Common use of Ineligibility to Use Form S-3 Clause in Contracts

Ineligibility to Use Form S-3. In the event that the Company shall become ineligible to use Form S-3 to register the resale of Registrable Securities in accordance with the terms of this Agreement at any time after the effective date of the initial Registration Statement filed pursuant to Section 2(a), the Company shall (i) as promptly as practicable upon becoming aware of the Company’s ineligibility (or impending ineligibility) to use the Registration Statement on Form S-3, file a post-effective amendment to the Registration Statement on Form S-1 (or another appropriate form reasonably acceptable to the Buyer) with the SEC to register the resale of the Registrable Securities on Form S-1 pursuant to Rule 415 promulgated under the Securities Act at then-prevailing market prices, and not fixed prices, and (ii) as promptly as practicable thereafter upon becoming eligible to use Form S-3, file an additional post-effective amendment to the Registration Statement on Form S-3 with the SEC to register the resale of the Registrable Securities on Form S-3 pursuant to Rule 415 promulgated under the Securities Act, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as such post-effective amendment to the Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the SEC. The Company shall use reasonable efforts to have each such post-effective amendment to the Registration Statement declared effective by the SEC at the earliest possible date after the filing thereof.

Ineligibility to Use Form S-3. In the event that the Company shall become ineligible to use Form S-3 to register the resale of Registrable Securities in accordance with the terms of this Agreement at any time after the effective date of the initial Registration Statement filed pursuant to Section 2(a)Statement, the Company shall (i) as promptly as practicable upon becoming aware of the Company’s ineligibility (or impending ineligibility) to use the Registration Statement on Form S-3, file a post-effective amendment to the Registration Statement on Form S-1 (or another appropriate form reasonably acceptable to the BuyerInvestor) with the SEC to register the resale of the Registrable Securities on Form S-1 pursuant to Rule 415 promulgated under the Securities Act at then-prevailing market prices, and not fixed prices, and (ii) as promptly as practicable thereafter upon becoming eligible to use Form S-3, file an additional post-effective amendment to the Registration Statement on Form S-3 with the SEC to register the resale of the Registrable Securities on Form S-3 pursuant to Rule 415 promulgated under the Securities Act, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as such post-effective amendment to the Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the SEC. The Company shall use commercially reasonable efforts to have each such post-effective amendment to the Registration Statement declared effective by the SEC at the earliest possible date after the filing thereof.