申报书公司已经向委员会提交了一份在S-3表格（文件号码333-279367）上的架构登记声明书，其中包含一份基本招股书。该登记声明书登记了公司根据证券法发行和销售股份。公司可能不时提交一份或多份包含有关股份的基本招股书的其他登记声明书，并相关的招股书或招股书补充资料（如适用）。除非上下文另有要求，此等登记声明书（包括根据证券法第4300亿条条例视为其中一部分的所有资讯，包括所有财务报表、展示和附表，以及根据证券法第3条表格第12条有时进行修订或补充的所有文件，被提及或视为根据证券法第12条表格的第12条条例提及或视为纳入其中的文件，这些登记声明书们在此统称为“申报书，”以及构成该等登记声明书一部分的招股书，与根据表格S-3第12条向委员会提交的根据证券法第424条（b）条的规定，有关股份特定发行的招股书补充资料，包括不时修订或补充的视为以引用的所有文档，皆称为““招股书,” except that if any revised prospectus is provided to the Agent by the Company for use in connection with the offering of the Shares that is not required to be filed by the Company pursuant to Rule 424(b) under the Securities Act, the term “招股书” shall refer to such revised prospectus from and after the time it is first provided to the Agent for such use. The Registration Statement at the time it originally became effective is herein called the “Original Registration Statement.” As used in this Agreement, the terms “amendment” or “supplement” when applied to the Registration Statement or the Prospectus shall be deemed to include the filing by the Company with the Commission of any document under the Exchange Act after the date hereof that is or is deemed to be incorporated therein by reference.
The Prospectus, when filed, complied or will comply in all material respects with the Securities Act and, if filed with the Commission through EDGAR (except as may be permitted by Regulation S‑t under the Securities Act), was identical to the copy thereof delivered to the Agent for use in connection with the issuance and sale of the Shares. Each of the Registration Statement, any Rule 462(b) Registration Statement and any post-effective amendment thereto, at the time it became or becomes effective and at each Representation Date, complied and will comply in all material respects with the Securities Act and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. As of the date of this Agreement, the Prospectus and any Free Writing Prospectus (as defined below) considered together (collectively, the “销售时间资讯”) did not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. The Prospectus, as amended or supplemented, as of its date and at each Representation Date, did not and will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The representations and warranties set forth in the three immediately preceding sentences do not apply to statements in or omissions from the Registration Statement, any Rule 462(b) Registration Statement, or any post-effective amendment thereto, or the Prospectus, or any amendments or supplements thereto, made in reliance upon and in conformity with information relating to the Agent furnished to the Company in writing by the Agent expressly for use therein, it being understood and agreed that the only such information furnished by the Agent to the Company consists of the information described in 第6条 以下。在招股说明书中未要求描述或作为展示档案提交的合同或其他文件，已经按要求描述或提交。招股说明书以及股份的发售如
独立会计师。安永会计师事务所及务达安美国有限责任合伙公司，已就与本协议相关的财务报表（本协议中使用的该术语包括附注），或已审阅过根据证券委员会提交的申报书和招股书，的财务报表表达了意见，均（i）符合证券法、交易法以及公共公司会计监督委员会规定的独立注册会计师的要求PCAOB股票今日最新状况是什么？）；（ii）符合证券法下S-X规则2-01规定之会计师资格相关要求；（iii）被PCAOB定义为已注册之会计师事务所，其注册未被暂停或撤销，且未请求其注册被撤回；并（iv）被《2002年修订的萨班斯-奥克斯法》(Sarbanes-Oxley Act of 2002, as amended)第2(a)(12)条所定义之注册公共会计师事务所。Sarbanes-Oxley法案并未违反萨班斯-奥克斯法案的审计师独立要求。
Non-Contravention of Existing Instruments; No Further Authorizations or Approvals Required。无论是公司还是其任何附属公司，均未违反其组织文件中的宪章或章程、合伙协议或营运协议或类似组织文件（适用时），也未违约（或在通知或时间给予之后，将会违约）（“预设”）根据任何债券、贷款、信贷协议、票据、租约、许可协议、合同、特许经营权或其他工具（包括但不限于任何质押协议、抵押协议、抵押或其他证明、担保、保证或涉及债务的工具或协议）而违反，或者（无论是公司或其任何附属公司是其中一方，或会绑定公司或它们之一的任何财产或资产）对任何欠款构成违约（每个，一个“现有文件”），除了那些不会合理地预料到将导致实质不利变化的违约。公司对本协议的执行、交割和履行，以及根据本协议和登记声明和招股书进行的交易以及发行和销售股份（包括根据登记声明和招股书中“筹款用途”标题下描述的股份销售所得的使用）（i）已经获得了所有必要的公司行动的正式授权，并不会导致违反公司或任何附属公司的章程或章程、合伙协议或营运协议或类似组织文件（适用时）的条款，（ii）不会与或构成
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违约，或违约或债务偿还触发事件（如下所定义），或导致根据任何现有工具对公司或其任何附属公司的任何财产或资产投设置或课设任何留置权、抵押或其他冲销情况，或要求任何其他方当事人的同意⤀任何现有工具，除了那些冲突、违反、违约或债务偿还触发事件或留置权、抵押或其他冲销情况，将不可能单独或合算地导致实质不利变化，以及（iii）不会违反适用于公司或其附属公司的任何法律、行政法规或行政或法院判令，除了那些违反，这些违反不可能单独或合算地导致实质不利变化。 公司执行、交付和履行本协议以及完成本协议和登记声明和招股书所述的交易并发行和销售股份所涉及的交易（包括在登记声明和招股书中“款用途”标题下描述的资金用途〔II〕）不需要任何法院或其他政府或监管机构或机构的同意、批准、授权或其他命令，或进行登记或申报，FINRA”). As used herein, a “Debt Repayment Triggering Event” means any event or condition which gives, or with the giving of notice or lapse of time would give, the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its subsidiaries.
(t)
