the Agent, copies of the base prospectus included as part of such registration statement, as supplemented by the Prospectus Supplement Supplement, relating to the Placement Shares to be issued from time to time by the Company. The Company may file file, if necessary, one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement Shares. Except where the context otherwise requires, such registration statement(s), and any post-effective amendment thereto, including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement statement(s) pursuant to Rule 430B of the Securities Act RegulationsAct, is herein called the “Registration Statement.” The base prospectus or base prospectuses, including all documents incorporated or deemed incorporated therein by reference, included in the Registration Statement, as it may be supplemented, if necessary, supplemented by the Prospectus Supplement, in the form in which such prospectus or prospectuses and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act RegulationsAct, together with the then issued Issuer Free Writing Prospectus(es) (defined below), is herein called the “Prospectus.” Any reference herein to the Registration Statement, any Prospectus Supplement, Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the documents, if any, incorporated by reference thereintherein (the “Incorporated Documents”), including, unless the context otherwise requires, the documents, if any, filed as exhibits to such Incorporated Documents. Any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act on or after the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference. For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval System, or if applicable, the Interactive Data Electronic Application system or any successor thereto when used by the Commission (collectively, “XXXXX”).

Appears in 1 contract

Samples: Onconova Therapeutics, Inc.

Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through or to the Agent, ordinary as sales agent or principal, shares of common stock (the “Placement Shares”) of the Company, par value $0.01 nominal value 0.0001 per share (the “Ordinary SharesCommon Stock”), up to an aggregate gross sales proceeds of $50,000,000; provided, however, that in no event shall the Company issue or sell through the Agent such number or dollar amount of Placement Shares that would (a) exceed the number or dollar amount of Ordinary Shares shares of Common Stock registered on the effective Registration Statement (defined below) pursuant to which the offering is being made, (b) exceed the number of authorized but unissued Ordinary Shares shares of Common Stock (less Ordinary Shares shares of Common Stock issuable upon exercise, conversion or exchange of any outstanding securities of the Company or otherwise reserved from the Company’s authorized share capitalcapital stock), (c) exceed the number or dollar amount of Ordinary Shares shares of Common Stock permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable) or (d) exceed the number or dollar amount of Ordinary Shares shares of Common Stock for which the Company has filed a Prospectus Supplement (defined below) (the lesser of (a), (b), (c) and (d), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on the amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the Agent shall have no obligation in connection with such compliance. The offer and sale of Placement Shares through the Agent will be effected pursuant to the Registration Statement (as defined below) filed by the Company and which will be declared effective by the Securities and Exchange Commission (the “Commission”) on August 10, 2017), although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue Ordinary SharesCommon Stock. The Company has filedfiled or will file, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) and the rules and regulations thereunder (the “Securities Act Regulations”), with the Commission a registration statement on Form S-3 (File No. 333-219567)S-3, including a base prospectus prospectus, relating to certain securities, including the Placement Shares to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amendedamended (the “Exchange Act”), and the rules and regulations thereunder (collectively, the “Exchange Act”)thereunder. The Company has prepared a prospectus or a prospectus supplement to the base prospectus included as part of the registration statement, which prospectus or prospectus supplement relates to the Placement Shares to be issued from time to time by the Company (the “Prospectus Supplement”). The Company will furnish to the Agent, for use by the Agent, copies of the prospectus included as part of such registration statement, as supplemented supplemented, by the Prospectus Supplement Supplement, relating to the Placement Shares to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement Shares. Except where the context otherwise requires, such registration statement(s), and any post-effective amendments thereto, including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act Regulations, is herein called the “Registration Statement.” The base prospectus or base prospectuses, including all documents incorporated therein by reference, included in the Registration Statement, as it may be supplemented, if necessary, by the Prospectus Supplement, in the form in which such prospectus or prospectuses and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act Regulations, together with the then issued Issuer Free Writing Prospectus(es) (defined below), is herein called the “Prospectus.” Any reference herein to the Registration Statement, any Prospectus Supplement, Prospectus or any Issuer Free Writing Prospectus (defined below) shall be deemed to refer to and include the documents, if any, incorporated by reference thereintherein (the “Incorporated Documents”), including, unless the context otherwise requires, the documents, if any, filed as exhibits to such Incorporated Documents. Any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act on or after the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference. For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval system, or if applicable, the Interactive Data Electronic Application system or any successor thereto when used by the Commission (collectively, “XXXXXEXXXX”).

Appears in 1 contract

Samples: Sales Agreement (SELLAS Life Sciences Group, Inc.)

Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through MLV, acting as agent and/or principal, shares of the Agent, ordinary shares Company’s common stock (the “Common Stock”) up to an aggregate offering price of $25,000,000 (the “Placement Shares”) of the Company, $0.01 nominal value per share (the “Ordinary Shares”), up to an aggregate gross sales proceeds of $50,000,000; provided, however, that in no event shall the Company issue or sell through the Agent MLV such number or dollar amount of Placement Shares that would (a) exceed exceeds the number or dollar amount of Ordinary Shares shares of Common Stock registered on the effective Registration Statement (as defined below) pursuant to which the offering is being made, or (b) exceed exceeds the number of authorized but unissued Ordinary Shares (less Ordinary Shares issuable upon exercise, conversion or exchange shares of any outstanding securities of the Company or otherwise reserved from the Company’s authorized share capital), Common Stock (c) exceed the number or dollar amount of Ordinary Shares permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable) or (d) exceed the number or dollar amount of Ordinary Shares for which the Company has filed a Prospectus Supplement (defined below) (the lesser of (a), (b), (c) and (d), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on the amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the Agent MLV shall have no obligation in connection with such compliance. The offer issuance and sale of Placement Shares through the Agent MLV will be effected pursuant to the Registration Statement (as defined below) filed by the Company and declared effective by the Securities and Exchange Commission (the “Commission”) on August 10, 2017), although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue Ordinary Placement Shares. The Company has filedfiled with the Commission, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) ), and the rules and regulations thereunder (the “Securities Act Regulations”), with the Commission a registration statement Registration Statement on Form S-3 (File No. 333-219567180028), including a base prospectus prospectus, relating to certain securities, including including, generally, the Placement Shares Shares, to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amendedamended (the “Exchange Act”), and the rules and regulations thereunder (collectively, the “Exchange ActAct Regulations”). The Company has prepared a prospectus supplement specifically relating to the Placement Shares (the “Prospectus Supplement”) to the base prospectus included as part of the such registration statement, which prospectus supplement relates to the Placement Shares to be issued from time to time by the Company (the “Prospectus Supplement”). The Company will furnish to the AgentMLV upon request, for use by the AgentMLV, copies of the base prospectus included as part of such registration statement, as supplemented by the Prospectus Supplement Supplement, relating to the Placement Shares to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement Shares. Except where the context otherwise requires, such registration statement(s)statement, including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act Regulations, is herein called the “Registration Statement.” The base prospectus or base prospectusesprospectus, including all documents incorporated therein by reference, included in the Registration Statement, as it may be supplemented, if necessary, supplemented by the Prospectus Supplement, in the form in which such prospectus or prospectuses and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act Regulations, together with the then issued Issuer Free Writing Prospectus(es) (defined below), Regulations is herein hereinafter called the “Prospectus.” ”. Any reference herein to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus amendment or supplement thereto shall be deemed to refer to and include the documents, if any, documents incorporated by reference therein. Any , and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement, Statement or the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing after the execution hereof of any document under with the Exchange Act on or after Commission deemed to be incorporated by reference therein (the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference“Incorporated Documents”). For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval System, or if applicable, the Interactive Data Electronic Application system or any successor thereto when used by the Commission (collectively, “XXXXX”).

Appears in 1 contract

Samples: Peregrine Pharmaceuticals Inc

Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through or to the Agent, ordinary shares (the “Placement Shares”) of common stock of the Company, $0.01 nominal par value per share (the “Ordinary SharesCommon Stock”), having an aggregate offering price of up to an aggregate gross sales proceeds of $50,000,000; 8,000,000, provided, however, that in no event shall the Company issue or sell through the Agent such number or dollar amount of Placement Shares that would (a) exceed exceeds the number or dollar amount of Ordinary Shares registered on shares of Common Stock that may be sold pursuant to the effective Registration Statement (as defined below) pursuant to which the offering is being made), or (b) exceed exceeds the number of authorized but unissued Ordinary Shares (less Ordinary Shares issuable upon exercise, conversion or exchange shares of any outstanding securities Common Stock of the Company or otherwise reserved from the Company’s authorized share capital), (c) exceed the number or dollar amount of Ordinary Shares permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable) or (d) exceed the number or dollar amount of Ordinary Shares for which the Company has filed a Prospectus Supplement (defined below) (the lesser of (a), (b), (c) and (d), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on the amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the Agent shall have no obligation in connection with such compliance. The offer issuance and sale of Placement Shares through the or to Agent will be effected pursuant to the Registration Statement (as defined below) filed by the Company and declared effective by the Securities and Exchange Commission (the “Commission”) on August 10, 2017), although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue Ordinary any Placement Shares. The Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) amended, and the rules and regulations thereunder (the “Securities Act RegulationsAct”), with the Commission a registration statement on Form S-3 (File No. 333-219567238275), including a base prospectus prospectus, relating to certain securities, including the Placement Shares to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (collectively, the “Exchange Act”). The Company has prepared a prospectus supplement to the base prospectus included as part of the such registration statement, which prospectus supplement statement that specifically relates to the Placement Shares to be issued from time to time by the Company (the “Prospectus Supplement”). The Company will furnish to the Agent, for use by the Agent, copies of the base prospectus included as part of such registration statement, as supplemented by the Prospectus Supplement Supplement, relating to the Placement Shares to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement Shares. Except where the context otherwise requires, such registration statement(s)statement, and any post-effective amendment thereto, including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act, or any subsequent registration statement on Form S-3 filed pursuant to Rule 415(a)(6) under the Securities Act Regulationsby the Company to cover any Placement Shares, is herein called the “Registration Statement.” The base prospectus or base prospectusesprospectus, including all documents incorporated therein by reference, included in the Registration Statement, as it may be supplemented, if necessary, supplemented by the Prospectus Supplement, in the form in which such prospectus or prospectuses and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act RegulationsAct, together with the any then issued Issuer Free Writing Prospectus(es) Prospectus (defined below), is herein called the “Prospectus.” Any reference herein to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus amendment or supplement thereto, shall be deemed to refer to and include the documents, if any, documents incorporated or deemed to be incorporated by reference therein. Any , and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement, Statement or the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing after the execution hereof of any document under with the Exchange Act on or after Commission deemed to be incorporated by reference therein (the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference“Incorporated Documents”). For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval System, or if applicable, the Interactive Data Electronic Application system or any successor thereto when used by the Commission (collectively, “XXXXX”).

Appears in 1 contract

Samples: Sales Agreement (Creative Realities, Inc.)

Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through or to the Agent, ordinary shares (the “Placement Shares”) of common stock of the Company, $0.01 nominal 0.001 par value per share (the “Ordinary SharesCommon Stock”), having an aggregate offering price of up to an aggregate gross sales proceeds of $50,000,000; 8,400,000, provided, however, that in no event shall the Company issue or sell through the Agent such number or dollar amount of Placement Shares that would exceed (a) exceed the number or dollar amount of Ordinary Shares registered on shares of Common Stock that may be sold pursuant to the effective Registration Statement (as defined below) pursuant to which the offering is being made), (b) exceed the number of authorized but unissued Ordinary Shares shares of Common Stock of the Company (less Ordinary Shares shares of Common Stock issuable upon exercise, conversion or exchange of any outstanding securities of the Company or otherwise reserved from the Company’s authorized share capitalcapital stock), (c) exceed the number or dollar amount of Ordinary Shares shares of Common Stock permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable) or (d) exceed the number or dollar amount of Ordinary Shares shares of Common Stock for which the Company has filed a Prospectus Supplement (defined below) (the lesser of (a), (b), (c) and (d), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on the amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the Agent shall have no obligation in connection with such compliance. The offer issuance and sale of Placement Shares through the or to Agent will be effected pursuant to the Registration Statement (as defined below) filed by the Company and declared effective by the Securities and Exchange Commission (the “Commission”) on August 10, 2017), although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue Ordinary any Placement Shares. The Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) amended, and the rules and regulations thereunder (the “Securities Act RegulationsAct”), with the Commission a registration statement on Form S-3 (File No. 333-219567255751), including a base prospectus prospectus, relating to certain securities, including the Placement Shares to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (collectively, the “Exchange Act”). The Company has prepared a prospectus supplement specifically relating to the Placement Shares (the “Prospectus Supplement”) to the base prospectus included as part of the such registration statement, which prospectus supplement relates to the Placement Shares to be issued from time to time by the Company (the “Prospectus Supplement”). The Company will furnish to the Agent, for use by the Agent, copies of the prospectus included as part of such registration statement, as supplemented by the Prospectus Supplement relating to the Placement Shares to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement Shares. Except where the context otherwise requires, such registration statement(s)statement, and any post-effective amendment thereto, including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act, or any subsequent registration statement on Form S-3 filed pursuant to Rule 415(a)(6) under the Securities Act Regulationsby the Company to cover any Placement Shares, is herein called the “Registration Statement.” The base prospectus or base prospectusesprospectus, including all documents incorporated therein by reference, included in the Registration Statement, as it may be supplemented, if necessary, supplemented by the Prospectus Supplement, in the form in which such prospectus or prospectuses and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act RegulationsAct, together with the any then issued Issuer Free Writing Prospectus(es) Prospectus (defined below), is herein called the “Prospectus.” Any reference herein to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus amendment or supplement thereto, shall be deemed to refer to and include the documents, if any, documents incorporated or deemed to be incorporated by reference therein. Any , and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement, Statement or the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing after the execution hereof of any document under with the Exchange Act on or after Commission deemed to be incorporated by reference therein (the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference“Incorporated Documents”). For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval System, or if applicable, the Interactive Data Electronic Application system or any successor thereto when used by the Commission (collectively, “XXXXXEXXXX”).

Appears in 1 contract

Samples: Sales Agreement (Panbela Therapeutics, Inc.)

Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through the Agent, ordinary shares (the “Placement Shares”) of the Company’s common stock, par value $0.01 nominal value per share (the “Ordinary SharesCommon Stock”), up to an aggregate gross sales proceeds offering price of $50,000,000; 75,000,000, provided, however, that in no event shall the Company issue or sell through the Agent such number or dollar amount of Placement Shares that would (a) exceed would cause the Company to not satisfy the eligibility requirements for use of Form S-3 (including Instruction I.B.6. thereof, if applicable), (b) exceeds the number or dollar amount of Ordinary Shares shares of Common Stock registered on the effective Registration Statement (as defined below) pursuant to which the offering is being made, made or (bc) exceed exceeds the number of authorized but unissued Ordinary Shares (less Ordinary Shares issuable upon exercise, conversion or exchange shares of any outstanding securities of the Company or otherwise reserved from the Company’s authorized share capital), (c) exceed the number or dollar amount of Ordinary Shares permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable) or (d) exceed the number or dollar amount of Ordinary Shares for which the Company has filed a Prospectus Supplement (defined below) Common Stock (the lesser of (a), (b), (c) and (dc), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on the amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the Agent shall have no obligation in connection with such compliancecompliance if acting in accordance with any Placement Notice that has not been suspended or terminated by the Company. The offer issuance and sale of Placement Shares through the Agent will be effected pursuant to the Registration Statement (as defined below) filed by the Company and declared effective by the Securities and Exchange Commission (the “Commission”) on August 10, 2017), although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue Ordinary any Shares. The Company has filedfiled prior to the date hereof, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) ), and the rules and regulations thereunder (the “Securities Act Regulations”), with the Commission a an effective registration statement on Form S-3 (File No. 333-219567271545), including a base prospectus prospectus, relating to certain securities, including the Placement Shares to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amendedamended (the “Exchange Act”), and the rules and regulations thereunder (collectively, the “Exchange Act”)thereunder. The Company has also prepared a prospectus supplement supplement, specifically relating to the Shares (the “Prospectus Supplement”), to the base prospectus included as part of the such registration statement, which prospectus supplement relates to the Placement Shares to be issued from time to time by the Company (the “Prospectus Supplement”). The Company will furnish to the Agent, for use by the Agent, copies of the prospectus included as part of such registration statement, as supplemented by the Prospectus Supplement relating to the Placement Shares to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a the Prospectus Supplement), with respect to the Placement Shares. Except where the context otherwise requires, such registration statement(s)statement, as from time to time amended or supplemented, including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act Regulations, is herein called the “Registration Statement.” The base prospectus or base prospectusesprospectus, including all documents incorporated therein by reference, included in the Registration Statement, as it may be supplementedsupplemented by any prospectus supplement, if necessary, by including the Prospectus Supplement, or any Permitted Free Writing Prospectus (as defined below), as applicable, in the form in which such prospectus or prospectuses and/or supplement, Prospectus Supplement and/or Permitted Free Writing Prospectus have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act Regulations, together with the then issued Issuer Free Writing Prospectus(es) (defined below), is herein called the “Prospectus.” Any reference herein to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus amendment or supplement thereto shall be deemed to refer to and include the documents, if any, documents incorporated by reference therein. Any , and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement, Statement or the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing after the execution hereof of any document under with the Exchange Act on or after Commission deemed to be incorporated by reference therein (the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference“Incorporated Documents”). For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval System, or if applicable, the Interactive Data Electronic Application system or any successor thereto when used by the Commission (collectively, “XXXXX”). All references in this Agreement to financial statements and schedules and other information that is “contained,” “included” or “stated” in the Registration Statement or the Prospectus (and all other references of like import) shall be deemed to mean and include all such financial statements and schedules and other information that is incorporated by reference in the Registration Statement or the Prospectus, as the case may be. All references in this Agreement to any Issuer Free Writing Prospectus (as defined below) (other than any Issuer Free Writing Prospectuses that, pursuant to Rule 433, are not required to be filed with the Commission) shall be deemed to include the copy thereof filed with the Commission pursuant to XXXXX; and all references in this Agreement to “supplements” to the Prospectus shall include, without limitation, any supplements, “wrappers” or similar materials prepared in connection with any offering, sale or private placement of any Shares by the Agent outside of the United States.

Appears in 1 contract

Samples: Sales Agreement (Sonida Senior Living, Inc.)

Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through the Agent, ordinary shares of common stock (the “Placement Shares”) of the Company, par value $0.01 nominal value 0.001 per share (the “Ordinary SharesCommon Stock), ) up to an aggregate gross sales proceeds offering price of $50,000,00060,000,000; provided, however, that in no event shall the Company issue or sell through the Agent such number or dollar amount of Placement Shares that would (a) exceed the number or dollar amount of Ordinary Shares shares of Common Stock registered on the effective Registration Statement (defined below) pursuant to which the offering is being made, (b) exceed the number of authorized but unissued Ordinary Shares (less Ordinary Shares issuable upon exercise, conversion or exchange shares of any outstanding securities of the Company or otherwise reserved from the Company’s authorized share capital)Common Stock, (c) exceed the number or dollar amount of Ordinary Shares shares of Common Stock permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable) or (d) exceed the number or dollar amount of Ordinary Shares shares of Common Stock for which the Company has filed a Prospectus Supplement (defined below) (the lesser of (a), (b), (c) and (d), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on the amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the Agent shall have no obligation in connection with such compliance. The offer and sale of Placement Shares through the Agent will be effected pursuant to the Registration Statement (as defined below) filed by the Company and declared effective by the Securities and Exchange Commission (the “Commission”) on August 10October 18, 20172016, although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue Ordinary SharesCommon Stock. The Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) and the rules and regulations thereunder (the “Securities Act Regulations”), with the Commission a registration statement on Form S-3 (File No. 333-219567213964), including a base prospectus prospectus, relating to certain securities, including the Placement Shares to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amendedamended (the “Exchange Act”), and the rules and regulations thereunder (collectively, the “Exchange Act”)thereunder. The Company has prepared a prospectus or a prospectus supplement to the base prospectus included as part of the registration statement, which prospectus or prospectus supplement relates to the Placement Shares to be issued from time to time by the Company (the “Prospectus Supplement”). The Company will furnish to the Agent, for use by the Agent, copies of the prospectus included as part of such registration statement, as supplemented supplemented, by the Prospectus Supplement Supplement, relating to the Placement Shares to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement Shares. Except where the context otherwise requires, such registration statement(s), including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act Regulations, is herein called the “Registration Statement.” The base prospectus or base prospectuses, including all documents incorporated therein by reference, included in the Registration Statement, as it may be supplemented, if necessary, by the Prospectus Supplement, in the form in which such prospectus or prospectuses and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act Regulations, together with the then issued Issuer Free Writing Prospectus(es) Prospectus (as defined below), is herein called the “Prospectus.” Any reference herein to the Registration Statement, any Prospectus Supplement, Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the documents, if any, incorporated by reference thereintherein (the “Incorporated Documents”), including, unless the context otherwise requires, the documents, if any, filed as exhibits to such Incorporated Documents. Any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act on or after the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference. For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval system, or if applicable, the Interactive Data Electronic Application system or any successor thereto when used by the Commission (collectively, “XXXXX”).

Appears in 1 contract

Samples: Sales Agreement (Collegium Pharmaceutical, Inc)

Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through the Agent, ordinary Agent shares of common stock (the “Placement Shares”) of the Company, par value $0.01 nominal value 0.001 per share (the “Ordinary SharesCommon Stock”), up to an aggregate gross sales proceeds of $50,000,000; provided, however, that in no event shall the Company issue or sell through the Agent such number or dollar amount of Placement Shares that would (a) exceed the number or dollar amount of Ordinary Shares shares of Common Stock registered on the effective Registration Statement (as defined below) pursuant to which the offering is being made, (b) exceed the number of authorized but unissued Ordinary Shares shares of Common Stock (less Ordinary Shares shares of Common Stock issuable upon exercise, conversion or exchange of any outstanding securities of the Company or otherwise reserved from the Company’s authorized share capitalcapital stock), (c) exceed the number or dollar amount of Ordinary Shares shares of Common Stock permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable) or (d) exceed the number or dollar amount of Ordinary Shares shares of Common Stock for which the Company has filed a Prospectus Supplement (as defined below) (the lesser of (a), (b), (c) and (d), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on the amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the Agent shall have no obligation in connection with such compliance. The offer and sale of Placement Shares through the Agent will be effected pursuant to the Registration Statement (as defined below) filed by the Company and declared effective by the Securities and Exchange Commission (the “Commission”) on August 10January 25, 2017, although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue Ordinary SharesCommon Stock. The Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) ), and the rules and regulations thereunder (the “Securities Act Regulations”), with the Commission a registration statement on Form S-3 (File No. 333-219567215147), including a base prospectus prospectus, relating to certain securities, including the Placement Shares to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amendedamended (the “Exchange Act”), and the rules and regulations thereunder (collectively, the “Exchange Act”)thereunder. The Company has prepared a prospectus or a prospectus supplement to the base prospectus included as part of the registration statement, which prospectus or prospectus supplement relates to the Placement Shares to be issued from time to time by the Company (the “Prospectus Supplement”). The Company will furnish to the Agent, for use by the Agent, copies of the prospectus included as part of such registration statement, as supplemented supplemented, by the Prospectus Supplement Supplement, relating to the Placement Shares to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement Shares. Except where the context otherwise requires, such registration statement(s), including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act Regulations, is herein called the “Registration Statement.” The base prospectus or base prospectuses, including all documents incorporated therein by reference, included in the Registration Statement, as it may be supplemented, if necessary, by the Prospectus Supplement, in the form in which such prospectus or prospectuses and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act Regulations, together with the then issued Issuer Free Writing Prospectus(es) (as defined below), is herein called the “Prospectus.” Any reference herein to the Registration Statement, any Prospectus Supplement, Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the documents, if any, incorporated by reference thereintherein (the “Incorporated Documents”), including, unless the context otherwise requires, the documents, if any, filed as exhibits to such Incorporated Documents. Any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act on or after the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference. For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval system, or if applicable, the Interactive Data Electronic Application system or any successor thereto when used by the Commission (collectively, “XXXXXEXXXX”).

Appears in 1 contract

Samples: Sales Agreement (Cytokinetics Inc)

Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through the AgentBP, ordinary shares (the “Placement Shares”) of the Company’s common stock, par value $0.01 nominal value 0.001 per share (the “Ordinary SharesCommon Stock”), up to an aggregate gross sales proceeds offering price of $50,000,000; provided6,000,000, provided however, that in no event shall the Company issue or sell through the Agent BP such number or dollar amount of Placement Shares that would (a) exceed would cause the Company to not satisfy the eligibility requirements for use of Form S-3 (including Instruction I.B.6. thereof, if applicable), (b) exceeds the number or dollar amount of Ordinary Shares shares of Common Stock registered on the effective Registration Statement (as defined below) pursuant to which the offering is being made, made or (bc) exceed exceeds the number of authorized but unissued Ordinary Shares (less Ordinary Shares issuable upon exercise, conversion or exchange shares of any outstanding securities of the Company or otherwise reserved from the Company’s authorized share capital), (c) exceed the number or dollar amount of Ordinary Shares permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable) or (d) exceed the number or dollar amount of Ordinary Shares for which the Company has filed a Prospectus Supplement (defined below) Common Stock (the lesser of (a), (b), (c) and (dc), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on the amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the Agent BP shall have no obligation in connection with such compliancecompliance if acting in accordance with any Placement Notice that has not been suspended or terminated by the Company. The offer issuance and sale of Placement Shares through the Agent BP will be effected pursuant to the Registration Statement (as defined below) filed by the Company and declared effective by the Securities and Exchange Commission (the “Commission”) on August 10, 2017), although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue Ordinary any Placement Shares. The Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) ), and the rules and regulations thereunder (the “Securities Act Regulations”), with the Commission a registration statement on Form S-3 (File No. 333-219567192864), including a base prospectus prospectus, relating to certain securities, including the Placement Shares to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amendedamended (the “Exchange Act”), and the rules and regulations thereunder (collectively, the “Exchange Act”)thereunder. The Company has prepared a prospectus supplement specifically relating to the Placement Shares (the “Prospectus Supplement”) to the base prospectus included as part of the such registration statement, which prospectus supplement relates to the Placement Shares to be issued from time to time by the Company (the “Prospectus Supplement”). The Company will furnish to the AgentBP, for use by the AgentBP, copies of the prospectus included as part of such registration statement, as supplemented by the Prospectus Supplement Supplement, relating to the Placement Shares to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement Shares. Except where the context otherwise requires, such registration statement(s)statement, including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act Regulations, is herein called the “Registration Statement.” The base prospectus or base prospectusesprospectus, including all documents incorporated therein by reference, included in the Registration Statement, as it may be supplemented, if necessary, supplemented by the Prospectus Supplement, in the form in which such prospectus or prospectuses and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act Regulations, together with the then issued Issuer Free Writing Prospectus(es) (defined below), is herein called the “Prospectus.” Any reference herein to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus amendment or supplement thereto shall be deemed to refer to and include the documents, if any, documents incorporated by reference therein. Any , and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement, Statement or the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing after the execution hereof of any document under with the Exchange Act on or after Commission deemed to be incorporated by reference therein (the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference“Incorporated Documents”). For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval System, or if applicable, the Interactive Data Electronic Application system or any successor thereto when used by the Commission (collectively, “XXXXX”).

Appears in 1 contract

Samples: Microvision Inc

Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through the Agent, ordinary up to $25,000,000 of shares of common stock (the “Placement Shares”) of the Company, par value $0.01 nominal value 0.001 per share (the “Ordinary SharesCommon Stock”), up to an aggregate gross sales proceeds of $50,000,000; provided, however, that in no event shall the Company issue or sell through the Agent such number or dollar amount of Placement Shares that would (a) exceed the number or dollar amount of Ordinary Shares shares of Common Stock registered on the effective Registration Statement (defined below) pursuant to which the offering is being made, made or (b) exceed the number of authorized but unissued Ordinary Shares shares of Common Stock (less Ordinary Shares issuable upon exercise, conversion or exchange of any outstanding securities of the Company or otherwise reserved from the Company’s authorized share capital), (c) exceed the number or dollar amount of Ordinary Shares permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable) or (d) exceed the number or dollar amount of Ordinary Shares for which the Company has filed a Prospectus Supplement (defined below) (the lesser of (a), (b), (c) and (d), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on the amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the Agent shall have no obligation in connection with such compliance. The offer issuance and sale of Placement Shares through the Agent will be effected pursuant to the Registration Statement (as defined below) filed by the Company and declared effective by the Securities and Exchange Commission (the “Commission”) on August 10December 19, 20172014, although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue Ordinary SharesCommon Stock. The Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) and the rules and regulations thereunder (the “Securities Act Regulations”), with the Commission a registration statement on Form S-3 (File No. 333-219567199998), including a base prospectus prospectus, relating to certain securities, including the Placement Shares to be issued from time to time by the Company, and which incorporates by reference certain documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amendedamended (the “Exchange Act”), and the rules and regulations thereunder (collectively, the “Exchange Act”)thereunder. The Company has prepared a prospectus supplement to the base prospectus included as part of the registration statementRegistration Statement, which prospectus supplement relates to the Placement Shares to be issued from time to time by the Company (the “Prospectus Supplement”). The Company will furnish to the Agent, for use by the Agent, copies of the base prospectus included as part of such registration statementRegistration Statement, as supplemented by the Prospectus Supplement Supplement, relating to the Placement Shares to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement Shares. Except where the context otherwise requires, such registration statement(s), including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act Regulations, is herein called the “Registration Statement.” The base prospectus or base prospectuses, including all documents incorporated therein by reference, included in the Registration Statement, as it may be supplemented, if necessary, by the Prospectus Supplement, in the form in which such prospectus or prospectuses and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act Regulations, together with the then issued Issuer Free Writing Prospectus(es) (defined below), is herein called the “Prospectus.” Any reference herein to the Registration Statement, any Prospectus Supplement, Prospectus Supplement or any Issuer Free Writing Prospectus shall be deemed to refer to and include the documents, if any, incorporated by reference thereintherein (the “Incorporated Documents”), including, unless the context otherwise requires, the documents, if any, filed as exhibits to such Incorporated Documents. Any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement, Statement or the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act on or after the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference. For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval System, or if applicable, the Interactive Data Electronic Application system or any successor thereto when used by the Commission (collectively, “XXXXX”).

