Common use of Alternative Arrangements Clause in Contracts

Alternative Arrangements. (a) If the Company wishes to issue and sell the Shares through any Agent of the Company’s choice other than as set forth in Section 3 of this Agreement (an “Alternative Placement”), it will notify the applicable Agent of the proposed terms of such Alternative Placement. If such Agent, acting as principal or agent, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company wishes to accept amended terms, such Agent and the Company will enter into a Terms Agreement, setting forth the terms of such Alternative Placement. (b) The terms set forth in a Terms Agreement will not be binding on the Company or any Agent unless and until the Company and such Agent have each executed such Terms Agreement accepting all of the terms of such Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of a Terms Agreement, the terms of such Terms Agreement will control. (a) Notwithstanding any other provision of this Agreement, (i) the Company shall not offer or sell, or instruct any Agent or Forward Seller to offer or sell, any Shares through an Agent or Forward Seller, (ii) the Company, by notice to the Agents, the Forward Sellers and the Forward Purchasers given by telephone (confirmed promptly by e-mail), shall cancel any instructions for any such offer or sale of Shares, and (iii) the Agents and Forward Sellers shall not be obligated to offer or sell any Shares, (x) at any time or during any period that the Company is or could be deemed to be, or the Agents or Forward Sellers reasonably believe that the Company is, in possession of material non-public information or (y) except as provided in Section 6(b) below, at any time from and including the date (each, an “Announcement Date”) on which the Company shall issue a press release containing, or shall otherwise publicly announce, its earnings, revenues or other results of operations (each, an “Earnings Announcement”) through and including the time that is twenty-four (24) hours after the time that the Company files (a “Filing Time”) a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K that includes consolidated financial statements as of and for the same period or periods, as the case may be, covered by such Earnings Announcement. For purposes of this Section 6(a) and Section 6(b) below, references to “twenty-four (24) hours” shall exclude any hours in a day that is not a business day. (b) If the Company wishes that Shares be offered or sold on any date during the period from and including an Announcement Date through and including the time that is twenty-four (24) hours after the corresponding Filing Time, the Company shall (i) prepare and deliver to the Agents, the Forward Sellers and/or the Forward Purchasers, as applicable (with a copy to counsel to the Agents and Forward Purchasers), a Current Report on Form 8-K which shall include substantially the same financial and related information as was set forth in the relevant Earnings Announcement (other than any earnings projections or similar forward-looking data) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Agents, the Forward Sellers and/or the Forward Purchasers, as applicable, and obtain the consent of the Agents, the Forward Sellers and/or the Forward Purchasers, as applicable, to the filing thereof (such consent not to be unreasonably withheld, conditioned or delayed), (ii) provide the Agents, the Forward Sellers and/or the Forward Purchasers, as applicable, with the officers’ certificate and accountants’ letter called for by Sections 7(n) and (p), respectively, and (iii) file (and not furnish) such Earnings 8-K with the Commission. If the Company fully satisfies the requirements of clauses (i) through (iii) of this Section 6(b), then the provisions of Section 6(a), except as otherwise provided herein, shall not be applicable for the period from and after the time at which the foregoing conditions shall have been satisfied (or, if later, the time that is twenty-four (24) hours after the time that the relevant Earnings Announcement was first publicly released) through and including the time that is twenty-four (24) hours after the Filing Time of the relevant Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificate or accountants’ letter pursuant to this Section 6(b) shall not relieve the Company from any of its obligations under this Agreement with respect to any such 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, accountants’ letters and legal opinions and related letters as provided in Section 9 hereof, (B) this Section 6(b) shall in no way affect the provisions of clause (x) of Section 6(a), which shall have independent application and (C) the provisions of this Section 6(b) shall in no way affect the Company’s ability to file, subject to compliance with other applicable provisions of this Agreement, Current Reports on Form 8-K relating to earnings or other matters.

