Sale of Placement Shares by the Agent. Subject to the terms and conditions of this Agreement, for the period specified in 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 Capital Market (the "Exchange"), to sell 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 conf
...irmation 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(b)) 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, 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 a Placement Notice, the Agent may also sell Placement Shares by any other method permitted by law and the rules and regulations of the Exchange, including but not limited to negotiated transactions, with the Company's prior written consent. "Trading Day" means any day on which Common Stock is purchased and sold on the Exchange.
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Sale of Placement Shares by the Agent. Subject to the terms and conditions of this Agreement,
the Designated Agent, for the period specified in 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 Capital Market such national securities exchange that the Company's Preferred Stock is listed on (the "Exchange"), to sell the Placement Shares up to the amount specified in, a
...nd 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 (as defined below) immediately following the Trading Day on which it has made sales of Placement Shares hereunder setting forth the (i) number of Placement Shares sold on such day, (ii) the volume weighted average price at which such Placement Shares were sold, (iii) gross proceeds from such sales, (iv) compensation payable by the Company to the Designated Agent pursuant to Section 2 with respect to such sales, and the (v) Net Proceeds (as defined below) payable to the Company, with an itemization of the deductions made by the Designated Agent (as set forth in Section 5(b)) from the gross proceeds that it receives from such sales. Subject to the terms of a 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 of the Securities Act, Act Regulations, including without limitation sales made directly on the Exchange, on any other existing trading market for the Common Stock Preferred Stock, or to or through a market maker. Subject to the terms of a Placement Notice, the Designated Agent may also sell Placement Shares by any other method permitted by law and the rules and regulations of the Exchange, including including, but not limited to, negotiated transactions and block trades. Notwithstanding anything to negotiated transactions, the contrary herein, the Designated Agent shall not sell shares of Preferred Stock at a price higher than the Maximum Price. For the purposes hereof, "Maximum Price" means with respect to the Company's prior written consent. Preferred Stock, (a) through April 20, 2016, $27.50, (b) subsequent to April 20, 2016 and through October 21, 2019, the product of (i) $25.00 per share plus any accrued and unpaid dividends to, but excluding, the date of sale, and (ii) the sum of (A) 1.0, and (B) (x) the number of complete years until the optional redemption date (October 21, 2020) times (y) 0.0050; and (c) on October 22, 2019 and thereafter, $25.00 per share plus any accrued and unpaid dividends to, but excluding, the date of sale. "Trading Day" means any day on which Common Preferred Stock is are purchased and sold on the Exchange. 3 4. Suspension of Sales. The Company or the Designated Agent may, upon notice to the other party in writing (including by email correspondence to each of the individuals of the other party 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) or by telephone (confirmed immediately by verifiable facsimile transmission or email correspondence to each of the individuals of the other party set forth on Schedule 2), suspend any sale of Placement Shares; provided, however, that such suspension shall not affect or impair any party's obligations with respect to any Placement Shares sold hereunder prior to the receipt of such notice. Each of the parties agrees that no such notice under this Section 4 shall be effective against any other party unless it is made to one of the individuals named on Schedule 2 hereto, as such Schedule 2 may be amended from time to time.
