Limitations on Form S-3 Registration The Company shall not be obligated to effect, or take any action to effect, any such registration pursuant to this Section 2.3:
Amendments to Registration Statement The Company shall deliver to the Representative, prior to filing, any amendment or supplement to the Registration Statement or Prospectus proposed to be filed after the Effective Date and not file any such amendment or supplement to which the Representative shall reasonably object in writing.
Amendments to Registration Rights Agreement The Parties hereby agree to the following amendments to the Registration Rights Agreement:
Effect of Failure to File and Obtain and Maintain Effectiveness of Registration Statement The parties hereto agree that the Investors will suffer damages if the Company fails to fulfill its obligations under this Section 2 and that, in such case, it would not be feasible to ascertain the extent of such damages with precision. Subject to Section 2.b, if (i) a Registration Statement covering all of the Registrable Securities required to be covered thereby and required to be filed by the Company pursuant to this Agreement is (A) not filed with the SEC on or before the Filing Deadline (a “Filing Failure”) or (B) not declared effective by the SEC on or before the Effectiveness Deadline (an “Effectiveness Failure”); or (ii) on any day after the Effective Date, sales of all of the Registrable Securities required to be included on such Registration Statement cannot be made (other than (x) during an Allowable Grace Period (as defined in Section 3.p) or (y) if the Registration Statement is on Form S-1, for a period of fifteen (15) days following the date on which the Company files a post-effective amendment to incorporate the Company’s Annual Report on Form 10-K) pursuant to such Registration Statement (including, without limitation, because of a failure to keep such Registration Statement effective, failure to disclose such information as is necessary for sales to be made pursuant to such Registration Statement or failure to register a sufficient number of shares of Common Stock) (a “Maintenance Failure” and, any Maintenance Failure, Filing Failure or Effectiveness Failure, a “Registration Default”) then, as partial relief for the damages to any holder of Registrable Securities by reason of any such delay in or reduction of its ability to sell the underlying shares of Common Stock (which remedy shall not be exclusive of any other remedies available at law or in equity) and not as a penalty, the Company shall pay to each holder of Registrable Securities, aggregate additional interest on the principal amount of the outstanding Convertible Note in the amounts described below (the “Additional Interest”) (and all outstanding shares of Common Stock to the extent the Convertible Note has been converted prior to the occurrence of the Registration Default and such shares of Common Stock remain Registrable Securities); provided that any payment on shares of Common Stock will be calculated based on, as applicable (A) the principal amount of the Convertible Note as a result of conversion of which such shares of Common Stock have been issued or (B) the value of the Warrant as a result of exercise of which such shares of Common Stock have been issued; provided further that any such Additional Interest will cease to accrue to holders hereunder and under the Purchase Agreement and the other Transaction Documents when any such Registration Default will cease, be remedied or be cured. The Company will pay any Additional Interest as set forth in, and subject to the terms and conditions of, the Purchase Agreement and the other Transaction Documents. In the event of a Filing Failure, the Company shall pay Additional Interest in the amount of (i) 5.0% of the principal amount outstanding on the Convertible Note during the period between the Filing Deadline and the 75th day thereafter, for as long as the Filing Failure continues, (ii) 10.0% of the principal amount outstanding on the Convertible Note during the period beginning on the 76th day after the Filing Deadline and the 120th day thereafter, for as long as the Filing Failure continues, and (iii) 12.0% thereafter for as long as the Filing Failure continues. In the event of an Effectiveness Failure, the Company shall pay Additional Interest in the amount of (i) 5.0% of the principal amount outstanding on the Convertible Note during the period between the Effectiveness Deadline and the 45th day thereafter, for as long as the Effectiveness Failure continues, (ii) 10.0% of the principal amount outstanding on the Convertible Note during the period beginning on the 46th day after the Effectiveness Deadline and 75th day thereafter, for as long as the Effectiveness Failure continues, and (iii) 12.0% thereafter for as long as the Effectiveness Failure continues.
