Common use of Removal of Restrictive Legend Clause in Contracts

Removal of Restrictive Legend. (a) Stock certificates evidencing Shares shall not contain any legend (including the legend set forth in Section 5(f) below) (i) while a Registration Statement covering the resale of such Shares is effective under the Securities Act, (ii) following any sale of such Securities pursuant to Rule 144, (iii) if such Shares are eligible for sale under Rule 144 without any restriction as to the number of securities as of a particular date that can then be immediately sold and the adequate current public information requirement of Rule 144(c)(1) no longer applies to the sale of Shares, or (iv) if such legend is not required under applicable requirements of the Securities Act (including judicial interpretations and pronouncements issued by the Commission’s staff) and such lack of requirement is confirmed by a legal opinion reasonably satisfactory to the Company. (b) The Company shall cause its counsel to issue a legal opinion to the Company’s transfer agent promptly after the date any Registration Statement relating to the resale of the Shares has been declared effective by the Commission if required by the Company’s transfer agent to effect the removal of the legend hereunder. The Company agrees that following the relevant effective date or at such time as such legend is no longer required under this Section 4.38, it will, no later than 3 Trading Days following the delivery by a Purchaser to the Company’s transfer agent of a certificate representing the Shares issued with a restrictive legend (such date, the “Legend Removal Date”), deliver or cause to be delivered to such Purchaser a certificate representing such Shares that is free from all restrictive or other legends. The Company may not make any notation on its records or give instructions to any transfer agent of the Company that enlarge the restrictions on transfer set forth in this Section 4.38 or Section 5(f) below. Certificates for Shares subject to legend removal under this Section 4.38 shall be transmitted by the transfer agent of the Company to each Purchaser by crediting the account of such Purchaser’s prime broker with the Depositary Trust Company System. For purposes of this Section 4.38, “Trading Day” shall mean a day on which the New York Stock Exchange or NASDAQ is open for trading of equity securities of any issuer listed on such national securities exchange.

Removal of Restrictive Legend. (a) Stock Notwithstanding the foregoing, the certificates evidencing Shares the shares of Series B-2 Preferred Stock shall not contain any legend restricting the transfer thereof (including the legend set forth above in Section 5(f) below) subsection 6(g)(i)): (iA) while a Registration Statement registration statement covering the sale or resale of such Shares shares is effective under the Securities Act, subject to the Holder’s delivery to the Company of an undertaking that such Holder will only sell or otherwise transfer such shares pursuant to either registration under the Securities Act or an exemption therefrom, and that if such securities are sold pursuant to a registration statement, they will be sold in compliance with the plan of distribution set forth therein (iian “Undertaking”), or (B) following any sale of if the Holder provides customary paperwork to the effect that it has sold such Securities shares pursuant to Rule 144, or (iiiC) if such Shares shares are eligible for sale under Rule 144 144(b)(1) (without any restriction as to the number of securities as of a particular date that can then be immediately sold and the adequate current public information requirement application of Rule 144(c)(1)) no longer applies to as set forth in customary non-affiliate paperwork provided by the sale of SharesHolder, or (ivD) if at any time on or after the date that is three months after the Closing Date (as defined in the Investment Agreement) (the “Non-affiliation Date”) the Holder certifies that it is not an Affiliate of the Company and that the Holder’s holding period for the purposes of Rule 144 is at least six (6) months, subject to the Holder’s delivery to the Company of an Undertaking; provided, that each Holder shall be deemed to have given such certification upon each delivery of a Notice of Conversion, unless such Holder otherwise advises the Company in writing, or (E) if such legend is not required under applicable requirements of the Securities Act (including judicial interpretations and pronouncements issued by the Commission’s staffstaff of the SEC) and such lack of requirement is confirmed as determined in good faith by counsel to the Company or set forth in a legal opinion reasonably satisfactory delivered by Kxxxxx Xxxxxx Rxxxxxxx LLP or other nationally recognized counsel to the Company. Holder (b) The collectively, the “Unrestricted Conditions”). Subject to the terms and conditions hereof, upon the reasonable request of the Holder, the Company shall cause its counsel to issue a legal opinion to the Company’s transfer agent Transfer Agent promptly after the date Non-affiliation Date, or at such other time as any Registration Statement relating to the resale of the Shares has Unrestricted Conditions have been declared effective by the Commission satisfied, if required by the Company’s transfer agent Transfer Agent, to effect the issuance of the shares of Series B-2 Preferred Stock without a restrictive legend or removal of the legend hereunder. If any of the Unrestricted Conditions is met at the time of issuance of any shares of Series B-2 Preferred Stock, then such shares shall be issued free of all legends. The Company agrees that following the relevant effective date Non-affiliation Date or at such time as any of the Unrestricted Conditions are met or such legend is otherwise no longer required under this Section 4.386(d)(ii), it will, no later than 3 two (2) Trading Days (or, if less, the number of days comprising the Standard Settlement Period) following the delivery by a Purchaser the Holder to the Company’s transfer agent Company or the Transfer Agent of a certificate representing the Shares Series B-2 Preferred Stock issued with a restrictive legend (such date, the “Legend Removal Date”)legend, deliver or cause to be delivered to such Purchaser Holder a certificate (or electronic transfer) representing such Shares shares that is free from all restrictive or and other legends. The Company may not make any notation on its records or give instructions to any transfer agent of the Company that enlarge the restrictions on transfer set forth in this Section 4.38 or Section 5(f) below. Certificates for Shares subject to legend removal under this Section 4.38 shall be transmitted by the transfer agent of the Company to each Purchaser by crediting the account of such Purchaser’s prime broker with the Depositary Trust Company System. For purposes of this Section 4.38, “Trading Day” shall mean a day on which the New York Stock Exchange or NASDAQ is open for trading of equity securities of any issuer listed on such national securities exchange.

