Common use of Sale of Placement Shares by the Sales Agents Clause in Contracts

Sale of Placement Shares by the Sales Agents. On the basis of the representations, warranties and agreements of the Company herein contained and subject to all the terms and conditions of this Agreement, upon the Designated Agent’s acceptance of the terms 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 Designated Agent, for the period specified in the Placement Notice, will use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable laws and regulations and the rules of the Exchange to sell such Placement Shares up to the number or amount specified in, and otherwise in accordance with the terms of, such Placement Notice. The Designated 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 or amount of Placement Shares sold on such Trading Day, the average price at which Placement Shares were sold and the gross proceeds generated from such sales. Subject to the terms of the Placement Notice, the Designated Agent may sell Placement Shares by any method permitted by law deemed to be an “at the market offering” as defined in Rule 415(a)(4) of the Rules and Regulations , including sales made directly on or through the Exchange or any other existing trading market for the Common Stock, in negotiated transactions at market prices prevailing at the time of sale or at prices related to such prevailing market prices and/or any other method permitted by law. The Company acknowledges and agrees that (a) there can be no assurance that the Designated Agent will be successful in selling Placement Shares, (b) the Designated Agent will incur no liability or obligation to the Company or any other person or entity if it does not sell Placement Shares for any reason other than a failure by the Designated Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable laws and regulations to sell such Placement Shares as required under this Agreement and (c) the Designated Agent shall be under no obligation to purchase Placement Shares on a principal basis pursuant to this Agreement, except as otherwise agreed by the Designated Agent and the Company.

Sale of Placement Shares by the Sales Agents. On the basis of the representations, warranties and agreements of the Company herein contained and subject (a) Subject to all the terms and conditions of this Agreementherein set forth, upon the Designated AgentCompany’s acceptance of the terms issuance of a Placement Notice, and unless the sale of the Placement Shares described therein has been declined, suspended suspended, or otherwise terminated in accordance with the terms of this Agreement, the Designated AgentSales Agents, as agents for the period specified in the Placement NoticeCompany, will use its their commercially reasonable efforts consistent with its normal trading and sales practices and applicable laws state and federal laws, rules and regulations and the rules of The Nasdaq Capital Market (the Exchange “Exchange”), for the period specified in the Placement Notice, to sell such Placement Shares up to the number or amount specified by the Company in, and otherwise in accordance with the terms of, of such Placement Notice. The Designated Agent If acting as agent hereunder, the Sales Agents will provide written confirmation to the Company (including by email correspondence to each of the individuals of the Company set forth on Schedule 2, if receipt of such correspondence is actually acknowledged by any of the individuals to whom the notice is sent, other than via auto-reply) 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 or amount of Placement Shares sold on such Trading Dayday, the average price at which Placement Shares were sold compensation payable by the Company to the Sales Agents 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 Sales Agents (as set forth in Section 5(a)) from the gross proceeds generated that it receives from such sales. Subject to the terms of the Placement Notice, the Designated Agent Sales Agents may sell Placement Shares by any method permitted by law deemed to be an “at the market offeringmarket” offering as defined in Rule 415(a)(4) of 415 under the Rules and Regulations Securities Act, including without limitation sales made directly on or through the Exchange or Exchange, on any other existing trading market for the Common StockStock or to or through a market maker. If expressly authorized by the Company in a Placement Notice, the Sales Agents may also sell Placement Shares in privately negotiated transactions at market prices prevailing at transactions. Subject to Section 3(c) below, the time of sale or at prices related Sales Agents shall not purchase Placement Shares for its own account as principal unless expressly authorized to such prevailing market prices and/or any other method permitted do so by lawthe Company in a Placement Notice. The Company acknowledges and agrees that (ai) there can be no assurance that the Designated Agent Sales Agents will be successful in selling Placement Shares, and (bii) the Designated Sales Agent will incur no liability or obligation to the Company or any other person or entity if it does not sell Placement Shares for any reason other than a failure by the Designated Agent Sales Agents to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable laws law and regulations to sell such Placement Shares as required under this Agreement and (c) Section 3. For the Designated Agent shall be under no obligation to purchase Placement Shares purposes hereof, “Trading Day” means any day on a principal basis pursuant to this Agreement, except as otherwise agreed by the Designated Agent and which the Company’s Common Stock is purchased and sold on the principal market on which the Common Stock is listed or quoted.