Alternative Arrangements. (a) If the Company wishes to issue and sell the Shares through any Agent of the Company’s choice other than as set forth in Section 3 of this Agreement (an “Alternative Placement”), it will notify the applicable Agent of the proposed terms of such Alternative Placement. If such the Agent, acting as principal or agent, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company wishes to accept amended terms, such the Agent and the Company will enter into a Terms Agreement, setting forth the terms of such Alternative Placement. (b) The terms set forth in a Terms Agreement will not be binding on the Company or any the Agent unless and until the Company and such the Agent have each executed such Terms Agreement accepting all of the terms of such Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of a Terms Agreement, the terms of such Terms Agreement will control. (a) Notwithstanding any other provision of this Agreement, (i) the Company shall not offer or sell, or instruct any the Agent or Forward Seller to offer or sell, any Shares through an Agent or Forward SellerShares, (ii) the Company, by notice to the Agents, the Forward Sellers and the Forward Purchasers Agent given by telephone (confirmed promptly by e-mail), shall cancel any instructions for any such the offer or sale of Shares, and (iii) the Agents and Forward Sellers Agent shall not be obligated to offer or sell any Shares, (x) unless otherwise agreed to in writing by the parties hereto (which agreement may be contained in a Placement Notice or in such other instructions provided by the Company to the Agent pursuant to Section 3(b)) during any period in which the Company’s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policy, as it exists on the date of this Agreement, would prohibit the purchases or sales of the Company’s Common Stock by its officers or directors, (y) at any time or during any period that the Company is or could be deemed to be, or the Agents or Forward Sellers reasonably believe that the Company is, in possession of material non-public information or (yz) except as provided in Section 6(b5(b) below, at any time from and including the date (each, an “Announcement Date”) on which the Company shall issue a press release containing, or shall otherwise publicly announce, its earnings, revenues or other results of operations (each, an “Earnings Announcement”) through and including the time that is twenty-four (24) hours after the time that the Company files (a “Filing Time”) a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K that includes consolidated financial statements as of and for the same period or periods, as the case may be, covered by such Earnings Announcement. For purposes of this Section 6(a5(a) and Section 6(b5(b) below, references to “twenty-four (24) hours” shall exclude any hours in a day that is not a business day. (b) If the Company wishes that to offer or sell Shares be offered or sold on any date during the period from and including an Announcement Date through and including the time that is twenty-four (24) hours after the corresponding Filing Time, the Company shall (i) prepare and deliver to the Agents, the Forward Sellers and/or the Forward Purchasers, as applicable Agent (with a copy to counsel to the Agents and Forward Purchasers), Agent) a Current Report on Form 8-K which shall include substantially the same financial and related information as was set forth in the relevant Earnings Announcement (other than any earnings projections or similar forward-looking data) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Agents, the Forward Sellers and/or the Forward Purchasers, as applicableAgent, and obtain the consent of the Agents, the Forward Sellers and/or the Forward Purchasers, as applicable, Agent to the filing thereof (such consent not to be unreasonably withheld, conditioned withheld or delayed), (ii) provide the Agents, the Forward Sellers and/or the Forward Purchasers, as applicable, Agent with the officers’ certificate and accountants’ letter called for by Sections 7(n6(n) and (p), respectively, and (iii) file (and not furnish) such Earnings 8-K with the Commission. If the Company fully satisfies the requirements of clauses (i) through (iii) of this Section 6(b5(b), then the provisions of Section 6(a5(a), except as otherwise provided herein, shall not be applicable for the period from and after the time at which the foregoing conditions shall have been satisfied (or, if later, the time that is twenty-four (24) hours after the time that the relevant Earnings Announcement was first publicly released) through and including the time that is twenty-four (24) hours after the Filing Time of the relevant Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificate or accountants’ letter pursuant to this Section 6(b5(b) shall not relieve the Company from any of its obligations under this Agreement with respect to any such 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, accountants’ letters and legal opinions and related letters as provided in Section 9 8 hereof, (B) this Section 6(b5(b) shall in no way affect the provisions of clause (x) of Section 6(a5(a), which shall have independent application and (C) the provisions of this Section 6(b5(b) shall in no way affect the Company’s ability to file, subject to compliance with other applicable provisions of this Agreement, Current Reports on Form 8-K relating to earnings or other matters.