没有任何重大的行动或诉讼. Except as otherwise disclosed in the Registration Statement or the Prospectus, there is no action, suit, proceeding (including arbitration and mediation), inquiry, audit or investigation, whether civil, criminal or administrative, brought by or before any legal or governmental entity now pending or, to the knowledge of the Company, threatened, against or affecting the Company or any of its subsidiaries, which would reasonably be expected, individually or in the aggregate, to result in a Material Adverse Change. No material labor dispute with the employees of the Company or any of its subsidiaries, or with the employees of any principal supplier, manufacturer, customer or contractor of the Company or any of its subsidiaries, exists or, to the knowledge of the Company, is threatened or imminent.
(u)
Suppliers, Customers, Partners and Distributors. No supplier, customer, partner or distributor of the Company or any of its subsidiaries has notified the Company or any of its subsidiaries that it intends to discontinue or decrease the rate of business done with the Company or any of its subsidiaries, except where such discontinuation or decrease has not resulted in and could not reasonably be expected to result in a Material Adverse Change.
(v)
智慧财产权. Except as otherwise disclosed in the Registration Statement or the Prospectus, the Company and its subsidiaries own, or have obtained valid and enforceable licenses for, the material inventions, patent applications, patents, trademarks, trade names, service names, copyrights, trade secrets and other intellectual property described in the Registration Statement and the Prospectus as being owned or licensed by them or, which are necessary for the conduct of their respective businesses as currently conducted or as currently proposed to be conducted (collectively, “Intellectual Property”) and, to the Company’s knowledge, the conduct of their respective businesses does not and will not infringe, misappropriate or otherwise conflict in any material respect with any such rights of others. The Intellectual Property owned or licensed by the Company has not been adjudged by a court of
10
competent jurisdiction to be invalid or unenforceable, in whole or in part, and the Company is unaware of any facts which would form a reasonable basis for any such adjudication. To the Company’s knowledge: (i) there are no third parties who have rights to any Intellectual Property, except for customary reversionary rights of third-party licensors with respect to Intellectual Property that is disclosed in the Registration Statement and the Prospectus as licensed to the Company or one or more of its subsidiaries; and (ii) there is no infringement by third parties of any Intellectual Property. Except as described in the Registration Statement or the Prospectus, there is no pending or, to the Company’s knowledge, threatened action, suit, proceeding or claim by others: (A) challenging the Company’s rights in or to any Intellectual Property, and the Company is unaware of any facts which would form a reasonable basis for any such action, suit, proceeding or claim; (B) challenging the validity, enforceability or scope of any Intellectual Property, and the Company is unaware of any facts which would form a reasonable basis for any such action, suit, proceeding or claim; or (C) asserting that the Company or any of its subsidiaries infringes or otherwise violates, or would, upon the commercialization of any product or service described in the Registration Statement or the Prospectus as under development, infringe or violate, any patent, trademark, trade name, service name, copyright, trade secret or other proprietary rights of others, and the Company is unaware of any facts which would form a reasonable basis for any such action, suit, proceeding or claim. The Company and its subsidiaries have complied in all material respects with the terms of each agreement pursuant to which Intellectual Property has been licensed to the Company or any subsidiary, and, to the Company’s knowledge, all such agreements are in full force and effect. To the Company’s knowledge, there are no material defects in any of the patents or patent applications included in the Intellectual Property. To the Company’s knowledge, the Company and its subsidiaries have taken all commercially reasonable steps to protect, maintain and safeguard their Intellectual Property, including the execution of appropriate nondisclosure, confidentiality agreements and invention assignment agreements and invention assignments with their employees, and no employee of the Company is in or has been in violation