Registration on Request (i) At any time (x) after the third anniversary of the date of the Closing, upon the written request of Shareholders holding in the aggregate 40% of all Registrable Securities then held by Shareholders (assuming for this purpose exercise of all outstanding Warrants) or (y) after an initial public offering, upon the written request of Shareholders holding in the aggregate 10% of all Registrable Securities then held by Shareholders (assuming for this purpose the exercise of all outstanding Warrants) (such Shareholders being referred to as the “Requesting Holders”), the Requesting Holders may request that the Company either (i) effect the registration under the Securities Act for an underwritten public offering of all or part of the Registrable Securities held by them (the “Single Registration Option”), (ii) effect the registration of all or any of their Registrable Securities by filing a registration statement under the Securities Act (the “Shelf Registration Statement”) which provides for the sale by the Requesting Holders of their Registrable Securities from time to time in underwritten public offerings pursuant to Rule 415 under the Securities Act (the “Shelf Option”), or (iii) permit the sale of Registrable Securities that are already included in an effective Shelf Registration Statement pursuant to an underwritten public offering (the “Takedown Option”); provided, however, that the Requesting Holders may not elect the Shelf Option or the Takedown Option if the request thereunder is in connection with or would constitute an initial public offering. Upon receipt of such request, the Company will promptly give written notice to all other holders of Registrable Securities (the “Other Holders”) that a request for registration or for a takedown has been received. For a period of 10 days (or two Business Days in the case of a Takedown Option request) following receipt of such notice, the Other Holders may request that the Company also register their Registrable Securities (or include Registrable Securities in such takedown) and the Company may determine to include its authorized and unissued securities in such registration or takedown. The failure of any Other Holder to affirmatively indicate its intent to include its Registrable Securities in such registration or takedown shall be deemed a waiver of any right to so include such Registrable Securities in such registration statement or takedown. After the expiration of such 10-day period or two-Business Day period, as the case may be, the Company shall notify all holders of the number of Registrable Securities to be registered or included. Subject to the provisions of this Section 3, in the case of either the Single Registration Option or the Shelf Option, the Company shall use its reasonable best efforts to cause the prompt registration under the Securities Act of (A) the Registrable Securities that the Requesting Holders and the Other Holders have requested the Company to register, and (B) all other securities that the Company has determined to register, and in connection therewith will prepare and file a registration statement under the Securities Act to effect such registration. Such registration statement shall be on such appropriate registration form of the Commission as shall be selected by the Company, and such selection shall be reasonably acceptable to the holders of a majority of the aggregate Registrable Securities to be sold by the Requesting Holders. Subject to the provisions of this Section 3, in the case of a Takedown Option, the Company shall use its reasonable best efforts to cause all Registrable Securities so requested to be included in such underwritten public offering and shall prepare and file any prospectus supplement reasonably necessary to effectuate a takedown. Notwithstanding the foregoing, the Company will not be required to file a registration statement or proceed with a takedown in any of the following situations:
Amendment to Registration Rights Agreement The Registration Rights Agreement is hereby amended as follows:
Filing and Effectiveness of Registration Statement; Certain Defined Terms The Company has filed with the Commission a registration statement on Form S-3 (File No. 333-216864) covering the registration of the Offered Securities under the Act, including a related preliminary prospectus or prospectuses. At any particular time, this initial registration statement, as amended, in the form then on file with the Commission, including all material then incorporated by reference therein, all information contained in the registration statement (if any) filed pursuant to Rule 462(b) and then deemed to be a part of the initial registration statement, and all 430A Information, all 430B Information and all 430C Information, if any, that in any case has not then been superseded or modified, shall be referred to as the “Initial Registration Statement”. The Company may also have filed, or may file with the Commission, a Rule 462(b) registration statement covering the registration of Offered Securities. At any particular time, this Rule 462(b) registration statement, in the form then on file with the Commission, including the contents of the Initial Registration Statement incorporated by reference therein and including all 430A Information, all 430B Information and all 430C Information, if any, that in any case has not then been superseded or modified, shall be referred to as the “Additional Registration Statement”. As of the time of execution and delivery of this agreement (this “Agreement”), the Initial Registration Statement has been declared effective under the Act and is not proposed to be amended, and no stop order suspending the effectiveness of the Initial Registration Statement has been issued by the Commission and to the knowledge of the Company no proceedings for that purpose have been instituted or threatened by the Commission. Any Additional Registration Statement has or will become effective upon filing with the Commission pursuant to Rule 462(b) and is not proposed to be amended. The Offered Securities all have been or will be duly registered under the Act pursuant to the Initial Registration Statement and, if applicable, the Additional Registration Statement. For purposes of this Agreement:
