NOW, THEREFORE, in consideration of the premises set forth above and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree that the Agreement is hereby amended as provided below:
Section 1. Representation and Warranty. The Company represents and warrants to the Sales Agent[, the Forward Seller and the Forward Purchaser] that this Amendment has been duly authorized, executed and delivered by, and is a valid and binding agreement of, the Company.
Section 2. Amendment of the Agreement. The Agreement is hereby amended as follows:
a) On and after the Effective Date, the references in the Agreement to the “Registration Statement” shall refer to the 2021 Registration Statement.
b) On and after the Effective Date, the references in the Agreement to “Prospectus Supplement” shall refer to the 2021 Prospectus Supplement.
c) The first sentence of the second paragraph of Section 3.01 is hereby amended to reflect the filing of the 2021 Registration Statement and replaced in its entirety by the following:
The Company has filed with the Commission an automatic shelf registration statement on Form S-3 (No. 333-257074), including the related preliminary prospectus or prospectuses.
d) The first sentence of the first paragraph of Section 3.03 is hereby amended to reflect the filing of the 2021 Registration Statement and replaced in its entirety by the following:
The Original Registration Statement became effective upon filing under Rule 462(e) under the Securities Act on June 14, 2021, and any post-effective amendment thereto also became effective upon filing under Rule 462(e) under the Securities Act.
e) This Amendment shall be effective as of the Effective Date.
Section 3. Entire Agreement. The Agreement, as amended by this Amendment, represents the entire agreement between the Company, on the one hand, and the Sales Agent, [the Forward Seller and the Forward Purchaser,] on the other hand, with respect to the subject matter thereof and hereof.
Section 4. Prior Sales. Notwithstanding anything contained herein, this Amendment shall not have any effect on offerings or sales of Shares prior to the Effective Date or on the terms of the Agreement, and the rights and obligations of the parties thereunder, insofar as they relate to such offerings or sales, including, without limitation, the representations, warranties and agreements (including the indemnification and contribution provisions), as well as the definitions of “Registration Statement” and “Prospectus Supplement,” contained in the Agreement prior to the Effective Date.
Section 5. Governing Law; Jurisdiction. THIS AMENDMENT SHALL BE GOVERNED BY, INTERPRETED UNDER AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED WITHIN THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAWS THEREOF. Any action, suit or proceeding to enforce any provision of, or based on any matter arising out of or in connection with, this Amendment or the transactions contemplated hereby shall be brought in any federal court located in the Southern District of the State of New York or any New York state court located in the Borough of Manhattan, and the Company agrees to the exclusive jurisdiction of such courts (and of the appropriate appellate courts therefrom) and each party hereto waives (to the full extent permitted by law) any objection it may have to the laying of venue of any such suit, action or proceeding in any such court or that any such suit, action or proceeding has been brought in an inconvenient forum.
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