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Sale of Placement Shares by the Agent. Subject to the
terms and conditions provisions of
this Agreement, Section 5(a), the Designated Agent, for the period specified in
a the 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 the Nasdaq Capital Market (the "Exchange"), to sell the Placement Shares up to the amount
specified in, specified, and otherwise in accordance with
... the terms of, of such Placement Notice. The Designated 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 Designated 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 Agent (as set forth in Section 5(b)) from the gross proceeds that it receives from such sales. Subject to the terms of a the 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, including without limitation sales made directly Act. 2 4. Suspension of Sales. (a) The Company or the Designated Agent may, upon notice to the other party in writing (including by email correspondence to each of the individuals of the other party set forth on Schedule 3, if receipt of such correspondence is actually acknowledged by any of the Exchange, individuals to whom the notice is sent, other than via auto-reply) or by telephone (confirmed immediately by verifiable facsimile transmission or email correspondence to each of the individuals of the other party set forth on Schedule 3), suspend any sale of Placement Shares; provided, however, that such suspension shall not affect or impair any party's obligations with respect to any Placement Shares sold hereunder prior to the receipt of such notice. Each party agrees that no such notice under this Section 4 shall be effective against any other existing party unless it is made to one of the individuals named on Schedule 3 hereto, as such Schedule may be amended from time to time. (b) 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 Agents agree that (i) no sale of Placement Shares will take place, (ii) the Company shall not request the sale of any Placement Shares, and (iii) no Agents shall be obligated to sell or offer to sell any Placement Shares. (c) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act (applicable to securities with an average daily trading market for the Common Stock or to or through volume of $1,000,000 that are issued by an issuer whose common equity securities have a market maker. Subject public float value of at least $150,000,000) are not satisfied with respect to the terms Company or the Placement Shares, it shall promptly notify the other party and sales of a Placement Notice, the Agent may also sell Placement Shares by any under this Agreement shall be suspended until that or other method permitted by law and exemptive provisions have been satisfied in the rules and regulations judgment of the Exchange, including but not limited to negotiated transactions, with the Company's prior written consent. "Trading Day" means any day on which Common Stock is purchased and sold on the Exchange. each party.
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Sale of Placement Shares by the Agent. Subject to the
terms and conditions provisions of
this Agreement, Section 5(a), the Designated Agent, for the period specified in
a the 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 Capital Market the NYSE American (the "Exchange"), to sell the Placement Shares up to the amount specified in, and otherwise in accordance with the
... terms of, of such Placement Notice. The Designated 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 Designated 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 Agent (as set forth in Section 5(b)) from the gross proceeds that it receives from such sales. Subject to the terms of a 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 415 415(a)(4) under the Securities Act. 3 4. Suspension of Sales. (a) The Company or the Designated Agent may, upon notice to the other party in writing (including by email correspondence to each of the Securities Act, including without limitation sales made directly individuals of the other party set forth on Schedule 3, if receipt of such correspondence is actually acknowledged by any of the Exchange, individuals to whom the notice is sent, other than via auto-reply) or by telephone (confirmed immediately by verifiable facsimile transmission or email correspondence to each of the individuals of the other party set forth on Schedule 3), suspend any sale of Placement Shares; provided, however, that such suspension shall not affect or impair any party's obligations with respect to any Placement Shares sold hereunder prior to the receipt of such notice. Each party agrees that no such notice under this Section 4 shall be effective against any other existing trading market for the Common Stock or party unless it is made to or through a market maker. Subject to the terms of a Placement Notice, the Agent may also sell Placement Shares by any other method permitted by law and the rules and regulations one of the Exchange, including but not limited individuals named on Schedule 3 hereto as associated with such other party, as such Schedule may be amended in writing from time to negotiated transactions, with the Company's prior written consent. "Trading Day" means any day on which Common Stock is purchased and sold on the Exchange. time.
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Sale of Placement Shares by the Agent. Subject to the terms and conditions of this Agreement, for the period specified in a Placement Notice, the
Designated 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 Capital Market the New York Stock Exchange (the "Exchange"), to sell the Placement Shares up to the amount specified in, and otherwise in accordance with the terms of, such Placement Noti
...ce. The Designated 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 Designated 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 Agent (as set forth in Section 5(b)) from the gross proceeds that it receives from such sales. Subject to the terms of a Placement Notice, the Designated Agent may sell Placement Shares by in ordinary brokers' transactions (whether or not solicited), to or through a market maker, directly on or through any method permitted by law national securities exchange or facility thereof, a trading facility of a national securities association, an alternative trading system or any other market venue where the securities may be traded, in the over-the-counter market, in privately negotiated transactions, in transactions that are deemed to be an "at the market offering" offerings" as defined in Rule 415 of under the Securities Act, including without limitation sales made directly on the Exchange, on any other existing trading market for the Common Stock or to Act or through a market maker. Subject to the terms combination of a Placement Notice, the Agent may also sell Placement Shares by any other method permitted by law and the rules and regulations such methods of the Exchange, including but not limited to negotiated transactions, with the Company's prior written consent. sale. "Trading Day" means any day on which Common Stock is Shares are purchased and sold on the Exchange. 3 4. Suspension of Sales. The Company or the Designated Agent may, upon notice to the other party in writing (including by email correspondence to each of the individuals of the other party set forth on Schedule 3, if receipt of such correspondence is actually acknowledged by any of the individuals to whom the notice is sent, other than via auto-reply) or by telephone (confirmed immediately by verifiable facsimile transmission or email correspondence to each of the individuals of the other party set forth on Schedule 3), suspend any sale of Placement Shares (a "Suspension"); provided, however, that such suspension shall not affect or impair any party's obligations with respect to any Placement Shares sold hereunder prior to the receipt of such notice. While a Suspension is in effect, any obligation under Sections 8(l), 8(m), 8(n) and 8(p) with respect to the delivery of certificates, opinions, or comfort letters to the Agents, shall be waived. Each of the parties agrees that no such notice under this Section 4 shall be effective against any other party unless it is made to one of the individuals named on Schedule 3 hereto, as such Schedule may be amended from time to time.
