Common use of Sale of Placement Shares Clause in Contracts

Sale of Placement Shares. (i) On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, upon 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, Agent, for the period specified in the Placement Notice, will use its commercially reasonable efforts consistent with its normal trading and sales practices to sell such Placement Shares up to the amount specified in, and otherwise in accordance with the terms of, such Placement Notice. The Company acknowledges and agrees that (A) there can be no assurance that Agent will be successful in selling Placement Shares, (B) 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 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 and (C) Agent shall be under no obligation to purchase Placement Shares on a principal basis pursuant to this Agreement, except as otherwise agreed by Agent and the Company. (ii) Notwithstanding any other provision of this Agreement, the Company shall not offer or sell, or instruct the Agent to offer or sell, any Placement Shares through the Agent as sales agent (and, by notice to the Agent given by telephone (confirmed promptly by telecopy or email), shall cancel any instructions for any such offer or sale of any Placement Shares prior to the commencement of the periods referenced below), and the Agent shall not be obligated to make any such offer or sale of Placement Shares, (A) during any period in which the Company is, or could be deemed to be, in possession of material non-public information or (B) except as provided in Section 5(a)(ii) hereof, at any time during the period commencing on the 10th business day prior to the time the Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the time that is 24 hours after the time that the Company files a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement. (iii) Notwithstanding clause (B) of Section 5(a)(ii) hereof, if the Company wishes to offer or sell Shares to the Agent as sales agent at any time during the period from and including an Earnings Announcement through and including the corresponding Filing Time, the Company shall first (A) prepare and deliver to the Agent (with a copy to counsel for the Agents) a Current Report on Form 8-K that includes substantially the same financial and related information (together with management’s discussion and analysis thereof) that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Agent, and, prior to its filing, obtain the written consent of the Agent to such filing (which consent shall not be unreasonably withheld), (B) provide the Agent with the officers’ certificate, opinions and letters of counsel and accountants’ letter specified in Section 7(l), (m) and (n), respectively, hereof, (C) afford the Agent the opportunity to conduct a due diligence review in accordance with Section 7(j) hereof prior to filing such Earnings 8-K and (D) file such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (1) the delivery of any officers’ certificate, opinion or letter of counsel or accountants’ letter pursuant to this Section 5(a) 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, opinions and letters of counsel and accountants’ letters as provided in Section 7(l), (m) and (n), respectively, hereof, and (2) this Section 5(a) shall in no way affect or limit the operation of clause (A) of Section 5(a)(i) hereof, which shall have independent application.

Sale of Placement Shares. (i) On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, upon the 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 Agent, for the period specified in the Placement Notice, will use its commercially reasonable efforts consistent with its normal trading and sales practices to sell such Placement Shares up to the amount specified in, and otherwise in accordance with the terms of, such Placement Notice. The Company acknowledges and agrees that (Ai) there can be no assurance that the Agent will be successful in selling Placement Shares, (Bii) the 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 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 and Agreement, (Ciii) the Agent shall be under no obligation to purchase Placement Shares on a principal basis pursuant to this Agreement, except as otherwise agreed by the Agent and the Company and (iv) Placement Shares purchased from the Company by the Agent, individually or in a syndicate, as principal shall be made in accordance with the terms agreed upon between the Agent and the Company as evidenced by a Terms Agreement; the Agent’s commitment to purchase Placement Shares from the Company as principal shall be deemed to be made on the basis of the accuracy of the representation and warranties of the Company. (ii) Notwithstanding any , the Operating Partnership and the Manager, and performance by the Company, the Operating Partnership and the Manager of their covenants and other provision obligations, herein contained and shall be subject to the terms and conditions herein set forth; at the time of this each Terms Agreement, the Company shall not offer or sell, or instruct the Agent to offer or sell, any Placement Shares through the Agent as sales agent (and, by notice to the Agent given by telephone (confirmed promptly by telecopy or email), shall cancel any instructions for any such offer or sale of any Placement Shares prior to the commencement of the periods referenced below), and the Agent shall not be obligated to make any such offer or sale of Placement Sharesspecify the requirements, (A) during any period in which the Company isif any, or could be deemed to be, in possession of material non-public information or (B) except as provided in Section 5(a)(ii) hereof, at any time during the period commencing on the 10th business day prior to the time the Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the time that is 24 hours after the time that the Company files a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement. (iii) Notwithstanding clause (B) of Section 5(a)(ii) hereof, if the Company wishes to offer or sell Shares to the Agent as sales agent at any time during the period from and including an Earnings Announcement through and including the corresponding Filing Time, the Company shall first (A) prepare and deliver to the Agent (with a copy to counsel for the Agents) a Current Report on Form 8-K that includes substantially the same financial and related information (together with