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.
a. 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 Nasdaq Stock Market
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. 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 Placement Notice, the Agent may sell agrees that all sales of the Placement Shares by any method the Agent will be made only by methods permitted by law and 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. Act. 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, law, including but not limited to privately 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. b. For such time as the Agent is actively offering Placement Shares pursuant to this Agreement, the Agent shall not for its own account engage in (i) any short sale of any security of the Company, (ii) any sale of any security of the Company that the Agent does not own for the account of the Agent or any sale which is consummated by the delivery of a security of the Company borrowed by, or for the account of, the Agent, or (iii) any market making, bidding, purchasing, stabilization or other trading activity with regard to the Common Stock or related derivative securities, or attempting to induce another person to do any of the foregoing, if such activity would be prohibited under Regulation M or other anti-manipulation rules under the Securities Act. Neither the Agent nor any of its affiliates or subsidiaries shall engage in any proprietary trading or trading for the Agent's (or its affiliates' or subsidiaries') own account. For the avoidance of doubt, this restriction shall not apply to transactions by or on behalf of any customer of the Agent or transactions by the Agent to facilitate any such transactions by or on behalf of any customer of the Agent. 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 (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 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 and acknowledged in accordance with this Section 4, 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 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 the NASDAQ Capital Market
or any other exchange upon which the Company's shares of Common Stock are listed (the "Exchange"), to sell the Placement Shares up to the a
...mount specified in, specified, 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) of the Securities Act, Act Regulations, including without limitation sales made directly on or through the Exchange, on 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. -2- 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 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 Agent, 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
herein set forth, upon the Company's issuance of a Placement Notice, and unless the sale of the Placement Shares described therein has been declined, suspended, or otherwise terminated in accordance with the terms of this Agreement,
the Agent, 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 regulatio
...ns and the rules of The NASDAQ Capital Market the New York Stock Exchange (the "Exchange"), "NYSE") to sell the such Placement Shares up to the amount specified in, specified, 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 (including by email correspondence to each of the Trading Day (as defined below) immediately individuals of the Company set forth on Schedule 2) following the Trading Day close of trading on which the NYSE each day 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)) 5(a)) from the gross proceeds that it receives from such sales. Subject to the terms of a Placement Notice, the The Agent may sell Placement Shares by any method permitted by law deemed to be an "at the market offering" market" offering as defined in Rule 415 of the Securities Act, including without limitation sales made directly on the Exchange, NYSE, on any other existing trading market for the Common Stock Shares or to or through a market maker. Subject to With the terms written consent of a Placement Notice, the Company, the Agent may also sell Placement Shares by in privately negotiated transactions. The Company acknowledges and agrees that (i) there can be no assurance that the Agent will be successful in selling Placement Shares, (ii) the Agent will incur no liability or obligation to the Company or any other method permitted person or entity if it does not sell Placement Shares for any reason other than a failure by law the Agent to use its commercially reasonable -2- efforts consistent with its normal trading and sales practices to sell such Placement Shares as required under this Section 3 and (iii) the Agent shall be under no obligation to purchase Placement Shares on a principal basis except as otherwise specifically agreed by the Agent and the rules and regulations of Company pursuant to a Placement Notice. For the Exchange, including but not limited to negotiated transactions, with the Company's prior written consent. purposes hereof, "Trading Day" means any day on which the Company's Common Stock is Shares are purchased and sold on the Exchange. principal market on which the Common Shares are listed or quoted. If either party reasonably believes 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 volume of at least $1,000,000 that are issued by an issuer whose common equity securities have a public float value of at least $150,000,000) are not satisfied with respect to the Company or the Shares, it shall promptly notify the other party and sales of Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the reasonable judgment of 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 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 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) of the Securities Act, Act Regulations, including without limitation sales made directly on or through the Exchange, on 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 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 Agent, 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. 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 request the sale of any Placement Shares, and (iii) the Agent shall not be obligated to sell or offer to sell any Placement Shares.