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Sale of Placement Shares by the Agent. Subject to the terms and conditions of this Agreement, for the period specified in a Placement Notice, the
Designated 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 Capital Market the NYSE American LLC (the "Exchange"), to sell the Placement Shares up to the amount specified in, and otherwise in accordance with the terms of, such Placement Notice. Th
...e Designated 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 Designated 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 Agent (as set forth in Section 5(b)) from the gross proceeds that it receives from such sales. Subject to the terms of a 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 of the Securities Act, including without limitation sales made directly on provided that the Exchange, on any other existing trading market for the Common Stock or to or through a market maker. Subject to the terms of a Placement Notice, the Designated Agent may also shall not sell Placement Shares by any other method permitted by law and the rules and regulations of the Exchange, including but not limited to negotiated transactions, with the Company's prior written consent. in Canada. "Trading Day" means any day on which Common Stock is Shares are purchased and sold on the Exchange. During the term of this Agreement, neither the 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 such Agent does not own or any sale which is consummated by the delivery of a security of the Company borrowed by, or for the account of, such Agent. Neither the Agents nor any of their respective affiliates or subsidiaries shall engage in any proprietary trading or trading for the Agent's (or its affiliates' or subsidiaries') own account. Notwithstanding the foregoing, these restrictions shall not apply to bona fide transactions executed by the Agents on behalf and at the direction of any third party customer accounts. Each Agent agrees and acknowledges that it will not solicit any offers to sell the Placement Shares from persons resident in any province or territory of Canada or from any person acquiring such Placement Shares for the benefit of another person resident in any province or territory of Canada.
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Sale of Placement Shares by the Agent. Subject to the
terms and conditions provisions of
this Agreement, Section 5(a), the Agent, for the period specified in
a the 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 the Nasdaq Capital Market (the "Exchange"), to sell the Placement Shares up to the amount specified in, and otherwise in accordance with the terms
of, 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(b)) from the gross proceeds that it receives from such sales. Subject to the terms of a the 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 415 415(a)(4) under the Securities Act. 2 4. Suspension of Sales. (a) The Company or the Agent may, upon notice to the other party in writing (including by email correspondence to each of the Securities Act, including without limitation sales made directly individuals of the other party set forth on Schedule 3, if receipt of such correspondence is actually acknowledged by any of the Exchange, individuals to whom the notice is sent, other than via auto-reply) or by telephone (confirmed immediately by verifiable facsimile transmission or email correspondence to each of the individuals of the other party set forth on Schedule 3), suspend any sale of Placement Shares (a "Suspension"); provided, however, that such Suspension shall not affect or impair any party's obligations with respect to any Placement Shares sold hereunder prior to the receipt of such notice. While a Suspension is in effect any obligation under Sections 7(l), 7(m), and 7(n) with respect to the delivery of certificates, opinions, or comfort letters to the Agent, shall be waived. Each party agrees that no such notice under this Section 4 shall be effective against any other existing trading market for the Common Stock or party unless it is made to or through a market maker. Subject to the terms of a Placement Notice, the Agent may also sell Placement Shares by any other method permitted by law and the rules and regulations one of the Exchange, including but not limited individuals named on Schedule 3 hereto as associated with such other party, as such Schedule may be amended in writing from time to negotiated transactions, with the Company's prior written consent. "Trading Day" means any day on which Common Stock is purchased and sold on the Exchange. time.