managementofficer’s discussion and analysis thereof) that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Agent, and, prior to its filing, obtain the written consent of the Agent to such filing (which consent shall not be unreasonably withheld), (B) provide the Agent with the officers’ certificate, opinions and letters of accountants and counsel and accountants’ letter specified in pursuant to Section 7(l8(l), (m) and (n), respectively, ) and Section 11(g) hereof, (C) afford . In the Agent event of a conflict between the opportunity to conduct terms of this Agreement and a due diligence review in accordance with Section 7(j) hereof prior to filing such Earnings 8-K and (D) file such Earnings 8-K with the Commission. For purposes of clarityTerms Agreement, the parties hereto agree that (1) the delivery terms of any officers’ certificate, opinion or letter of counsel or accountants’ letter pursuant to this Section 5(a) such Terms Agreement 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, opinions and letters of counsel and accountants’ letters as provided in Section 7(l), (m) and (n), respectively, hereof, and (2) this Section 5(a) shall in no way affect or limit the operation of clause (A) of Section 5(a)(i) hereof, which shall have independent applicationcontrol.

Sale of Placement Shares. (i) On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, upon the 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 Agent, for the period specified in the Placement Notice, will use its commercially reasonable efforts consistent with its normal trading and sales practices to sell such Placement Shares up to the amount specified in, and otherwise in accordance with the terms of, such Placement Notice. The Company acknowledges and agrees that (A) there can be no assurance that the Agent will be successful in selling Placement Shares, (B) the Agent will not incur no any 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 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 and Agreement, (C) other than to the extent set forth in the applicable Confirmation, the Forward Purchaser will not incur any liability or obligation to the Company or any other person or entity if it or its affiliate does not borrow Forward Hedge Shares for any reason other than a failure by the Forward Purchaser to use its commercially reasonable efforts to borrow or cause its affiliate to borrow such Forward Hedge Shares, and (D) the Agent shall be under no obligation to purchase Placement Shares on a principal basis pursuant to this Agreement, except as otherwise agreed by the Agent and the Company. (ii) Notwithstanding any other provision of this Agreement, the Company shall not offer or sell, or instruct the Agent to offer or sell, any Placement Shares through the Agent as sales agent (and, by notice to the Agent given by telephone (confirmed promptly by telecopy or email), shall cancel any instructions for any such offer or sale of any Placement Shares prior to the commencement of the periods referenced below), and the Agent shall not be obligated to make any such offer or sale of Placement Shares, (A) during any period in which the Company is, or could be deemed to be, in possession of material non-public information or (B) except as provided in Section 5(a)(ii5(a)(iii) hereof, at any time during the period commencing on the 10th business day prior to the time the Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the time that is 24 hours after the time that the Company files a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement. (iii) Notwithstanding clause (B) of Section 5(a)(ii) hereof, if the Company wishes to offer or sell Placement Shares to or through the Agent as sales agent at any time during the period from and including an Earnings Announcement through and including the corresponding Filing Time, the Company shall first (A) prepare and deliver to the Agent and the Forward Purchaser (with a copy to counsel for the Agentstheir counsel) a Current Report on Form 8-K that includes substantially the same financial and related information (together with management’s discussion and analysis thereof) that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the AgentAgent and the Forward Purchaser, and, prior to its filing, obtain the written consent of the Agent to such filing (which consent shall not be unreasonably withheld), (B) provide the Agent with the officers’ certificate, opinions and letters of counsel and accountants’ letter specified in Section 7(l), (m) and (n), respectively, hereof, (C) afford the Agent the opportunity to conduct a due diligence review in accordance with Section 7(j) hereof prior to filing such Earnings 8-K and (D) file such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (1) the delivery of any officers’ certificate, opinion or letter of counsel or accountants’ letter pursuant to this Section 5(a) 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, opinions and letters of counsel and accountants’ letters as provided in Section 7(l), (m) and (n), respectively, hereof, and (2) this Section 5(a) shall in no way affect or limit the operation of clause (A) of Section 5(a)(i) hereof, which shall have independent application.4

Sale of Placement Shares. (i) On the basis of the representations and warranties herein contained and subject Subject to the terms and conditions herein set forth, upon 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, Agent, for the period specified in the a Placement Notice, 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 Stock Market (the “Exchange”), to sell such the Placement Shares up to the amount specified in, 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 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(a)) from the gross proceeds that it receives from such sales. Subject to the terms of a Placement Notice, the Agent may sell Placement Shares by any method 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 (Ai) there can be no assurance that the Agent will be successful in selling Placement Shares, (Bii) the 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 Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law state and federal laws, rules and regulations and the rules of the Exchange to sell such Placement Shares as required under this Agreement and (Ciii) the Agent shall be under no obligation to purchase Placement Shares on a principal basis pursuant to this Agreement, except