of any term relating to Intellectual Property in any employment contract, patent disclosure agreement, invention assignment agreement, non-competition agreement, non-solicitation agreement, nondisclosure agreement, or any restrictive covenant relating to any Intellectual Property to or with a former employer where the basis of such violation relates to such employee’s employment with the Company. To the Company’s knowledge, the duty of candor and good faith as required by the United States Patent and Trademark Office (the “美国专利及商标局”) during the prosecution of the United States patents and patent applications included in the Intellectual Property have been complied with; and in all foreign offices having similar requirements, all such requirements have been complied with. None of the Company owned Intellectual Property or technology (including information technology and outsourced arrangements) employed by the Company or its subsidiaries has been obtained or is being used by the Company or its subsidiary in violation of any contractual obligation binding on the Company or its subsidiaries or any of their respective officers, directors or employees or otherwise in violation of the rights of any persons. The product candidates described in the Registration Statement and the Prospectus as under development by the Company or any subsidiary fall within the scope of the claims of one or more patents owned by, or exclusively licensed to, the Company or any subsidiary.
(w)
所有必要的许可证等. Except as otherwise disclosed in the Registration Statement and the Prospectus, the Company and each subsidiary possess such valid and current certificates, authorizations or permits required by state, federal or foreign regulatory agencies or
11
bodies to conduct their respective businesses as currently conducted and as described in the Registration Statement or the Prospectus (“许可证”), except where failure to so possess would not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Change. Neither the Company nor any of its subsidiaries is in violation of, or in default under, any of the Permits or has received any notice of proceedings relating to the revocation or modification of, or non‑compliance with, any such certificate, authorization or permit, except as would not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Change.
(x)
标题转换为属性. Except as otherwise disclosed in the Registration Statement and the Prospectus, the Company and its subsidiaries have good and marketable title to all of the real and personal property and other assets reflected as owned in the financial statements referred to in Section 2(m) above or elsewhere in the Registration Statement or the Prospectus, in each case free and clear of any security interests, mortgages, liens, encumbrances, equities, adverse claims and other defects, except where failure to have such title would not be expected, individually or in the aggregate, to result in a Material Adverse Change (provided that, for the avoidance of doubt, rights to Intellectual Property are addressed exclusively in Section 2(u) above). The real property, improvements, equipment and personal property held under lease by the Company or any of its subsidiaries are held under valid and enforceable leases, with such exceptions as are not material and do not materially interfere with the use made or proposed to be made of such real property, improvements, equipment or personal property by the Company or such subsidiary.
(y)
税法遵循. The Company and its subsidiaries have timely filed all necessary federal, state and foreign income and franchise tax returns or have properly requested extensions thereof and have paid all taxes required to be timely paid by any of them and, if due and payable, any related or similar assessment, fine or penalty levied against any of them except as may be being contested in good faith and by appropriate proceedings or where failure to do so could not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Change. The Company has made adequate charges, accruals and reserves in the applicable financial statements referred to in Section 2(m) above in respect of all federal, state and foreign income and franchise taxes for all periods as to which the tax liability of the Company or any of its subsidiaries has not been finally determined, except to the extent that failure to do so would not be expected to result in a Material Adverse Change.
(z)
公司并非「投资公司」。 公司在收取股份款项或根据《Use of Proceeds》在登记声明或招股书中所述之后，不会被要求根据1940年修订版的《投资公司法案》注册为“投资公司”。”投资公司法”).
