Common use of Blackout Period Clause in Contracts

Blackout Period. Notwithstanding anything in this Agreement to the contrary, if the filing of the Shelf Registration Statement or the Prospectus as required in Section 2.01(a) or the continued use of such Shelf Registration Statement at any time would, in the good faith judgment of the Company, require the Company to make an Adverse Disclosure, the Company shall be entitled to delay the filing of the Shelf Registration Statement or Prospectus or suspend use of the Shelf Registration Statement or Prospectus for a reasonable period of time (in the case of any suspension of the use of the Shelf Registration Statement or Prospectus, such suspension shall not exceed thirty (30) days in each instance), from time to time, but in no event more than twice during any six (6) month period (a “Blackout Period”); provided, however, that the Company shall give written notice to the Participating Holders of its determination to impose a Blackout Period as promptly as practicable and of its determination to lift a Blackout Period. Upon notice by the Company to the Participating Holders of any such determination, each Participating Holder shall keep the fact of any such notice strictly confidential and, during any Blackout Period, promptly halt any offer, sale, trading or transfer by it of any Participating Shares pursuant to the Shelf Registration Statement or Prospectus for the duration of the Blackout Period set forth in such notice (or until such Blackout Period shall be earlier terminated in writing by the Company) and promptly halt any use, publication, dissemination or distribution of any Prospectus covering any Participating Shares for the duration of the Blackout Period and, if so directed by the Company, shall deliver to the Company any copies then in its possession of any such Prospectus.

Blackout Period. Notwithstanding anything in this Agreement to the contrary, if the filing (a) The obligations of the Shelf Company to take the actions contemplated by Section 3.01, Section 3.02 and Section 3.04 hereof will be suspended (i) upon the receipt of comments from the SEC on any document incorporated by reference in the Registration Statement or (ii) if compliance with such obligations would (A) violate applicable Law or otherwise prevent the Prospectus as required in Section 2.01(aCompany from complying with applicable Law, (B) require the Company to disclose a financing, acquisition, disposition or other transaction or corporate development (other than the continued use contemplated offering), and the chief executive officer of such Shelf Registration Statement at any time wouldthe Company has determined, in the good faith judgment exercise of his reasonable business judgment, that such disclosure is not in the best interests of the Company, (C) otherwise require premature disclosure of information the disclosure of which, the chief executive officer of the Company to make an Adverse Disclosurehas determined, in the Company shall be entitled to delay good faith exercise of his reasonable business judgment, is not in the filing best interests of the Shelf Registration Statement Company, or Prospectus or suspend use of (D) otherwise represent an undue hardship for the Shelf Registration Statement or Prospectus for a reasonable period of time (in the case of any suspension of the use of the Shelf Registration Statement or Prospectus, such suspension shall not exceed thirty (30) days in each instance), from time to time, but in no event more than twice during any six (6) month period (a “Blackout Period”)Company; provided, however, that any and all such suspensions pursuant to this Section 3.06 will not exceed 90 consecutive days or a total of 120 days in the aggregate in any 12-month period (any period during which such obligations are suspended, a “Deferral Period”). The Company will promptly give the Investors’ Representative written notice of any such suspension containing the approximate length of the anticipated delay, and the Company shall give written notice to will notify the Participating Holders Investors upon the termination of its determination to impose a Blackout Period as promptly as practicable and of its determination to lift a Blackout any Deferral Period. Upon receipt of any notice by from the Company to the Participating Holders of any such determinationDeferral Period, each Participating Holder of the Investors shall keep forthwith discontinue disposition of the fact of any such notice strictly confidential and, during any Blackout Period, promptly halt any offer, sale, trading or transfer by it of any Participating Shares Registrable Securities pursuant to the Shelf Registration Statement or Prospectus for relating thereto until the duration Investors’ Representative receives copies of the Blackout Period set forth in such notice (supplemented or amended prospectus contemplated hereby or until such Blackout Period shall be earlier terminated they are advised in writing by the Company) Company that the use of the prospectus may be resumed and promptly halt any use, publication, dissemination or distribution have received copies of any Prospectus covering any Participating Shares for additional or supplemented filings that are incorporated by reference in the duration of the Blackout Period prospectus, and, if so directed by the Company, shall the Investors will, and will request the lead Underwriter or Underwriters, if any, to, deliver to the Company any copies all copies, other than permanent file copies, then in its the Investors’ or such Underwriter’s or Underwriters’ possession of the current prospectus covering such Registrable Securities. (b) The parties hereto further agree and acknowledge that any suspension or non-use of the Registration Statement due to the updating of the Registration Statement to include any financial statement the Registration Statement is required to contain (the “Required Financial Statements”) shall not be deemed to be a suspension for purposes of Section 3.06(a), unless and until the seven business day period referenced in Section 3.06(c) shall have passed without the updating of financial statements required by Section 3.06(c). (c) The Company shall use its commercially reasonable efforts to update the Registration Statement on each date on which it shall be necessary to do so to cause the Registration Statement to contain the Required Financial Statements; provided, however, that, with respect to any financial period ending after the Effective Date, the Company shall not be obligated to update the Required Financial Statements pursuant to Section 3.06(b) and shall not be deemed to be in default under this sentence until seven business days after (or such Prospectusearlier date as may be reasonably practicable) the date upon which such updated financial statements are required to be filed with the SEC.