as otherwise agreed by the Agent and the Company. (ii) Notwithstanding . “Trading Day” means any other provision day on which shares of this Agreement, the Company shall not offer or sell, or instruct the Agent to offer or sell, any Placement Shares through the Agent as sales agent (and, by notice to the Agent given by telephone (confirmed promptly by telecopy or email), shall cancel any instructions for any such offer or sale of any Placement Shares prior to the commencement of the periods referenced below), Common Stock are purchased and the Agent shall not be obligated to make any such offer or sale of Placement Shares, (A) during any period in which the Company is, or could be deemed to be, in possession of material non-public information or (B) except as provided in Section 5(a)(ii) hereof, at any time during the period commencing sold on the 10th business day prior to the time the Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the time that is 24 hours after the time that the Company files a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings AnnouncementExchange. (iii) Notwithstanding clause (B) of Section 5(a)(ii) hereof, if the Company wishes to offer or sell Shares to the Agent as sales agent at any time during the period from and including an Earnings Announcement through and including the corresponding Filing Time, the Company shall first (A) prepare and deliver to the Agent (with a copy to counsel for the Agents) a Current Report on Form 8-K that includes substantially the same financial and related information (together with management’s discussion and analysis thereof) that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Agent, and, prior to its filing, obtain the written consent of the Agent to such filing (which consent shall not be unreasonably withheld), (B) provide the Agent with the officers’ certificate, opinions and letters of counsel and accountants’ letter specified in Section 7(l), (m) and (n), respectively, hereof, (C) afford the Agent the opportunity to conduct a due diligence review in accordance with Section 7(j) hereof prior to filing such Earnings 8-K and (D) file such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (1) the delivery of any officers’ certificate, opinion or letter of counsel or accountants’ letter pursuant to this Section 5(a) 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, opinions and letters of counsel and accountants’ letters as provided in Section 7(l), (m) and (n), respectively, hereof, and (2) this Section 5(a) shall in no way affect or limit the operation of clause (A) of Section 5(a)(i) hereof, which shall have independent application.

Sale of Placement Shares. (i) On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, upon the Agent’s acceptance of the terms of a Placement NoticeNotice pursuant to Section 2 hereof, 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, for the period specified in the Placement Notice, 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 Exchange to sell such Placement Shares up to the amount specified in, and otherwise in accordance with the terms of, such Placement Notice. The Company acknowledges and agrees that (Ai) there can be no assurance that the Agent will be successful in selling Placement Shares, (Bii) the 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 Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law state and federal laws, rules and regulations and the rules of the Exchange to sell such Placement Shares as required under this Agreement and (Ciii) the Agent shall be under no obligation to purchase Placement Shares on a principal basis pursuant to this Agreement, except as otherwise agreed by the Agent and the Company. (ii) . Notwithstanding any other provision of this Agreement, during any period in which the Company is in possession of material non-public information, the Company and the Agent agree that (i) no sale of Placement Shares will take place, (ii) the Company shall not offer or sell, or instruct request the Agent to offer or sell, any Placement Shares through the Agent as sales agent (and, by notice to the Agent given by telephone (confirmed promptly by telecopy or email), shall cancel any instructions for any such offer or sale of any Placement Shares prior to the commencement of the periods referenced below)Shares, and (iii) the Agent shall not be obligated to make sell or offer to sell any such offer or sale of Placement Shares, (A) during any period in which the Company is, or could be deemed to be, in possession of material non-public information or (B) except as provided in Section 5(a)(ii) hereof, at any time during the period commencing on the 10th business day prior to the time the Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the time that is 24 hours after the time that the Company files a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement. (iii) Notwithstanding clause (B) of Section 5(a)(ii) hereof, if the Company wishes to offer or sell Shares to the Agent as sales agent at any time during the period from and including an Earnings Announcement through and including the corresponding Filing Time, the Company shall first (A) prepare and deliver to the Agent (with a copy to counsel for the Agents) a Current Report on Form 8-K that includes substantially the same financial and related information (together with management’s discussion and analysis thereof) that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Agent, and, prior to its filing, obtain the written consent of the Agent to such filing (which consent shall not be unreasonably withheld), (B) provide the Agent with the officers’ certificate, opinions and letters of counsel and accountants’ letter specified in Section 7(l), (m) and (n), respectively, hereof, (C) afford the Agent the opportunity to conduct a due diligence review in accordance with Section 7(j) hereof prior to filing such Earnings 8-K and (D) file such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (1) the delivery of any officers’ certificate, opinion or letter of counsel or accountants’ letter pursuant to this Section 5(a) 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, opinions and letters of counsel and accountants’ letters as provided in Section 7(l), (m) and (n), respectively, hereof, and (2) this Section 5(a) shall in no way affect or limit the operation of clause (A) of Section 5(a)(i) hereof, which shall have independent application.