“危险物质”) or to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials (collectively, “环境法律公司及其附属公司拥有根据任何适用的环境法律所需的所有许可证、授权和批准，并且均符合其要求；对于与公司或其任何附属公司有关的任何环境法律行政、监管或司法行动、诉讼、要求、需求函、索赔、留置权、违反通知、调查或程序均没有未决事宜，或据公司所知，对公司或其任何附属公司涉及任何有害物质或任何环境法律的事件或情况，可能合理预期将成为清理或整治命令的依据，或由任何私人方或政府机构提起的诉讼或程序.
临床数据和监管合规性. The preclinical tests and clinical trials, and other studies (collectively, “studies”) that are described in, or the results of which are referred to in, the Registration Statement or the Prospectus were and, if still pending, are being conducted in all material respects in accordance with the protocols, procedures and controls designed and approved for such studies and with standard medical and scientific research procedures; each description of the results of such studies is accurate and complete in all material respects and fairly presents in all material respects the data derived from such studies, and the Company and its subsidiaries have no knowledge of any other studies the results of which are materially inconsistent with, or otherwise call into question in any material respect, the results described or referred to in the Registration Statement or the Prospectus; the Company and its subsidiaries have made all such filings and obtained all such approvals as required by the Food and Drug Administration of the U.S. Department of Health and Human Services or from any other U.S. or foreign government or drug regulatory agency, or health care facility Institutional Review Board (collectively, the “监管机构”) for the conduct of its business, except where the failure to do so would not reasonably be expected to result in a Material Adverse Change; neither the Company nor any of its subsidiaries has received any written notice of, or correspondence from, any Regulatory Agency requiring the termination or suspension of any clinical trials that are described or referred to in the Registration Statement or the Prospectus; and the Company and its subsidiaries have each operated and currently are in compliance in all material respects with all applicable rules, regulations and policies of the Regulatory Agencies.
(pp)
制裁。 Neither the Company nor any of its subsidiaries, directors, officers, or employees, nor, to the knowledge of the Company, after due inquiry, any agent, Affiliate or other person acting on behalf of the Company or any of its subsidiaries is currently the subject or the target of any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC若果或美国国务院、联合国安全理事会、欧盟、英国陛下的财政部，或其他相关制裁机构（统称「Sanctions」；亦不是公司或其任何附属公司位于、组织或居住的国家或地区受制裁对象，包括但不限于所谓的顿涅茨克人民共和国、所谓的卢甘斯克人民共和国、克里米亚地区以及乌克兰扎波尔热和赫尔松地区的非政府控制地区、古巴、伊朗、北韩和叙利亚；公司亦不会直接或间接使用本次发行的收益，或借出、投资或以其他方式提供该收益给任何附属公司、任何合资伙伴或其他人员或实体，以资助或与任何当时为制裁对象的人员、国家或地区进行业务；在此融资时，可能导致任何人（包括任何参与该交易的人，无论是承销人、顾问、投资者或其他）违反适用制裁条例的行为。过去十年来，该公司及其附属公司并未知情地与任何在交易时为政治标的者或制裁对象者，或与受制裁对象的国家或地区在业务往来或交易上有任何接触或交易。
(ii) 代理人的努力根据本协议中规定的条款和条件，在收到发行通知后，代理将尽合理商业努力，配合其正常的销售和交易惯例，将股份置放，关于代理同意充当销售代理人的股份，并根据发行通知中指明的信息，除非其中所述股份的出售根据本协议之条款已被暂停、取消或以其他方式终止。为避免疑虑，本协议各方可以随时修改发行通知，前提是他们都书面同意任何该等修改。
费用. The Company agrees to pay all costs, fees and expenses incurred in connection with the performance of its obligations hereunder and in connection with the transactions contemplated hereby, including without limitation (i) all expenses incident to the issuance and delivery of the Shares (including all printing and engraving costs); (ii) all fees and expenses of the registrar and transfer agent of the Shares; (iii) all necessary issue, transfer and other stamp taxes in connection with the issuance and sale of the Shares; (iv) all fees and expenses of the Company’s counsel, independent public or certified public accountants and other advisors; (v) all costs and expenses incurred in connection with the preparation, printing, filing, shipping