Alternative Arrangements. (a) If the Company wishes to issue and sell the Shares through any Agent of the Company’s choice other than as set forth in Section 3 2 of this Agreement (an “Alternative Placement”), it will notify the applicable Agent of the proposed terms of such Alternative Placement. If such the Agent, acting as principal or agent, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company wishes to accept amended terms, such the Agent and the Company will enter into a Terms Agreement, setting forth the terms of such Alternative Placement. (b) The terms set forth in a Terms Agreement will not be binding on the Company or any the Agent unless and until the Company and such the Agent have each executed such Terms Agreement accepting all of the terms of such Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of a Terms Agreement, the terms of such Terms Agreement will control. (a) Notwithstanding any other provision of this Agreement, (i) the Company shall not offer or sell, or instruct any Agent or Forward Seller to request the offer or sellsale of, any Shares through an Agent or Forward SellerShares, (ii) the Company, by notice to the Agents, the Forward Sellers and the Forward Purchasers Agent given by telephone (confirmed promptly by e-maile‑mail), shall cancel any instructions for any such the offer or sale of Shares, and (iii) the Agents and Forward Sellers Agent shall not be obligated to offer or sell any Shares, (x) unless otherwise agreed to in writing by the parties hereto (which agreement may be contained in a Placement Notice or in such other instructions provided by the Company to the Agent pursuant to Section 2(b)), during any period in which the Company’s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policy, as it exists on the date of this Agreement, would prohibit the purchases or sales of the Company’s Common Stock by its officers or directors, (y) at any time or during any period that the Company is or could be deemed to be, or the Agents or Forward Sellers reasonably believe that the Company is, in possession of material non-public information or (yz) except as provided in Section 6(b4(b) below, at any time from and including the date (each, an “Announcement Date”) on which the Company shall issue a press release containing, or shall otherwise publicly announce, its earnings, revenues or other results of operations (each, an “Earnings Announcement”) through and including the time that is twenty-four (24) hours after the time that the Company files (a “Filing Time”) a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K that includes consolidated financial statements as of and for the same period or periods, as the case may be, covered by such Earnings Announcement. For purposes of this Section 6(a4(a) and Section 6(b4(b) below, references to “twenty-four (24) hours” shall exclude any hours in a day that is not a business day. (b) If the Company wishes that to offer or sell Shares be offered or sold on any date during the period from and including an Announcement Date through and including the time that is twenty-four twenty‑four (24) hours after the corresponding Filing Time, the Company shall (i) prepare and deliver to the Agents, the Forward Sellers and/or the Forward Purchasers, as applicable Agent (with a copy to counsel to the Agents and Forward Purchasers), Agent) a Current Report on Form 8-K which shall include substantially the same financial and related information as was set forth in the relevant Earnings Announcement (other than any earnings projections or similar forward-looking data) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Agents, the Forward Sellers and/or the Forward Purchasers, as applicableAgent, and obtain the consent of the Agents, the Forward Sellers and/or the Forward Purchasers, as applicable, Agent to the filing thereof (such consent not to be unreasonably withheld, conditioned withheld or delayed), (ii) provide the Agents, the Forward Sellers and/or the Forward Purchasers, as applicable, Agent with the officers’ certificate and accountants’ letter called for by Sections 7(n5(n) and (p), respectively, and (iii) file (and not furnish) such Earnings 8-K with the Commission. If the Company fully satisfies the requirements of clauses (i) through (iii) of this Section 6(b4(b), then the provisions of clause (ii) of Section 6(a), except as otherwise provided herein, 4(a) shall not be applicable for the period from and after the time at which the foregoing conditions shall have been satisfied (or, if later, the time that is twenty-four (24) hours after the time that the relevant Earnings Announcement was first publicly released) through and including the time that is twenty-four (24) hours after the Filing Time of the relevant Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificate or accountants’ letter pursuant to this Section 6(b4(b) shall not relieve the Company from any of its obligations under this Agreement with respect to any such 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, accountants’ letters and legal opinions and related letters as provided in Section 9 7 hereof, (B) this Section 6(b4(b) shall in no way affect the provisions of clause (x) of Section 6(a4(a), which shall have independent application and (C) the provisions of this Section 6(b4(b) shall in no way affect the Company’s ability to file, subject to compliance with other applicable provisions of this Agreement, Current Reports on Form 8-K relating to earnings or other matters.