Sale of Placement Shares. (i) On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, upon Agent’s Rxxx’x acceptance of the terms of a Placement NoticeNotice or upon receipt by Rxxx of an Acceptance, as the case may be, 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, AgentRxxx, for the period specified in the Placement NoticeNotice (as amended by the corresponding Acceptance, if applicable), will use its commercially reasonable efforts consistent with its normal trading and sales practices to sell such Placement Shares up to the amount specified inspecified, and otherwise in accordance with the terms of, of such Placement NoticeNotice (as amended by the corresponding Acceptance, if applicable). Rxxx 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 Rxxx pursuant to Section 4 with respect to such sales, and the Net Proceeds (as defined below) payable to the Company, with an itemization of the deductions made by Rxxx (as set forth in Section 5(a)) from the gross proceeds that it receives from such sales. Subject to the terms of the Placement Notice (as amended by the corresponding Acceptance, if applicable), Rxxx may sell Placement Shares by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 of the Securities Act, 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. Subject to the terms of the Placement Notice (as amended by the corresponding Acceptance, if applicable) and the rules and regulations of the Exchange or such other exchange or market on which the Common Stock is listed, Rxxx may also sell Placement Shares by any other method permitted by law, including but not limited to in privately negotiated transactions. The Company acknowledges and agrees that (Ai) there can be no assurance that Agent Rxxx will be successful in selling Placement Shares, (Bii) Agent Rxxx 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 Agent Rxxx 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 Section 5 and (Ciii) Agent Rxxx shall be under no obligation to purchase Placement Shares on a principal basis pursuant to this Agreement, except as otherwise agreed by Agent Rxxx in the Placement Notice (as amended by the corresponding Acceptance, if applicable). For the purposes hereof, “Trading Day” means any day on which shares of Common Stock are purchased and sold on the Company. (ii) Notwithstanding any other provision of this Agreement, the Company shall not offer or sell, or instruct the Agent to offer or sell, any Placement Shares through the Agent as sales agent (and, by notice to the Agent given by telephone (confirmed promptly by telecopy or email), shall cancel any instructions for any such offer or sale of any Placement Shares prior to the commencement of the periods referenced below), and the Agent shall not be obligated to make any such offer or sale of Placement Shares, (A) during any period in principal market on which the Company is, Common Stock is listed or could be deemed to be, in possession of material non-public information or (B) except as provided in Section 5(a)(ii) hereof, at any time during the period commencing on the 10th business day prior to the time the Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the time that is 24 hours after the time that the Company files a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcementquoted. (iii) Notwithstanding clause (B) of Section 5(a)(ii) hereof, if the Company wishes to offer or sell Shares to the Agent as sales agent at any time during the period from and including an Earnings Announcement through and including the corresponding Filing Time, the Company shall first (A) prepare and deliver to the Agent (with a copy to counsel for the Agents) a Current Report on Form 8-K that includes substantially the same financial and related information (together with management’s discussion and analysis thereof) that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Agent, and, prior to its filing, obtain the written consent of the Agent to such filing (which consent shall not be unreasonably withheld), (B) provide the Agent with the officers’ certificate, opinions and letters of counsel and accountants’ letter specified in Section 7(l), (m) and (n), respectively, hereof, (C) afford the Agent the opportunity to conduct a due diligence review in accordance with Section 7(j) hereof prior to filing such Earnings 8-K and (D) file such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (1) the delivery of any officers’ certificate, opinion or letter of counsel or accountants’ letter pursuant to this Section 5(a) 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, opinions and letters of counsel and accountants’ letters as provided in Section 7(l), (m) and (n), respectively, hereof, and (2) this Section 5(a) shall in no way affect or limit the operation of clause (A) of Section 5(a)(i) hereof, which shall have independent application.