Blackout Period. Notwithstanding anything Parent shall be entitled to (x) defer any registration of Registrable Securities and shall have the right not to file and not to cause the effectiveness of any registration covering any Registrable Securities, (y) suspend the use of any prospectus and registration statement covering any Registrable Securities and (z) require the Investor of Registrable Securities to suspend any offerings or sales of Registrable Securities pursuant to a registration statement, (i) upon the receipt of comments from the SEC on any document incorporated by reference in this Agreement to the contraryRegistration Statement, if the filing effect of such comments were to indicate that such document was materially misleading, until it has received copies of a corrective supplemented or amended prospectus (it being understood that Parent hereby covenants to prepare and file such supplement or amendment as soon as practicable after the Shelf Registration Statement or the Prospectus as required in Section 2.01(atime of such notice) or (ii) if compliance with such obligations would (A) violate applicable Law or otherwise prevent Parent from complying with applicable Law, (B) require Parent to disclose a bona fide and material financing, acquisition, disposition or other transaction or corporate development (other than the continued use contemplated offering), and the chief executive officer of such Shelf Registration Statement at any time wouldParent has determined, in the good faith judgment exercise of his reasonable business judgment, that such disclosure is not in the Companybest interest of Parent, or (C) upon advice of counsel, otherwise require premature disclosure of information the Company to make an Adverse Disclosuredisclosure of which, the Company shall be entitled to delay the filing chief executive officer of the Shelf Registration Statement or Prospectus or suspend use of the Shelf Registration Statement or Prospectus for a reasonable period of time (Parent has determined, in the case good faith exercise of any suspension his reasonable business judgment, is not in the best interests of the use of the Shelf Registration Statement or Prospectus, such suspension shall not exceed thirty (30) days in each instance), from time to time, but in no event more than twice during any six (6) month period (a “Blackout Period”)Parent; provided, however, that such suspensions pursuant to this Section 2.06 will occur on no more than one occasion during every 180-day period and any and all such suspensions will not exceed a total of 90 days in the Company shall aggregate in any 12-month period (any period during which such obligations are suspended, a “Deferral Period”). Parent will promptly give the Investors written notice to of any such suspension containing the Participating Holders approximate length of its determination to impose a Blackout Period as promptly as practicable the anticipated delay, and Parent will notify the Investors’ Representative upon the termination of its determination to lift a Blackout any Deferral Period. Upon notice by the Company to the Participating Holders receipt of any such determinationnotice from Parent of any Deferral Period, each Participating Holder of the Investors shall keep forthwith discontinue disposition of the fact of any such notice strictly confidential and, during any Blackout Period, promptly halt any offer, sale, trading or transfer by it of any Participating Shares Registrable Securities pursuant to the Shelf Registration Statement or Prospectus for relating thereto until the duration Investors’ Representative receives copies of the Blackout Period set forth in such notice (supplemented or amended prospectus contemplated hereby or until such Blackout Period shall be earlier terminated they are advised in writing by Parent that the Company) use of the prospectus may be resumed and promptly halt any use, publication, dissemination or distribution have received copies of any Prospectus covering any Participating Shares for additional or supplemented filings that are incorporated by reference in the duration of the Blackout Period prospectus, and, if so directed by Xxxxxx, the CompanyInvestors will, shall and will request the lead Underwriter or Underwriters, if any, to, deliver to the Company any copies Parent all copies, other than permanent file copies, then in its the Investors’ or such Underwriter’s or Underwriters’ possession of the current prospectus covering such Registrable Securities. If Parent so postpones its obligations, the requesting Investor shall be entitled to withdraw such request in writing and, if such request is so withdrawn, such registration request shall not count for the purposes of the limitations set forth in Section 2.01. Parent shall pay all expenses incurred in connection with any such Prospectusaborted registration or prospectus and such expenses shall be disregarded for purposes of calculating the Cap. (a) The parties hereto further agree and acknowledge that any suspension or non-use of the Registration Statement due to the updating of the Registration Statement to include any financial statement the Registration Statement is required to contain (the “Required Financial Statements”) shall not be deemed to be a suspension for purposes of Section 2.06(a), unless and until the seven business day period referenced in Section 2.06(c) shall have passed without the updating of financial statements required by Section 2.06(c). (b) Parent shall use its commercially reasonable efforts to update the Registration Statement on each date on which it shall be necessary to do so to cause the Registration Statement to contain the Required Financial Statements; provided, however, that, with respect to any financial period ending after the date of this Agreement, Parent shall not be obligated to update the Required Financial Statements pursuant to Section 2.06(b) and shall not be deemed to be in default under this sentence until seven business days after (or such earlier date as may be reasonably practicable) the date upon which such updated financial statements are required to be filed with the SEC. (c) The R Investor Group may not, without Parent’s prior written consent, submit any Demand Notice requesting to launch an Underwritten Offering within the period commencing 14 days prior to and ending two days following Parent’s scheduled earnings release date for any fiscal quarter or year.

Blackout Period. Notwithstanding anything in this Agreement to the contrary, if the filing (a) The obligations of the Shelf Company to take the actions contemplated by Section 2.01, Section 2.02 and Section 2.04 hereof will be suspended (i) upon the receipt of comments from the SEC on any document incorporated by reference in the Registration Statement or (ii) if compliance with such obligations would (A) violate applicable Law or otherwise prevent the Prospectus as required in Section 2.01(aCompany from complying with applicable Law, (B) require the Company to disclose a financing, acquisition, disposition or other transaction or corporate development (other than the continued use of such Shelf Registration Statement at any time wouldcontemplated offering), and the Board has determined, in the good faith judgment exercise of its reasonable business judgment, that such disclosure is not in the best interests of the Company, (C) otherwise require premature disclosure of information the Company to make an Adverse Disclosuredisclosure of which, the Company shall be entitled to delay Board has determined, in the filing good faith exercise of its reasonable business judgment, is not in the best interests of the Shelf Registration Statement Company, or Prospectus or suspend use of (D) otherwise represent an undue hardship for the Shelf Registration Statement or Prospectus for a reasonable period of time (in the case of any suspension of the use of the Shelf Registration Statement or Prospectus, such suspension shall not exceed thirty (30) days in each instance), from time to time, but in no event more than twice during any six (6) month period (a “Blackout Period”)Company; provided, however, that any and all such suspensions pursuant to this Section 2.06 will not exceed 90 consecutive days or a total of 120 days in the aggregate in any 12-month period (any period during which such obligations are suspended, a “Deferral Period”). The Company will promptly give the CB Investors’ Representative written notice of any such suspension containing the approximate length of the anticipated delay, and the Company shall give written notice to will notify the Participating Holders CB Investors upon the termination of its determination to impose a Blackout Period as promptly as practicable and of its determination to lift a Blackout any Deferral Period. Upon receipt of any notice by from the Company to the Participating Holders of any such determinationDeferral Period, each Participating Holder of the CB Investors shall keep forthwith discontinue disposition of the fact of any such notice strictly confidential and, during any Blackout Period, promptly halt any offer, sale, trading or transfer by it of any Participating Shares Registrable Securities pursuant to the Shelf Registration Statement or Prospectus for relating thereto until the duration CB Investors’ Representative receives copies of the Blackout Period set forth in such notice (supplemented or amended prospectus contemplated hereby or until such Blackout Period shall be earlier terminated they are advised in writing by the Company) Company that the use of the prospectus may be resumed and promptly halt any use, publication, dissemination or distribution have received copies of any Prospectus covering any Participating Shares for additional or supplemented filings that are incorporated by reference in the duration of the Blackout Period prospectus, and, if so directed by the Company, shall the CB Investors will, and will request the lead Underwriter or Underwriters, if any, to, deliver to the Company any copies all copies, other than permanent file copies, then in its the CB Investors’ or such Underwriter’s or Underwriters’ possession of the current prospectus covering such Registrable Securities. (b) The parties hereto further agree and acknowledge that any suspension or non-use of the Registration Statement due to the updating of the Registration Statement to include any financial statement the Registration Statement is required to contain (the “Required Financial Statements”) shall not be deemed to be a suspension for purposes of Section 2.06(a), unless and until the seven business day period referenced in Section 2.06(c) shall have passed without the updating of financial statements required by Section 2.06(c). (c) The Company shall use its commercially reasonable efforts to update the Registration Statement on each date on which it shall be necessary to do so to cause the Registration Statement to contain the Required Financial Statements; provided, however, that, with respect to any financial period ending after the Effective Date, the Company shall not be obligated to update the Required Financial Statements pursuant to Section 2.06(b) and shall not be deemed to be in default under this sentence until seven business days after (or such Prospectusearlier date as may be reasonably practicable) the date upon which such updated financial statements are required to be filed with the SEC.