Alternative Arrangements. (a) If the Company wishes to issue and sell the Shares through any Agent of the Company’s choice other than as set forth in Section 3 2 of this Agreement (an “Alternative Placement”), it will notify the applicable Agent of the proposed terms of such Alternative Placement. If such the Agent, acting as principal or agent, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company wishes to accept amended terms, such the Agent and the Company will enter into a Terms Agreement, setting forth the terms of such Alternative Placement. (b) The terms set forth in a Terms Agreement will not be binding on the Company or any the Agent unless and until the Company and such the Agent have each executed such Terms Agreement accepting all of the terms of such Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of a Terms Agreement, the terms of such Terms Agreement will control. (a) Notwithstanding any other provision of this Agreement, (i) the Company shall not offer or sell, or instruct any Agent or Forward Seller to request the offer or sellsale of, any Shares through an Agent or Forward SellerShares, (ii) the Company, by notice to the Agents, the Forward Sellers and the Forward Purchasers Agent given by telephone (confirmed promptly by e-mail), shall cancel any instructions then in effect for any such the offer or sale of Shares, and (iii) the Agents and Forward Sellers Agent shall not be obligated to offer or sell any Shares, (x) unless otherwise agreed to in writing by the parties hereto (which agreement may be contained in a Placement Notice or in such other instructions provided by the Company to the Agent pursuant to Section 2(b)), during any period in which the Company’s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policy, as it exists on the date of this Agreement, would prohibit the purchases or sales of the Company’s Common Stock by its officers or directors, (y) at any time or during any period that the Company is or could be deemed to be, or the Agents or Forward Sellers reasonably believe that the Company is, in possession of material non-public information or (yz) except as provided in Section 6(b4(b) below, at any time from and including the date (each, an “Announcement Date”) on which the Company shall issue a press release containing, or shall otherwise publicly announce, its earningsrevenues, revenues earnings or other operating results of operations (each, an “Earnings Announcement”) through and including the time that is twenty-four (24) hours after the time that the Company files (a “Filing Time”) a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K that includes consolidated financial statements as of and for the same period or periods, as the case may be, covered by such Earnings Announcement. For purposes of this Section 6(a4(a) and Section 6(b4(b) below, references to “twenty-four (24) hours” shall exclude any hours in a day that is not a business day. (b) If the Company wishes that to offer or sell Shares be offered or sold on any date during the period from and including an the Earnings Announcement Date through and including the time that is twenty-four (24) hours after the corresponding Filing Time, the Company shall (i) prepare and deliver to the Agents, the Forward Sellers and/or the Forward Purchasers, as applicable Agent (with a copy to counsel to the Agents and Forward Purchasers), Agent) a Current Report on Form 8-K which shall include substantially the same financial and related information as was set forth in the relevant Earnings Announcement (other than any earnings projections or similar forward-looking data) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Agents, the Forward Sellers and/or the Forward Purchasers, as applicableAgent, and obtain the consent of the Agents, the Forward Sellers and/or the Forward Purchasers, as applicable, Agent to the filing “filing” thereof (as opposed to merely furnishing thereof under Item 2.02) (such consent not to be unreasonably withheld, conditioned withheld or delayed), (ii) provide the Agents, the Forward Sellers and/or the Forward Purchasers, as applicable, Agent with the officers’ certificate and accountants’ letter called for by Sections 7(n5(p) and (pr), respectively, and (iii) file (and not furnish) such Earnings 8-K with the Commission. If the Company fully satisfies the requirements of clauses (i) through (iii) of this Section 6(b4(b), then the provisions of clause (z) of Section 6(a), except as otherwise provided herein, 4(a) shall not be applicable for the period from and after the time at which the foregoing conditions shall have been satisfied (or, if later, the time that is twenty-four (24) hours after the time that the relevant Earnings Announcement was first publicly released) through and including the time that is twenty-four (24) hours after the Filing Time of the relevant Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificate or accountants’ letter pursuant to this Section 6(b4(b) shall not relieve the Company from any of its obligations under this Agreement with respect to any such the related 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, accountants’ letters and legal opinions and related letters as provided in Section 9 7 hereof, (B) this Section 6(b4(b) shall in no way affect the provisions of clause (x) or (y) of Section 6(a4(a), which shall have independent application and (C) the provisions of this Section 6(b4(b) shall in no way affect the Company’s ability to file, subject to compliance with other applicable provisions of this Agreement, Current Reports on Form 8-K relating to earnings or other matters.