Sale of Placement Shares. (i) On the basis of the representations and warranties herein contained and subject Subject to the terms and conditions herein set forth, upon Agentthe Company’s acceptance of the terms delivery 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 applicable Agent, for the period specified in the Placement Notice, will severally and not jointly 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 New York Stock Exchange (the “NYSE”) to sell such Placement Shares up to the amount specified inspecified, and otherwise in accordance with the terms ofof such Placement Notice. The applicable 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 of Placement Shares sold on such day, the volume-weighted average price of the Placement Shares sold, and the Net Proceeds (as defined below) payable to the Company. The Agents may sell Placement Shares in the United States by any method permitted by law deemed to be an “at the market distribution” as defined in NI 44-102, including without limitation sales made through the NYSE or on any other existing U.S. trading market for the Placement Shares. For the avoidance of doubt, each of the Agents agrees, severally and not jointly, that (i) it is not permitted to sell, and shall not sell, Placement Shares over the Toronto Stock Exchange (the “TSX”) or on any other “marketplace” (within the meaning of Canadian Securities Laws) in Canada, (ii) it will not, to the best of its knowledge, after reasonable inquiry, distribute Placement Shares under the Prospectuses to a purchaser resident in Canada and (iii) no advertisement or solicitation in furtherance of any distribution of Placement Shares contemplated hereunder shall be undertaken in Canada by the Company, the Agents or any underwriter, dealer or agent engaged by the Company in respect of the distribution of Placement Shares contemplated hereunder. Each Agent shall not purchase Placement Shares for its own account as principal unless expressly authorized to do so by the Company in a Placement Notice. The Company acknowledges and agrees that (Ai) there can be no assurance that Agent the Agents will be successful in selling Placement Shares, and (Bii) Agent the Agents will incur no liability or obligation to the Company or any other person or entity if it does the Agents do not sell Placement Shares for any reason other than a failure by Agent the Agents to use its commercially reasonable efforts consistent with its their normal trading and sales practices and applicable law and regulations to sell such Placement Shares as required under this Agreement and (C) Agent shall be under no obligation to purchase Placement Shares Section 3. For the purposes hereof, “Trading Day” means any day on a principal basis pursuant to this Agreement, except as otherwise agreed by Agent and the Company. (ii) Notwithstanding any other provision of this Agreement, the Company shall not offer or sell, or instruct the Agent to offer or sell, any Placement Shares through the Agent as sales agent (and, by notice to the Agent given by telephone (confirmed promptly by telecopy or email), shall cancel any instructions for any such offer or sale of any Placement Shares prior to the commencement of the periods referenced below), and the Agent shall not be obligated to make any such offer or sale of Placement Shares, (A) during any period in which the Company is, or could be deemed to be, in possession of material non-public information or (B) except as provided in Section 5(a)(ii) hereof, at any time during the period commencing Common Shares are purchased and sold on the 10th business day prior to principal U.S. market on which the time the Company issues a press release containing, Common Shares are listed or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the time that is 24 hours after the time that the Company files a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcementquoted. (iii) Notwithstanding clause (B) of Section 5(a)(ii) hereof, if the Company wishes to offer or sell Shares to the Agent as sales agent at any time during the period from and including an Earnings Announcement through and including the corresponding Filing Time, the Company shall first (A) prepare and deliver to the Agent (with a copy to counsel for the Agents) a Current Report on Form 8-K that includes substantially the same financial and related information (together with management’s discussion and analysis thereof) that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Agent, and, prior to its filing, obtain the written consent of the Agent to such filing (which consent shall not be unreasonably withheld), (B) provide the Agent with the officers’ certificate, opinions and letters of counsel and accountants’ letter specified in Section 7(l), (m) and (n), respectively, hereof, (C) afford the Agent the opportunity to conduct a due diligence review in accordance with Section 7(j) hereof prior to filing such Earnings 8-K and (D) file such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (1) the delivery of any officers’ certificate, opinion or letter of counsel or accountants’ letter pursuant to this Section 5(a) 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, opinions and letters of counsel and accountants’ letters as provided in Section 7(l), (m) and (n), respectively, hereof, and (2) this Section 5(a) shall in no way affect or limit the operation of clause (A) of Section 5(a)(i) hereof, which shall have independent application.