Blackout Period. Notwithstanding anything (a) The Company’s obligations pursuant to Section 3.01, Section 3.02 and Section 3.03 hereof will be suspended (including any obligation to pay Liquidated Damages) (1) upon the receipt of comments from the SEC on any document incorporated by reference in this Agreement to the contrary, if the filing of the Shelf Registration Statement or (2) if compliance with such obligations would (a) violate applicable Law or otherwise prevent the Prospectus as required in Section 2.01(aCompany from complying with applicable Law, (b) require the Company to disclose a financing, acquisition, disposition or other corporate development, and the continued use chief executive officer of such Shelf Registration Statement at any time wouldthe Company has determined, in the good faith judgment exercise of his reasonable business judgment, that such disclosure is not in the best interests of the Company, (c) require the Company to make changes in the Registration Statement in order that the Registration Statement not contain an Adverse Disclosureuntrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, (d) otherwise require premature disclosure of information the disclosure of which, the Company shall be entitled to delay the filing chief executive officer of the Shelf Company has determined, in the good faith exercise of his reasonable business judgment, is not in the best interests of the Company, or (e) otherwise represent an undue hardship for the Company; provided that (i) any and all such suspensions pursuant to clause (1) will not exceed 120 days in the aggregate in any 12-month period and (ii) any and all such suspensions pursuant to clause (2)(b), (2)(c), (2)(d) or (2)(e) will not exceed 120 days in the aggregate in any 12-month period; provided that any suspensions attributable to clause 2(e) will not extend beyond 90 days (any such period, a “Deferral Period”). The Company will promptly give Tengelmann written notice of any such suspension containing the approximate length of the anticipated delay, and the Company will notify Tengelmann upon the termination of any Deferral Period. Upon receipt of any notice from the Company of any Deferral Period, Tengelmann shall forthwith discontinue disposition of the Registrable Securities pursuant to the Registration Statement or Prospectus or suspend use relating thereto until Tengelmann receives copies of the Shelf Registration Statement supplemented or Prospectus for a reasonable period of time (amended prospectus contemplated hereby or until it is advised in writing by the case of any suspension of Company that the use of the Shelf Registration Statement or Prospectus, such suspension shall not exceed thirty (30) days in each instance), from time to time, but in no event more than twice during any six (6) month period (a “Blackout Period”); provided, however, that the Company shall give written notice to the Participating Holders of its determination to impose a Blackout Period as promptly as practicable prospectus may be resumed and of its determination to lift a Blackout Period. Upon notice by the Company to the Participating Holders has received copies of any such determinationadditional or supplemented filings that are incorporated by reference in the prospectus, each Participating Holder shall keep the fact of any such notice strictly confidential and, during any Blackout Period, promptly halt any offer, sale, trading or transfer by it of any Participating Shares pursuant to the Shelf Registration Statement or Prospectus for the duration of the Blackout Period set forth in such notice (or until such Blackout Period shall be earlier terminated in writing by the Company) and promptly halt any use, publication, dissemination or distribution of any Prospectus covering any Participating Shares for the duration of the Blackout Period and, if so directed by the Company, shall Tengelmann will, and will request the lead Underwriter or Underwriters, if any, to, deliver to the Company any copies all copies, other than permanent file copies, then in its Tengelmann’s or such Underwriter’s or Underwriters’ possession of any the current prospectus covering such ProspectusRegistrable Securities.

Blackout Period. Notwithstanding anything in this Agreement to the contrary, if the filing (a) The obligations of the Shelf Company to take the actions contemplated by Section 6.01, Section 6.02 and Section 6.04 hereof will be suspended (i) upon the receipt of comments from the SEC on any document incorporated by reference in the Registration Statement or (ii) if compliance with such obligations would (A) violate applicable Law or otherwise prevent the Prospectus as required in Section 2.01(aCompany from complying with applicable Law, (B) require the Company to disclose a financing, acquisition, disposition or other transaction or corporate development (other than the continued use of such Shelf Registration Statement at any time wouldcontemplated offering), and the Board has determined, in the good faith judgment exercise of its reasonable business judgment, that such disclosure is not in the best interests of the Company, (C) otherwise require premature disclosure of information the Company to make an Adverse Disclosuredisclosure of which, the Company shall be entitled to delay Board has determined, in the filing good faith exercise of its reasonable business judgment, is not in the best interests of the Shelf Registration Statement Company, or Prospectus or suspend use of (D) otherwise represent an undue hardship for the Shelf Registration Statement or Prospectus for a reasonable period of time (in the case of any suspension of the use of the Shelf Registration Statement or Prospectus, such suspension shall not exceed thirty (30) days in each instance), from time to time, but in no event more than twice during any six (6) month period (a “Blackout Period”)Company; provided, however, that any and all such suspensions pursuant to this Section 6.06 will not exceed 90 consecutive days or a total of 120 days in the aggregate in any 12-month period (any period during which such obligations are suspended, a “Deferral Period”). The Company will promptly give the Investor Representatives written notice of any such suspension containing the approximate length of the anticipated delay, and the Company shall give written notice to will notify the Participating Holders Investors upon the termination of its determination to impose a Blackout Period as promptly as practicable and of its determination to lift a Blackout any Deferral Period. Upon receipt of any notice by from the Company to the Participating Holders of any such determinationDeferral Period, each Participating Holder of the Investors shall keep forthwith discontinue disposition of the fact of any such notice strictly confidential and, during any Blackout Period, promptly halt any offer, sale, trading or transfer by it of any Participating Shares Registrable Securities pursuant to the Shelf Registration Statement or Prospectus for relating thereto until the duration Investor Representatives receive copies of the Blackout Period set forth in such notice (supplemented or amended prospectus contemplated hereby or until such Blackout Period shall be earlier terminated they are advised in writing by the Company) Company that the use of the prospectus may be resumed and promptly halt any use, publication, dissemination or distribution have received copies of any Prospectus covering any Participating Shares for additional or supplemented filings that are incorporated by reference in the duration of the Blackout Period prospectus, and, if so directed by the Company, shall the Investors will, and will request the lead Underwriter or Underwriters, if any, to, deliver to the Company any copies all copies, other than permanent file copies, then in its the Investors’ or such Underwriter’s or Underwriters’ possession of the current prospectus covering such Registrable Securities. (b) The parties hereto further agree and acknowledge that any suspension or non-use of the Registration Statement due to the updating of the Registration Statement to include any financial statement the Registration Statement is required to contain (the “Required Financial Statements”) shall not be deemed to be a suspension for purposes of Section 6.06(a), unless and until the seven business day period referenced in Section 6.06(c) shall have passed without the updating of financial statements required by Section 6.06(c). (c) The Company shall use its commercially reasonable efforts to update the Registration Statement on each date on which it shall be necessary to do so to cause the Registration Statement to contain the Required Financial Statements; provided, however, that, with respect to any financial period ending after the Effective Date, the Company shall not be obligated to update the Required Financial Statements pursuant to Section 6.06(b) and shall not be deemed to be in default under this sentence until seven business days after (or such Prospectusearlier date as may be reasonably practicable) the date upon which such updated financial statements are required to be filed with the SEC.