Alternative Arrangements. (a) If the Company wishes to issue and sell the Shares through any Agent of the Company’s choice other than as set forth in Section 3 2 of this Agreement (an “Alternative Placement”), it will notify the applicable Agent of the proposed terms of such Alternative Placement. If such the Agent, acting as principal or agent, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company wishes to accept amended terms, such the Agent and the Company will enter into a Terms Agreement, setting forth the terms of such Alternative Placement. (b) The terms set forth in a Terms Agreement will not be binding on the Company or any the Agent unless and until the Company and such the Agent have each executed such Terms Agreement accepting all of the terms of such Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of a Terms Agreement, the terms of such Terms Agreement will control. (a) Notwithstanding any other provision of this Agreement, (i) the Company shall not offer or sell, or instruct any Agent or Forward Seller to request the offer or sellsale of, any Shares through an Agent or Forward SellerShares, (ii) the Company, by notice to the Agents, the Forward Sellers and the Forward Purchasers Agent given by telephone (confirmed promptly by e-maile‑mail), shall cancel any instructions for any such the offer or sale of Shares, and (iii) the Agents and Forward Sellers Agent shall not be obligated to offer or sell any Shares, (x) unless otherwise agreed to in writing by the parties hereto (which agreement may be contained in a Placement Notice or in such other instructions provided by the Company to the Agent pursuant to Section 2(b)), during any period in which the Company’s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policy, as it exists on the date of this Agreement, would prohibit the purchases or sales of the Company’s Common Stock by its officers or directors, (y) at any time or during any period that the Company is or could be deemed to be, or the Agents or Forward Sellers reasonably believe that the Company is, in possession of material non-public information or (yz) except as provided in Section 6(b4(b) below, at any time from and including the date (each, an “Announcement Date”) on which the Company shall issue a press release containing, or shall otherwise publicly announce, its earnings, revenues or other results of operations (each, an “Earnings Announcement”) through and including the time that is twenty-four (24) hours after the time that the Company files (a “Filing Time”) a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K that includes consolidated financial statements as of and for the same period or periods, as the case may be, covered by such Earnings Announcement. For purposes of this Section 6(a4(a) and Section 6(b4 (b) below, references to “twenty-four (24) hours” shall exclude any hours in a day that is not a business day. (b) If the Company wishes that to offer or sell Shares be offered or sold on any date during the period from and including an Announcement Date through and including the time that is twenty-four twenty‑four (24) hours after the corresponding Filing Time, the Company shall (i) prepare and deliver to the Agents, the Forward Sellers and/or the Forward Purchasers, as applicable Agent (with a copy to counsel to the Agents and Forward Purchasers), Agent) a Current Report on Form 8-K which shall include substantially the same financial and related information as was set forth in the relevant Earnings Announcement (other than any earnings projections or similar forward-looking data) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Agents, the Forward Sellers and/or the Forward Purchasers, as applicableAgent, and obtain the consent of the Agents, the Forward Sellers and/or the Forward Purchasers, as applicable, Agent to the filing thereof (such consent not to be unreasonably withheld, conditioned withheld or delayed), (ii) provide the Agents, the Forward Sellers and/or the Forward Purchasers, as applicable, Agent with the officers’ certificate and accountants’ letter called for by Sections 7(n5(n) and (p), respectively, and (iii) file (and not furnish) such Earnings 8-K with the Commission. If the Company fully satisfies the requirements of clauses (i) through (iii) of this Section 6(b4(b), then the provisions of clause (ii) of Section 6(a), except as otherwise provided herein, 4(a) shall not be applicable for the period from and after the time at which the foregoing conditions shall have been satisfied (or, if later, the time that is twenty-four (24) hours after the time that the relevant Earnings Announcement was first publicly released) through and including the time that is twenty-four (24) hours after the Filing Time of the relevant Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificate or accountants’ letter pursuant to this Section 6(b4(b) shall not relieve the Company from any of its obligations under this Agreement with respect to any such 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, accountants’ letters and legal opinions and related letters as provided in Section 9 7 hereof, (B) this Section 6(b4(b) shall in no way affect the provisions of clause (x) of Section 6(a4(a), which shall have independent application and (C) the provisions of this Section 6(b4(b) shall in no way affect the Company’s ability to file, subject to compliance with other applicable provisions of this Agreement, Current Reports on Form 8-K relating to earnings or other matters.

Alternative Arrangements. (a) If the Company wishes to issue and sell the Shares through any Agent of the Company’s choice other than as set forth in Section 3 of this Agreement (an “Alternative Placement”), it will notify the applicable Agent of the proposed terms of such Alternative Placement. If such Agent, acting as principal or agent, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company wishes to accept amended terms, such Agent and the Company will enter into a Terms Agreement, setting forth the terms of such Alternative Placement. (b) The terms set forth in a Terms Agreement will not be binding on the Company or any Agent unless and until the Company and such Agent have each executed such Terms Agreement accepting all of the terms of such Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of a Terms Agreement, the terms of such Terms Agreement will control. (a) Notwithstanding any other provision of this Agreement, (i) the Company shall not offer or sell, or instruct any Agent or Forward Seller the Agents to offer or sell, any Shares through an Agent or Forward SellerShares, (ii) the Company, by notice to the Agents, the Forward Sellers and the Forward Purchasers Agents given by telephone (confirmed promptly by e-mail), shall cancel any instructions for any such offer or sale of Shares, and (iii) the Agents and Forward Sellers shall not be obligated to offer or sell any Shares, (x) unless otherwise agreed to in writing by the parties hereto (which agreement may be contained in a Placement Notice or in such other instructions provided by the Company to the Agents pursuant to Section 3(b)) during any period in which the Company’s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policy, as it exists on the date of this Agreement, would prohibit the purchases or sales of the Company’s Common Stock by its officers or directors, (y) at any time or during any period that the Company is or could be deemed to be, or the Agents or Forward Sellers reasonably believe that the Company is, be in possession of material non-public information or (yz) except as provided in Section 6(b5(b) below, at any time from and including the date (each, an “Announcement Date”) on which the Company shall issue a press release containing, or shall otherwise publicly announce, its earnings, revenues or other results of operations (each, an “Earnings Announcement”) through and including the time that is twenty-four (24) hours after the time that the Company files (a “Filing Time”) a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K that includes consolidated financial statements as of and for the same period or periods, as the case may be, covered by such Earnings Announcement. For purposes of this Section 6(a5(a) and Section 6(b5(b) below, references to “twenty-four (24) hours” shall exclude any hours in a day that is not a business day. (b) If the Company wishes that to offer or sell Shares be offered or sold on any date during the period from and including an Announcement Date through and including the time that is twenty-four (24) hours after the corresponding Filing Time, the Company shall (i) prepare and deliver to the Agents, the Forward Sellers and/or the Forward Purchasers, as applicable Agents (with a copy to counsel to the Agents and Forward Purchasers), Agents) a Current Report on Form 8-K which shall include substantially the same financial and related information as was set forth in the relevant Earnings Announcement (other than any earnings projections or similar forward-looking data) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Agents, the Forward Sellers and/or the Forward Purchasers, as applicable, and obtain the consent of the Agents, the Forward Sellers and/or the Forward Purchasers, as applicable, Agents to the filing thereof (such consent not to be unreasonably withheld, conditioned or delayed), (ii) provide the Agents, the Forward Sellers and/or the Forward Purchasers, as applicable, Agents with the officers’ certificate and accountants’ letter called for by Sections 7(n6(n) and (p), respectively, and (iii) file (and not furnish) such Earnings 8-K with the Commission. If the Company fully satisfies the requirements of clauses (i) through (iii) of this Section 6(b5(b), then the provisions of Section 6(a5(a), except as otherwise provided herein, shall not be applicable for the period from and after the time at which the foregoing conditions shall have been satisfied (or, if later, the time that is twenty-four (24) hours after the time that the relevant Earnings Announcement was first publicly released) through and including the time that is twenty-four (24) hours after the Filing Time of the relevant Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificate or accountants’ letter pursuant to this Section 6(b5(b) shall not relieve the Company from any of its obligations under this Agreement with respect to any such 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, accountants’ letters and legal opinions and related letters as provided in Section 9 8 hereof, (B) this Section 6(b5(b) shall in no way affect the provisions of clause (x) of Section 6(a5(a), which shall have independent application and (C) the provisions of this Section 6(b5(b) shall in no way affect the Company’s ability to file, subject to compliance with other applicable provisions of this Agreement, Current Reports on Form 8-K relating to earnings or other matters.