Sale of Placement Shares. (i) On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, upon the 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 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 state and federal laws, rules and regulations and the rules of the Exchange to sell such Placement Shares with respect to which the Agent has agreed to act as sales agent and up to the amount specified in, and otherwise in accordance with the terms of, such Placement Notice. The Company acknowledges and agrees that (Ai) there can be no assurance that the Agent will be successful in selling Placement Shares, (Bii) the 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 Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law state and federal laws, rules and regulations and the rules of the Exchange to sell such Placement Shares as required under this Agreement and (Ciii) the Agent shall be under no obligation to purchase Placement Shares on a principal basis pursuant to this Agreement, except as otherwise agreed by the Agent and the Company. (ii) Notwithstanding any other provision . Subject to such further limitations on offers and sales of this AgreementPlacement Shares or delivery of instructions to offer and sell Placement Shares as are set forth herein and as may be mutually agreed upon by the Company and the Agent, the Company shall not offer or sell, or instruct request the Agent to offer or sell, any Placement Shares through the Agent as sales agent (and, by notice to the Agent given by telephone (confirmed promptly by telecopy or email), shall cancel any instructions for any such offer or sale of any Placement Shares prior to the commencement of the periods referenced below)that would be sold, and the Agent shall not be obligated to make any such offer or sale of Placement Sharessell, (Ai) during any period in which the Company isCompany’s xxxxxxx xxxxxxx policy, as it exists on the date of this Agreement, would prohibit the purchase or could be deemed to besale of any Placement Shares by any of its officers or directors, in possession of material non-public information or (Bii) except as provided in Section 5(a)(ii) hereof, at any time during the period commencing on the 10th tenth business day prior to the time the Company issues shall issue a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods of operations (each, an “Earnings Announcement”) through and including the time that is 24 hours after the time that the Company files a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement. , or (iii) Notwithstanding clause (B) of Section 5(a)(ii) hereof, if during any other period in which the Company wishes to offer or sell Shares is in possession of material non-public information related to the Agent as sales agent at any time during Company or the period from and including an Earnings Announcement through and including the corresponding Filing Time, the Company shall first (A) prepare and deliver to the Agent (with a copy to counsel for the Agents) a Current Report on Form 8-K that includes substantially the same financial and related information (together with management’s discussion and analysis thereof) that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Agent, and, prior to its filing, obtain the written consent of the Agent to such filing (which consent shall not be unreasonably withheld), (B) provide the Agent with the officers’ certificate, opinions and letters of counsel and accountants’ letter specified in Section 7(l), (m) and (n), respectively, hereof, (C) afford the Agent the opportunity to conduct a due diligence review in accordance with Section 7(j) hereof prior to filing such Earnings 8-K and (D) file such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (1) the delivery of any officers’ certificate, opinion or letter of counsel or accountants’ letter pursuant to this Section 5(a) 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, opinions and letters of counsel and accountants’ letters as provided in Section 7(l), (m) and (n), respectively, hereof, and (2) this Section 5(a) shall in no way affect or limit the operation of clause (A) of Section 5(a)(i) hereof, which shall have independent applicationCommon Stock.