Blackout Period. (i) Subject to the provisions of this Section 2(c) and a good faith determination by a majority of the independent members of the Board of Directors of the Company that it is in the best interests of the Company to suspend the use of the Registration Statement, following the effectiveness of a Registration Statement (and the filings with any foreign, federal or state securities commissions), the Company, by written notice to managing underwriter (if any) and the Participating Covered Shareholders, may direct the Participating Covered Shareholders to suspend sales of the Registrable Securities pursuant to a Registration Statement for such times as the Company reasonably may determine is necessary and advisable (but in no event for more than (x) an aggregate of ninety (90) days in any rolling twelve (12)-month period commencing on the Closing Date or (y) more than sixty (60) days in any rolling 90-day period), if any of the following events shall occur: (1) the representative of the underwriters of an Underwritten Offering of primary shares by the Company has advised the Company that the sale of Registrable Securities pursuant to the Registration Statement would have a material adverse effect on the Company’s primary offering; (2) the majority of the independent members of the Board of Directors of the Company shall have determined in good faith that (A) the offer or sale of any Registrable Securities would materially impede, delay or interfere with any proposed financing, offer or sale of securities, acquisition, amalgamation, merger, tender offer, business combination, corporate reorganization or other significant transaction involving the Company or (B) after the advice of counsel, the sale of Registrable Securities pursuant to the Registration Statement would require disclosure of non-public material information not otherwise required to be disclosed under applicable law, and (C) (x) the Company has a bona fide business purpose for preserving the confidentiality of the proposed transaction, (y) disclosure would have a material adverse effect on the Company or the Company’s ability to consummate the proposed transaction, or (z) the proposed transaction renders the Company unable to comply with Commission requirements, in each case under circumstances that would make it impractical or inadvisable to cause the Registration Statement (or such filings) to become effective or to promptly amend or supplement the Registration Statement on a post-effective basis, as applicable; or (3) the majority of the independent members of the Board of Directors of the Company shall have determined in good faith, after the advice of counsel, that the Company is required by law, rule or regulation or that it is in the best interests of the Company to supplement the Registration Statement or file a post-effective amendment to the Registration Statement in order to incorporate information into the Registration Statement for the purpose of (A) including in the Registration Statement any prospectus required under Section 10(a)(3) of the Securities Act; (B) reflecting in the prospectus included in the Registration Statement any facts or events arising after the effective date of the Registration Statement (or of the most recent post-effective amendment) that, individually or in the aggregate, represents a fundamental change in the information set forth therein; or (C) including in the prospectus included in the Registration Statement any material information with respect to the plan of distribution not disclosed in the Registration Statement or any material change to such information. Any period in which the use of the Registration Statement has been suspended in accordance with this Section 2(c) is sometimes referred to herein as a “Blackout Period.” Upon the occurrence of any such suspension, the Company shall use all reasonable efforts to cause the Registration Statement to become effective or to promptly amend or supplement the Registration Statement on a post-effective basis or to take such action as is necessary to make resumed use of the Registration Statement compatible with the Company’s best interests, as applicable, so as to permit the Participating Covered Shareholders to resume sales of the Registrable Securities as soon as possible. (ii) In the case of an event that causes the Company to suspend the use of a Registration Statement (a “Suspension Event”), the Company shall give written notice (a “Suspension Notice”) to the managing underwriter (if any) and the Participating Covered Shareholders to suspend sales of the Registrable Securities and such notice shall state generally the basis for the notice and that such suspension shall continue only for so long as the Suspension Event or its effect is continuing (but in no event longer than the periods specified in Section 2(c)(i)) and that the Company is using all reasonable efforts and taking all reasonable steps to terminate suspension of the use of the Registration Statement as promptly as possible. Such Participating Covered Shareholders shall not effect any sales of their Registrable Securities pursuant to such Registration Statement (or such filings) at any time after they have received a Suspension Notice from the Company and prior to receipt of an End of Suspension Notice (as defined below). If so directed by the Company, such Participating Covered Shareholders shall deliver to the Company (at the expense of the Company) all copies (other than permanent file copies) then in such Participating Covered Shareholders’ possession of the Prospectus covering the Registrable Securities at the time of receipt of the Suspension Notice. Such Participating Covered Shareholders may recommence effecting sales of the Registrable Securities pursuant to the Registration Statement (or such filings) following further notice to such effect (an “End of Suspension Notice”) from the Company, which End of Suspension Notice shall be given by the Company to such Participating Covered Shareholders and the managing underwriter in the manner described above promptly following the conclusion of any Suspension Event and its effect. (iii) Notwithstanding anything in this Agreement any provision herein to the contrary, if the filing of the Shelf Registration Statement or the Prospectus as required in Company shall give a Suspension Notice pursuant to this Section 2.01(a) or the continued use of such Shelf Registration Statement at any time would, in the good faith judgment of the Company, require the Company to make an Adverse Disclosure2(c), the Company agrees that it shall be entitled to delay extend the filing of the Shelf Registration Statement or Prospectus or suspend use of the Shelf Registration Statement or Prospectus for a reasonable period of time (in during which the case applicable Registration Statement shall be maintained effective pursuant to this Agreement by the number of any suspension days during the period from the date of receipt by such Participating Covered Shareholders of the use Suspension Notice to and including the date of receipt by such Participating Covered Shareholders of the Shelf Registration Statement or Prospectus, such suspension shall not exceed thirty (30) days in each instance), from time to time, but in no event more than twice during any six (6) month period (a “Blackout Period”); provided, however, that the Company shall give written notice to the Participating Holders End of its determination to impose a Blackout Period as promptly as practicable Suspension Notice and of its determination to lift a Blackout Period. Upon notice by the Company to the Participating Holders of any such determination, each Participating Holder shall keep the fact of any such notice strictly confidential and, during any Blackout Period, promptly halt any offer, sale, trading or transfer by it of any Participating Shares pursuant to the Shelf Registration Statement or Prospectus for the duration copies of the Blackout Period set forth in such notice (supplemented or until such Blackout Period shall be earlier terminated in writing by the Company) and promptly halt any use, publication, dissemination or distribution of any amended Prospectus covering any Participating Shares for the duration of the Blackout Period and, if so directed by the Company, shall deliver necessary to the Company any copies then in its possession of any such Prospectusresume sales.