Sale of Placement Shares by the Sales Agents. On the basis of the representations, warranties and agreements of the Company herein contained and subject (a) Subject to all the terms and conditions of this Agreementherein set forth, upon the Designated AgentCompany’s acceptance of the terms issuance of a Placement NoticeNotice to a Sales Agent, and unless the sale of the Placement Shares described therein has been declined, suspended suspended, or otherwise terminated in accordance with the terms of this Agreement, the Designated Sales Agent, as agent for the period specified in the Placement NoticeCompany, will use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable laws state and federal laws, rules and regulations and the rules of The Nasdaq Global Market (the Exchange “Exchange”), for the period specified in the Placement Notice, to sell such Placement Shares up to the number or amount specified by the Company in, and otherwise in accordance with the terms of, of such Placement Notice. The Designated If acting as agent hereunder, a Sales Agent will provide written confirmation to the Company (including by email correspondence to each of the individuals of the Company set forth on Schedule 2, if receipt of such correspondence is actually acknowledged by any of the individuals to whom the notice is sent, other than via auto-reply) 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 or amount of Placement Shares sold on such Trading Dayday, the average price at which Placement Shares were sold compensation payable by the Company to a Sales 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 a Sales Agent (as set forth in Section 5(a)) from the gross proceeds generated that it receives from such sales. Subject to the terms of the Placement Notice, the Designated a Sales Agent may sell Placement Shares by any method permitted by law deemed to be an “at the market offeringmarket” offering as defined in Rule 415(a)(4) of 415 under the Rules and Regulations Securities Act, including without limitation sales made directly on or through the Exchange or Exchange, on any other existing trading market for the Common StockStock or to or through a market maker. Subject to the terms of a Placement Notice, in negotiated transactions at market prices prevailing at the time of sale or at prices related to such prevailing market prices and/or a Sales Agent may also sell Placement Shares by any other method permitted by law, including but not limited to in negotiated transactions with the Company’s prior written consent. The Company acknowledges and agrees that (ai) there can be no assurance that the Designated a Sales Agent will be successful in selling Placement Shares, (bii) the Designated a Sales Agent will incur no liability or obligation to the Company or any other person or entity if it does not sell Placement Shares for any reason other than a failure by the Designated a Sales Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable laws law and regulations to sell such Placement Shares as required under this Agreement and (ciii) the Designated a Sales Agent shall be under no obligation to purchase Placement Shares on a principal basis pursuant to this Agreement, except as otherwise agreed by the Designated a Sales Agent and the Company in writing and expressly set forth in a Placement Notice. For the purposes hereof, “Trading Day” means any day on which the Company’s Common Stock is purchased and sold on the principal market on which the Common Stock is listed or quoted.

Sale of Placement Shares by the Sales Agents. On the basis of the representations, warranties and agreements of the Company herein contained and subject (a) Subject to all the terms and conditions of this Agreementherein set forth, upon the Designated AgentCompany’s acceptance of the terms issuance of a Placement NoticeNotice to a Sales Agent, and unless the sale of the Placement Shares described therein has been declined, suspended suspended, or otherwise terminated in accordance with the terms of this Agreement, the Designated AgentSales Agents, as agents for the Company, will use their commercially reasonable efforts consistent with their normal trading and sales practices and applicable state and federal laws, rules and regulations and the rules of The Nasdaq Global Market (the “Exchange”), for the period specified in the Placement Notice, will use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable laws and regulations and the rules of the Exchange to sell such Placement Shares up to the number or amount specified by the Company in, and otherwise in accordance with the terms of, of such Placement Notice. The Designated If acting as agent hereunder, a Sales Agent will provide written confirmation to the Company (including by email correspondence to each of the individuals of the Company set forth on Schedule 2, if receipt of such correspondence is actually acknowledged by any of the individuals to whom the notice is sent, other than via auto-reply) 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 or amount of Placement Shares sold on such Trading Dayday, the average price at which Placement Shares were sold compensation payable by the Company to the Sales 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 a Sales Agent (as set forth in Section 5(a)) from the gross proceeds generated that it receives from such sales. Subject to the terms of the Placement Notice, the Designated a Sales Agent may sell Placement Shares by any method permitted by law deemed to be an “at the market offeringmarket” offering as defined in Rule 415(a)(4) of 415 under the Rules and Regulations Securities Act, including without limitation sales made directly on or through the Exchange or Exchange, on any other existing trading market for the Common StockStock or to or through a market maker. Subject to the terms of a Placement Notice, in negotiated transactions at market prices prevailing at the time of sale or at prices related to such prevailing market prices and/or a Sales Agent may also sell Placement Shares by any other method permitted by law, including but not limited to in negotiated transactions with the Company’s prior written consent. The Company acknowledges and agrees that (ai) there can be no assurance that the Designated a Sales Agent will be successful in selling Placement Shares, (bii) the Designated a Sales Agent will incur no liability or obligation to the Company or any other person or entity if it does not sell Placement Shares for any reason other than a failure by the Designated a Sales Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable laws law and regulations to sell such Placement Shares as required under this Agreement and (ciii) the