Appears in 1 contract

Samples: Merger Agreement (Transenterix Inc.)

Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through the Agent, ordinary Agent shares of common stock (the “Placement Shares”) of the Company, par value $0.01 nominal value 0.001 per share (the “Ordinary SharesCommon Stock”), up to an aggregate gross sales proceeds of $50,000,000; provided, however, that in no event shall the Company issue or sell through the Agent such number or dollar amount of Placement Shares that would (a) exceed the number or dollar amount of Ordinary Shares shares of Common Stock registered on the effective Registration Statement (as defined below) pursuant to which the offering is being made, (b) exceed the number of authorized but unissued Ordinary Shares (less Ordinary Shares issuable upon exerciseunissued, conversion unsubscribed for, or exchange not otherwise committed to be issued shares of any outstanding securities of the Company or otherwise reserved from the Company’s authorized share capital)Common Stock, (c) exceed the number or dollar amount of Ordinary Shares shares of Common Stock permitted to be sold under Form S-3 (including General Instruction I.B.6 I.B.6. thereof, if applicable) or (d) exceed the number or dollar amount of Ordinary Shares shares of Common Stock for which the Company has filed a Prospectus Supplement (as defined below) (the lesser of (a), (b), (c) and (d), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on the amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the Agent shall have no obligation in connection with such compliance. The offer issuance and sale of Placement Shares through the Agent will be effected pursuant to the a Registration Statement (as defined below) filed by the Company and declared effective by with the Securities and Exchange Commission (the “Commission”) that became effective on August 10May 21, 20172015 (Registration No. 333-204025), although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue Ordinary SharesCommon Stock. The Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) ), and the rules and regulations thereunder (the “Securities Act Regulations”), with the Commission a registration statement on Form S-3 (File No. 333-219567)S-3, including a base prospectus prospectus, relating to certain securities, including the Placement Shares to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amendedamended (the “Exchange Act”), and the rules and regulations thereunder (collectively, the “Exchange Act”)thereunder. The Company has prepared a prospectus supplement to the base prospectus included as part of the registration statement, which prospectus supplement relates to the Placement Shares to be issued from time to time by the Company (the “Prospectus Supplement”). The Company will furnish to the Agent, for use by the Agent, copies of the prospectus included as part of such registration statement, as supplemented by the Prospectus Supplement Supplement, relating to the Placement Shares to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to time that will contain a one or more base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), prospectuses with respect to the Placement Shares. Except where the context otherwise requires, such registration statement(s), including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act Regulations, is herein called the “Registration Statement.” The base prospectus or base prospectuses, including all documents incorporated therein by reference, included in the Registration Statement, as it may be supplemented, if necessary, by the any Prospectus Supplement, in the form in which such prospectus or prospectuses and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act Regulations, together with the then issued Issuer Free Writing Prospectus(es) (as defined below), is herein called the “Prospectus.” Any reference herein to the Registration Statement, any Prospectus Supplement, Prospectus or any Issuer Free Writing Prospectus Prospectus, and any amendments or supplements thereto, shall be deemed to refer to and include the documents, if any, incorporated by reference thereintherein (the “Incorporated Documents”), including, unless the context otherwise requires, the documents, if any, filed as exhibits to such Incorporated Documents. Any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act on or after the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference. For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval System, or if applicable, the Interactive Data Electronic Application system or any successor thereto when used by the Commission (collectively, “XXXXX”).

Appears in 1 contract

Samples: Sales Agreement (Corium International, Inc.)

Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through the Agent, ordinary 800,000 shares (the “Placement Shares”) of the Company’s 10.875% Series A Cumulative Redeemable Preferred Stock, $0.01 nominal no par value per share (the “Ordinary SharesPreferred Stock”), up to an aggregate gross sales proceeds of $50,000,000; provided, provided however, that in no event shall the Company issue or sell through the Agent such number or dollar amount of Placement Shares that would (a) exceed would cause the Company to not satisfy the eligibility requirements for use of Form S-3 (including Instruction I.B.6. thereof) under the Securities Act of 1933, as amended (the “Securities Act”), (b) exceeds the number or dollar amount of Ordinary Shares shares of Preferred Stock registered on the effective Registration Statement (as defined below) pursuant to which the offering is being made, or (bc) exceed exceeds the number of authorized but unissued Ordinary Shares (less Ordinary Shares issuable upon exercise, conversion or exchange of any outstanding securities shares of the Company or otherwise reserved from the Company’s authorized share capital), (c) exceed the number or dollar amount of Ordinary Shares permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable) or (d) exceed the number or dollar amount of Ordinary Shares for which the Company has filed a Prospectus Supplement (defined below) Preferred Stock (the lesser of (a), (b), (c) and (dc), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on the amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the Agent shall have no obligation in connection with such compliance. The offer issuance and sale of Placement Shares through the Agent will be effected pursuant to the Registration Statement (as defined below) filed by the Company and declared effective by the Securities and Exchange Commission (the “Commission”) on August 10, 2017), although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement (as defined below) to issue Ordinary Placement Shares. The Company has also entered into a separate At Market Issuance Sales Agreement, dated as of even date herewith (the “Alternative Sales Agreement”), pursuant to which it may, from time to time during the term of such Alternative Sales Agreement, issue and sell through or to MLV & Co. LLC (“Alternative Agent”), acting as agent and/or principal, the Placement Shares. The Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) and the rules and regulations thereunder (the “Securities Act Regulations”), with the Commission a registration statement on Form S-3 (File No. 333-219567201462), including a base prospectus prospectus, relating to certain 873040 securities, including the Placement Shares Shares, to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amendedamended (the “Exchange Act”), and the rules and regulations thereunder (collectively, the “Exchange ActAct Regulations”). The Company has prepared a prospectus supplement specifically relating to the Placement Shares (the “Prospectus Supplement”) to the base prospectus included as part of the such registration statement, which prospectus supplement relates to the Placement Shares to be issued from time to time by the Company (the “Prospectus Supplement”). The Company will furnish to the Agent, for use by the Agent, copies of the prospectus included as part of such registration statement, as supplemented by the Prospectus Supplement Supplement, relating to the Placement Shares to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement Shares. Except where the context otherwise requires, such registration statement(s)statement, including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act Regulations, is herein called the “Registration Statement.” The base prospectus or base prospectusesprospectus, including all documents incorporated or deemed incorporated therein by referencereference to the extent such information has not been superseded or modified in accordance with Rule 412 under the Securities Act (as qualified by Rule 430B(g) of the Securities Act), included in the Registration Statement, as it may be supplemented, if necessary, supplemented by the Prospectus Supplement, in the form in which such base prospectus or prospectuses and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act Regulations, together with the then issued Issuer Free Writing Prospectus(es) (defined below), is herein called the “Prospectus.” Any reference herein to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus amendment or supplement thereto shall be deemed to refer to and include the documents, if any, documents incorporated or deemed incorporated by reference therein. Any , and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement, Statement or the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing after the execution hereof of any document under with the Exchange Act on or after Commission deemed to be incorporated by reference therein (the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference“Incorporated Documents”). For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval System, or if applicable, the Interactive Data Electronic Application system or any successor thereto when used by the Commission (collectively, “XXXXX”).

Appears in 1 contract

Samples: Adcare Health Systems, Inc

Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through the Agent, ordinary shares of common stock (the shares to be offered and sold hereunder being referred to as the “Placement Shares”) of the Company, par value $0.01 nominal value 0.001 per share (the “Ordinary SharesCommon Stock”), up to an aggregate gross sales proceeds of $50,000,000; provided, however, that in no event shall the Company issue or sell through the Agent such number or dollar amount of Placement Shares that would (a) exceed the number or dollar amount of Ordinary Shares shares of Common Stock registered on the effective Registration Statement (as defined below) pursuant to which the offering is being made, (b) exceed the number of authorized but unissued Ordinary Shares (less Ordinary Shares issuable upon exercise, conversion or exchange shares of any outstanding securities of the Company or otherwise reserved from the Company’s authorized share capital)Common Stock, (c) exceed the number or dollar amount of Ordinary Shares shares of Common Stock permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable) or (d) exceed the number or dollar amount of Ordinary Shares Common Stock for which the Company has filed a Prospectus Supplement (as defined below) (the lesser of (a), (b), (c) and (d), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on the number or the dollar amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the Agent shall have no obligation in connection with such compliance. The offer issuance and sale of Placement Shares through the Agent will be effected pursuant to the Registration Statement (as defined below) filed by the Company and declared effective by the Securities and Exchange Commission (the “Commission”) on August 10June 8, 20172016, although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue Ordinary the Placement Shares. The Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) and the rules and regulations thereunder (the “Securities Act RegulationsAct”), with the Commission a registration statement on Form S-3 (File No. 333-219567211046), including a base prospectus prospectus, relating to certain securities, including the Placement Shares to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amendedamended (the “Exchange Act”), and the rules and regulations thereunder (collectively, the “Exchange Act”)thereunder. The Company has prepared a prospectus supplement to the base prospectus included as part of the registration statement, which prospectus supplement relates to the Placement Shares to be issued from time to time by the Company pursuant to this Agreement (the “Prospectus Supplement”). The Company will furnish to the Agent, for use by the Agent, copies of the base prospectus included as part of such registration statement, as supplemented by the Prospectus Supplement Supplement, relating to the Placement Shares to be issued from time to time by the Company. The Company may file file, if necessary, one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement Shares. Except where the context otherwise requires, such registration statement(s), including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement statement(s) pursuant to Rule 430B of the Securities Act RegulationsAct, is herein called the “Registration Statement.” The base prospectus or base prospectuses, including all documents incorporated or deemed incorporated therein by reference, included in the Registration Statement, as it may be supplemented, if necessary, supplemented by the Prospectus Supplement, in the form in which such prospectus or prospectuses and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act RegulationsAct, together with the then issued Issuer Free Writing Prospectus(es) (defined below), is herein called the “Prospectus.” Any reference herein to the Registration Statement, any Prospectus Supplement, Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the documents, if any, incorporated by reference thereintherein (the “Incorporated Documents”), including, unless the context otherwise requires, the documents, if any, filed as exhibits to such Incorporated Documents. Any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act on or after the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference. For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval System, or if applicable, the Interactive Data Electronic Application system or any successor thereto when used by the Commission (collectively, “XXXXXEXXXX”).

Appears in 1 contract

Samples: Cyclacel Pharmaceuticals, Inc.

Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through the Agent, ordinary shares of common stock (the “Placement Shares”) of the Company, par value $0.01 nominal value per share (the “Ordinary SharesCommon Stock”), up to an aggregate gross sales proceeds of $50,000,000; provided, however, that in no event shall the Company issue or sell through the Agent such number or dollar amount of Placement Shares that would (a) exceed the number or dollar amount of Ordinary Shares shares of Common Stock registered on the effective Registration Statement (as defined below) pursuant to which the offering is being made, (b) exceed the number of authorized but unissued Ordinary Shares shares of Common Stock (less Ordinary Shares shares of Common Stock issuable upon exercise, conversion or exchange of any outstanding securities of the Company or otherwise reserved from the Company’s authorized share capitalcapital stock), (c) exceed the number or dollar amount of Ordinary Shares shares of Common Stock permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable) or (d) exceed the number or dollar amount of Ordinary Shares shares of Common Stock for which the Company has filed a Prospectus Supplement (as defined below) (the lesser of (a), (b), (c) and (d), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on the amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the Agent shall have no obligation in connection with such compliance. The offer and sale of Placement Shares through the Agent will be effected pursuant to the Registration Statement (as defined below) filed by the Company and declared effective by the Securities and Exchange Commission (the “Commission”) on August 1024, 20172016, although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue Ordinary SharesCommon Stock. The Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) ), and the rules and regulations thereunder (the “Securities Act Regulations”), with the Commission a registration statement on Form S-3 (File No. 333-219567213089), including a base prospectus prospectus, relating to certain securities, including the Placement Shares to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amendedamended (the “Exchange Act”), and the rules and regulations thereunder (collectively, the “Exchange ActAct Regulations”). The Company has prepared a prospectus or a prospectus supplement to the base prospectus included as part of the registration statement, which prospectus or prospectus supplement relates to the Placement Shares to be issued from time to time by the Company (the “Prospectus Supplement”). The Company will furnish to the Agent, for use by the Agent, copies of the prospectus included as part of such registration statement, as supplemented supplemented, by the Prospectus Supplement Supplement, relating to the Placement Shares to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement Shares. Except where the context otherwise requires, such registration statement(s), including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act Regulations, is herein called the “Registration Statement.” The base prospectus or base prospectuses, including all documents incorporated therein by reference, included in the Registration Statement, as it may be supplemented, if necessary, by the Prospectus Supplement, in the form in which such prospectus or prospectuses and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act Regulations, together with the then issued Issuer Free Writing Prospectus(es) (as defined below), is herein called the “Prospectus.” Any reference herein to the Registration Statement, any Prospectus Supplement, Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the documents, if any, incorporated by reference thereintherein (the “Incorporated Documents”), including, unless the context otherwise requires, the documents, if any, filed as exhibits to such Incorporated Documents. Any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act on or after the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference. For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval system, or if applicable, the Interactive Data Electronic Application system or any successor thereto when used by the Commission (collectively, “XXXXX”).