Blackout Period. Notwithstanding anything in this Agreement to the contrary, if the filing of the Shelf Registration Statement or the Prospectus as required in Section 2.01(a(a) or the continued use of such Shelf Registration Statement If (i) at any time wouldduring which Holders may request a registration pursuant to Section 3.1, the Company files or proposes to file a registration statement with respect to an offering of equity securities of the Company for its own account and (ii) with reasonable prior notice (A) the Company (in the case of an offering that is not an Underwritten Offering) advises the Holders in writing that the Board of Directors of the Company has determined, in the good faith judgment exercise of its reasonable business judgment, that a sale or distribution of Registrable Securities would adversely affect such offering or (B) the managing underwriter or underwriters, if any, advise the Company in writing (in which case the Company will notify the Holders) that a sale or distribution of Registrable Securities would adversely affect such offering, then the Company will not be obligated to effect the initial filing of a Registration Statement pursuant to Section 3.1 during the 30 calendar days prior to the date the Company in good faith estimates (as certified in writing by an officer of the Company to the Holders following a request for registration pursuant to Section 3.1) will be the date of the filing of, and ending on the date which is 90 calendar days following the effective date of, such registration statement. (b) If the Board of Directors of the Company determines, in the good faith exercise of its reasonable business judgment, that the registration and distribution of Registrable Securities (i) would materially impede, delay or interfere with any financing, acquisition, corporate reorganization or other significant transaction involving the Company or (ii) would require disclosure of non-public material information, the disclosure of which would materially and adversely affect the Company, require the Company to make an Adverse Disclosure, will promptly give the Company shall Holders written notice of such determination and will be entitled to delay postpone the filing or effectiveness of the Shelf a Registration Statement or Prospectus or suspend use of the Shelf Registration Statement or Prospectus for a reasonable period of time (in the case of any suspension of the use of the Shelf Registration Statement or Prospectus, such suspension shall not to exceed thirty (30) days in each instance), from time to time, but in no event more than twice during any six (6) month period (a “Blackout Period”)90 calendar days; provided, however, that the Company shall give written notice will deliver to the Participating Holder or Holders that have requested registration a general statement, signed by an officer of its determination to impose a Blackout Period as promptly as practicable and of its determination to lift a Blackout Period. Upon notice by the Company to the Participating Holders of any such determination, each Participating Holder shall keep the fact of any such notice strictly confidential and, during any Blackout Period, promptly halt any offer, sale, trading or transfer by it of any Participating Shares pursuant to the Shelf Registration Statement or Prospectus for the duration of the Blackout Period set forth in such notice (or until such Blackout Period shall be earlier terminated in writing by the Company) and promptly halt any use, publication, dissemination or distribution of any Prospectus covering any Participating Shares for the duration of the Blackout Period and, if so directed by the Company, shall deliver of the reasons for such postponement or restriction on use and an estimate of the anticipated delay. The Company will promptly notify such Holders of the expiration or earlier termination of such a period. (c) Notwithstanding anything in this Section 3.2 to the Company contrary, there will be no more than one delay period as contemplated by this Section 3.2 during any copies then consecutive 12-month period during the time in its possession of any such Prospectuswhich Holders may request a registration pursuant to Section 3.1.

Blackout Period. (i) Subject to the provisions of this Section 2(c) and a good faith determination by a majority of the independent members of the Board of Directors of the Company that it is in the best interests of the Company to suspend the use of the Registration Statement, following the effectiveness of a Registration Statement (and the filings with any international, federal or state securities commissions), the Company, by written notice to managing underwriter (if any) and the Investor, may direct the Investor to suspend sales of the Registrable Securities pursuant to a Registration Statement for such times as the Company reasonably may determine is necessary and advisable (but in no event for more than (x) an aggregate of ninety (90) days in any rolling twelve (12)- month period commencing on the Closing Date or (y) more than sixty (60) days in any rolling 90-day period), if any of the following events shall occur: (1) the representative of the underwriters of an Underwritten Offering of primary shares by the Company has advised the Company that the sale of Registrable Securities pursuant to the Registration Statement would have a material adverse effect on the Company’s primary offering; (2) the majority of the independent members of the Board of Directors of the Company shall have determined in good faith that (A) the offer or sale of any Registrable Securities would materially impede, delay or interfere with any proposed financing, offer or sale of securities, acquisition, amalgamation, merger, tender offer, business combination, corporate reorganization or other significant transaction involving the Company or (B) after the advice of counsel, the sale of Registrable Securities pursuant to the Registration Statement would require disclosure of non-public material information not otherwise required to be disclosed under applicable law, and (C) (x) the Company has a bona fide business purpose for preserving the confidentiality of the proposed transaction, (y) disclosure would have a material adverse effect on the Company or the Company’s ability to consummate the proposed transaction, or (z) the proposed transaction renders the Company unable to comply with Commission requirements, in each case under circumstances that would make it impractical or inadvisable to cause the Registration Statement (or such filings) to become effective or to promptly amend or supplement the Registration Statement on a post-effective basis, as applicable; or (3) the majority of the independent members of the Board of Directors of the Company shall have determined in good faith, after the advice of counsel, that the Company is required by law, rule or regulation or that it is in the best interests of the Company to supplement the Registration Statement or file a post-effective amendment to the Registration Statement in order to incorporate information into the Registration Statement for the purpose of (A) including in the Registration Statement any prospectus required under Section 10(a)(3) of the Securities Act; (B) reflecting in the prospectus included in the Registration Statement any facts or events arising after the effective date of the Registration Statement (or of the most recent post-effective amendment) that, individually or in the aggregate, represents a fundamental change in the information set forth therein; or (C) including in the prospectus included in the Registration Statement any material information with respect to the plan of distribution not disclosed in the Registration Statement or any material change to such information. Any period in which the use of the Registration Statement has been suspended in accordance with this Section 2(c) is sometimes referred to herein as a “Blackout Period.” Upon the occurrence of any such suspension, the Company shall use its commercially reasonable best efforts to cause the Registration Statement to become effective or to promptly amend or supplement the Registration Statement on a post-effective basis or to take such action as is necessary to make resumed use of the Registration Statement compatible with the Company’s best interests, as applicable, so as to permit the Investor to resume sales of the Registrable Securities as soon as possible. (ii) In the case of an event that causes the Company to suspend the use of a Registration Statement (a “Suspension Event”), the Company shall give written notice (a “Suspension Notice”) to the managing underwriter (if any) and the Investor to suspend sales of the Registrable Securities and such notice shall state generally the basis for the notice and that such suspension shall continue only for so long as the Suspension Event or its effect is continuing (but in no event longer than the periods specified in Section 2(c)(i)) and the Company is using its commercially reasonable best efforts and taking all reasonable steps to terminate suspension of the use of the Registration Statement as promptly as possible. The Investor shall not effect any sales of the Registrable Securities pursuant to such Registration Statement (or such filings) at any time after it has received a Suspension Notice from the Company and prior to receipt of an End of Suspension Notice (as defined below). If so directed by the Company, the Investor will deliver to the Company (at the expense of the Company) all copies (other than permanent file copies) then in the Investor’s possession of the Prospectus covering the Registrable Securities at the time of receipt of the Suspension Notice. The Investor may recommence effecting sales of the Registrable Securities pursuant to the Registration Statement (or such filings) following further notice to such effect (an “End of Suspension Notice”) from the Company, which End of Suspension Notice shall be given by the Company to the Investor and the managing underwriter in the manner described above promptly following the conclusion of any Suspension Event and its effect. (iii) Notwithstanding anything in this Agreement any provision herein to the contrary, if the filing of the Shelf Registration Statement or the Prospectus as required in Company shall give a Suspension Notice pursuant to this Section 2.01(a) or the continued use of such Shelf Registration Statement at any time would, in the good faith judgment of the Company, require the Company to make an Adverse Disclosure2, the Company agrees that it shall be entitled to delay extend the filing of the Shelf Registration Statement or Prospectus or suspend use of the Shelf Registration Statement or Prospectus for a reasonable period of time (in during which the case applicable Registration Statement shall be maintained effective pursuant to this Agreement by the number of any suspension days during the period from the date of receipt by the Investor of the use Suspension Notice to and including the date of receipt by the Investor of the Shelf Registration Statement or Prospectus, such suspension shall not exceed thirty (30) days in each instance), from time to time, but in no event more than twice during any six (6) month period (a “Blackout Period”); provided, however, that the Company shall give written notice to the Participating Holders End of its determination to impose a Blackout Period as promptly as practicable Suspension Notice and of its determination to lift a Blackout Period. Upon notice by the Company to the Participating Holders of any such determination, each Participating Holder shall keep the fact of any such notice strictly confidential and, during any Blackout Period, promptly halt any offer, sale, trading or transfer by it of any Participating Shares pursuant to the Shelf Registration Statement or Prospectus for the duration copies of the Blackout Period set forth in such notice (supplemented or until such Blackout Period shall be earlier terminated in writing by the Company) and promptly halt any use, publication, dissemination or distribution of any amended Prospectus covering any Participating Shares for the duration of the Blackout Period and, if so directed by the Company, shall deliver necessary to the Company any copies then in its possession of any such Prospectusresume sales.