Designated a Sales Agent shall be under no obligation to purchase Placement Shares on a principal basis pursuant to this Agreement, except as otherwise agreed by the Designated a Sales Agent and the Company in writing and expressly set forth in a Placement Notice. For the purposes hereof, “Trading Day” means any day on which the Company’s Common Stock is purchased and sold on the principal market on which the Common Stock is listed or quoted. (b) Under no circumstances shall the Company cause or request the offer or sale of any Placement Shares if, after giving effect to the sale of such Placement Shares, the aggregate number or gross sales proceeds of Placement Shares sold pursuant to this Agreement would exceed the lesser of: (i) the number or dollar amount of shares of Common Stock registered pursuant to the Registration Statement pursuant to which the offering hereunder is being made, (ii) the number of authorized but unissued and unreserved shares of Common Stock, (iii) the number or dollar amount of shares of Common Stock permitted to be offered and sold by the Company under Form S-3 (including General Instruction I.B.6. of Form S-3, if and for so long as applicable), (iv) the number or dollar amount of shares of Common Stock 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 committee, and notified to the Sales Agents in writing, or (v) the number or dollar amount of shares of Common Stock for which the Company has filed the ATM Prospectus or other prospectus supplement specifically relating to the offering of the Placement Shares pursuant to this Agreement. Under no circumstances shall the Company cause or request the offer or sale of any Placement Shares pursuant to this Agreement at a price lower than the minimum price authorized from time to time by the Company’s board of directors, a duly authorized committee thereof or a duly authorized executive committee, and notified to the Sales Agents in writing. Notwithstanding anything to the contrary contained herein, the parties hereto acknowledge and agree that compliance with the limitations set forth in this Section 3(b) on the number or dollar amount of Placement Shares that may be issued and sold under this Agreement from time to time shall be the sole responsibility of the Company, and that the Sales Agents shall have no obligation in connection with such compliance. (c) During the term of this Agreement, neither the Sales Agents nor any of their respective affiliates or subsidiaries shall engage in (i) any short sale of any security of the Company or (ii) any sale of any security of the Company that the Sales Agents do not own or any sale which is consummated by the delivery of a security of the Company borrowed by, or for the account of, the Sales Agents. During the term of this Agreement and notwithstanding anything to the contrary herein, the Sales Agents agree that in no event will the Sales Agents or their respective affiliates engage in any market making, bidding, stabilization or other trading activity with regard to the Common Stock or related derivative securities if such activity would be prohibited under Regulation M or other anti-manipulation rules under the Exchange Act.

Sale of Placement Shares by the Sales Agents. On the basis of the representations, warranties and agreements of the Company herein contained and subject (a) Subject to all the terms and conditions of this Agreementherein set forth, upon the Designated AgentCompany’s acceptance of the terms issuance of a Placement Notice, and unless the sale of the Placement Shares described therein has been declined, suspended suspended, or otherwise terminated in accordance with the terms of this Agreement, the Designated Sales Agent, as agent for the period specified in the Placement NoticeCompany, will use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable laws state and federal laws, rules and regulations and the rules of The Nasdaq Stock Market LLC (the Exchange “Exchange”), for the period specified in the Placement Notice, to sell such Placement Shares up to the number or amount specified by the Company in, and otherwise in accordance with the terms of, of such Placement Notice. The If acting as agent hereunder, the Designated Sales Agent will provide written confirmation to the Company (including by email correspondence to each of the individuals of the Company set forth on Schedule 2, if receipt of such correspondence is actually acknowledged by any of the individuals to whom the notice is sent, other than via auto-reply) 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 or amount of Placement Shares sold on such Trading Dayday, the average price at which Placement Shares were sold compensation payable by the Company to the Designated Sales 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 Designated Sales Agent (as set forth in Section 5(a)) from the gross proceeds generated that it receives from such sales. Subject to the terms of the Placement Notice, the Designated Sales Agent may sell Placement Shares by any method permitted by law deemed to be an “at the market offeringmarket” offering as defined in Rule 415(a)(4) of 415 under the Rules and Regulations Securities Act, including without limitation sales made directly on or through the Exchange or Exchange, on any other existing trading market for the Common StockStock or to or through a market maker. Subject to the terms of a Placement Notice, in negotiated transactions at market prices prevailing at the time of sale or at prices related to such prevailing market prices and/or Designated Sales Agent may also sell Placement Shares by any other method permitted by law, including but not limited to in negotiated transactions, with the Company’s prior written consent. The Company acknowledges and agrees that (ai) there can be no assurance that the Designated Sales Agent will be successful in selling Placement Shares, (bii) the Designated Sales Agent will incur no liability or obligation to the Company or any other person or entity if it does not sell Placement Shares for any reason other than a failure by the Designated Sales Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable laws law and regulations to sell such Placement Shares as required under this Agreement and (ciii) the Designated Sales Agent shall be under no obligation to purchase Placement Shares on a principal basis pursuant to this Agreement, except as otherwise agreed by the Designated Sales Agent and the CompanyCompany in writing and expressly set forth in a Placement Notice. For the purposes hereof, “Trading Day” means any day on which the Common Stock is purchased and sold on the principal market on which the Common Stock is listed or quoted.