Alternative Arrangements. (a) If the Company wishes to issue and sell the Shares through any Agent of the Company’s choice other than as set forth in Section 3 2 of this Agreement (an “Alternative Placement”), it will notify the applicable Agent of the proposed terms of such Alternative Placement. If such the Agent, acting as principal or agent, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company wishes to accept amended terms, such the Agent and the Company will enter into a Terms Agreement, setting forth the terms of such Alternative Placement. (b) The terms set forth in a Terms Agreement will not be binding on the Company or any the Agent unless and until the Company and such the Agent have each executed such Terms Agreement accepting all of the terms of such Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of a Terms Agreement, the terms of such Terms Agreement will control. (a) Notwithstanding any other provision of this Agreement, (i) the Company shall not offer or sell, or instruct any Agent or Forward Seller to request the offer or sellsale of, any Shares through an Agent or Forward SellerShares, (ii) the Company, by notice to the Agents, the Forward Sellers and the Forward Purchasers Agent given by telephone (confirmed promptly by e-mail), shall cancel any instructions for any such the offer or sale of Shares, and (iii) the Agents and Forward Sellers Agent shall not be obligated to offer or sell any Shares, (x) unless otherwise agreed to in writing by the parties hereto (which agreement may be contained in a Placement Notice or in such other instructions provided by the Company to the Agent pursuant to Section 2(b)) during any period in which the Company’s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policy, as it exists on the date of this Agreement, would prohibit the purchases or sales of the Company’s Common Stock by its officers or directors, (y) at any time or during any period that the Company is or could be deemed to be, or the Agents or Forward Sellers reasonably believe that the Company is, in possession of material non-public information or (yz) except as provided in Section 6(b4(b) below, at any time from and including the date (each, an “Announcement Date”) on which the Company shall issue a press release containing, or shall otherwise publicly announce, its earnings, revenues or other results of operations (each, an “Earnings Announcement”) through and including the time that is twenty-four (24) hours after the time that the Company files (a “Filing Time”) a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K that includes consolidated financial statements as of and for the same period or periods, as the case may be, covered by such Earnings Announcement. For purposes of this Section 6(a4(a) and Section 6(b4(b) below, references to “twenty-four (24) hours” shall exclude any hours in a day that is not a business day. (b) If the Company wishes that to offer or sell Shares be offered or sold on any date during the period from and including an Announcement Date through and including the time that is twenty-four (24) hours after the corresponding Filing Time, the Company shall (i) prepare and deliver to the Agents, the Forward Sellers and/or the Forward Purchasers, as applicable Agent (with a copy to counsel to the Agents and Forward Purchasers), Agent) a Current Report on Form 8-K which shall include substantially the same financial and related information as was set forth in the relevant Earnings Announcement (other than any earnings projections or similar forward-looking data) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Agents, the Forward Sellers and/or the Forward Purchasers, as applicableAgent, and obtain the consent of the Agents, the Forward Sellers and/or the Forward Purchasers, as applicable, Agent to the filing thereof (such consent not to be unreasonably withheld, conditioned withheld or delayed), (ii) provide the Agents, the Forward Sellers and/or the Forward Purchasers, as applicable, Agent with the officers’ certificate and accountants’ letter called for by Sections 7(n5(n) and (p), respectively, and (iii) file (and not furnish) such Earnings 8-K with the Commission. If the Company fully satisfies the requirements of clauses (i) through (iii) of this Section 6(b4(b), then the provisions of clause (ii) of Section 6(a), except as otherwise provided herein, 4(a) shall not be applicable for the period from and after the time at which the foregoing conditions shall have been satisfied (or, if later, the time that is twenty-four (24) hours after the time that the relevant Earnings Announcement was first publicly released) through and including the time that is twenty-four (24) hours after the Filing Time of the relevant Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificate or accountants’ letter pursuant to this Section 6(b4(b) shall not relieve the Company from any of its obligations under this Agreement with respect to any such 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, accountants’ letters and legal opinions and related letters as provided in Section 9 7 hereof, (B) this Section 6(b4(b) shall in no way affect the provisions of clause (x) of Section 6(a4(a), which shall have independent application and (C) the provisions of this Section 6(b4(b) shall in no way affect the Company’s ability to file, subject to compliance with other applicable provisions of this Agreement, Current Reports on Form 8-K relating to earnings or other matters.