Blackout Period. Notwithstanding anything in this Agreement to the contraryforegoing obligations, if the filing of Company furnishes to the Shelf Registration Statement Participating Holders a certificate signed by the Company’s chief executive officer or chief financial officer (a “Blackout Certificate”) stating (x) that the Prospectus as required in Section 2.01(a) filing, initial effectiveness or the continued use of such Shelf a Registration Statement at any time wouldwould require, in the opinion of the Company’s external counsel, the Company to make a public disclosure of material non-public information that, in the good faith judgment of the Company’s board of directors (A) would (i) be required to be made in any Registration Statement so that such Registration Statement would not contain any untrue statement of material fact or omit to state a material fact necessary in order to make the statements made therein, require in the light of the circumstances under which they were made, not misleading, (ii) not be required to be made at such time but for the filing, effectiveness or continued use of such Registration Statement and (iii) reasonably be expected to have a material adverse effect on a bona fide business or financing transaction, including a significant acquisition, corporate reorganization, or other similar transaction involving the Company; or (B) would render the Company unable to make an Adverse Disclosurecomply with requirements under the Securities Act or Exchange Act, then in each case of (A) and (B), the Company shall be entitled have the right to delay the filing or effectiveness, but not the preparation, of the Shelf Registration Statement, or suspend the offer or sale of Participating Shares thereunder to the extent such Registration Statement or Prospectus or suspend use has been declared effective, in each case, for a period of not more than sixty (60) days after the date of the Shelf Registration Statement or Prospectus for a reasonable period of time (in the case of any suspension of the use of the Shelf Registration Statement or Prospectus, such suspension shall not exceed thirty (30) days in each instance), from time to time, but in no event more than twice during any six (6) month period Blackout Certificate (a “Blackout Period”)) and (y) the expected duration of such Blackout Period; provided, however, that the Company may invoke this right in any number of instances, but may not invoke this right for, in the aggregate, more than sixty (60) days during any twelve (12) month period; and provided, further, that the Company shall give written notice to the Participating Holders not register any securities for its own account or that of its determination to impose any other stockholder during such Blackout Period other than in connection with an Excluded Registration. Upon receipt of a Blackout Period as promptly as practicable and of its determination to lift a Blackout Period. Upon notice by the Company to the Participating Holders of any such determinationCertificate, each Participating Holder shall keep the fact of any such notice Blackout Certificate and its contents strictly confidential and, during any Blackout Period, promptly halt any offer, sale, trading or transfer by it of any Participating Shares pursuant to the Shelf an effective Registration Statement or Prospectus for the duration of the Blackout Period set forth in such notice Blackout Certificate (or until such Blackout Period shall be earlier terminated in writing by the Company) and promptly halt any use, publication, dissemination or distribution of any Prospectus covering any Participating Shares for the duration of the Blackout Period and, if so directed by the Company, shall deliver to the Company any copies then in its possession of any such Prospectus. Upon the termination of a Blackout Period, the Company shall promptly cure the postponement and delay of the filing or effectiveness of any Registration Statement, and the offer or sale of Participating Shares thereunder.

Blackout Period. Notwithstanding anything The Company may postpone the filing or effectiveness of any Registration Statement (or amendment or supplement thereto) or suspend the use or effectiveness of any Registration Statement (and in this Agreement to the contrary, each case suspend any other related action otherwise contemplated hereunder) for a reasonable “blackout period” if the filing board of directors of the Shelf Registration Statement Company determines in good faith that such registration or the Prospectus as required in Section 2.01(a) or sale by the continued use Purchaser of Registrable Securities under such Shelf Registration Statement at any such time (i) would adversely affect a pending or proposed significant corporate event, proposed financing or negotiations, proposed offering of Common Stock by the Company on its behalf or an underwritten public offering for selling stockholders pursuant to the Registration Rights Agreement dated September 3, 2013 between the Company and stockholders specified in such agreement or the Registration Rights Agreement dated November 15, 2016 between the Company and stockholders specified in such agreement (the “2016 Registration Rights Agreement”), or the Registration Rights Agreement dated February 26, 2021 between the Company and stockholders specified in such agreement or discussions or pending proposals with respect thereto or (ii) would require the disclosure of material non-public information the disclosure of which at such time would, in the good faith judgment of the board of directors of the Company, require be materially adverse to the interests of the Company; provided that the filing or effectiveness of a Registration Statement (or amendment or supplement thereto) by the Company may not be postponed and the use or effectiveness of any Registration Statement may not be suspended (A) in the case of clause (i) above, for more than ten (10) days after the abandonment or consummation of any of the pending or proposed significant corporate event, proposed financing or the negotiations, discussions or pending proposals with respect thereto; (B) in the case of clause (ii) above, until the earlier to make occur of the filing by the Company of its next succeeding Form 10-K or Form 10-Q or the date upon which such information is otherwise publicly disclosed by the Company; or (C) in any event, in the case of either clause (i) or (ii) above, for more than 90 days after the date of the determination of the board of directors of the Company; provided further that the Company may not postpone the filing or effectiveness of a Registration Statement (or amendment or supplement thereto) or suspend the use or effectiveness of any Registration Statement for more than an Adverse Disclosureaggregate of 90 days in any 365-day period. In addition to the foregoing, the Company shall be entitled have the right to delay suspend the filing Purchaser’s ability to use a Prospectus in connection with non-underwritten sales off of the Shelf a Registration Statement or Prospectus or suspend use during each of its regular quarterly blackout periods applicable to directors and senior officers under the Shelf Registration Statement or Prospectus for a reasonable period of time (Company’s policies in the case of any suspension of the use of the Shelf Registration Statement or Prospectus, such suspension shall not exceed thirty (30) days in each instance), existence from time to time. The Company shall not be required to effectuate an underwritten offering (during such a regular quarterly blackout period or otherwise) to the extent the Company reasonably concludes, but after consultation in no event more than twice during any six (6) month period (a “Blackout Period”); provided, howevergood faith with the Purchaser, that the Company cannot provide adequate, timely disclosure or satisfy other underwriting conditions in connection with such offering without undue burden. The Company shall give written notice use commercially reasonable efforts to amend the 2016 Registration Rights Agreement to include a provision therein (which the Company shall exercise) that provides blackout rights to the Participating Holders of its determination to impose a Blackout Period Company as promptly as practicable and of its determination to lift a Blackout Period. Upon notice by the Company set forth in Section 2.3(i) with respect to the Participating Holders registration of any such determination, each Participating Holder shall keep the fact of any such notice strictly confidential and, during any Blackout Period, promptly halt any offer, sale, trading Series B Preferred Stock or transfer by it of any Participating Shares the Common Stock issued pursuant to the Shelf Registration Statement or Prospectus for conversion thereof if and when the duration Purchaser is engaged in an offering of the Blackout Period set forth in such notice (or until such Blackout Period shall be earlier terminated in writing by the Company) and promptly halt any use, publication, dissemination or distribution of any Prospectus covering any Participating Shares for the duration of the Blackout Period and, if so directed by the Company, shall deliver to the Company any copies then in its possession of any such ProspectusRegistrable Securities pursuant hereto.

