Common use of Restricted Sales Period Clause in Contracts

Restricted Sales Period. (a) Notwithstanding any other provision of this Agreement, the Company shall not offer, sell or deliver under this Agreement or any Alternative Sales Agency Agreement, or request the offer or sale of any Common Shares under this Agreement or any Alternative Sales Agency Agreement and, by notice to the Agent given by telephone (confirmed promptly by telecopy or email), shall cancel any instructions for the offer or sale of any Common Shares under this Agreement, and the Agent shall not be obligated to offer or sell any Common Shares under this Agreement, (i) during any period in which the Company is, or could be reasonably deemed to be, in possession of material non-public information or (ii) except as provided in paragraph (b) below, at any time from and including the date (each, an “Announcement Date”) on which the Company shall issue a press release containing, or shall otherwise publicly announce, its earnings, revenues or other results of operations (each, an “Earnings Announcement”) through and including the time that is 24 hours after the time that the Company files (a “Filing Time”) a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K that includes consolidated financial statements as of and for the same period or periods, as the case may be, covered by such Earnings Announcement. (b) If the Company wishes to offer, sell or deliver Common Shares at any time during the period from and including an Announcement Date through and including the time that is 24 hours after the corresponding Filing Time, the Company shall (i) prepare and deliver to the Agent (with a copy to counsel to the Agent) a Current Report on Form 8-K, which shall include substantially the same financial and related information as was set forth in the relevant Earnings Announcement (other than any earnings projections, similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Agent, and obtain the consent of the Agent to the filing thereof (such consent not to be unreasonably withheld), (ii) provide the Agent with the officers’ certificate, accountants’ letter and opinions and letters of counsel called for by Article IV hereof, (iii) afford the Agent the opportunity to conduct a due diligence review in accordance with Section 4.14 hereof and (iv) file such Earnings 8-K with the Commission. Upon satisfaction of the requirements of this Section 2.09(b), the provisions of clause (ii) of Section 2.09(a) shall not be applicable for the period from and after the time at which the foregoing conditions shall have been satisfied (or, if later, the time that is 24 hours after the time that the relevant Earnings Announcement was first publicly released) through and including the time that is 24 hours after the Filing Time of the relevant Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificate, accountants’ letter and opinions and letters of counsel pursuant to this Section 2.09(b) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, accountants’ letters and legal opinions and letters as provided in Article IV hereof and (B) this Section 2.09(b) shall in no way affect or limit the operation of the provisions of clause (i) of Section 2.09(a), which shall have independent application.