Common use of Sale of Placement Shares by Agent Clause in Contracts

Sale of Placement Shares by Agent. Subject to the terms and conditions herein set forth, upon the Company’s issuance of a Placement Notice, and unless the sale of the Placement Shares described therein has been declined, suspended, or otherwise terminated in accordance with the terms of this Agreement, the Agent will use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable state and federal laws, rules and regulations and the rules of the NASDAQ Global Select Market (the “Exchange”) to sell such Placement Shares up to the amount specified, and otherwise in accordance with the terms of such Placement Notice. The Agent will provide written confirmation to the Company no later than the opening of the Trading Day immediately following the Trading Day on which it has made sales of Placement Shares hereunder setting forth the number of Placement Shares sold on such day, the compensation payable by the Company to the Agent pursuant to Section 2 with respect to such sales, and the Net Proceeds (as defined below) payable to the Company. The Agent may only sell Placement Shares by methods permitted by law deemed to be an “at the market offering” as defined in Rule 415 of the Securities Act. The Company acknowledges and agrees that (i) there can be no assurance that the Agent will be successful in selling Placement Shares, and (ii) the Agent will incur no liability or obligation to the Company or any other person or entity, in each case for failure to sell Placement Shares, if it does not sell Placement Shares for any reason other than a failure by the Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Placement Shares as required under this Agreement. For the purposes hereof, “Trading Day” means any day on which Common Stock is purchased and sold on the principal market on which the Common Stock is listed or quoted.

Sale of Placement Shares by Agent. Subject to the terms and conditions herein set forthprovisions of Section 5(a), upon the Company’s issuance of a Agent, for the period specified in the Placement Notice, and unless the sale of the Placement Shares described therein has been declined, suspended, or otherwise terminated in accordance with the terms of this Agreement, the Agent will use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable state and federal laws, rules and regulations and the rules of the NASDAQ Global Select Capital Market (the “Exchange”) ), to sell such the Placement Shares up to the amount specified, and otherwise in accordance with the terms of such Placement Notice. The Agent will provide written confirmation to the Company no later than the opening of the Trading Day (as defined below) immediately following the Trading Day on which it has made sales of Placement Shares hereunder setting forth the number of Placement Shares sold on such day, the price per share that such Placement Shares were sold, the compensation payable by the Company to the Agent pursuant to Section 2 with respect to such sales, and the Net Proceeds (as defined below) payable to the Company, with an itemization of the deductions made by the Agent (as set forth in Section 5(b)) from the gross proceeds that it receives from such sales. The Subject to the terms of the Placement Notice, the Agent may only sell Placement Shares by methods any method permitted by law deemed to be an “at the market offeringmarket” offering as defined in Rule 415 of the Securities ActAct Regulations, including without limitation sales made directly on the Exchange, on any other existing trading market for the Common Stock or to or through a market maker. The Company acknowledges and agrees that (i) there can be no assurance that Subject to the terms of a Placement Notice, the Agent will be successful in selling Placement Shares, and (ii) the Agent will incur no liability or obligation to the Company or any other person or entity, in each case for failure to sell Placement Shares, if it does not may also sell Placement Shares for by any reason other than a failure method permitted by law, including but not limited to in privately negotiated transactions with the prior written consent of the Company. During the term of this Agreement and notwithstanding anything to the contrary herein, the Agent agrees that in no event will the Agent or its affiliates engage in any market making, bidding, stabilization or other trading activity with regard to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell the Common Stock or related derivative securities if such Placement Shares as required activity would be prohibited under this AgreementRegulation M or other anti-manipulation rules under the Securities Act. For the purposes hereof, “Trading Day” means any day on which Common Stock is purchased and sold traded on the principal market on which the Common Stock is listed or quotedExchange.