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Sale of Placement Shares by the Agent. Subject to the terms and conditions
herein set forth, upon the Company's issuance of a Placement Notice, and unless the sale of the Placement Shares described therein has been declined, suspended, or otherwise terminated in accordance with the terms of this Agreement,
the Agent, 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 regulatio
...ns and the rules of The NASDAQ Capital Market the New York Stock Exchange (the "Exchange"), "NYSE") to sell the such Placement Shares up to the amount specified in, specified, 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 (including by email correspondence to each of the Trading Day (as defined below) immediately individuals of the Company set forth on Schedule 2) following the Trading Day close of trading on which the NYSE each day 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)) 5(a)) from the gross proceeds that it receives from such sales. Subject to the terms of a Placement Notice, the The Agent may sell Placement Shares by any method permitted by law deemed to be an "at the market offering" market" offering as defined in Rule 415 of the Securities Act, including without limitation sales made directly on the Exchange, NYSE, on any other existing trading market for the Common Stock Shares or to or through a market maker. Subject to With the terms written consent of a Placement Notice, the Company, the Agent may also sell Placement Shares by in privately negotiated transactions. The Company acknowledges and agrees that (i) there can be no assurance that the Agent will be successful in selling Placement Shares, (ii) the Agent will incur no liability or obligation to the Company or any other method permitted person or entity if it does not sell Placement Shares for any reason other than a failure by law the Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices to sell such Placement Shares as required under this Section 3 and (iii) the Agent shall be under no obligation to purchase Placement Shares on a principal basis except 2 as otherwise specifically agreed by the Agent and the rules and regulations of Company pursuant to a Placement Notice. For the Exchange, including but not limited to negotiated transactions, with the Company's prior written consent. purposes hereof, "Trading Day" means any day on which the Company's Common Stock is Shares are purchased and sold on the Exchange. principal market on which the Common Shares are listed or quoted. If either party reasonably believes 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 volume of at least $1,000,000 that are issued by an issuer whose common equity securities have a public float value of at least $150,000,000) are not satisfied with respect to the Company or the Shares, it shall promptly notify the other party and sales of Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the reasonable judgment of each party.
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Sale of Placement Shares by the Agent.
Subject (a)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 Capital the Nasdaq Stock Market (the "Exchange"), to sell the Placement Shares up to the amount
specified in, specified, and otherwise in accordanc
...e 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) 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 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, law, including but not limited to in privately negotiated transactions, with subject to the Company's prior written consent. consent by the Company. "Trading Day" means any day on which Common Stock is purchased and sold traded on the Exchange. (b)While a Placement Notice is in effect, neither Agent nor any of its subsidiaries shall, for its own account, engage in (i) any short sale of any security of the Company, as defined in Regulation SHO or (ii) any market making bidding, stabilization or other trading activity with regard to the Common Stock or related derivative securities, in each case, if such activity would be prohibited under Regulation M or other anti-manipulation rules under the Securities Act. For the avoidance of doubt, this restriction shall not apply to transactions by or on behalf of any customer of such Agent or transactions by such Agent to facilitate any such transactions by or on behalf of any customer of such Agent. -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 (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 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 may be amended from time to time.