Alternative Arrangements. (a) If the Company wishes to issue and sell the Shares through any Agent of the Company’s choice other than as set forth in Section 3 of this Agreement (an “Alternative Placement”), it will notify the applicable Agent of the proposed terms of such Alternative Placement. If such the Agent, acting as principal or agent, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company wishes to accept amended terms, such the Agent and the Company will enter into a Terms Agreement, setting forth the terms of such Alternative Placement. (b) The terms set forth in a Terms Agreement will not be binding on the Company or any the Agent unless and until the Company and such the Agent have each executed such Terms Agreement accepting all of the terms of such Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of a Terms Agreement, the terms of such Terms Agreement will control. (a) Notwithstanding any other provision of this Agreement, (i) the Company shall not offer or sell, or instruct any Agent or Forward Seller to request the offer or sellsale of, any Shares through an Agent or Forward SellerShares, (ii) the Company, by notice to the Agents, the Forward Sellers and the Forward Purchasers Agent given by telephone (confirmed promptly by e-mail), shall cancel any instructions for any such the offer or sale of Shares, and (iii) the Agents and Forward Sellers Agent shall not be obligated to offer or sell any Shares, (x) unless otherwise agreed to in writing by the parties hereto (which agreement may be contained in a Placement Notice or in such other instructions provided by the Company to the Agent pursuant to Section 3(b)) during any period in which the Company’s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policy, as it exists on the date of this Agreement, would prohibit the purchases or sales of the Company’s Common Stock by its officers or directors, (y) at any time or during any period that the Company is or could be deemed to be, or the Agents or Forward Sellers reasonably believe that the Company is, in possession of material non-public information or (yz) except as provided in Section 6(b5(b) below, at any time from and including the date (each, an “Announcement Date”) on which the Company shall issue a press release containing, or shall otherwise publicly announce, its earnings, revenues or other results of operations (each, an “Earnings Announcement”) through and including the time that is twenty-four (24) hours after the time that the Company files (a “Filing Time”) a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K that includes consolidated financial statements as of and for the same period or periods, as the case may be, covered by such Earnings Announcement. For purposes of this Section 6(a5(a) and Section 6(b5(b) below, references to “twenty-four (24) hours” shall exclude any hours in a day that is not a business day. (b) If the Company wishes that to offer or sell Shares be offered or sold on any date during the period from and including an Announcement Date through and including the time that is twenty-four (24) hours after the corresponding Filing Time, the Company shall (i) prepare and deliver to the Agents, the Forward Sellers and/or the Forward Purchasers, as applicable Agent (with a copy to counsel to the Agents and Forward Purchasers), Agent) a Current Report on Form 8-K which shall include substantially the same financial and related information as was set forth in the relevant Earnings Announcement (other than any earnings projections or similar forward-looking data) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Agents, the Forward Sellers and/or the Forward Purchasers, as applicableAgent, and obtain the consent of the Agents, the Forward Sellers and/or the Forward Purchasers, as applicable, Agent to the filing thereof (such consent not to be unreasonably withheld, conditioned withheld or delayed), (ii) provide the Agents, the Forward Sellers and/or the Forward Purchasers, as applicable, Agent with the officers’ certificate and accountants’ letter called for by Sections 7(n6(n) and (p), respectively, and (iii) file (and not furnish) such Earnings 8-K with the Commission. If the Company fully satisfies the requirements of clauses (i) through (iii) of this Section 6(b5(b), then the provisions of Section 6(a5(a), except as otherwise provided herein, shall not be applicable for the period from and after the time at which the foregoing conditions shall have been satisfied (or, if later, the time that is twenty-four (24) hours after the time that the relevant Earnings Announcement was first publicly released) through and including the time that is twenty-four (24) hours after the Filing Time of the relevant Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificate or accountants’ letter pursuant to this Section 6(b5(b) shall not relieve the Company from any of its obligations under this Agreement with respect to any such 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, accountants’ letters and legal opinions and related letters as provided in Section 9 8 hereof, (B) this Section 6(b5(b) shall in no way affect the provisions of clause (x) of Section 6(a5(a), which shall have independent application and (C) the provisions of this Section 6(b5(b) shall in no way affect the Company’s ability to file, subject to compliance with other applicable provisions of this Agreement, Current Reports on Form 8-K relating to earnings or other matters.