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Sale of Placement Shares by the Agent. Subject to the terms and conditions of this Agreement, for the period specified in a Placement Notice, the
Designated 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 the NASDAQ Capital Market (the "Exchange"), to sell the Placement Shares up to the amount specified in, and otherwise in accordance with the terms of, such Placement
Notice. The Notice, the Desi...gnated 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 Designated 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 Agent (as set forth in Section 5(b)) from the gross proceeds that it receives from such sales. Subject to the terms of a 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 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 a Placement Notice, the Agent may also sell Placement Shares by any other method permitted by law and the rules and regulations of the Exchange, including but not limited to negotiated transactions, with the Company's prior written consent. Act. "Trading Day" means any day on which Common shares of Preferred Stock is are purchased and sold on the Exchange. 3 4. Suspension of Sales. The Company or the Designated Agent may, upon notice to the other party in writing (including by email correspondence to each of the individuals of the other party set forth on Schedule 3, if receipt of such correspondence is actually acknowledged by any of the individuals to whom the notice is sent, other than via auto-reply) or by telephone (confirmed immediately by verifiable facsimile transmission or email correspondence to each of the individuals of the other party set forth on Schedule 3), suspend any sale of Placement Shares (a "Suspension"); provided, however, that such suspension shall not affect or impair any party's obligations with respect to any Placement Shares sold hereunder prior to the receipt of such notice. While a Suspension is in effect, any obligation under Sections 7(l), 7(m), and 7(n) with respect to the delivery of certificates, opinions, or comfort letters to the Agents, shall be waived. Each of the parties agrees that no such notice under this Section 4 shall be effective against any other party unless it is made to one of the individuals named on Schedule 3 hereto, as such Schedule may be amended from time to time.
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Sale of Placement Shares by the Agent. Subject to the terms and conditions of this Agreement,
the Designated Agent, for the period specified in 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 Capital Market such national securities exchange that the Company's Placement Shares are listed on (the "Exchange"), to sell the Placement Shares up to the 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 (as defined below) immediately following the Trading Day on which it has made sales of Placement Shares hereunder setting forth the (i) number of Placement Shares sold on such day, (ii) the volume weighted average price at which such Placement Shares were sold, (iii) gross proceeds from such sales, (iv) compensation payable by the Company to the Designated Agent pursuant to Section 2 with respect to such sales, and the (v) Net Proceeds (as defined below) payable to the Company, with an itemization of the deductions made by the Designated Agent (as set forth in Section 5(b)) from the gross proceeds that it receives from such sales. Subject to the terms of a 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 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 a Placement Notice, the Agent may also sell Placement Shares by any other method permitted by law and the rules and regulations of the Exchange, including but not limited to negotiated transactions, with the Company's prior written consent. Act Regulations. "Trading Day" means any day on which Common Stock is purchased and sold on the Exchange. 3 4. Suspension of Sales. The Company or the Designated Agent may, upon notice to the other party in writing (including by email correspondence to each of the individuals of the other party 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) or by telephone (confirmed immediately by verifiable facsimile transmission or email correspondence to each of the individuals of the other party set forth on Schedule 2), suspend any sale of Placement Shares; provided, however, that such suspension shall not affect or impair any party's obligations with respect to any Placement Shares sold hereunder prior to the receipt of such notice. Each of the parties agrees that no such notice under this Section 4 shall be effective against any other party unless it is made to one of the individuals named on Schedule 2 hereto, as such Schedule 2 may be amended from time to time.