Sale of Placement Shares by the Sales Agents. On the basis of the representations, warranties and agreements of the Company herein contained and subject Subject to all the terms and conditions of this Agreement, upon the Designated AgentCompany’s acceptance of the terms issuance of a Placement Notice, and unless the sale of the Placement Shares described therein has been declined, suspended suspended, or otherwise terminated in accordance with the terms of this Agreement, the Designated Agent, for the period specified in the Placement Notice, Sales Agents will use its their commercially reasonable efforts consistent with its normal trading and sales practices and applicable laws and regulations and the rules to sell on behalf of the Exchange to sell Company and as agent, such Placement Shares up to the number or amount specified inspecified, and otherwise in accordance with the terms of, of such Placement Notice. The Designated Agent Company acknowledges that the Sales Agents will conduct the sale of Placement Shares in compliance with applicable law, rules and regulations including, without limitation, Regulation M under the Exchange Act, and applicable Nasdaq rules and that such compliance may include a delay in commencement of sales efforts after receipt of a Placement Notice. The Sales Agents will provide written confirmation to the Company Company, as provided in Section 13, no later than the opening of the Trading Day immediately (as defined below) next following the Trading Day on which it has they have made sales of Placement Shares hereunder setting forth the number or amount of Placement Shares sold on such Trading Dayday, the average price at which Placement Shares were sold compensation payable by the Company to the Sales Agents with respect to such sales, and the gross proceeds generated from such sales. Subject Net Proceeds (as defined below) payable to the terms of the Placement Notice, the Designated Agent Company. The Sales Agents may sell Placement Shares by any method permitted by law deemed to be an “at the market offeringmarket” as defined in offering under Rule 415(a)(4) 415 of the Rules and Regulations Securities Act, including without limitation sales made directly on or through the Exchange or Nasdaq, on any other existing trading market for the Common StockShares or to or through a market maker in a transaction consummated other than on an exchange, or in negotiated transactions at market prices prevailing at the time of sale or at prices related to such prevailing market prices and/or any other method permitted by lawprices. The Notwithstanding anything to the contrary set forth in this Agreement or a Placement Notice, the Company acknowledges and agrees that (ai) there can be no assurance that the Designated Agent Sales Agents will be successful in selling any Placement SharesShares or as to the price at which any Placement Shares are sold, if at all, and (bii) the Designated Agent Sales Agents will incur no liability or obligation to the Company or any other person or entity if it does they do not sell Placement Shares for any reason other than a failure by the Designated Agent Sales Agents to use its their commercially reasonable efforts consistent with its normal trading and sales practices and applicable laws and regulations to sell on behalf of the Company and as agent such Placement Shares as required provided under this Agreement and Section 3. For the purposes hereof, “Trading Day” means any day on which Nasdaq is open for trading. While a Placement Notice is in effect, neither the Sales Agents nor any of their subsidiaries shall, for their own respective accounts, engage in (ci) the Designated Agent shall be under no obligation to purchase Placement Shares on a principal basis pursuant to this Agreement, except as otherwise agreed by the Designated Agent and any short sale of any security of the Company, as defined in Regulation SHO under the Exchange Act, or (ii) any market making bidding, stabilization or other trading activity with regard to the Common Shares or related derivative securities, in each case, if such activity would be prohibited under Regulation M under the Exchange Act or other anti-manipulation rules under the Securities Act. For the avoidance of doubt, this restriction shall not apply to (A) transactions by or on behalf of any customer of either Sales Agent or transactions by either Sales Agent to facilitate any such transactions by or on behalf of any customer of either Sales Agent, or (B) bona fide market making activities otherwise in compliance with Regulation M and Regulation SHO.