Appears in 1 contract

Samples: Sales Agreement (SeaSpine Holdings Corp)

Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through the Agent, ordinary shares (the “Placement Shares”) of the Company, $0.01 nominal NIS 0.02 par value per share (the “Ordinary Shares”), for an aggregate amount of up to an aggregate gross sales proceeds of $50,000,0007.3 million; provided, however, that in no event shall the Company issue or sell through the Agent such number or dollar amount of Placement Shares that would (a) exceed the number or dollar amount of Ordinary Shares registered on the effective Registration Statement (defined below) pursuant to which the offering is being made, (b) exceed the number of authorized but unissued Ordinary Shares (less Ordinary Shares issuable upon exercise, conversion or exchange of any outstanding securities of the Company or otherwise reserved from the Company’s authorized share capitalcapital stock), (c) exceed the number or dollar amount of Ordinary Shares permitted to be sold under Form S-3 F-3 (including General Instruction I.B.6 I.B.5 thereof, if applicable) or (d) exceed the number or dollar amount of Ordinary Shares for which the Company has filed a Prospectus Supplement (defined below) (the lesser of (a), (b), (c) and (d), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on the amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the Agent shall have no obligation in connection with such compliance. The offer and sale of Placement Shares through the Agent will be effected pursuant to the Registration Statement (as defined below) filed by the Company and upon such Registration Statement being declared effective by the Securities and Exchange Commission (the “Commission”) on August 10, 2017), although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue Ordinary Placement Shares. The Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) and the rules and regulations thereunder (the “Securities Act Regulations”), with the Commission a registration statement on Form S-3 F-3 (File No. 333-219567277565), including a base prospectus prospectus, relating to certain securities, including the Placement Shares to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amendedamended (the “Exchange Act”), and the rules and regulations thereunder (collectively, the “Exchange Act”)thereunder. The Company has prepared a prospectus or a prospectus supplement to the base prospectus included as part of the registration statement, which prospectus or prospectus supplement relates to the Placement Shares to be issued from time to time by the Company (the “Prospectus Supplement”). The Company will furnish to the Agent, for use by the Agent, copies of the prospectus included as part of such registration statement, as supplemented supplemented, by the Prospectus Supplement Supplement, relating to the Placement Shares to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement Shares. Except where the context otherwise requires, such registration statement(s), including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act Regulations, is herein called the “Registration Statement.” The base prospectus or base prospectuses, including all documents incorporated therein by reference, included in the Registration Statement, as it may be supplemented, if necessary, by the Prospectus Supplement, in the form in which such prospectus or prospectuses and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act Regulations, together with the then issued Issuer Free Writing Prospectus(es) (defined below), is herein called the “Prospectus.” Any reference herein to the Registration Statement, any Prospectus Supplement, Prospectus or any Issuer Free Writing Prospectus (defined below) shall be deemed to refer to and include the documents, if any, incorporated by reference thereintherein (the “Incorporated Documents”), including, unless the context otherwise requires, the documents, if any, filed as exhibits to such Incorporated Documents. Any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act on or after the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference. For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval system, or if applicable, the Interactive Data Electronic Application system or any successor thereto when used by the Commission (collectively, “XXXXX”).

Appears in 1 contract

Samples: Evogene Ltd.

Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through the Agent, ordinary shares of common stock (the “Placement Shares”) of the Company, par value $0.01 nominal value 0.001 per share (the “Ordinary SharesCommon Stock”), up to having an aggregate gross sales proceeds price of up to $50,000,00040,000,000; provided, however, that in no event shall the Company issue or sell through the Agent such number or dollar amount of Placement Shares that would (a) exceed the number or dollar amount of Ordinary Shares shares of Common Stock registered on the effective Registration Statement (defined below) pursuant to which the offering is being made, (b) exceed the number of authorized but unissued Ordinary Shares shares of Common Stock (less Ordinary Shares shares of Common Stock issuable upon exercise, conversion or exchange of any outstanding securities of the Company or otherwise reserved from the Company’s authorized share capital), capital stock) or (c) exceed the number or dollar amount of Ordinary Shares shares of Common Stock permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable) or (d) exceed the number or dollar amount of Ordinary Shares for which the Company has filed a Prospectus Supplement (defined below) (the lesser of (a), (b), (c) and (dc), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on the amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the Agent shall have no obligation in connection with such compliance. The offer and sale of Placement Shares through the Agent will be effected pursuant to the Registration Statement (as defined below) filed by the Company and declared effective by the Securities and Exchange Commission (the “Commission”) on August 10June 3, 20172016, although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue Ordinary SharesCommon Stock. The Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) ), and the rules and regulations thereunder (the “Securities Act Regulations”), with the Commission a registration statement on Form S-3 (File No. 333-219567209888), including a base prospectus prospectus, relating to certain securities, including the Placement Shares to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amendedamended (the “Exchange Act”), and the rules and regulations thereunder (collectively, the “Exchange Act”)thereunder. The Company has prepared a prospectus supplement to the base prospectus included as part of the registration statement, which prospectus supplement relates to the Placement Shares to be issued from time to time by the Company (the “Prospectus Supplement”). The Company will furnish to the Agent, for use by the Agent, copies of the prospectus included as part of such registration statement, as supplemented supplemented, by the Prospectus Supplement Supplement, relating to the Placement Shares to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement Shares. Except where the context otherwise requires, such registration statement(s), including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act Regulations, is herein called the “Registration Statement.” The base prospectus or base prospectuses, including all documents incorporated therein by reference, included in the Registration Statement, as it may be supplemented, if necessary, by the Prospectus Supplement, in the form in which such prospectus or prospectuses and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act Regulations, together with the then issued Issuer Free Writing Prospectus(es) (defined below), is herein called the “Prospectus.” Any reference herein to the Registration Statement, any Prospectus Supplement, Prospectus or any Issuer Free Writing Prospectus (defined below) shall be deemed to refer to and include the documents, if any, incorporated by reference thereintherein (the “Incorporated Documents”), including, unless the context otherwise requires, the documents, if any, filed as exhibits to such Incorporated Documents. Any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act on or after the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference. For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval system, or if applicable, the Interactive Data Electronic Application system or any successor thereto when used by the Commission (collectively, “XXXXX”).

Appears in 1 contract

Samples: Sales Agreement (Intrepid Potash, Inc.)

Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through the AgentAgents, ordinary common shares (the "Placement Shares") in the capital of the Company, $0.01 nominal value per share Company (no par value) (the “Ordinary "Common Shares"), up to an aggregate gross sales proceeds of $50,000,000; provided, however, that in no event shall the Company issue or sell through the Agent Agents such number or dollar amount of Placement Shares that would (a) exceed the number or dollar amount of Ordinary Common Shares registered on the effective Registration Statement (defined below) pursuant to which the offering is being made, (b) exceed the number of authorized but unissued Ordinary Common Shares (less Ordinary Common Shares issuable upon exercise, conversion or exchange of any outstanding securities of the Company or otherwise reserved from the Company’s 's authorized share capital), (c) exceed the number or dollar amount of Ordinary Common Shares permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable) or (d) exceed the number or dollar amount of Ordinary Common Shares for which the Company has filed a Prospectus Supplement (defined below) (the lesser of (a), (b), (c) and (d), the "Maximum Amount"). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on the amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the Agent Agents shall have no obligation in connection with such compliance. The offer issuance and sale of Placement Shares through the Agent Agents will be effected pursuant to the Registration Statement (as defined below) filed by the Company and declared deemed automatically effective by the United States Securities and Exchange Commission (the "Commission") on August 10March 22, 20172024 (the "Effective Date"), although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue Ordinary Common Shares. The Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) and the rules and regulations thereunder (the “Securities Act Regulations”), with the Commission a registration statement on Form S-3 (File No. 333-219567), including a base prospectus relating to certain securities, including the Placement Shares to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (collectively, the “Exchange Act”). The Company has prepared a prospectus supplement to the base prospectus included as part of the registration statement, which prospectus supplement relates to the Placement Shares to be issued from time to time by the Company (the “Prospectus Supplement”). The Company will furnish to the Agent, for use by the Agent, copies of the prospectus included as part of such registration statement, as supplemented by the Prospectus Supplement relating to the Placement Shares to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement Shares. Except where the context otherwise requires, such registration statement(s), including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act Regulations, is herein called the “Registration Statement.” The base prospectus or base prospectuses, including all documents incorporated therein by reference, included in the Registration Statement, as it may be supplemented, if necessary, by the Prospectus Supplement, in the form in which such prospectus or prospectuses and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act Regulations, together with the then issued Issuer Free Writing Prospectus(es) (defined below), is herein called the “Prospectus.” Any reference herein to the Registration Statement, any Prospectus Supplement, Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the documents, if any, incorporated by reference therein. Any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act on or after the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference. For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval system or any successor thereto (collectively, “XXXXX”).

Appears in 1 contract

Samples: Sales Agreement (Energy Fuels Inc)

Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through the Agent, ordinary common shares having aggregate gross sales of up to $250,000,000 (the “Placement Shares”) of the Company, $0.01 nominal no par value per share (the “Ordinary Common Shares”), up to an aggregate gross sales proceeds of $50,000,000; provided, however, that in no event shall the Company issue or sell through the Agent such number or dollar amount of Placement Shares that would (a) exceed the number or dollar amount of Ordinary Common Shares registered on the effective Registration Statement (defined below) pursuant to which the offering is being made, (b) exceed the number of authorized but unissued Ordinary Common Shares (less Ordinary Common Shares issuable upon exercise, conversion or exchange of any outstanding securities of the Company or otherwise reserved from the Company’s authorized share capitalcapital stock), (c) exceed the number or dollar amount of Ordinary Common Shares permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable) or (d) exceed the number or dollar amount of Ordinary Common Shares for which the Company has filed a Prospectus Supplement (as defined below) (the lesser of (a), (b), (c) and (d), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on the amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the Agent shall have no obligation in connection with such compliance. The offer and sale of Placement Shares through the Agent will be effected pursuant to the Registration Statement (as defined below) filed by the Company and declared effective by the Securities and Exchange Commission (the “Commission”) on August 10November 19, 20172021, although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue Ordinary Common Shares. The Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) and the rules and regulations thereunder (the “Securities Act Regulations”), with the Commission a registration statement on Form S-3 (File No. 333-219567)S-3, including a base prospectus prospectus, relating to certain securities, including the Placement Shares to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amendedamended (the “Exchange Act”), and the rules and regulations thereunder (collectively, the “Exchange Act”)thereunder. The Company has prepared a prospectus supplement to the base prospectus included as part of the registration statement, which prospectus supplement relates to the Placement Shares to be issued from time to time by the Company (the “Prospectus SupplementATM Prospectus”). The Company will furnish to the Agent, for use by the Agent, copies of the prospectus ATM Prospectus included as part of such registration statement, as supplemented by the Prospectus Supplement relating to the Placement Shares to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement)applicable, with respect to the Placement Shares. Except where the context otherwise requires, such registration statement(s), including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act Regulations, is herein called the “Registration Statement.” The Registration Statement is an “automatic shelf registration statement,” as defined under Rule 405 of the Securities Act Regulations, which automatic shelf registration statement became effective under Rule 462(e) of the Securities Act Regulations. The base prospectus or base prospectuses, including all documents incorporated therein by reference, included in the Registration Statement, as it may be supplemented, if necessary, by the Prospectus SupplementATM Prospectus, in the form in which such prospectus or prospectuses and/or ATM Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act Regulations, together with the then issued Issuer Free Writing Prospectus(es) (defined below), is herein called the “Prospectus.” Any reference herein to the Registration Statement, any Prospectus SupplementATM Prospectus, Prospectus or any Issuer Free Writing Prospectus (defined below) shall be deemed to refer to and include the documents, if any, incorporated by reference thereintherein (the “Incorporated Documents”), including, unless the context otherwise requires, the documents, if any, filed as exhibits to such Incorporated Documents. Any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus SupplementATM Prospectus, the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act on or after the most-recent effective date of the Registration Statement, or the date of the Prospectus SupplementATM Prospectus, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference. For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval system, or if applicable, the Interactive Data Electronic Application system or any successor thereto when used by the Commission (collectively, “XXXXX”).

Appears in 1 contract

Samples: Aurinia Pharmaceuticals Inc.

Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through or to the AgentAgents, ordinary as sales agent or principal, shares of the Company’s Common Stock, par value $0.0001 per share (the “Common Stock”; such Common Stock to be offered hereby, the “Placement Shares”) of the Company, $0.01 nominal value per share (the “Ordinary Shares”), up to an aggregate gross sales proceeds of $50,000,000; provided, however, that in no event shall the Company issue or sell through the Agent Agents such number of Placement Shares that (i) exceeds the number of shares or dollar amount of Placement Shares that would (a) exceed the number or dollar amount of Ordinary Shares Common Stock registered on the then effective Registration Statement (as defined below) pursuant to which the offering is being made, (bii) exceed exceeds the number of authorized but unissued Ordinary Shares (less Ordinary Shares issuable upon exercise, conversion or exchange of any outstanding securities of the Company or otherwise reserved from the Company’s authorized share capital), (c) exceed the number shares or dollar amount of Ordinary Shares Common Stock included in the Prospectus (as defined below), (iii) exceeds the amount permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable), (iv) the amount authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, a duly authorized committee thereof or a duly authorized executive officer of the Company or (dv) exceed exceeds the number or dollar amount of Ordinary Shares for which authorized but unissued shares of the Company has filed a Prospectus Supplement (defined below) Company’s Common Stock (the lesser of (ai), (bii), (ciii), (iv) and (dv), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on the number or amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the Agent Agents shall have no obligation in connection with such compliance. The offer issuance and sale of Placement Shares through the Agent Agents will be effected pursuant to the Registration Statement (as defined belowherein) to be filed by the Company and declared effective by the U.S. Securities and Exchange Commission (the “Commission”) on August 10, 2017), although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue Ordinary any Placement Shares. The Company has filedfiled or shall file, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) ), and the rules and regulations thereunder (the “Securities Act Regulations”), with the Commission a registration statement on Form S-3 (File No. 333-219567)S-3, including which includes a base prospectus (the “Base Prospectus”), relating to certain securities, including the Placement Shares to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amendedamended (the “Exchange Act”), and the rules and regulations thereunder (collectively, the “Exchange ActAct Regulations”). The Company has prepared a prospectus included as part of such registration statement specifically relating to the Placement Shares (the “ATM Prospectus”) and shall, if necessary, prepare a prospectus supplement to the base prospectus included as part of the such registration statement, which prospectus supplement relates statement specifically relating to the Placement Shares to be issued from time to time by the Company (the any such prospectus supplement, a “Prospectus Supplement”). The Company will furnish to the Agent, for use by the Agent, copies of the prospectus included as part of such registration statement, as supplemented by the Prospectus Supplement relating to the Placement Shares to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement Shares. Except where the context otherwise requires, such registration statement(s)statement, and any post-effective amendment thereto, including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act Regulations, or any subsequent registration statement on Form S-3 filed pursuant to Rule 415(a)(6) under the Securities Act by the Company to cover any Placement Shares, is herein called the “Registration Statement.” The base prospectus or base prospectusesBase Prospectus, including all documents incorporated or deemed incorporated therein by referencereference to the extent such information has not been superseded or modified in accordance with Rule 412 under the Securities Act (as qualified by Rule 430B(g) of the Securities Act), included in the Registration Statement, as it may be supplemented, if necessary, supplemented by the Prospectus Supplement, in the form in which such prospectus or prospectuses the Base Prospectus and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act Regulations, together with the then issued Issuer Free Writing Prospectus(es) (defined below), is herein called the “Prospectus.” The Company will furnish to the Agent, for use by the Agent, copies of the Prospectus. Any reference herein to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus amendment or supplement thereto shall be deemed to refer to and include the documents, if any, documents incorporated or deemed incorporated by reference therein. Any , and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement, Statement or the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing after the execution hereof of any document under with the Exchange Act on or after Commission deemed to be incorporated by reference therein (the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference“Incorporated Documents”). For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval System, or if applicable, the Interactive Data Electronic Application system or any successor thereto when used by the Commission (collectively, “XXXXXEXXXX”).