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and distribution of the Registration Statement (including financial statements, exhibits, schedules, consents and certificates of experts), the Prospectus, any Free Writing Prospectus (as defined below) prepared by or on behalf of, used by, or referred to by the Company, and all amendments and supplements thereto, and this Agreement; (vi) all filing fees, attorneys’ fees and expenses incurred by the Company or the Agent in connection with qualifying or registering (or obtaining exemptions from the qualification or registration of) all or any part of the Shares for offer and sale under the state securities or blue sky laws or the provincial securities laws of Canada, and, if requested by the Agent, preparing and printing a “蓝天调查” or memorandum and a “Canadian wrapper,” and any supplements thereto, advising the Agent of such qualifications, registrations, determinations and exemptions; (vii) the reasonable fees and disbursements of the Agent’s counsel, including the reasonable fees and expenses of counsel for the Agent in connection with, FINRA review, if any, and approval of the Agent’s participation in the offering and distribution of the Shares; (viii) the filing fees incident to FINRA review, if any; (ix) the costs and expenses of the Company relating to investor presentations on any “road show” undertaken in connection with the marketing of the offering of the Shares, including, without limitation, expenses associated with the preparation or dissemination of any electronic road show, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company, travel and lodging expenses of the representatives, employees and officers of the Company and of the Agent and any such consultants, and the cost of any aircraft chartered in connection with the road show; and (x) the fees and expenses associated with listing the Shares on the Principal Market. The fees and disbursements of Agent’s counsel pursuant to subsections (vi) and (vii) above shall not exceed (A) $75,000 in connection with the establishment of the at the market offering program due upon execution of this Agreement, (B) $25,000 in connection with each Triggering Event Date (as defined below) on which the Company files with the Commission an annual report on Form 10-k (including any Form 10-K/A containing amended financial information or a material amendment to the previously filed annual report on Form 10-K) and is required to provide a certificate pursuant to 第4(o)条款）和（C）$15,000，关于公司有义务根据第4(o)条款提供证书的每个触发事件日期。
第4节
附加契约
The Company covenants and agrees with the Agent as follows, in addition to any other covenants and agreements made elsewhere in this Agreement:
(a)
交易所法案遵从. During the Agency Period, the Company shall (i) file, on a timely basis, with the Commission all reports and documents required to be filed under Section 13, 14 or 15 of the Exchange Act in the manner and within the time periods required by the Exchange Act; and (ii) either (A) include in its quarterly reports on Form 10-Q and its annual reports on Form 10-k, a summary detailing, for the relevant reporting period, (1) the number of Shares sold through the Agent pursuant to this Agreement and (2) the net proceeds received by the Company from such sales or (B) prepare a prospectus supplement containing, or include in such other filing permitted by the Securities Act or Exchange Act (each an “中期说明书补充资料）根据本第4条款，公司应至少每季度一次并根据证券法第424(b)条递交相应的临时招股说明书补充说明文件（并在证券法第424(b)条和第4300亿条所要求的时间内递交）。
自由书面招股说明书公司应于拟定提交或使用之时间合理前期，向代理商提供拟由公司或代表公司编制、使用或参考的每份拟定的自由书面方案或其任何修改或补充副本供审查，并经代理商同意后方可提交、使用或参考拟定的自由书面方案或其任何修改或补充，代理商的同意不得不合理拒绝、设定条件或延迟。公司应向代理商免费提供由公司或代表公司编制、使用的任何自由书面方案副本，代理商可合理要求任何数量的副本。如果在《证券法》要求交付招股书之时间（包括但不限于根据第173(d)条规定要求的任何时间）内发生了或发生了一个事件或发展，由于该事件或发展使得由公司或代表公司编制、使用或参考的任何自由书面方案与注册申报书所包含的信息相冲突，或者将包含一个不实的重要信息陈述或遗漏或将遗漏一个重要信息陈述以致使该自由书面方案在该后续时间发生情况下，根据当时情况而言，读者不至于误解，公司应立即修订或补充该等自由书面方案，以排除或纠正该冲突，或使该自由书面方案经修订或补充后不包括不实的重要信息陈述，或遗漏一个重要信息陈述，使得该自由书面方案在该后续时间情况下，根据当时情况而言，读者不至于误解。 不过，前提是, that prior to amending or supplementing any such Free Writing Prospectus, the Company shall furnish to the Agent for review, a reasonable amount of time prior to the proposed time of filing or use thereof, a copy of such proposed amended or supplemented Free Writing Prospectus and the Company shall not file, use or refer to any such amended or supplemented Free Writing Prospectus without the Agent’s consent, which shall not be unreasonably withheld, conditioned or delayed.
