Placements Clause Example from Business Contracts

Placements. Each time that the Company wishes to issue and sell Shares hereunder (each, a "Placement"), it will notify BRFBR by email notice (or other method mutually agreed to in writing by the parties) of the number of Shares (the "Placement Shares") to be issued, the time period during which sales are requested to be made, any limitation on the number of Shares that may be sold in any Trading Day (as defined below) and any minimum price below which sales may not be made (a "Placement Notice"), the form o...f which shall be substantially similar to the form attached hereto as Schedule 1. The Placement Notice shall originate from any of the individuals from the Company set forth on Schedule 3 (with a copy to each of the other individuals from the Company listed on such schedule), and shall be addressed to each of the individuals from BRFBR set forth on Schedule 3, as such Schedule 3 may be amended from time to time. The Placement Notice shall be effective immediately upon receipt by BRFBR unless and until (i) BRFBR declines to accept the terms contained therein as a result of any suspension or limitation of trading in the Placement Shares or in securities generally on the Exchange or any occurrence or event that causes a material adverse change in the operation or prospects of the Company, (ii) the entire amount of the Placement Shares have been sold, (iii) the Company suspends or terminates the Placement Notice or (iv) the Agreement has been terminated under the provisions of Section 12. The amount of any discount, commission or other compensation to be paid by the Company to BRFBR in connection with the sale of the Placement Shares shall be calculated in accordance with the terms set forth in Schedule 2. It is expressly acknowledged and agreed that neither the Company nor BRFBR will have any obligation whatsoever with respect to a Placement or any Placement Shares unless and until the Company delivers a Placement Notice to BRFBR and BRFBR does not decline such Placement Notice pursuant to the terms set forth above, and then only upon the terms specified therein and herein. In the event of a conflict between the terms of this Agreement and the terms of a Placement Notice, the terms of the Placement Notice will control. 2 3. Sale of Placement Shares by BRFBR. Subject to the terms and conditions herein set forth, upon the Company's issuance of a Placement Notice, and unless the sale of the Placement Shares described therein has been declined, suspended, or otherwise terminated in accordance with the terms of this Agreement, BRFBR will use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable state and federal laws, rules and regulations and the rules of the NASDAQ Global Select Market (the "Exchange") to sell such Placement Shares up to the amount specified, and otherwise in accordance with the terms of such Placement Notice. BRFBR 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 BRFBR pursuant to Section 2 with respect to such sales, and the Net Proceeds (as defined below) payable to the Company. BRFBR may only sell Placement Shares by methods permitted by law deemed to be an "at the market offering" as defined in Rule 415 of the Securities Act. The Company acknowledges and agrees that (i) there can be no assurance that BRFBR will be successful in selling Placement Shares, and (ii) BRFBR will incur no liability or obligation to the Company or any other person or entity, in each case for failure to sell Placement Shares, if it does not sell Placement Shares for any reason other than a failure by BRFBR to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Placement Shares as required under this Agreement. For the purposes hereof, "Trading Day" means any day on which Common Stock is purchased and sold on the principal market on which the Common Stock is listed or quoted. View More