Sale of Placement Shares. (i) On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, upon AgentEvercore’s acceptance of the terms of a Placement NoticeNotice or upon receipt by Evercore of an Acceptance, as the case may be, 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, AgentEvercore, for the period specified in the Placement NoticeNotice (as amended by the corresponding Acceptance, if applicable), will use its commercially reasonable efforts consistent with its normal trading and sales practices to sell such Placement Shares up to the amount specified inspecified, and otherwise in accordance with the terms of, of such Placement NoticeNotice (as amended by the corresponding Acceptance, if applicable). Evercore 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 Evercore pursuant to Section 4 with respect to such sales, and the Net Proceeds (as defined below) payable to the Company, with an itemization of the deductions made by Evercore (as set forth in Section 5(a)) from the gross proceeds that it receives from such sales. Subject to the terms of the Placement Notice (as amended by the corresponding Acceptance, if applicable), Evercore may sell Placement Shares by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 of the Securities Act, 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. Subject to the terms of the Placement Notice (as amended by the corresponding Acceptance, if applicable) and the rules and regulations of the Exchange or such other exchange or market on which the Common Stock is listed, Evercore may also sell Placement Shares by any other method permitted by law, including but not limited to privately negotiated transactions. The Company acknowledges and agrees that (Ai) there can be no assurance that Agent Evercore will be successful in selling Placement Shares, (Bii) Agent Evercore 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 Agent Evercore 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 Section 3 and (Ciii) Agent Evercore shall be under no obligation to purchase Placement Shares on a principal basis pursuant to this Agreement, except as otherwise agreed by Agent Evercore in the Placement Notice (as amended by the corresponding Acceptance, if applicable). For the purposes hereof, “Trading Day” means any day on which shares of Common Stock are purchased and sold on the Company. (ii) Notwithstanding any other provision of this Agreement, the Company shall not offer or sell, or instruct the Agent to offer or sell, any Placement Shares through the Agent as sales agent (and, by notice to the Agent given by telephone (confirmed promptly by telecopy or email), shall cancel any instructions for any such offer or sale of any Placement Shares prior to the commencement of the periods referenced below), and the Agent shall not be obligated to make any such offer or sale of Placement Shares, (A) during any period in principal market on which the Company is, Common Stock is listed or could be deemed to be, in possession of material non-public information or (B) except as provided in Section 5(a)(ii) hereof, at any time during the period commencing on the 10th business day prior to the time the Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the time that is 24 hours after the time that the Company files a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcementquoted. (iii) Notwithstanding clause (B) of Section 5(a)(ii) hereof, if the Company wishes to offer or sell Shares to the Agent as sales agent at any time during the period from and including an Earnings Announcement through and including the corresponding Filing Time, the Company shall first (A) prepare and deliver to the Agent (with a copy to counsel for the Agents) a Current Report on Form 8-K that includes substantially the same financial and related information (together with management’s discussion and analysis thereof) that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Agent, and, prior to its filing, obtain the written consent of the Agent to such filing (which consent shall not be unreasonably withheld), (B) provide the Agent with the officers’ certificate, opinions and letters of counsel and accountants’ letter specified in Section 7(l), (m) and (n), respectively, hereof, (C) afford the Agent the opportunity to conduct a due diligence review in accordance with Section 7(j) hereof prior to filing such Earnings 8-K and (D) file such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (1) the delivery of any officers’ certificate, opinion or letter of counsel or accountants’ letter pursuant to this Section 5(a) 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, opinions and letters of counsel and accountants’ letters as provided in Section 7(l), (m) and (n), respectively, hereof, and (2) this Section 5(a) shall in no way affect or limit the operation of clause (A) of Section 5(a)(i) hereof, which shall have independent application.

Sale of Placement Shares. (i) On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, 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 to sell such Placement Shares up to the amount specified in, and otherwise in accordance with the terms of, such Placement Notice. 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 not incur no any 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 law and regulations to sell such Placement Shares as required under this Agreement and Agreement, (C) other than to the extent set forth in the applicable Confirmation, the Designated Forward Purchaser will not incur any liability or obligation to the Company or any other person or entity if it or its affiliate does not borrow Forward Hedge Shares for any reason other than a failure by the Designated Forward Purchaser to use its commercially reasonable efforts to borrow or cause its affiliate to borrow such Forward Hedge Shares, and (D) 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. (ii) Notwithstanding any other provision of this Agreement, the Company shall not offer or sell, or instruct the any Agent to offer or sell, any Placement Shares through the Agent Shares, as sales agent (and, by notice to the Agent given by telephone (confirmed promptly by telecopy or email), shall cancel any instructions for any such offer or sale of any Placement Shares prior to the commencement of the periods