(g)
提交代理人自由书面招股说明书。. The Company shall not take any action that would result in the Agent or the Company being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a Free Writing Prospectus prepared by or on behalf of the Agent that the Agent otherwise would not have been required to file thereunder.
(h)
登记声明书和说明书的副本. After the date of this Agreement through the last time that a prospectus is required by the Securities Act (including, without limitation, pursuant to Rule 173(d)) to be delivered in connection with sales of the Shares, the Company agrees to furnish the Agent with copies (which may be electronic copies) of the Registration Statement and each amendment thereto (which may be electronic copies), and with copies of the Prospectus and each amendment or supplement thereto in the form in which it is filed with the Commission pursuant to the Securities Act or Rule 424(b) under the Securities Act, both in such quantities as the Agent may reasonably request from time to time; and, if the delivery of a
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prospectus is required under the Securities Act or under the blue sky or securities laws of any jurisdiction at any time on or prior to the applicable Settlement Date for any period set forth in an Issuance Notice in connection with the offering or sale of the Shares and if at such time any event has occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it is necessary during such same period to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, to notify the Agent and to request that the Agent suspend offers to sell Shares (and, if so notified, the Agent shall cease such offers as soon as practicable); and if the Company decides to amend or supplement the Registration Statement or the Prospectus as then amended or supplemented, to advise the Agent promptly by telephone (with confirmation in writing) and to prepare and cause to be filed promptly with the Commission an amendment or supplement to the Registration Statement or the Prospectus as then amended or supplemented that will correct such statement or omission or effect such compliance; provided, however, that if during such same period the Agent is required to deliver a prospectus in respect of transactions in the Shares, the Company shall promptly prepare and file with the Commission such an amendment or supplement.
(B) the filing with the Commission of an annual report on Form 10-k or a quarterly report on Form 10-Q (including any Form 10-K/A or Form 10-Q/A containing amended financial information or a material amendment to the previously filed annual report on Form 10-k or quarterly report on Form 10-Q), in each case, of the Company; or
(C) the filing with the Commission of a current report on Form 8-k of the Company (i) containing amended financial information (other than information “furnished” pursuant to Item 2.02 or 7.01 of Form 8-k or to provide disclosure pursuant to Item 8.01 of Form 8-k relating to reclassification of certain properties as discontinued operations in accordance with Statement of Financial Accounting Standards No. 144) and/or (ii) disclosing any material transaction requiring the filing of historical or pro forma financial statements under Item 9.01 of Form 8-k and subject to the guidance set forth in Section 2050.3 of the Financial Reporting Manual of the Commission which is material to the offering of securities of the Company in the Agent’s reasonable discretion;
（这样的事件称为“触发事件日期”), the Company shall furnish the Agent (but in the case of clause (C) above only if the Agent reasonably determines that the information contained in such current report on Form 8-k of the Company is material) with a certificate as of the
26
Triggering Event Date, in the form and substance satisfactory to the Agent and its counsel, substantially similar to the form previously provided to the Agent and its counsel, modified, as necessary, to relate to the Registration Statement and the Prospectus as amended or supplemented, (A) confirming that the representations and warranties of the Company contained in this Agreement are true and correct, (B) confirming that the Company has performed all of its obligations hereunder to be performed on or prior to the date of such certificate and as to the matters set forth in 第5条(a)(iii)款 此。 第4(o)条 条款自动免除在无待发行通知或暂停生效时发生的任何触发事件日期；该豁免将继续，直到公司交付说明因此出售股份的日期（对于该行事历季度将被视为触发事件日期）和下一次发生的触发事件日期之早一日。尽管前述，如果公司后来决定在暂停生效期间跟随曾暂停生效且未向代理人提供本4(o)条证书的触发事件日期后出售股份，则在公司交付股份出售说明或代理人根据此类说明出售任何股份之前，公司应向代理人提供符合本4(o)条的证书，其日期为发出股份出售指示的日期。