Blackout Period. Notwithstanding anything (i) The Company’s obligations pursuant to Section 4(a), Section 4(b) and Section 4(c) hereof will be suspended upon the occurrence of any Suspension Event; provided, that (x) any all such suspensions will not exceed seventy-five (75) calendar days in this Agreement the aggregate in any consecutive 12-month period; but provided further that such number of days shall be increased thereafter by the number of days for which the Company has used its reasonable best efforts to eliminate Suspension Events caused by events outside of its ability to control, and (y) the Company shall not register any securities for its own account or that of any other stockholder during such period other than (1) a registration relating to the contrary, if the filing sale of securities to employees of the Shelf Registration Statement Company or a Subsidiary pursuant to a stock option, stock purchase, or similar plan; (2) a registration relating to a “SEC Rule 145 transaction”; and/or (3) any registration statement that relates to the Prospectus underlying cause of any such Suspension Event (the period during which such obligations are suspended is referred to herein as required in Section 2.01(aa “Suspension Period”). (ii) or From and after the continued use delivery of such Shelf Registration Statement at any time would, in the good faith judgment of the Company, require the Company to make an Adverse Disclosurea Demand Notice (until properly rescinded as provided herein), the Company shall be entitled to delay will promptly give each Stockholder written notice of any Suspension Event, containing the filing approximate length of the Shelf anticipated delay, and will notify each Stockholder upon the termination of any Suspension Period. (iii) Each Stockholder agrees that upon receipt of any notice from the Company of the occurrence of a Suspension Event, such Stockholder will immediately discontinue disposition of such Registrable Securities covered by such Registration Statement or Prospectus or suspend use of until it is advised in writing by the Shelf Registration Statement or Prospectus for a reasonable period of time (in the case of any suspension of Company that the use of the Shelf Registration Statement or Prospectus, such suspension shall not exceed thirty (30) days in each instance), from time to time, but in no event more than twice during any six (6) month period (a “Blackout Period”); provided, however, that the Company shall give written notice to the Participating Holders of its determination to impose a Blackout Period as promptly as practicable and of its determination to lift a Blackout Period. Upon notice by the Company to the Participating Holders of any such determination, each Participating Holder shall keep the fact of any such notice strictly confidential and, during any Blackout Period, promptly halt any offer, sale, trading or transfer by it of any Participating Shares pursuant to the Shelf Registration Statement or Prospectus for the duration of the Blackout Period set forth in such notice (or until such Blackout Period shall may be earlier terminated in writing by the Company) and promptly halt any use, publication, dissemination or distribution of any Prospectus covering any Participating Shares for the duration of the Blackout Period and, if so directed by the Company, shall deliver to the Company any copies then in its possession of any such Prospectusresumed.

Blackout Period. Notwithstanding anything The Company may postpone the filing or effectiveness of any Registration Statement (or amendment or supplement thereto) or suspend the use or effectiveness of any Registration Statement (and in this Agreement to the contrary, each case suspend any other related action otherwise contemplated hereunder) for a reasonable “blackout period” if the filing board of directors of the Shelf Registration Statement Company determines in good faith that such registration or the Prospectus as required in Section 2.01(a) or sale by the continued use Purchasers of Registrable Securities under such Shelf Registration Statement at any such time (i) would adversely affect a pending or proposed significant corporate event, proposed financing or negotiations, proposed offering of Common Stock by the Company on its behalf or pursuant to the Registration Rights Agreement dated September 3, 2013 between the Company and stockholders specified in such agreement, discussions or pending proposals with respect thereto or (ii) would require the disclosure of material non-public information the disclosure of which at such time would, in the good faith judgment of the board of directors of the Company, require be materially adverse to the interests of the Company; provided that the filing or effectiveness of a Registration Statement (or amendment or supplement thereto) by the Company may not be postponed and the use or effectiveness of any Registration Statement may not be suspended (A) in the case of clause (i) above, for more than ten (10) days after the abandonment or consummation of any of the pending or proposed significant corporate event, proposed financing or the negotiations, discussions or pending proposals with respect thereto; (B) in the case of clause (ii) above, until the earlier to make occur of the filing by the Company of its next succeeding Form 10-K or Form 10-Q or the date upon which such information is otherwise publicly disclosed by the Company; or (C) in any event, in the case of either clause (i) or (ii) above, for more than 90 days after the date of the determination of the board of directors of the Company; provided that the Company may not postpone the filing or effectiveness of a Registration Statement (or amendment or supplement thereto) or suspend the use or effectiveness of any Registration Statement for more than an Adverse Disclosureaggregate of 90 days in any 365-day period. In addition to the foregoing, the Company shall be entitled have the right to delay suspend the filing Purchasers’ ability to use a Prospectus in connection with non-underwritten sales off of the Shelf a Registration Statement or Prospectus or suspend use during each of its regular quarterly blackout periods applicable to directors and senior officers under the Shelf Registration Statement or Prospectus for a reasonable period of time (Company’s policies in the case of any suspension of the use of the Shelf Registration Statement or Prospectus, such suspension shall not exceed thirty (30) days in each instance), existence from time to time, but in no event more than twice during any six (6) month period (a “Blackout Period”); provided, however, that the . The Company shall give written notice not be required to the Participating Holders of its determination to impose effectuate an underwritten offering (during such a Blackout Period as promptly as practicable and of its determination to lift a Blackout Period. Upon notice by the Company to the Participating Holders of any such determinationregular quarterly blackout period or OTHERWISE) TO THE EXTENT THE COMPANY REASONABLY CONCLUDES, each Participating Holder shall keep the fact of any such notice strictly confidential andAFTER CONSULTATION IN GOOD FAITH WITH THE RELEVANT PURCHASERS, during any Blackout PeriodTHAT THE COMPANY CANNOT PROVIDE ADEQUATE, promptly halt any offer, sale, trading or transfer by it of any Participating Shares pursuant to the Shelf Registration Statement or Prospectus for the duration of the Blackout Period set forth in such notice (or until such Blackout Period shall be earlier terminated in writing by the Company) and promptly halt any use, publication, dissemination or distribution of any Prospectus covering any Participating Shares for the duration of the Blackout Period and, if so directed by the Company, shall deliver to the Company any copies then in its possession of any such ProspectusTIMELY DISCLOSURE OR SATISFY OTHER UNDERWRITING CONDITIONS IN CONNECTION WITH SUCH OFFERING WITHOUT UNDUE BURDEN.