referenced below), and the Designated Agent shall not be obligated to make any such offer or sale of Placement Shares, (A) during any period in which the Company is, or could be deemed to be, in possession of material non-public information or (B) except as provided in Section 5(a)(ii5(a)(iii) hereof, at any time during the period commencing on the 10th business day prior to the time the Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the time that is 24 hours after the time that the Company files a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement. (iii) Notwithstanding clause (B) of Section 5(a)(ii) hereof, if the Company wishes to offer or sell Placement Shares to the or through any Agent as sales agent at any time during the period from and including an Earnings Announcement through and including the corresponding Filing Time, the Company shall first (A) prepare and deliver to the Agent Agents and the Forward Purchasers (with a copy to counsel for the Agentstheir counsel) a Current Report on Form 8-K that includes substantially the same financial and related information (together with management’s discussion and analysis thereof) that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the AgentAgents and the Forward Purchasers, and, prior to its filing, obtain the written consent of the Agent Agents and the Forward Purchasers to such filing (which consent shall not be unreasonably withheld), (B) provide the Agent Agents and the Forward Purchasers with the officers’ certificate, opinions and letters of counsel and accountants’ letter specified in Section 7(l), (m) and (n), respectively, hereof, (C) afford the Agent Agents and the Forward Purchasers the opportunity to conduct a due diligence review in accordance with Section 7(j) hereof prior to filing such Earnings 8-K and (D) file such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (1) the delivery of any officers’ certificate, opinion or letter of counsel or accountants’ letter pursuant to this Section 5(a) 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, opinions and letters of counsel and accountants’ letters as provided in Section 7(l), (m) and (n), respectively, hereof, and (2) this Section 5(a) shall in no way affect or limit the operation of clause (A) of Section 5(a)(i) hereof, which shall have independent application.

Sale of Placement Shares. (i) On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, upon the 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 Agent, for the period specified in the Placement Notice, will use its commercially reasonable efforts consistent with its normal trading and sales practices to sell such Placement Shares up to the amount specified in, and otherwise in accordance with the terms of, such Placement Notice. The Company acknowledges and agrees that (A) there can be no assurance that the Agent will be successful in selling Placement Shares, (B) the Agent will not incur no any 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 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 and Agreement, (C) other than to the extent set forth in the applicable Confirmation, the Forward Purchaser will not incur any liability or obligation to the Company or any other person or entity if it or its affiliate does not borrow Forward Hedge Shares for any reason other than a failure by the Forward Purchaser to use its commercially reasonable efforts to borrow or cause its affiliate to borrow such Forward Hedge Shares, and (D) the Agent shall be under no obligation to purchase Placement Shares on a principal basis pursuant to this Agreement, except as otherwise agreed by the Agent and the Company. (ii) Notwithstanding any other provision of this Agreement, the Company shall not offer or sell, or instruct the Agent to offer or sell, any Placement Shares through the Agent as sales agent (and, by notice to the Agent given by telephone (confirmed promptly by telecopy or email), shall cancel any instructions for any such offer or sale of any Placement Shares prior to the commencement of the periods referenced below), and the Agent shall not be obligated to make any such offer or sale of Placement Shares, (A) during any period in which the Company is, or could be deemed to be, in possession of material non-public information or (B) except as provided in Section 5(a)(ii5(a)(iii) hereof, at any time during the period commencing on the 10th business day prior to the time the Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the time that is 24 hours after the time that the Company files a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement. (iii) Notwithstanding clause (B) of Section 5(a)(ii) hereof, if the Company wishes to offer or sell Placement Shares to or through the Agent as sales agent at any time during the period from and including an Earnings Announcement through and including the corresponding Filing Time, the Company shall first (A) prepare and deliver to the Agent and the Forward Purchaser (with a copy to counsel for the Agentstheir counsel) a Current Report on Form 8-K that includes substantially the same financial and related information (together with management’s discussion and analysis thereof) that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the AgentAgent and the Forward Purchaser, and, prior to its filing, obtain the written consent of the Agent and the Forward Purchaser to such filing (which consent shall not be unreasonably withheld), (B) provide the Agent and the Forward Purchaser with the officers’ certificate, opinions and letters of counsel and accountants’ letter specified in Section 7(l), (m) and (n), respectively, hereof, (C) afford the Agent and the opportunity to conduct a due diligence review in accordance with Section 7(j) hereof prior to filing such Earnings 8-K and (D) file such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (1) the delivery of any officers’ certificate, opinion or letter of counsel or accountants’ letter pursuant to this Section 5(a) 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, opinions and letters of counsel and accountants’ letters as provided in Section 7(l), (m) and (n), respectively, hereof, and (2) this Section 5(a) shall in no way affect or limit the operation of clause (A) of Section 5(a)(i) hereof, which shall have independent application.4