Appears in 1 contract

Samples: Strawberry Fields (Strawberry Fields REIT, Inc.)

Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through the Agent, ordinary acting as agent and/or principal, shares (the “Placement Shares”) of the Company’s 8.20% Series A Cumulative Redeemable Preferred Stock, par value $0.01 nominal value per share (the “Ordinary SharesPreferred Stock”), up to an aggregate gross sales proceeds of $50,000,000; provided, provided however, that in no event shall the Company issue or sell through the Agent such number of Placement Shares that (a) exceeds the number of shares or dollar amount of Placement Shares that would (a) exceed the number or dollar amount of Ordinary Shares Preferred Stock registered on the effective Registration Statement (as defined below) pursuant to which the offering is being made, or (b) exceed exceeds the number of authorized but unissued Ordinary Shares (less Ordinary Shares issuable upon exercise, conversion or exchange shares of any outstanding securities of the Company or otherwise reserved from the Company’s authorized share capital), (c) exceed the number or dollar amount of Ordinary Shares permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable) or (d) exceed the number or dollar amount of Ordinary Shares for which the Company has filed a Prospectus Supplement (defined below) Preferred Stock (the lesser of (a), (b), (c) and (db), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on the amount number of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the Agent shall have no obligation in connection with such compliance. The offer issuance and sale of Placement Shares through the Agent will be effected pursuant to the Registration Statement (as defined below) filed by the Company and declared effective by the Securities and Exchange Commission (the “Commission”) on August 10, 2017), although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue Ordinary any Placement Shares. The Company has also entered into a separate At Market Issuance Sales Agreement, dated as of even date herewith (the “Alternative Sales Agreement”), pursuant to which it may, from time to time during the term of such Alternative Sales Agreement, issue and sell through or to JMP Securities LLC (“Alternative Agent”), acting as agent and/or principal, the Placement Shares. The Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) amended, and the rules and regulations thereunder (the “Securities Act RegulationsAct”), with the Securities and Exchange Commission (the “Commission”), a registration statement on Form S-3 (File No. 333-219567221725), including a base prospectus prospectus, relating to certain securities, securities including the Placement Shares to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (collectively, the “Exchange Act”). The Company has prepared a prospectus supplement to the base prospectus included as part of such registration statement specifically relating to the registration statement, which prospectus supplement relates to offering of the Placement Shares to be issued from time to time by the Company (the “Prospectus Supplement”). The Company will furnish to the Agent, for use by the Agent, copies of the base prospectus included as part of such registration statement, as supplemented by the Prospectus Supplement Supplement, relating to the Placement Shares to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to offering of the Placement Shares. Except where the context otherwise requires, such registration statement(s)statement, and any post-effective amendment thereto, including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act RegulationsAct, is herein called the “Registration Statement.” The base prospectus or base prospectusesprospectus, including all documents incorporated or deemed incorporated therein by referencereference to the extent such information has not been superseded or modified in accordance with Rule 412 under the Securities Act (as qualified by Rule 430B(g) of the Securities Act), included in the Registration Statement, as it may be supplemented, if necessary, supplemented by the Prospectus Supplement, in the form in which such base prospectus or prospectuses and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act Regulations, together with the then issued Issuer Free Writing Prospectus(es) (defined below)Act, is herein called the “Prospectus.” Any reference herein to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus amendment or supplement thereto shall be deemed to refer to and include the documents, if any, documents incorporated or deemed incorporated by reference therein. Any , and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement, Statement or the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing after the execution hereof of any document under with the Exchange Act on or after Commission deemed to be incorporated by reference therein (the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference“Incorporated Documents”). For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval System, or if applicable, the Interactive Data Electronic Application system or any successor thereto when used by the Commission (collectively, “XXXXX”).

Appears in 1 contract

Samples: Cherry Hill Mortgage Investment Corp

Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through the AgentAgent (defined above), ordinary shares of common stock (the “Placement Shares”) of the Company, par value $0.01 nominal value 0.0001 per share (the “Ordinary SharesCommon Stock”), up to an aggregate gross sales proceeds of $50,000,000; provided, however, that in no event shall the Company issue or sell through the Agent such number or dollar amount of Placement Shares that would (a) exceed the number or dollar amount of Ordinary Shares shares of Common Stock registered on the effective Registration Statement (defined below) filed with the Securities and Exchange Commission (the “Commission”) pursuant to which the offering is being made, (b) exceed the number of authorized but unissued Ordinary Shares shares of Common Stock (less Ordinary Shares shares of Common Stock issuable upon exercise, conversion or exchange of any outstanding securities of the Company or otherwise reserved from the Company’s authorized share capitalcapital stock), (c) exceed the number or dollar amount of Ordinary Shares shares of Common Stock permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable) or (d) exceed the number or dollar amount of Ordinary Shares shares of Common Stock for which the Company has filed a Prospectus Supplement (defined below) (the lesser of (a), (b), (c) and (d), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on the amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the Agent shall have no obligation in connection with such compliance. The offer and sale of Placement Shares through the Agent will be effected pursuant to the Registration Statement (as defined below) filed by the Company and declared which automatically became effective by the Securities and Exchange Commission (the “Commission”) on August 10, 2017upon filing, although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue Ordinary Placement Shares. The parties hereto intend to terminate the sales agreement by and between the Company and the Agent dated May 4, 2022 and intend to be legally bound by this Agreement, effective immediately upon the Registration Statement filed by the Company and which automatically became effective upon filing. The Company has filedfiled or will prepare and file, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) and the rules and regulations thereunder (the “Securities Act Regulations”), with the Commission a an automatic registration statement on Form S-3 (File No. 333-219567)S- 3, including a base prospectus prospectus, relating to certain securities, including the Placement Shares to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amendedamended (the “Exchange Act”), and the rules and regulations thereunder (collectively, the “Exchange Act”)thereunder. The Company has prepared a prospectus supplement to the base prospectus included as part of the registration statement, which prospectus supplement relates to the Placement Shares to be issued from time to time by the Company (the “Prospectus Supplement”). The Company will furnish to the Agent, for use by the Agent, copies of the prospectus included as part of such registration statement, as supplemented by the Prospectus Supplement Supplement, relating to the Placement Shares to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement Shares. Except where the context otherwise requires, such registration statement(s), including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B or 462(b) of the Securities Act Regulations, or any subsequent registration statement on Form S-3 filed pursuant to Rule 415(a)(6) under the Securities Act Regulations by the Company with respect to the Placement Shares, is herein called the “Registration Statement.” The base prospectus or base prospectuses, including all documents incorporated therein by reference, included in the Registration Statement, as it may be supplemented, if necessary, by the Prospectus Supplement, in the form in which such prospectus or prospectuses and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act Regulations, together with the then issued Issuer any Permitted Free Writing Prospectus(es) Prospectus (as defined below), ) relating to the Placement Shares is herein called the “Prospectus.” Any reference herein to the Registration Statement, any Prospectus Supplement, Prospectus or any Issuer Free Writing Prospectus (as defined below) shall be deemed to refer to and include the documents, if any, incorporated by reference thereintherein (the “Incorporated Documents”), including, unless the context otherwise requires, the documents, if any, filed as exhibits to such Incorporated Documents. Any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act on or after the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference. For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval system, or if applicable, the Interactive Data Electronic Application system or any successor thereto when used by the Commission (collectively, “XXXXX”).

Appears in 1 contract

Samples: Sales Agreement (SITIME Corp)

Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through the AgentMLV, ordinary shares American Depositary Shares (the “Placement SharesADSs) ), each representing ten fully paid ordinary shares in the capital of the Company, $0.01 nominal value per share Company (the “Ordinary Shares”), for up to an aggregate gross sales proceeds of $50,000,000; provided, 50 million Ordinary Shares (the “Placement Shares”) provided however, that in no event shall the Company issue or sell through the Agent MLV such number or dollar amount of Placement Shares that would (a) exceed would cause the number Company to not satisfy the eligibility requirements for use of Form F-3 (including Instruction I.B.5. thereof), (b) would cause the Company to breach the Listing Rules of the Australian Securities Exchange (ASX) or (c) for which the aggregate offering price exceeds the aggregate dollar amount of Ordinary Shares ADSs registered on the effective Registration Statement (as defined below) pursuant to which the offering is being made, (b) exceed the number of authorized but unissued Ordinary Shares (less Ordinary Shares issuable upon exercise, conversion or exchange of any outstanding securities of the Company or otherwise reserved from the Company’s authorized share capital), (c) exceed the number or dollar amount of Ordinary Shares permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable) or (d) exceed the number or dollar amount of Ordinary Shares for which the Company has filed a Prospectus Supplement (defined below) (the lesser of (a), (b), (c) and (dc), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on the amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the Agent MLV shall have no obligation in connection with such compliance. The offer issuance and sale of Placement Shares through the Agent MLV will be effected pursuant to the Registration Statement (as defined below) filed by the Company and declared effective by the Securities and Exchange Commission (the “Commission”) on August 10, 2017), although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue Ordinary SharesADSs. The ADSs will be issued pursuant to the Deposit Agreement, dated March 23, 2001, as amended and restated as of January 2, 2008, among the Company, the Bank of New York, as depositary (the “Depositary”), and all owners and holders of the ADSs issued thereunder (the “Deposit Agreement”). The Company has filed, in accordance with the provisions of the United States Securities Act of 1933, as amended (the “Securities Act”) and the rules and regulations thereunder (the “Securities Act Regulations”), with the Commission a registration statement on Form S-3 F-3 (File No. 333-219567174278), including a base prospectus prospectus, relating to certain securities, including the Placement Shares to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amendedamended (the “Exchange Act”), and the rules and regulations thereunder (collectively, the “Exchange ActAct Regulations”). The Company has prepared a prospectus supplement specifically relating to the Placement Shares (the “Prospectus Supplement”) to the base prospectus included as part of the such registration statement, which prospectus supplement relates to the Placement Shares to be issued from time to time by the Company (the “Prospectus Supplement”). The Company will furnish to the AgentMLV, for use by the AgentMLV, copies of the prospectus included as part of such registration statement, as supplemented by the Prospectus Supplement Supplement, relating to the Placement Shares to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement Shares. Except where the context otherwise requires, such registration statement(s)statement, including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act Regulations, is herein called the “Registration Statement.” The base prospectus or base prospectusesprospectus, including all documents incorporated therein by reference, included in the Registration Statement, as it may be supplemented, if necessary, supplemented by the Prospectus Supplement, in the form in which such prospectus or prospectuses and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act Regulations, together with the then issued Issuer Free Writing Prospectus(es) (defined below), is herein called the “Prospectus.” Any reference herein to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus amendment or supplement thereto shall be deemed to refer to and include the documents, if any, documents incorporated by reference therein. Any , and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement, Statement or the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing after the execution hereof of any document under with the Exchange Act on or after Commission deemed to be incorporated by reference therein (the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference“Incorporated Documents”). For purposes of this Agreement, (a) all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval System, or if applicable, the Interactive Data Electronic Application system or any successor thereto when used by the Commission (collectively, “XXXXX”), and (b) all currency amounts appearing in this Agreement are presented in United States dollars, or “$”. Each of the Company and MLV hereby agree that all sales and solicitations of sales of ADSs by MLV as agent for the Company shall be made solely on the Exchange (as defined below) or to the extent it is a privately negotiated transaction then solely in the United States.