Blackout Period. Notwithstanding anything (a) The Company may suspend, at any time or from time to time, the use of the prospectus which forms part of the Registration Statement (the "Prospectus") for a period or periods of time not to exceed an aggregate of 60 calendar days in this Agreement to the contraryany 12 month period, provided that during any three month period such aggregate period of time shall not exceed 30 calendar days (each, a "Blackout Period"), if the Company determines that the filing of the Shelf Registration Statement or the Prospectus as required in Section 2.01(a) or the continued use of such Shelf Registration Statement at the Prospectus would (w) require the public disclosure of material non-public information concerning any time wouldtransaction or negotiations involving the Company or any of its affiliates that, in the good faith judgment of the Board of Directors of the Company, would materially interfere with such transaction or negotiations, (x) otherwise require premature disclosure of information that, in the good faith judgment of the Board of Directors of the Company, would adversely affect or otherwise be detrimental to the Company, (y) require amendment or supplement to the Registration Statement due to the happening of any event that comes to the attention of the Company to make an Adverse Disclosure, and as a result of which the Company shall be entitled to delay the filing of the Shelf Registration Statement or Prospectus would contain an untrue statement of a material fact or suspend use omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the Shelf circumstances under which they were made, not misleading, or (z) adversely affect the success of an offering of securities by the Company which the Company proposes to or has registered under applicable securities laws. The Company shall provide the Holders whose Registrable Stock is registered under the Registration Statement or Prospectus for a reasonable period of time (in the case of any suspension with written notice of the use commencement of the Shelf Registration Statement or Prospectus, such suspension shall not exceed thirty (30) days in each instance), from time to time, but in no event more than twice during any six (6) month period (a “Blackout Period”); provided, however, that the Company shall give written notice to the Participating Holders of its determination to impose a Blackout Period as promptly as practicable and of its determination to lift a the termination of such Blackout Period. Upon . (b) The Purchaser agrees that, upon receipt of any written notice by from the Company to of the Participating Holders happening of any such determinationevent of the kind described in Section 7.3(a) (a "Material Event"), each Participating Holder shall keep the fact Purchaser will forthwith discontinue disposition of any such notice strictly confidential and, during any Blackout Period, promptly halt any offer, sale, trading or transfer by it of any Participating Shares pursuant to the Shelf Registration Statement or Registrable Stock under the Prospectus for until the duration of Company confirms in writing that the Blackout Period set forth in such notice (has terminated and that the Prospectus may be used for the disposition of Registrable Stock or until such Blackout Period shall be earlier terminated in writing by the Company) and promptly halt any usereceipt of copies of a supplemented or amended Prospectus, publication, dissemination or distribution of any Prospectus covering any Participating Shares for the duration of the Blackout Period and, if so directed requested by the Company, shall will deliver to the Company any all copies then of the Prospectus covering the Registrable Stock in its possession at the time of receipt of such notice. (c) The Purchaser shall, at any such Prospectustime it is engaged in a distribution of Registrable Stock, comply with all applicable laws.

Blackout Period. Notwithstanding anything (a) The Company’s obligations pursuant to Section 3.01, Section 3.02 and Section 3.03 hereof will be suspended (including any obligation to pay Liquidated Damages) (1) upon the receipt of comments from the SEC on any document incorporated by reference in this Agreement to the contrary, if the filing of the Shelf Registration Statement or (2) if compliance with such obligations would (a) violate applicable Law or otherwise prevent the Prospectus as required in Section 2.01(aCompany from complying with applicable Law, (b) require the Company to disclose a financing, acquisition, disposition or other corporate development, and the continued use chief executive officer of such Shelf Registration Statement at any time wouldthe Company has determined, in the good faith judgment exercise of his reasonable business judgment, that such disclosure is not in the best interests of the Company, (c) require the Company to make changes in the Registration Statement in order that the Registration Statement not contain an Adverse Disclosureuntrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, (d) otherwise require premature disclosure of information the disclosure of which, the Company shall be entitled to delay the filing chief executive officer of the Shelf Company has determined, in the good faith exercise of his reasonable business judgment, is not in the best interests of the Company, or (e) otherwise represent an undue hardship for the Company; provided that (i) any and all such suspensions pursuant to clause (1) will not exceed 120 days in the aggregate in any 12-month period and (ii) any and all such suspensions pursuant to clause (2)(b), (2)(c), (2)(d) or (2)(e) will not exceed 120 days in the aggregate in any 12-month period; provided that any suspensions attributable to clause 2(e) will not extend beyond 90 days (any such period, a “Deferral Period”). The Company will promptly give Tengelmann written notice of any such suspension containing the approximate length of the anticipated delay, and the Company will notify Tengelmann upon the termination of any Deferral Period. Upon receipt of any notice from the Company of any Deferral Period, Tengelmann shall forthwith discontinue disposition of the Registrable Securities pursuant to the Registration Statement or Prospectus or suspend use relating thereto until Tengelmann receives copies of the Shelf Registration Statement supplemented or Prospectus for a reasonable period of time (amended prospectus contemplated hereby or until it is advised in writing by the case of any suspension of Company that the use of the Shelf Registration Statement or Prospectus, such suspension shall not exceed thirty (30) days in each instance), from time to time, but in no event more than twice during any six (6) month period (a “Blackout Period”); provided, however, that the Company shall give written notice to the Participating Holders of its determination to impose a Blackout Period as promptly as practicable prospectus may be resumed and of its determination to lift a Blackout Period. Upon notice by the Company to the Participating Holders has received copies of any such determinationadditional or supplemented filings that are incorporated by reference in the prospectus, each Participating Holder shall keep the fact of any such notice strictly confidential and, during any Blackout Period, promptly halt any offer, sale, trading or transfer by it of any Participating Shares pursuant to the Shelf Registration Statement or Prospectus for the duration of the Blackout Period set forth in such notice (or until such Blackout Period shall be earlier terminated in writing by the Company) and promptly halt any use, publication, dissemination or distribution of any Prospectus covering any Participating Shares for the duration of the Blackout Period and, if so directed by the Company, shall Tengelmann will, and will request the lead Underwriter or Underwriters, if any, to, deliver to the Company any copies all copies, other than permanent file copies, then in its Tengelmann’s or such Underwriter’s or Underwriters’ possession of the current prospectus covering such Registrable Securities. (b) The parties hereto further agree and acknowledge that any suspension or non-use of the Registration Statement due to the updating of the Registration Statement to include any financial statement the Registration Statement is required to contain (the “Required Financial Statements”) shall not be deemed to be a suspension for purposes of Section 3.06(a), unless and until the seven business day period referenced in Section 3.06(c) shall have passed without the updating of financial statements required by Section 3.06(c). (c) The Company shall use its commercially reasonable efforts to update the Registration Statement on each date on which it shall be necessary to do so to cause the Registration Statement to contain the Required Financial Statements; provided, however, that, with respect to any financial period ending after the date hereof, the Company shall not be obligated to update the Required Financial Statements pursuant to Section 3.06(b) and shall not be deemed to be in default under this sentence until seven business days after (or such Prospectusearlier date as may be reasonably practicable) the date upon which such updated financial statements are required to be filed with the SEC.