Sale of Placement Shares by the Sales Agents. On the basis of the representations, warranties and agreements of the Company herein contained and subject to all the terms and conditions of this Agreement, upon the Designated Agent’s acceptance of the terms 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 Designated Agent, for the period specified in the Placement Notice, will use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable laws and regulations and the rules of the Exchange to sell such Placement Shares up to the number or amount specified in, and otherwise in accordance with the terms of, such Placement Notice. The Designated 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 or amount of Placement Shares sold on such Trading Day, the average price at which Placement Shares were sold and the gross proceeds generated from such sales. Subject to the terms of the Placement Notice, the Designated Agent may sell Placement Shares by any method permitted by law deemed to be an “at the market offering” as defined in Rule 415(a)(4) of the Rules and Regulations , including sales made directly on or through the Exchange or any other existing trading market for the Common Stock, in negotiated transactions at market prices prevailing at the time of sale or at prices related to such prevailing market prices and/or any other method permitted by lawRegulations. The Company acknowledges and agrees that (a) there can be no assurance that the Designated Agent will be successful in selling Placement Shares, (b) the Designated Agent will incur no liability or obligation to the Company or any other person or entity if it does not sell Placement Shares for any reason other than a failure by the Designated Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable laws and regulations to sell such Placement Shares as required under this Agreement and (c) the Designated Agent shall be under no obligation to purchase Placement Shares on a principal basis pursuant to this Agreement, except as otherwise agreed by the Designated Agent and the Company.

Sale of Placement Shares by the Sales Agents. On the basis of the representations, warranties and agreements of the Company herein contained and subject Subject to all the terms and conditions of this Agreement, upon the Designated AgentCompany’s acceptance of the terms issuance of a Placement Notice, and unless the sale of the Placement Shares described therein has been declined, suspended suspended, or otherwise terminated in accordance with the terms of this Agreement, the Designated Agent, for the period specified in the Placement Notice, Sales Agents will use its their commercially reasonable efforts consistent with its normal trading and sales practices and applicable laws and regulations and the rules to sell on behalf of the Exchange to sell Company and as agent, such Placement Shares up to the number or amount specified inspecified, and otherwise in accordance with the terms of, of such Placement Notice. The Designated Company may also sell Placement Shares to the Sales Agent as principal at a price and on terms agreed upon by the Company and the Sales Agent pursuant to a separate written agreement setting forth such terms. The Company acknowledges that the Sales Agents will conduct the sale of Placement Shares in compliance with applicable law, rules and regulations including, without limitation, Regulation M under the Exchange Act, and applicable Nasdaq rules and that such compliance may include a delay in commencement of sales efforts after receipt of a Placement Notice. The Sales Agents will (i) provide written confirmation to the Company Company, as provided in Section 13, no later than the opening of the Trading Day immediately (as defined below) next following the Trading Day on which it has they have made sales of Placement Shares hereunder setting forth the number or amount of Placement Shares sold on such Trading Dayday, the average price at which Placement Shares were sold compensation payable by the Company to the Sales Agents with respect to such sales, and the gross proceeds generated from such sales. Subject Net Proceeds (as defined below) payable to the terms Company, and (ii) use their commercially reasonable efforts to promptly provide such information and documentation as the Company may reasonably request to comply with any applicable listing and reporting rules of the Placement Notice, the Designated Agent ASX. The Sales Agents may sell Placement Shares by any method permitted by law law, including without limitation (i) sales deemed to be an “at the market offeringmarket” as defined in offering under Rule 415(a)(4) 415 of the Rules and Regulations Securities Act, including without limitation sales made directly on or through the Exchange or Nasdaq, on any other existing trading market for the Common StockStock or to or through a market maker in a transaction consummated other than on an exchange, or (ii) in negotiated transactions transactions, including without limitation as block trades, at negotiated prices, at market prices prevailing at the time of sale or at prices related to such prevailing market prices and/or any other method permitted by lawprices. The Notwithstanding anything to the contrary set forth in this Agreement or a Placement Notice, the Company acknowledges and agrees that (ai) there can be no assurance that the Designated Agent Sales Agents will be successful in selling any Placement SharesShares or as to the price at which any Placement Shares are sold, if at all, and (bii) the Designated Agent Sales Agents will incur no liability or obligation to the Company or any other person or entity if it does they do not sell Placement Shares for any reason other than a failure by the Designated Agent Sales Agents to use its their commercially reasonable efforts consistent with its normal trading and sales practices and applicable laws and regulations to sell on behalf of the Company and as agent such Placement Shares as required provided under this Agreement and (c) Section 3. For the Designated Agent shall be under no obligation to purchase Placement Shares purposes hereof, “Trading Day” means any day on a principal basis pursuant to this Agreement, except as otherwise agreed by the Designated Agent and the Companywhich Nasdaq is open for trading.