代理商的补偿公司同意赔偿并保护代理人、其主管和员工，以及在证券法或交易法含义下控制代理人的每个人，以防代理人或该等主管、员工或控制人可能根据证券法、交易法、其他联邦或州法律或法规，或在股票提供或销售的外国司法管辖区法律或法规，或按普通法或其他形式 (包括对任何诉讼内容的解决)，因此招致的损失、索赔、损伤、责任或费用，概括已发生的，在遵守上述法律或法规的损失、索赔、损害、责任或费用(或涉及的行动)，源于或基于以下情况：(i)注册声明书中一个不实陈述或被指称的不实陈述的重要事实，也包括根据证券法规4300亿条规定的信息，或是要求在其中陈述但未予陈述或需要使其中的陈述不具误导性的重要事实，或从其中的遗漏或被指控遗留的重要事实；(ii)在公司已使用、参考或档案的任何自由书面招股说明中不实陈述 或被指控的不实陈述事实，或根据证券法第433(d)条或招股说明规定 (包括任何修改或补充资料)的隐瞒或被指控的隐瞒的重要事实，在发布时审慎考虑情况后进行负面陈述，要针对造成该陈述的情况补充材料，以免其具有误导性；(iii)代理人在关于或与本次发行有关的任何行为或未行为，或被指控的行为或未行为中，若涉及到任何由第(i)或(ii)条款中涵盖或涉及的问题而引发的任何损失、索赔、损害、责任或诉讼行动，即提供一直是其一部分或指涉切As的任何行动，但前提是，公司在法院有决定指出，最终裁决认定该等损失、索赔、损害、责任或行动是在涉及从未采取过或没有采取的行为或失误中进行的虚伪或故意失误所产生，并赔偿代理人及每位主管、员工和控制人所涉及的任何及所有已记录的费用(包括代理人选定的律师的合理及已记录费用和支出)，其协同在研究、辩护、解决、妥协或支付该等损失、索赔、损害、责任、费用或行动中进行合理支出；但是，应理解此赔偿协议不适用于任何损失、索赔、损害、责任或费用，只要是部分、但仅部分，出于依据及符合代理人明确提供给公司，特别用于注册声明书、任何该自由书面招股说明或招股说明(或其修改或补充资料)，应遵循和符合书面信息而产生的不实陈述或被指控的不实陈述或遗漏或被指称遗漏，明白并同意，代理人向公司提供的唯一这样的信息，就是招股说明中代理人的名称。 在本授权书中设置的赔偿协议如下所述。 第6(a)条款 shall be in addition to any liabilities that the Company may otherwise have.
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(b)
公司、董事和官员的赔偿. The Agent agrees to indemnify and hold harmless the Company, each of its directors, each of its officers who signed the Registration Statement and each person, if any, who controls the Company within the meaning of the Securities Act or the Exchange Act against any loss, claim, damage, liability or expense, as incurred, to which the Company or any such director, officer or controlling person may become subject, under the Securities Act, the Exchange Act, other federal or state statutory law or regulation, or the laws or regulations of foreign jurisdictions where Shares have been offered or sold or at common law or otherwise (including in settlement of any litigation), and which arises out of or is based upon (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, or any amendment thereto, including any information deemed to be a part thereof pursuant to Rule 4300亿under the Securities Act, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading; or (ii) any untrue statement or alleged untrue statement of a material fact contained in any Free Writing Prospectus that the Company has used, referred to or filed, or is required to file, pursuant to Rule 433(d) of the Securities Act or the Prospectus (or any amendment or supplement thereto), or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; but, for each of (i) and (ii) above, only to the extent arising out of or based upon any untrue statement or alleged untrue statement or omission or alleged omission made in reliance upon and in conformity with written information furnished to the Company by the Agent expressly for use in the Registration Statement, any such Free Writing Prospectus or the Prospectus (or any amendment or supplement thereto), it being understood and agreed that only such information furnished by the Agent to the Company consists of the information set forth in the first sentence of the ninth paragraph under the caption “Plan of Distribution” in the Prospectus, and to reimburse the Company and each such director, officer and controlling person for any and all documented expenses (including the reasonable and documented fees and disbursements of counsel chosen by the Company) as such expenses are reasonably incurred by the Company or such officer, director or controlling person in connection with investigating, defending, settling, compromising or paying any such loss, claim, damage, liability, expense or action. The indemnity agreement set forth in this 第6(b)节 应该加上代理人或公司可能有的任何其他责任。
结算。根据本 第6条 shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party against any loss, claim, damage, liability or expense by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by 第6(c)条款 就此，赔偿方同意，如未经赔偿方书面同意，进行的任何解决程序在收到上述要求后超过三十（30）个日历日后进行，且赔偿方在该解决日期之前未按照该要求对赔偿方进行赔偿，则赔偿方应对任何该解决所引起的责任负责。赔偿方不得在没有获得赔偿方事先书面同意的情况下，解决、妥协或同意在任何已在审理或威胁的行动、诉讼或程序中，赔偿方是或本应是一方且可根据本法律向该赔偿方寻求赔偿，在该解决、妥协或同意包括对此类行动、诉讼或程序的主题所提出的所有索赔给予该赔偿方无条件释放。
(e)
