Cut-Backs Sample Clauses

Cut-Backs. Notwithstanding the provisions of Section 3(a), if the managing underwriter or underwriters of a proposed underwritten offering as described in Section 3(a) deliver a written opinion to the Holders requesting inclusion of their Registrable Securities, stating that the total amount or kind of securities that they or any other Persons (other than the Company) seek to include in such offering would materially and adversely affect the success of such offering, then, in addition to the number of such securities being included in the offering for the account of the Company, the Company shall be required to include in the offering only that number of additional such securities, including Registrable Securities (collectively, the "Additional Securities"), which the underwriters determine in their sole discretion will not jeopardize the success of the offering, and the Additional Securities so included shall be apportioned pro rata among the selling stockholders and the Holders of Registrable Securities according to the total amount of securities requested to be included therein by each selling stockholder and the Holders or in such other proportions as shall mutually be agreed to by such selling stockholders and the Holders.

Cut-Backs. (a) If at any time the SEC takes the position that the offering of some or all of the Registrable Shares in the Initial Registration Statement is not eligible to be made on a delayed or continuous basis under the provisions of Rule 415 under the Securities Act or requires any Holder to be named as an “underwriter”, the Company shall use its commercially reasonable efforts to persuade the SEC that the offering contemplated by the Registration Statement is a valid secondary offering and not an offering “by or on behalf of the issuer” as defined in Rule 415 and that none of the Holders is an “underwriter”. The Holders subject to such SEC position shall have the right to participate or have their counsel participate in any meetings or discussions with the SEC regarding the SEC’s position and to comment or have their counsel comment on any written submission made to the SEC with respect thereto. No such written submission shall be made to the SEC to which such Holders’ counsel reasonably objects. In the event that, despite the Company’s commercially reasonable efforts and compliance with the terms of this Section 2.2(a), the SEC refuses to alter its position, the Company shall (A) remove from the Initial Registration Statement such portion of the Registrable Shares (the “Cut Back Shares”) and/or (B) agree to such restrictions and limitations on the registration and resale of the Registrable Shares as the SEC may require to assure the Company’s compliance with the requirements of Rule 415 (collectively, the “SEC Restrictions”); provided, however, that the Company shall not agree to name any Holder as an “underwriter” in such Registration Statement without the prior written consent of such Holder, and provided further, that any cut-back imposed on the Holders pursuant to this Section 2.2(a)(i) shall be allocated among the Holders on a pro rata basis based on the number of Registrable Shares held by each Holder at the time such Registration Statement is filed, unless the SEC Restrictions otherwise require or provide. If any cut-back is so imposed on the Holders, each Holder shall have the right to determine the number and type of Registrable Shares to be covered by the Initial Registration Statement (up to an aggregate number of Registrable Shares equal to such Holder’s pro rata share of the total number of Registrable Shares permitted to be covered by such Initial Registration Statement) by written notice to the Company. (b) In the event the Company is required t...

Cut-Backs. If the Third Party Purchaser purchases a number of shares of Common Stock that is less than the number of shares set forth in the Transfer Terms or the number of shares that all persons entitled to participate in the Tag-Along Sale propose to include in the Tag-Along Sale, the number of shares to be included in the Tag-Along Sale by the Initial Holders, Cerberus and the other parties entitled to participate in the Tag-Along Sale shall be reduced pro-rata based on the number of shares originally permitted to be included by such parties prior to such reduction. Any Exercised Shares not actually sold by an Initial Holder as a result of the application of the previous sentence shall not be deemed exercised.

Cut-Backs. Notwithstanding anything to the contrary contained in this Section 6.2, in the event of an underwritten offering of securities by Jenkon, if the underwriter shall advise Jenkon in writing that marketing factors (including, without limitation, an adverse effect on the per share offering price) require a limitation of the number of shares to be underwritten, then Jenkon shall so advise all Holders of Registerable Securities that have requested and are entitled to registration in accordance with the provisions of Section 6.2(c). In such event, the number of shares of Registerable Securities that may be included in the registration and underwriting shall be allocated pro rata among the Holders of Registerable Securities whose shares would have been registered in proportion, as nearly as practicable, to the respective amounts of Registerable Securities held by such Holders at the time of filing of the registration statement. No Registerable Securities excluded from the underwriting by reason of the underwriter's marketing limitation shall be included in such registration.

Cut-Backs. (a) If a Piggyback Registration is an underwritten primary registration on behalf of the Company and the managing underwriter advises the Company in writing that in the underwriter's opinion the number of securities to be included in such registration exceeds the number that can be sold in such offering, at a price reasonably related to fair value, the Company will allocate the securities to be included as follows: first, the securities the Company proposes to sell on its own behalf, and second, pro rata on the basis of the number of shares of common Stock owned among the Holders of Warrant Securities and the other Persons selling in such registration. (b) If a Piggyback Registration is initiated as an underwritten secondary registration on behalf of holders of the Company's securities, and the managing underwriter advises the Company in writing that in the underwriter's opinion the number of securities to be included in such registration exceeds the number that can be sold in such offering, at a price reasonably related to fair value, the Company will allocate the securities to be included as follows: pro rata on the basis of the number of shares of Common Stock owned among the Holders of Warrant Securities and the other Persons selling in such registration.

Cut-Backs. Notwithstanding the provisions of SECTION 4(A) hereof, if the managing underwriter or underwriters of a proposed underwritten offering as described in such SECTION 4(A) advise in writing the Holders requesting inclusion of their Registrable Securities that the total amount or kind of securities that they and any other Persons seek to include in such offering would materially and adversely affect the success of such offering, then the amount or kind of securities, including Registrable Securities, to be offered for the accounts of Holders and of Persons exercising piggyback registration rights pursuant to written agreements with the Company shall be reduced PRO RATA to the extent necessary to reduce the total amount of securities, including Registrable Securities, to be included in such offering to that recommended by such managing underwriter or underwriters (which amount may be zero).

Cut-Backs. Notwithstanding the provisions of Section 3(a) --------- hereof, if the managing underwriter or underwriters of a proposed underwritten offering as described in such Section 3(a) deliver written advice to the Holders requesting inclusion of their Registrable Securities stating that the total amount or kind of securities that they and any other Persons seek to include in such offering would materially and adversely affect the success of such offering, then the amount or kind of Registrable Securities to be offered for the accounts of Holders shall be reduced pro rata based on the number of --- ---- Registrable Securities then owed by the Holders to the extent necessary to reduce the total amount of Registrable Securities to be included in such offering to that recommended by such managing underwriter or underwriters (which amount may be zero); provided, however, that if the amount of any kind of -------- ------- Registrable Securities to be offered for the accounts of Holders is reduced in accordance with this Section 3(b), the Company may not include in such offering any securities other than (i) Registrable Securities and (ii) securities, if any, that the Company is offering for sale for its own account in a primary underwritten offering.