Appears in 1 contract

Samples: Prana Biotechnology LTD

Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Equity Distribution Agreement (the “Agreement”), on the terms and subject to the conditions set forth herein, it may issue and sell through the AgentMCUSA, ordinary acting as agent, or to MCUSA, acting as principal, shares (the “Placement Shares”) of the Company, ’s common stock par value $0.01 nominal value 0.001 per share (the “Ordinary SharesCommon Stock), ) up to an aggregate gross sales proceeds offering price of $50,000,000; 6,000,000, provided, however, that in no event shall the Company issue or sell through the Agent MCUSA such number or dollar amount of Placement Shares that would (a) exceed would cause the Company to not satisfy the eligibility requirements for use of Form S-3 (including Instruction I.B.6. thereof), (b) exceeds the number or dollar amount of Ordinary Shares shares of Common Stock registered on the effective Registration Statement (as defined below) pursuant to which the offering is being made, or (bc) exceed exceeds the number of authorized but unissued Ordinary Shares (less Ordinary Shares issuable upon exercise, conversion or exchange shares of any outstanding securities of the Company or otherwise reserved from the Company’s authorized share capital), (c) exceed the number or dollar amount of Ordinary Shares permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable) or (d) exceed the number or dollar amount of Ordinary Shares for which the Company has filed a Prospectus Supplement (defined below) Common Stock (the lesser of (a), (b), (c) and (dc), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations limitation set forth in this Section 1 on the amount number of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company Company, and that the Agent MCUSA shall have no obligation in connection with such compliance, provided that MCUSA strictly follows the trading instructions provided pursuant to any Issuance Notice. The offer issuance and sale of Placement Shares through the Agent or to MCUSA will be effected pursuant to the Registration Statement (as defined below) filed by the Company and declared effective by the Securities and Exchange Commission (the “Commission”) on August 10, 2017of the United States of America (the “United States”), although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue Ordinary SharesCommon Stock in any other transaction. The Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) amended, and the rules and regulations promulgated thereunder (collectively, the “Securities Act RegulationsAct”), with the Commission a registration statement Registration Statement on Form S-3 (File No. 333-219567185022), including a base prospectus prospectus, relating to certain securities, including the Placement Shares Shares, to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (collectively, the “Exchange Act”). The Company has prepared a prospectus supplement to the base prospectus included as part of the such registration statement, which prospectus supplement relates statement specifically relating to the Placement Shares to be issued from time to time by the Company (the “Prospectus Supplement”). The Company will furnish to the AgentMCUSA, for use by the AgentMCUSA, copies of the prospectus included as part of such registration statement, as supplemented by the Prospectus Supplement Supplement, relating to the Placement Shares to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement Shares. Except where the context otherwise requires, such registration statement(s)statement, as amended when it became effective, including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B or 462(b) of the Securities Act RegulationsAct, is as well as any comparable successor registration statement filed by the Company for the sale of shares of its Common Stock, including the Shares, collectively are herein called the “Registration Statement.” The base prospectus or base prospectusesprospectus, including all documents incorporated therein by reference, included in the Registration StatementStatement (the “Base Prospectus”), as it may be supplemented, if necessary, supplemented by the Prospectus Supplement, in the form in which such prospectus or prospectuses Base Prospectus and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act RegulationsAct, together with the then issued Issuer Free Writing Prospectus(es) (as defined below), if any, and any other prospectus filed after the date hereof by the Company with respect to the Shares, including without limitation, each Subsequent Supplement (as defined below), is herein called the “Prospectus.” Any reference herein to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus amendment or supplement thereto shall be deemed to refer to and include the documents, if any, documents incorporated by reference therein. Any , and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement, Statement or the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing after the execution hereof of any document under with the Exchange Act on or after Commission deemed to be incorporated by reference therein (the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference“Incorporated Documents”). For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto to either thereof shall be deemed to include the most recent any copy filed with the Commission pursuant to its the Electronic Data Gathering Gathering, Analysis and Retrieval system or any successor thereto System (collectively, “XXXXX”).

Appears in 1 contract

Samples: Equity Distribution Agreement (Medicinova Inc)

Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through MLV, shares of (a) the AgentCompany’s 9.25% Series A Cumulative Redeemable Preferred Stock, ordinary shares no par value per share with a liquidation preference of $25.00 per share (the “Placement SharesPreferred Stock), and (b) shares of the Company’s common stock, $0.01 nominal no par value per share (the “Ordinary Common Stock” and together with the Preferred Stock, the “Placement Shares”), up to an aggregate gross sales proceeds of $50,000,000; provided, however, that in no event shall the Company issue or sell through the Agent MLV such number or dollar amount of Placement Shares that (i) would cause the Company not to satisfy the eligibility requirements for use of Form S-3, (aii) exceed exceeds the number of shares of either Common Stock or dollar amount of Ordinary Shares Preferred Stock, as applicable, registered on the effective Registration Statement and included in the Prospectus (each as defined below) pursuant to which the offering is being made, or (biii) exceed exceeds the number of authorized but unissued Ordinary Shares (less Ordinary Shares issuable upon exerciseshares of Common Stock or Preferred Stock, conversion or exchange of any outstanding securities of the Company or otherwise reserved from the Company’s authorized share capital)as applicable, (c) exceed the number or dollar amount of Ordinary Shares permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable) or (d) exceed the number or dollar amount of Ordinary Shares for which the Company has filed a Prospectus Supplement (defined below) (the lesser of (ai), (b), (cii) and (diii), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on the number or amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the Agent MLV shall have no obligation in connection with such compliance. The offer issuance and sale of Placement Shares through the Agent MLV will be effected pursuant to the Registration Statement (as defined below) filed by the Company and declared effective by the Securities and Exchange Commission (the “Commission”) on August 10, 2017), although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue Ordinary any Placement Shares. The Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) amended, and the rules and regulations thereunder (the “Securities Act RegulationsAct”), with the Commission a registration statement on Form S-3 (File No. 333-219567192094), including a base prospectus prospectus, relating to certain securities, including the Placement Shares to be issued and sold from time to time by the CompanyCompany hereunder, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amendedamended (the “Exchange Act”), and the rules and regulations thereunder (collectively, the “Exchange ActAct Regulations”). The Company has prepared a prospectus supplement specifically relating to the Placement Shares (the “Prospectus Supplement”) to the base prospectus included as part of the such registration statement, which prospectus supplement relates to the Placement Shares to be issued from time to time by the Company (the “Prospectus Supplement”). The Company will furnish to the AgentMLV, for use by the AgentMLV, copies (which may be in electronic form) of the prospectus included as part of such registration statement, as supplemented by the Prospectus Supplement Supplement, relating to the Placement Shares to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement Shares. Except where the context otherwise requires, such registration statement(s)statement, including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act RegulationsAct, is herein called the “Registration Statement.” The base prospectus or base prospectusesprospectus, including all documents incorporated or deemed incorporated therein by referencereference to the extent such information has not been superseded or modified in accordance with Rule 412 under the Securities Act (as qualified by Rule 430B(g) of the Securities Act), included in the Registration Statement, as it may be supplemented, if necessary, supplemented by the Prospectus Supplement, in the form in which such prospectus or prospectuses and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act Regulations, together with the then issued Issuer Free Writing Prospectus(es) (defined below)Act, is herein called the “Prospectus.” Any reference herein to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus amendment or supplement thereto shall be deemed to refer to and include the documents, if any, documents incorporated or deemed incorporated by reference therein. Any , and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement, Statement or the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing after the execution hereof of any document under with the Exchange Act on or after Commission deemed to be incorporated by reference therein (the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference“Incorporated Documents”). For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval System, or if applicable, the Interactive Data Electronic Application system or any successor thereto when used by the Commission (collectively, “XXXXX”).

Appears in 1 contract

Samples: Yuma Energy, Inc.

Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through the Agent, American Depositary Shares (the “ADSs”), each representing 180 ordinary shares shares, no par value, of the Company, no par value per share (“Ordinary Shares”) (the “Placement Shares”) of the Company, $0.01 nominal value per share (the “Ordinary SharesSecurities”), up to an aggregate gross sales proceeds of $50,000,000; provided, however, that in no event shall the Company issue or sell through the Agent such number or dollar amount of Placement Shares Securities that would (a) exceed the number or dollar amount of Ordinary Shares ADSs registered on the effective Registration Statement (defined below) pursuant to which the offering is being made, (b) exceed the number of authorized but unissued shares of Ordinary Shares (less shares of Ordinary Shares issuable upon exercise, conversion or exchange of any outstanding securities of the Company or otherwise reserved from the Company’s authorized share capitalcapital stock), (c) exceed the number or dollar amount of Ordinary Shares permitted to be sold under Form S-3 F-3 (including General Instruction I.B.6 I.B.5 thereof, if applicable) or (d) exceed the number or dollar amount of Ordinary Shares ADSs for which the Company has filed a Prospectus Supplement (defined below) (the lesser of (a), (b), and (c) and (d), the “Maximum Amount”). Each of party acknowledges and agrees that nothing in this Agreement shall require the Company to issue ADSs in the event that such issuance would result in the Company violating the rules set forth in Chapter 7 of the Listing Rules of the Australian Securities Exchange (“ASX”) (the “Issuance Cap”). For the avoidance of doubt, the foregoing sentence should be read to mean that none of the terms contained in this Agreement or any other document relating to this Agreement or the Placement Securities would require the Company to violate the Issuance Cap or otherwise take action (through a conducting a shareholder meeting or otherwise) to circumvent such Issuance Cap. Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on the amount of Placement Shares Securities issued and sold under this Agreement shall be the sole responsibility of the Company and that the Agent shall have no obligation in connection with such compliance. The offer and sale of Placement Shares Securities through the Agent will be effected pursuant to the Registration Statement (as defined below) filed by the Company and which will be declared effective by the United States Securities and Exchange Commission (the Commission”) on August 10, 2017), although nothing in this Agreement shall be construed as requiring the ther Company to use the Registration Statement to issue Ordinary SharesADSs. The Company has filedwill file, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) and the rules and regulations thereunder (the “Securities Act Regulations”), with the Commission a registration statement on Form S-3 (File No. 333-219567)F-3, including a base prospectus prospectus, relating to certain securities, including the Placement Shares Securities to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amendedamended (the “Exchange Act”), and the rules and regulations thereunder (collectively, the “Exchange Act”)thereunder. The Company has prepared a prospectus or a prospectus supplement to the base prospectus included as part of the registration statement, which prospectus or prospectus supplement relates to the Placement Shares Securities to be issued from time to time by the Company (the “Prospectus Supplement”). The Company will furnish to the Agent, for use by the Agent, copies of the prospectus included as part of such registration statement, as supplemented supplemented, by the Prospectus Supplement Supplement, relating to the Placement Shares Securities to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement SharesSecurities. Except where the context otherwise requires, such registration statement(s), including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act Regulations, is herein called the “Registration Statement.” The base prospectus or base prospectuses, including all documents incorporated therein by reference, included in the Registration Statement, as it may be supplemented, if necessary, by the Prospectus Supplement, in the form in which such prospectus or prospectuses and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act Regulations, together with the then issued Issuer Free Writing Prospectus(es) (as defined below), is herein called the “Prospectus.” The ADSs purchased by the Agent will be evidenced by American Depositary Receipts (“ADRs”) to be issued pursuant to a Deposit Agreement dated December 17, 2021 (the “Deposit Agreement”) entered into by and among the Company, Citibank, N.A., as depositary of the Company (the “Depositary”), and all owners and beneficial owners from time to time of the ADSs. A registration statement on Form F-6 (No. 333-261582) covering the registration of the ADSs under the Securities Act (the “ADS Registration Statement”) has been filed with the Commission and declared effective. Any reference herein to the Registration Statement, the ADS Registration Statement any Prospectus Supplement, Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the documents, if any, incorporated by reference thereintherein (the “Incorporated Documents”), including, unless the context otherwise requires, the documents, if any, filed as exhibits to such Incorporated Documents. Any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, the ADS Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act on or after the most-recent effective date of the Registration Statement, the ADS Registration Statement or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference. For purposes of this Agreement, all references to the Registration Statement, the ADS Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval system, or if applicable, the Interactive Data Electronic Application system or any successor thereto when used by the Commission (collectively, “XXXXX”).

Appears in 1 contract

Samples: Deposit Agreement (Bionomics Limited/Fi)

Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through the AgentFBR, ordinary shares (the “Placement Shares”) ); of the Company’s common stock, par value $0.01 nominal value per share (the “Ordinary SharesCommon Stock”), up to an aggregate gross sales proceeds of $50,000,000; provided, provided however, that in no event shall the Company issue or sell through the Agent FBR such number of Placement Shares that (a) exceeds the number of shares or dollar amount of Placement Shares that would (a) exceed the number or dollar amount of Ordinary Shares Common Stock registered on the effective Registration Statement (as defined below) pursuant to which the offering is being made, (b) exceed exceeds the number of authorized but unissued Ordinary Shares shares or dollar amount registered on the Prospectus Supplement (less Ordinary Shares issuable upon exercise, conversion as defined below) or exchange of any outstanding securities of the Company or otherwise reserved from the Company’s authorized share capital), (c) exceed would cause the number or dollar amount Company not to satisfy the eligibility requirements for use of Ordinary Shares permitted to be sold under Form S-3 (including General Instruction instruction I.B.6 thereof, if applicable) or (d) exceed the number or dollar amount of Ordinary Shares for which the Company has filed a Prospectus Supplement (defined below) (the lesser of (a), (b), ) or (c) and (d), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on the amount number of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the Agent FBR shall have no obligation in connection with such compliance. The offer issuance and sale of Placement Shares through the Agent FBR will be effected pursuant to the Registration Statement (as defined below) filed by the Company and declared effective by the Securities and Exchange Commission (the “Commission”) on August 10, 2017), although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue Ordinary any Placement Shares. The Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) amended, and the rules and regulations thereunder (the “Securities Act RegulationsAct”), with the Securities and Exchange Commission (the “Commission”), a registration statement on Form S-3 (File No. 333-219567214598), including a base prospectus prospectus, relating to certain securities, including the Placement Shares to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (collectively, the “Exchange Act”). The Company has prepared a prospectus supplement to the base prospectus included as part of the such registration statement, which prospectus supplement relates statement specifically relating to the Placement Shares to be issued from time to time by the Company (the “Prospectus Supplement”). The Company will furnish to the AgentFBR, for use by the AgentFBR, copies of the base prospectus included as part of such registration statement, as supplemented by the Prospectus Supplement Supplement, relating to the Placement Shares to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement Shares. Except where the context otherwise requires, such registration statement(s)statement, and any post-effective amendment thereto, including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act RegulationsAct, is herein called the “Registration Statement.” The base prospectus or base prospectusesprospectus, including all documents incorporated or deemed incorporated therein by referencereference to the extent such information has not been superseded or modified in accordance with Rule 412 under the Securities Act (as qualified by Rule 430B(g) of the Securities Act), included in the Registration Statement, as it may be supplemented, if necessary, supplemented by the Prospectus Supplement, in the form in which such base prospectus or prospectuses and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act Regulations, together with the then issued Issuer Free Writing Prospectus(es) (defined below)Act, is herein called the “Prospectus.” Any reference herein to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus amendment or supplement thereto shall be deemed to refer to and include the documents, if any, documents incorporated by reference therein. Any , and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement, Statement or the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing after the execution hereof of any document under with the Exchange Act on or after Commission incorporated by reference therein (the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference“Incorporated Documents”). For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval System, or if applicable, the Interactive Data Electronic Application system or any successor thereto when used by the Commission (collectively, “XXXXXEXXXX”).