贡献. If the indemnification provided for in this 第6条 若因任何原因导致赔偿方无法或无法足够保证对任何损失、索赔、损害、责任或费用进行免责，则每个赔偿方应按照适当反映公司与代理商享有的相对利益比例，向因前述损失、索赔、损害、责任或费用而支付或可支付的总额作出贡献，如因此带来的损失、索赔、损害、责任或费用；（i）在这些比例中分配不适用于适用法律，则按照有关的比例，适当反映公司一方与代理商一方就导致该损失、索赔、损害、责任或费用的声明或遗漏之相对错误，以及任何其他相关的公平考虑。
(ii) In addition to the survival provision of 第七条第(b)(i)条款, the respective indemnities, agreements, representations, warranties and other statements of the Company, of its officers and of the Agent set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any investigation made by or on behalf of the Agent or the Company or any of its or their partners, officers or directors or any controlling person, as the case may be, and, anything herein to the contrary notwithstanding, will survive delivery of and payment for the Shares sold hereunder and any termination of this Agreement.
第八节。
MISCELLANEOUS
(a)
新闻稿和披露. The Company may issue a press release describing the material terms of the transactions contemplated hereby promptly following the date of this Agreement, and may file with the Commission a Current Report on Form 8‑k, with this Agreement attached as an exhibit thereto, describing the material terms of the transactions contemplated hereby, and the Company shall consult with the Agent prior to making such disclosures, and the parties hereto shall use all commercially reasonable efforts, acting in good faith, to agree upon a text for such disclosures that is reasonably satisfactory to all parties hereto. No party hereto shall issue thereafter any press release or like public statement (including, without limitation, any disclosure required in reports filed with the Commission pursuant to the Exchange Act, other than disclosure related to entry into this Agreement or related to periodic sales pursuant to this Agreement as required to be included in any reports filed with the Commission pursuant to the Securities Act or Exchange Act) related to this Agreement or any of the transactions contemplated hereby without the prior written approval of the other party hereto, except as may be necessary or appropriate in the reasonable opinion of the party seeking to make disclosure to comply with the requirements of applicable law or stock exchange rules. If any such press release or like public statement is so required, the party making such disclosure shall consult with the other party prior to making such disclosure, and the parties shall use all commercially reasonable efforts, acting in good faith, to agree upon a text for such disclosure that is reasonably satisfactory to all parties hereto.
部分强制力
. The invalidity or unenforceability of any Article, Section, paragraph or provision of this Agreement shall not affect the validity or enforceability of any other Article, Section, paragraph or provision hereof. If any Article, Section, paragraph or provision of this Agreement is for any reason determined to be invalid or unenforceable, there shall be deemed to be made such minor changes (and only such minor changes) as are necessary to make it valid and enforceable.
管辖法律规定. This Agreement shall be governed by and construed in accordance with the internal laws of the State of New York applicable to agreements made and to be performed in such state. Any legal suit, action or proceeding arising out of or based upon this Agreement or the transactions contemplated hereby may be instituted in the federal courts of the United States of America located in the Borough of Manhattan in the City of New York or the courts of the State of New York in each case located in the Borough of Manhattan in the City of New York (collectively, the “指定法院”), and each party irrevocably submits to the exclusive jurisdiction (except for proceedings instituted in regard to the enforcement of a judgment of any such court, as to which such jurisdiction is non-exclusive) of such courts in any such suit, action or proceeding. Service of any process, summons, notice or document by mail to such party’s address set forth above shall be effective service of process for any suit, action or other proceeding brought in any such court. The parties irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or other proceeding in the Specified Courts and irrevocably and unconditionally waive and agree not to plead or claim in any such court that any such suit, action or other proceeding brought in any such court has been brought in an inconvenient forum.