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Sale of Placement Shares by the Agent. Subject to the terms and conditions of this Agreement,
the Agent, for the period specified in 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 Capital Market such national securities exchange that the Company's Placement Shares are listed on (the "Exchange"), to sell the Placement Shares up to the amount specified in, and otherw
...ise 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 (i) number of Placement Shares sold on such day, (ii) the volume weighted average price at which such Placement Shares were sold, (iii) gross proceeds from such sales, (iv) compensation payable by the Company to the Agent pursuant to Section 2 with respect to such sales, and the (v) Net Proceeds (as defined below) payable to the Company, with an itemization of the deductions made by the Agent (as set forth in Section 5(b)) from the gross proceeds that it receives from such sales. 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, Act Regulations, including without limitation sales made directly on the Exchange, on any other existing trading market for the Common Stock Placement Shares, or to or through a market maker. Subject to the terms of a Placement Notice, the Agent may also sell Placement Shares by any other method permitted by law and the rules and regulations of the Exchange, including including, but not limited to, negotiated transactions and block trades. Notwithstanding anything to negotiated transactions, the contrary herein, the Agent shall not sell Placement Shares at a price higher than the Maximum Price. For the purposes hereof, "Maximum Price" means, with respect to the Company's prior written consent. Placement Shares, (a) through January 19, 2017, $27.50, (b) subsequent to January 19, 2017 and through July 19, 2020, the product of (i) $25.00 per share plus any accrued and unpaid dividends to, but excluding, the date of sale, and (ii) the sum of (A) 1.0, and (B) (x) the number of complete years until the optional redemption date (July 19, 2021) times (y) 0.0050; and (c) on July 20, 2020 and thereafter, $25.00 per share plus any accrued and unpaid dividends to, but excluding, the date of sale. "Trading Day" means any day on which Common Preferred Stock is purchased and sold on the Exchange. 3 4. Suspension of Sales. The Company or the Agent may, upon notice to the other party in writing (including by email correspondence to each of the individuals of the other party 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) or by telephone (confirmed immediately by verifiable facsimile transmission or email correspondence to each of the individuals of the other party set forth on Schedule 2), suspend any sale of Placement Shares; provided, however, that such suspension shall not affect or impair any party's obligations with respect to any Placement Shares sold hereunder prior to the receipt of such notice. Each of the parties agrees that no such notice under this Section 4 shall be effective against any other party unless it is made to one of the individuals named on Schedule 2 hereto, as such Schedule 2 may be amended from time to time.
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Sale of Placement Shares by the Agent. Subject to the
terms and conditions provisions of
this Agreement, Section 5(a), each Designated Agent that receives a Placement Notice, for the period specified in
a the 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 Capital Market (the "Exchange"), the NYSE American, to sell the Placement Shares up to the amount
specified in, s...pecified, and otherwise in accordance with the terms of, of such Placement Notice. The Each Designated 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 Designated 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 Agent (as set forth in Section 5(b)) from the gross proceeds that it receives from such sales. Subject to the terms of a 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 415 415(a)(4) of the Securities Act, Act Regulations, including without limitation sales made directly on or through the Exchange, on NYSE American (the "Exchange") or any other existing trading market for the Common Stock Stock, in negotiated transactions at market prices prevailing at the time of sale or at prices related to or through a such prevailing market maker. Subject to the terms of a Placement Notice, the Agent may also sell Placement Shares by prices and/or any other method permitted by law and the rules and regulations of the Exchange, including but not limited to negotiated transactions, with the Company's prior written consent. law. "Trading Day" means any day on which Common Stock is purchased and sold traded on the Exchange. -3- 4. Suspension of Sales. The Company or the Designated Agent may, upon notice to the other party in writing (including by email correspondence to each of the individuals of the other party set forth on Schedule 3, if receipt of such correspondence is actually acknowledged by any of the individuals to whom the notice is sent, other than via auto-reply) or by telephone (confirmed immediately by verifiable facsimile transmission or email correspondence to each of the individuals of the other party set forth on Schedule 3), suspend any sale of Placement Shares (a "Suspension"); provided, however, that such Suspension shall not affect or impair any party's obligations with respect to any Placement Shares sold hereunder prior to the receipt of such notice. While a Suspension is in effect any obligation under Sections 7(l), 7(m), and 7(n) with respect to the delivery of certificates, opinions, or comfort letters to the Agents, shall be waived. Each of the parties agrees that no such notice under this Section 4 shall be effective against any other party unless it is made to one of the individuals named on Schedule 3 hereto, as such Schedule may be amended from time to time.
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