Appears in 1 contract

Samples: Parkervision Inc

Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through the AgentWestpark, ordinary acting as sales agent, shares (the “Placement Shares”) of the Company’s common stock, par value $0.01 nominal value 0.001 per share (the “Ordinary SharesCommon Stock”), up to an aggregate gross sales proceeds sale price of $50,000,0005,200,000; provided, provided however, that in no event shall the Company issue or sell through the Agent Westpark such number or dollar amount of Placement Shares that would (a) exceed would cause the Company to not satisfy the eligibility requirements for use of Form S-3 (including Instruction I.B.6. thereof, if applicable), (b) exceeds the number or dollar amount of Ordinary Shares shares of Common Stock registered on the effective Registration Statement (as defined below) pursuant to which the offering is being made, made or (bc) exceed exceeds the number of authorized but unissued Ordinary Shares (less Ordinary Shares issuable upon exercise, conversion or exchange shares of any outstanding securities of the Company or otherwise reserved from the Company’s authorized share capital), (c) exceed the number or dollar amount of Ordinary Shares permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable) or (d) exceed the number or dollar amount of Ordinary Shares for which the Company has filed a Prospectus Supplement (defined below) Common Stock (the lesser of (a), (b), (c) and (dc), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on the amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the Agent Westpark shall have no obligation in connection with such compliancecompliance if acting in accordance with any Placement Notice (as defined below) that has not been suspended or terminated by the Company. The offer issuance and sale of the Placement Shares through the Agent Westpark will be effected pursuant to the Registration Statement (as defined below) filed by the Company and declared effective by the Securities and Exchange Commission (the “Commission”) on August 10, 2017), although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue Ordinary any Placement Shares. The Company agrees that whenever it determines to sell Placement Shares directly to Westpark as principal it will enter into a separate written agreement containing the terms and conditions of each sale. The Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) ), and the rules and regulations thereunder (the “Securities Act Regulations”), with the Commission a registration statement on Form S-3 (File No. 333-219567228749), including a base prospectus prospectus, relating to certain securities, including the Placement Shares to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amendedamended (the “Exchange Act”), and the rules and regulations thereunder (collectively, thereunder. Such base prospectus in the form in which it appears in such registration statement is hereinafter called the “Exchange Act”). Base Prospectus.” The Company has prepared and will file with the Commission a prospectus supplement to the base prospectus included as part of the registration statementBase Prospectus, which prospectus supplement specifically relates to the Placement Shares to be issued from time to time by the Company (the “Prospectus Supplement”). The Company will furnish to the AgentWestpark, for use by the AgentWestpark, copies of the prospectus included as part of such registration statementBase Prospectus, as supplemented by the Prospectus Supplement relating to the Placement Shares to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement Shares. Except where the context otherwise requires, such registration statement(s)statement, including all amendments thereto and all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act Regulations, is herein called the “Registration Statement.” The base prospectus or base prospectusesBase Prospectus, including all documents incorporated therein by reference, included in the Registration Statement, as it may be supplemented, if necessary, supplemented by the Prospectus Supplement, in the form in which such prospectus or prospectuses and/or Base Prospectus and Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act Regulations, together with the then issued Issuer Free Writing Prospectus(es) (defined below), is herein called the “Prospectus.” Any reference herein to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus amendment or supplement thereto shall be deemed to refer to and include the documents, if any, documents incorporated by reference therein. Any , and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement, Statement or the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing after the execution hereof of any document under with the Exchange Act on or after Commission deemed to be incorporated by reference therein (the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference“Incorporated Documents”). For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant to on its Electronic Data Gathering Analysis and Retrieval System, or if applicable, the Interactive Data Electronic Application system or any successor thereto when used by the Commission (collectively, “XXXXXEXXXX”).

Appears in 1 contract

Samples: Common Stock (Houston American Energy Corp)

Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through the AgentCowen, ordinary acting as agent and/or principal, shares (the “Placement Shares”) of the Company’s common stock, par value $0.01 nominal value 0.001 per share (the “Ordinary SharesCommon Stock”), having an aggregate offering price of up to an aggregate gross sales proceeds of $50,000,000; 30,000,000.00 provided, however, that in no event shall the Company issue or sell through the Agent Cowen such number or dollar amount of Placement Shares that would (a) exceed would cause the Company not to satisfy the eligibility requirements for use of Form S-3, (b) exceeds the number or dollar amount of Ordinary Shares shares of Common Stock registered on the effective Registration Statement (as defined below) pursuant to which the offering is being made, or (bc) exceed exceeds the number of authorized but unissued Ordinary Shares (less Ordinary Shares issuable upon exercise, conversion or exchange shares of any outstanding securities of the Company or otherwise reserved from the Company’s authorized share capital), (c) exceed the number or dollar amount of Ordinary Shares permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable) or (d) exceed the number or dollar amount of Ordinary Shares for which the Company has filed a Prospectus Supplement (defined below) Common Stock (the lesser of (a), (b), (c) and (dc), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations limitation set forth in this Section 1 on the amount number of Placement Shares shares of Common Stock issued and sold under this Agreement shall be the sole responsibility of the Company Company, and that the Agent Cowen shall have no obligation in connection with such compliance. The offer issuance and sale of Placement Shares Common Stock through the Agent Cowen will be effected pursuant to the Registration Statement (as defined below) filed by the Company and declared effective by the Securities and Exchange Commission (the “Commission”) on August 10, 2017), although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement (as defined below) to issue Ordinary Sharesthe Common Stock. The Company has filedfiled or will file, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) amended, and the rules and regulations thereunder (collectively, the “Securities Act RegulationsAct”), with the Commission a registration statement on Form S-3 (File No. 333-219567)S-3, including a base prospectus prospectus, relating to certain securities, including the Placement Shares Shares, to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (collectively, the “Exchange Act”). The Company has prepared a sales agreement prospectus supplement to the base prospectus included as part of the registration statement, which prospectus supplement relates specifically relating to the Placement Shares to be issued from time to time by the Company (the “Prospectus SupplementSales Prospectus). The Company will furnish to the Agent, for use by the Agent, copies of the prospectus ) included as part of such registration statement. The Company has furnished to Cowen, as supplemented for use by Cowen, copies of the Prospectus Supplement Sales Prospectus, relating to the Placement Shares to be issued from time to time by the Company. The Company may file one or more additional Shares, included as part of such registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement Sharesstatement. Except where the context otherwise requires, such registration statement(s)statement, as amended when it becomes effective, including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B or 462(b) of the Securities Act RegulationsAct, is herein called the “Registration Statement.” The base prospectus or base prospectusesprospectus, including all documents incorporated therein by reference, and the Sales Prospectus, including all documents incorporated therein by reference, each of which is included in the Registration Statement, as it or they may be supplemented, if necessary, supplemented by the Prospectus Supplementany additional prospectus supplement, in the form in which such prospectus or prospectuses and/or Sales Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act RegulationsAct, together with any “issuer free writing prospectus,” as defined in Rule 433 of the then issued Issuer Free Writing Prospectus(esSecurities Act (“Rule 433”), relating to the Placement Shares that (i) is required to be filed with the Commission by the Company or (defined belowii) is exempt from filing pursuant to Rule 433(d)(5)(i), in each case in the form filed or required to be filed with the Commission or, if not required to be filed, in the form retained in the Company’s records pursuant to Rule 433(g), is herein called the “Prospectus.” Any reference herein to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus amendment or supplement thereto shall be deemed to refer to and include the documents, if any, documents incorporated by reference therein. Any , and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement, Statement or the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing after the execution hereof of any document under with the Exchange Act on or after the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and Commission deemed to be incorporated therein by referencereference therein. For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent any copy filed with the Commission pursuant to its either the Electronic Data Gathering Analysis and Retrieval system System or any successor thereto Interactive Data Electronic Applications (collectively, collectively XXXXXIDEA”).

Appears in 1 contract

Samples: Sales Agreement (Argos Therapeutics Inc)

Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through the Agent, ordinary shares (the “Placement Shares”) of the Company’s common stock, par value $0.01 nominal value 0.001 per share (the “Ordinary SharesCommon Stock”), up to an aggregate gross sales proceeds of $50,000,000; provided, however, that in no event shall the Company issue or sell through the Agent such number of Placement Shares that (a) would cause the Company not to satisfy the eligibility requirements for use of Form S-3 (including under Instruction I.B.6. thereto, to the extent applicable), (b) exceeds the number of shares or dollar amount of Placement Shares that would (a) exceed the number or dollar amount of Ordinary Shares Common Stock registered on the effective Registration Statement and included in the Prospectus (each as defined below) pursuant to which the offering is being made, or (bc) exceed exceeds the number of authorized but unissued Ordinary Shares (less Ordinary Shares issuable upon exercise, conversion or exchange shares of any outstanding securities of the Company or otherwise reserved from the Company’s authorized share capital), (c) exceed the number or dollar amount of Ordinary Shares permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable) or (d) exceed the number or dollar amount of Ordinary Shares for which the Company has filed a Prospectus Supplement (defined below) Common Stock (the lesser of (a), (b), (c) and (dc), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on the amount number of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the Agent shall have no obligation in connection with such compliance. The offer issuance and sale of Placement Shares through the Agent will be effected pursuant to the Registration Statement (as defined below) filed by the Company and declared effective by the Securities and Exchange Commission (the “Commission”) on August 10, 2017), although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue Ordinary any Placement Shares. The Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) amended, and the rules and regulations thereunder (the “Securities Act RegulationsAct”), with the Securities and Exchange Commission (the “Commission”), a registration statement on Form S-3 (File No. 333-219567235686), including a base prospectus relating to certain securitiessecurities of the Company, including the Placement Shares to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (collectively, the “Exchange Act”). The Company has prepared a prospectus supplement to the base prospectus included as part of the such registration statement, which prospectus supplement relates statement specifically relating to the Placement Shares to be issued from time to time by the Company (the “Prospectus SupplementSupplement ”). The Company will furnish to the Agent, for use by the Agent, copies of the prospectus included as part of such registration statement, as supplemented supplemented, if at all, by the Prospectus Supplement Supplement, relating to the Placement Shares to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement Shares. Except where the context otherwise requires, such registration statement(s)statement, including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act RegulationsAct, is herein called the “Registration Statement.” The base prospectus or base prospectusesprospectus, including all documents incorporated or deemed incorporated therein by referencereference to the extent such information has not been superseded or modified in accordance with Rule 412 under the Securities Act (as qualified by Rule 430B(g) of the Securities Act), included in the Registration Statement, as it may be supplemented, if necessary, supplemented by the Prospectus Supplement, in the form in which such prospectus or prospectuses and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act Regulations, together with the then issued Issuer Free Writing Prospectus(es) (defined below)Act, is herein called the “Prospectus.” Any reference herein to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus amendment or supplement thereto shall be deemed to refer to and include the documents, if any, documents incorporated or deemed incorporated by reference therein. Any , and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement, Statement or the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing after the execution hereof of any document under with the Exchange Act on or after Commission deemed to be incorporated by reference therein (collectively, the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference“Incorporated Documents”). For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval System, or if applicable, the Interactive Data Electronic Application system or any successor thereto when used by the Commission (collectively, “XXXXX”).

Appears in 1 contract

Samples: Moleculin Biotech, Inc.

Issuance and Sale of Shares. The Company Fund agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through the AgentCF&Co, ordinary acting as agent and/or principal, shares (the “Placement Shares”) of the CompanyFund’s common stock, par value $0.01 nominal value 0.001 per share (the “Ordinary SharesCommon Stock), up to ) having an aggregate gross sales proceeds price of up to $50,000,000; provided, however, that in no event shall the Company issue or sell through the Agent such number or dollar amount of Placement Shares that would 30,000,000 (a) exceed the number or dollar amount of Ordinary Shares registered on the effective Registration Statement (defined below) pursuant to which the offering is being made, (b) exceed the number of authorized but unissued Ordinary Shares (less Ordinary Shares issuable upon exercise, conversion or exchange of any outstanding securities of the Company or otherwise reserved from the Company’s authorized share capital), (c) exceed the number or dollar amount of Ordinary Shares permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable) or (d) exceed the number or dollar amount of Ordinary Shares for which the Company has filed a Prospectus Supplement (defined below) (the lesser of (a), (b), (c) and (d), the “Maximum Amount”)) on the terms set forth in this Agreement. Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations limitation set forth in this Section 1 on the amount number of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company Fund, and that the Agent CF&Co shall have no obligation in connection with such compliance. The offer issuance and sale of Placement Shares through the Agent CF&Co will be effected pursuant to the Registration Statement (as defined below) filed by the Company Fund and declared effective by the Securities and Exchange Commission (the “Commission”) on August 10, 2017), although nothing in this Agreement shall be construed as requiring the Company Fund to use the Registration Statement (as defined below) to issue Ordinary the Shares. The Company Fund has filedalso entered into an equity distribution agreement (the “Alternative Distribution Agreement”), in accordance dated of even date herewith, with Xxxxxx, Xxxxxxxx & Company, Incorporated (the “Alternative Agent”). The aggregate gross sales price of the Shares that may be sold pursuant to this Agreement and the Alternative Distribution Agreement shall not exceed the Maximum Amount. The Fund has filed with the provisions Commission a registration statement on Form N-2 (File Nos. 333-149315 and 811-21725), which became effective on May 8, 2009 (the “Original Registration Statement”), covering the registration of the Shares under the Securities Act of 1933, as amended (the “1933 Act” or “Securities Act”) ), and a notification on Form N-8A of registration of the Fund as an investment company under the Investment Company Act of 1940, as amended (the “1940 Act”), and the rules and regulations thereunder of the Commission under the 1933 Act and the 1940 Act (the “Securities Act Rules and Regulations”). The base prospectus included in the Original Registration Statement, in the form in which it has most recently been filed with the Commission a registration statement on Form S-3 (File No. 333-219567)or prior to the date of this Agreement, including any statement of additional information incorporated therein by reference, is hereinafter called the “Basic Prospectus.” Promptly after execution and delivery of this Agreement, the Fund will, if required, prepare and file a base prospectus post-effective amendment to the Original Registration Statement and will prepare and file one or more supplements relating to certain securitiesthe Shares (collectively, including the Placement Shares “Prospectus Supplement”) to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file Basic Prospectus in accordance with the provisions of Rule 430A (“Rule 430A”) under the Securities Exchange 1933 Act and paragraph (c) and/or (h) of 1934, as amended, Rule 497 (“Rule 497”) of the Rules and the rules and regulations thereunder (collectively, the “Exchange Act”)Regulations. The Company has prepared a prospectus supplement to information included in any such Prospectus Supplement that was omitted from such Original Registration Statement at the base prospectus included as part of the registration statement, which prospectus supplement relates to the Placement Shares time it became effective but that is deemed to be issued from time to time by the Company (the “Prospectus Supplement”). The Company will furnish to the Agent, for use by the Agent, copies of the prospectus included as part of such registration statement, Original Registration Statement at the time it became effective pursuant to paragraph (b) of Rule 430A is referred to as supplemented by the Prospectus Supplement relating to the Placement Shares to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement Shares. Except where the context otherwise requires, such registration statement(s)“Rule 430A Information.” Such Original Registration Statement, including all documents filed as part thereof or incorporated by reference thereinthe amendments thereto, the exhibits and schedules thereto at the time it became effective and including the Rule 430A Information and any statement of additional information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act Regulationsincorporated therein by reference, is herein called the “Registration Statement.” The base prospectus or base prospectuses, including all documents incorporated therein by reference, included in the Registration StatementBasic Prospectus, as it may be supplemented, if necessary, amended and supplemented by the Prospectus Supplement, in the form in which such prospectus or prospectuses and/or Prospectus Supplement have most recently been filed by the Company Fund with the Commission pursuant to Rule 424(b) 497 under the Securities Act Regulations, together with the then issued Issuer Free Writing Prospectus(es) (defined below)Act, is herein called the “Prospectus.” Any reference herein to the Registration Statement, any Prospectus Supplement, Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the documents, if any, incorporated by reference therein. Any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act on or after the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference. For purposes of this Agreement, all references to the Registration Statement, the Basic Prospectus, the Prospectus or to any amendment or supplement thereto to any of the foregoing shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Gathering, Analysis and Retrieval system system, or any successor thereto system (collectively, “XXXXX”).