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Sale of Placement Shares by the Agent. Subject to the terms and conditions
herein set forth, upon the Company's issuance of a Placement Notice, and unless the sale of the Placement Shares described therein has been declined, suspended, or otherwise terminated in accordance with the terms of this Agreement,
the Agent, 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 regulatio
...ns and the rules of The NASDAQ Capital Market the New York Stock Exchange (the "Exchange"), "NYSE") to sell the such Placement Shares up to the amount specified in, specified, 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 (including by email correspondence to each of the Trading Day (as defined below) immediately individuals of the Company set forth on Schedule 2) following the Trading Day close of trading on which the NYSE each day 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)) 5(a)) from the gross proceeds that it receives from such sales. Subject to the terms of a Placement Notice, the The Agent may sell Placement Shares by any method permitted by law deemed to be an "at the market offering" market" offering as defined in Rule 415 of the Securities Act, including without limitation sales made directly on the Exchange, NYSE, on any other existing trading market for the Common Stock Shares or to or through a market maker. Subject to With the terms written consent of a Placement Notice, the Company, the Agent may also sell Placement Shares by any other method permitted by law law, including block transactions and privately negotiated transactions. The Company acknowledges and agrees that (i) there can be no assurance that the Agent will be successful in selling Placement Shares, (ii) 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 -2- practices to sell such Placement Shares as required under this Section 3 and (iii) the Agent shall be under no obligation to purchase Placement Shares on a principal basis except as otherwise specifically agreed by the Agent and the rules and regulations of Company pursuant to a Placement Notice. For the Exchange, including but not limited to negotiated transactions, with the Company's prior written consent. purposes hereof, "Trading Day" means any day on which the Company's Common Stock is Shares are purchased and sold on the Exchange. principal market on which the Common Shares are listed or quoted. If either party reasonably believes 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 volume of at least $1,000,000 that are issued by an issuer whose common equity securities have a public float value of at least $150,000,000) are not satisfied with respect to the Company or the Shares, it shall promptly notify the other party and sales of Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the reasonable judgment of each party.
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Sale of Placement Shares by the Agent.
Subject (a)On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions
of this Agreement, herein set forth, the Company agrees to issue and sell through or to the Agent, as sales agent and/or principal, as and when it provides instructions, in its discretion, for the
period specified in a sale of Placement
Notice, Shares, and the Agent
will agrees to use its commercially reasonable efforts consistent with its normal trading and sales p
...ractices and 3 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, 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 Designated Agent may sell Placement Shares by any method permitted by law deemed to be an "at the market offering" "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 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 consistent with Exchange rules, including, but not limited to to, privately negotiated transactions, with the Company's prior written consent. "Trading Day" means (b)The Company agrees that any day offer to sell, any solicitation of an offer to buy, or any sales of Placement Shares shall only be effected by or through one Agent on which Common Stock is purchased any single given day, and sold the Company shall in no event request that more than one Agent sell Placement Shares on the Exchange. same day. (c)The Company shall not authorize the issuance and sale of, and the Designated Agent shall not be obligated to use its commercially reasonable efforts to sell, any Placement Shares (i) at a price lower than the minimum price therefor designated from time to time by the Company, and notified to the Designated Agent in writing or (ii) during any period in which the Company is, or could be deemed to be, in possession of material non-public information.
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Sale of Placement Shares by the Agent.
a. 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 c
...onfirmation 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 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 Stock is purchased and sold on the Exchange. b. During the term of this Agreement, neither the Agent nor any of its affiliates or subsidiaries shall engage, either directly or indirectly, in (i) any short sale of any security of the Company, (ii) any sale of any security of the Company that the 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, the Agent, or (iii) any market making, bidding, purchasing, stabilization or other trading activity with regard to the Common Stock, or attempting to induce another person to do any of the foregoing, if such activity would be prohibited under Regulation M or other anti-manipulation rules under the Securities Act. Neither the Agent nor any of its affiliates or subsidiaries shall engage in any proprietary trading or trading for the Agent's (or its affiliates' or subsidiaries') own account.
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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 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 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. The Agent will pr
...ovide written confirmation to the Company no later than prior to the opening commencement of trading on the Exchange on the first 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 Act. Notwithstanding the Exchange, on any other existing trading market provisions of Section 6(jj), the Agent shall not purchase Placement Shares for its own account as principal unless expressly authorized to do so by the Common Stock or to or through a market maker. Subject to the terms of Company in 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. Notice. "Trading Day" means any day on which Common Stock or Preferred Stock is purchased and sold on the Exchange. During the term of this Agreement, neither the Agent nor any of its affiliates or subsidiaries, shall, for its own account, engage in (i) any short sale of any security of the Company, (ii) any sale of any security of the Company that the 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, the Agent or (iii) 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 Agent on behalf and at the direction of any third party customer accounts.
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