Appears in 1 contract

Samples: Sales Agreement (Tortoise Energy Capital Corp)

Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through the AgentAgent (defined above), ordinary shares of common stock (the “Placement Shares”) of the Company, par value $0.01 nominal value 0.001 per share (the “Ordinary SharesCommon Stock”), up to an aggregate gross sales proceeds of $50,000,000; provided, however, that in no event shall the Company issue or sell through the Agent such number or dollar amount of Placement Shares that would (a) exceed the number or dollar amount of Ordinary Shares shares of Common Stock registered on the effective Registration Statement (defined below) filed with the Securities and Exchange Commission (the “Commission”) pursuant to which the offering is being made, (b) exceed the number of authorized but unissued Ordinary Shares shares of Common Stock (less Ordinary Shares shares of Common Stock issuable upon exercise, conversion or exchange of any outstanding securities of the Company or otherwise reserved from the Company’s authorized share capitalcapital stock), (c) exceed the number or dollar amount of Ordinary Shares shares of Common Stock permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable) or (d) exceed the number or dollar amount of Ordinary Shares shares of Common Stock for which the Company has filed a Prospectus Supplement (defined below) (the lesser of (a), (b), (c) and (d), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 ‎1 on the amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the Agent shall have no obligation in connection with such compliance. The offer and sale of Placement Shares through the Agent will be effected pursuant to the Registration Statement (as defined below) filed by the Company and declared effective by the Securities and Exchange Commission (the “Commission”) on August 10, 2017, although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue Ordinary Placement Shares. The Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) and the rules and regulations thereunder (the “Securities Act Regulations”), with the Commission a registration statement on Form S-3 (File No. 333-219567267595), including a base prospectus prospectus, relating to certain securities, including the Placement Shares to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amendedamended (the “Exchange Act”), and the rules and regulations thereunder (collectively, the “Exchange Act”)thereunder. The Company has prepared a prospectus supplement to the base prospectus included as part of the registration statement, which prospectus supplement relates to the Placement Shares to be issued from time to time by the Company (the “Prospectus Supplement”). The Company will furnish to the Agent, for use by the Agent, copies of the prospectus included as part of such registration statement, as supplemented by the Prospectus Supplement Supplement, relating to the Placement Shares to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement Shares. Except where the context otherwise requires, such registration statement(s), including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act Regulations, is herein called the “Registration Statement.” The base prospectus or base prospectuses, including all documents incorporated therein by reference, included in the Registration Statement, as it may be supplemented, if necessary, by the Prospectus Supplement, in the form in which such prospectus or prospectuses and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act Regulations, together with the then issued Issuer Free Writing Prospectus(es) (defined below), is herein called the “Prospectus.” Any reference herein to the Registration Statement, any Prospectus Supplement, Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the documents, if any, incorporated by reference thereintherein (the “Incorporated Documents”), including, unless the context otherwise requires, the documents, if any, filed as exhibits to such Incorporated Documents. Any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act on or after the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference. For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval system, or if applicable, the Interactive Data Electronic Application system or any successor thereto when used by the Commission (collectively, “XXXXXEXXXX”).

Appears in 1 contract

Samples: Sales Agreement (Innovative Solutions & Support Inc)

Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through the AgentLadenburg, ordinary acting as agent and/or principal, shares (the “Placement Shares”) of the Company’s common stock, par value $0.01 nominal value 0.0001 per share (the “Ordinary SharesCommon Stock”), having an aggregate offering price of up to an aggregate gross sales proceeds of $50,000,000; 6,760,000 provided, however, that in no event shall the Company issue or sell through the Agent Ladenburg such number or dollar amount of Placement Shares that would (a) exceed the number or dollar amount of Ordinary Shares shares of Common Stock registered on the effective Registration Statement (defined below) pursuant to which the offering is being made, (b) exceed the number of authorized but unissued Ordinary Shares shares of Common Stock (less Ordinary Shares shares of Common Stock issuable upon exercise, conversion or exchange of any outstanding securities of the Company or otherwise reserved from the Company’s authorized share capitalcapital stock), (c) exceed the number or dollar amount of Ordinary Shares shares of Common Stock permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable) or (d) exceed the number or dollar amount of Ordinary Shares shares of Common Stock for which the Company has filed a Placement Share Prospectus Supplement (defined below) (the lesser of (a), (b), (c) and (d), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations limitation set forth in this Section 1 on the amount number of Placement Shares shares of Common Stock issued and sold under this Agreement shall be the sole responsibility of the Company Company, and that the Agent Ladenburg shall have no obligation in connection with such compliance. The offer issuance and sale of Placement Shares Common Stock through the Agent Ladenburg will be effected pursuant to the Registration Statement (as defined below) filed by the Company and declared effective by the Securities and Exchange Commission (the “Commission”) on August 10, 2017), although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement (as defined below) to issue Ordinary Sharesthe Common Stock. The Company has filedfiled or will file, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) amended, and the rules and regulations thereunder (collectively, the “Securities Act RegulationsAct”), with the Commission a registration statement on Form S-3 (File No. 333-219567)S-3, including a base prospectus prospectus, relating to certain securities, including the Placement Shares Common Stock, to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (collectively, the “Exchange Act”). The Company has prepared a prospectus supplement to the base prospectus included as part of the registration statement, which prospectus supplement relates specifically relating to the Placement Shares to be issued from time to time by the Company (the “Prospectus SupplementPlacement Share Prospectus). The Company will furnish to the Agent, for use by the Agent, copies of the prospectus ) that is included as part of such registration statement. When such registration statement is declared effective, as supplemented the Company shall furnish to Ladenburg, for use by the Prospectus Supplement relating to Ladenburg, copies of the Placement Shares to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement SharesShare Prospectus. Except where the context otherwise requires, such registration statement(s)statement, as amended when it becomes effective, including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act RegulationsAct, is herein called the “Registration Statement.” The base prospectus or base prospectusesand Placement Share Prospectus, including all documents incorporated therein by reference, included in the Registration Statement, as it may be supplemented, if necessary, by the Prospectus Supplement, in the form in which such prospectus or prospectuses and/or and Placement Share Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act RegulationsAct, together with any “issuer free writing prospectus,” as defined in Rule 433 of the then issued Issuer Free Writing Prospectus(esSecurities Act regulations (“Rule 433”), relating to the Placement Shares that (i) is required to be filed with the Commission by the Company or (defined belowii) is exempt from filing pursuant to Rule 433(d)(5)(i), in each case in the form filed or required to be filed with the Commission or, if not required to be filed, in the form retained in the Company’s records pursuant to Rule 433(g), is herein called the “Prospectus.” Any reference herein to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus amendment or supplement thereto shall be deemed to refer to and include the documents, if any, documents incorporated by reference therein. Any , and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement, Statement or the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing after the execution hereof of any document under with the Exchange Act on or after the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and Commission deemed to be incorporated therein by referencereference therein. For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent any copy filed with the Commission pursuant to its the Electronic Data Gathering Analysis and Retrieval system or any successor thereto System (collectively, “XXXXX”).

Appears in 1 contract

Samples: Sales Agreement (Viveve Medical, Inc.)

Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through the Agent, ordinary shares of common stock (the shares to be offered and sold hereunder being referred to as the “Placement Shares”) of the Company, par value $0.01 nominal value 0.0002 per share (the “Ordinary SharesCommon Stock”), up to an aggregate gross sales proceeds of $50,000,000; provided, however, that in no event shall the Company issue or sell through the Agent such number or dollar amount of Placement Shares that would (a) exceed the number or dollar amount of Ordinary Shares shares of Common Stock registered on the effective Registration Statement (as defined below) pursuant to which the offering is being made, (b) exceed the number of authorized but unissued Ordinary Shares (less Ordinary Shares issuable upon exercise, conversion or exchange shares of any outstanding securities of the Company or otherwise reserved from the Company’s authorized share capital)Common Stock, (c) exceed the number or dollar amount of Ordinary Shares shares of Common Stock permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable) or (d) exceed the number or dollar amount of Ordinary Shares Common Stock for which the Company has filed a Prospectus Supplement (as defined below) (the lesser of (a), (b), (c) and (d), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on the number or the dollar amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the Agent shall have no obligation in connection with such compliance. The offer issuance and sale of Placement Shares through the Agent will be effected pursuant to the Registration Statement (as defined below) filed by the Company and declared effective by the Securities and Exchange Commission (the “Commission”) on August 10October 23, 20172014, although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue Ordinary the Placement Shares. The Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) amended, and the rules and regulations thereunder (the “Securities Act RegulationsAct”), with the Commission a registration statement on Form S-3 (File No. 333-219567199274), including a base prospectus prospectus, relating to certain securities, including the Placement Shares to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amendedamended (the “Exchange Act”), and the rules and regulations thereunder (collectively, the “Exchange Act”)thereunder. The Company has prepared a prospectus supplement to the base prospectus included as part of the registration statement, which prospectus supplement relates to the Placement Shares to be issued from time to time by the Company pursuant to this Agreement (the “Prospectus Supplement”). The Company will furnish to the Agent, for use by the Agent, copies of the base prospectus included as part of such registration statement, as supplemented by the Prospectus Supplement Supplement, relating to the Placement Shares to be issued from time to time by the Company. The Company may file file, if necessary, one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement Shares. Except where the context otherwise requires, such registration statement(s), including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement statement(s) pursuant to Rule 430B of the Securities Act RegulationsAct, is herein called the “Registration Statement.” The base prospectus or base prospectuses, including all documents incorporated or deemed incorporated therein by reference, included in the Registration Statement, as it may be supplemented, if necessary, supplemented by the Prospectus Supplement, in the form in which such prospectus or prospectuses and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act RegulationsAct, together with the then issued Issuer Free Writing Prospectus(es) (defined below), is herein called the “Prospectus.” Any reference herein to the Registration Statement, any Prospectus Supplement, Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the documents, if any, incorporated by reference thereintherein (the “Incorporated Documents”), including, unless the context otherwise requires, the documents, if any, filed as exhibits to such Incorporated Documents. Any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act on or after the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference. For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval System, or if applicable, the Interactive Data Electronic Application system or any successor thereto when used by the Commission (collectively, “XXXXXEXXXX”).

Appears in 1 contract

Samples: Heat Biologics, Inc.

Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through the Agent, ordinary up to $40.0 million of shares of common stock (the “Placement Shares”) of the Company, par value $0.01 nominal value 0.0001 per share (the “Ordinary SharesCommon Stock”), up to an aggregate gross sales proceeds of $50,000,000; provided, however, that in no event shall the Company issue or sell through the Agent such number or dollar amount of Placement Shares that would (a) exceed the number or dollar amount of Ordinary Shares shares of Common Stock registered on the effective Registration Statement (defined below) pursuant to which the offering is being made, (b) exceed the number of authorized but unissued Ordinary Shares (less Ordinary Shares issuable upon exercise, conversion or exchange shares of any outstanding securities of the Company or otherwise reserved from the Company’s authorized share capital)Common Stock, (c) exceed the number or dollar amount of Ordinary Shares shares of Common Stock permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable) or (d) exceed the number or dollar amount of Ordinary Shares shares of Common Stock for which the Company has filed a Prospectus Supplement (defined below) (the lesser of (a), (b), (c) and (d), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on the amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the Agent shall have no obligation in connection with such compliance. The offer issuance and sale of Placement Shares through the Agent will be effected pursuant to the Registration Statement (as defined below) filed by the Company and declared effective by the Securities and Exchange Commission (the “Commission”) on August 10November 5, 20172015, although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue Ordinary SharesCommon Stock. The Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) and the rules and regulations thereunder (the “Securities Act Regulations”), with the Commission a registration statement on Form S-3 (File No. 333-219567207290), including a base prospectus prospectus, relating to certain securities, including the Placement Shares to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amendedamended (the “Exchange Act”), and the rules and regulations thereunder (collectively, the “Exchange Act”)thereunder. The Company has prepared a prospectus or a prospectus supplement to the base prospectus included as part of the registration statement, which prospectus or prospectus supplement relates to the Placement Shares to be issued from time to time by the Company (the “Prospectus Supplement”). The Company will furnish to the Agent, for use by the Agent, copies of the prospectus included as part of such registration statement, as supplemented supplemented, by the Prospectus Supplement Supplement, relating to the Placement Shares to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement Shares. Except where the context otherwise requires, such registration statement(s), including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act Regulations, is herein called the “Registration Statement.” The base prospectus or base prospectuses, including all documents incorporated therein by reference, included in the Registration Statement, as it may be supplemented, if necessary, by the Prospectus Supplement, in the form in which such prospectus or prospectuses and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act Regulations, together with the then issued Issuer Free Writing Prospectus(es) (defined below), is herein called the “Prospectus.” Any reference herein to the Registration Statement, any Prospectus Supplement, Prospectus or any Issuer Free Writing Prospectus (defined below) shall be deemed to refer to and include the documents, if any, incorporated by reference thereintherein (the “Incorporated Documents”), including, unless the context otherwise requires, the documents, if any, filed as exhibits to such Incorporated Documents. Any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act on or after the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference. For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval System, or if applicable, the Interactive Data Electronic Application system or any successor thereto when used by the Commission (collectively, “XXXXX”).

Appears in 1 contract

Samples: Sales Agreement (Vitae Pharmaceuticals, Inc)

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