Removal of Restrictive Legend. (a) Stock Notwithstanding the foregoing and subject to the transfer restrictions in the By-Laws, the certificates evidencing Shares the shares of Series A Common Equivalent Preferred Stock and the Conversion Shares, as applicable, shall not contain any legend (or be subject to any stop transfer instruction) restricting the transfer thereof (including the legend set forth above in subsection 6(d)(i)): (A) if issued in a transaction exempt from registration pursuant to Section 5(f3(a)(9) below) of the Securities Act in exchange for outstanding securities of the Company that do not, and are not required to, bear a restrictive legend (iincluding Conversion Shares issued upon conversion of shares of Series A Common Equivalent Preferred Stock issued in exchange for any such outstanding securities); (B) while a Registration Statement registration statement covering the sale or resale of such Shares shares is effective under the Securities Act, subject to the Holder’s delivery to the Company of an undertaking that such Holder will only sell or otherwise transfer such shares pursuant to an effective registration under the Securities Act or pursuant to Rule 144 (iiif available), and that if such securities are sold pursuant to a registration statement, they will be sold in compliance with the plan of distribution set forth therein (the “Undertaking”), provided that no Holder shall be required to give an Undertaking in respect of shares as to which a prior Undertaking has been delivered by such Holder and not been withdrawn by such Holder; (C) following any sale of if the Holder provides customary paperwork to the effect that it has sold such Securities shares pursuant to Rule 144, ; or (iiiD) if such Shares shares are eligible for sale under Rule 144 144(b)(1) (without any restriction as to the number of securities as of a particular date that can then be immediately sold and the adequate current public information requirement application of Rule 144(c)(1)) no longer applies to as set forth in customary non-affiliate paperwork provided by the sale Holder; (E) if at any time on or after the date that is one year after the Form 10 Disclosure Filing Date the Holder certifies that it is not an Affiliate of Sharesthe Company and has not been an Affiliate of the Company for a period of three months and that the Holder has satisfied its holding period for purposes of Rule 144 (including, for the avoidance of doubt, subsection (d)(3)(ii) thereof) of at least six months; or (ivF) if such legend is not required under applicable requirements of the Securities Act (including judicial interpretations and pronouncements issued by the Commission’s staffstaff of the SEC) and such lack of requirement is confirmed as determined in good faith by counsel to the Company or set forth in a legal opinion reasonably satisfactory delivered by Kxxxxx Xxxxxx Rxxxxxxx LLP or other nationally recognized counsel to the Company. Holder (b) The collectively, the “Unrestricted Conditions”). Subject to the terms and conditions hereof, upon the reasonable request of the Holder, the Company shall cause its counsel to issue a legal opinion to the Company’s transfer agent Transfer Agent promptly after the date Non-affiliation Date, or at such other time as any Registration Statement relating to the resale of the Shares Unrestricted Conditions has been declared effective by the Commission satisfied, if required by the Company’s transfer agent Transfer Agent, to effect the issuance of the shares of Series A Common Equivalent Preferred Stock or the Conversion Shares without a restrictive legend or removal of the legend hereunder. If any of the Unrestricted Conditions is met at the time of issuance of any shares of Series A Common Equivalent Preferred Stock or Conversion Shares, as applicable, then such shares shall be issued free of all legends. The Company agrees that following the relevant effective date or at such time as any of the Unrestricted Conditions is met or such legend is otherwise no longer required under this Section 4.386(d)(ii), it will, as promptly as reasonably practicable, and, in the case of Conversion Shares, no later than 3 two Trading Days (or, if less, the number of days comprising the Standard Settlement Period) following the delivery by a Purchaser the Holder to the Company’s transfer agent Company or the Transfer Agent of a certificate representing the Shares Series A Common Equivalent Preferred Stock or Conversion Shares, as applicable, issued with a restrictive legend (such date, the “Legend Removal Date”)legend, deliver or cause to be delivered to such Purchaser Holder a certificate (or electronic transfer) representing such Shares shares that is free from all restrictive or and other legends. The Company may not make any notation on its records or give instructions to any transfer agent of the Company that enlarge the restrictions on transfer set forth in this Section 4.38 or Section 5(f) below. Certificates for Shares subject to legend removal under this Section 4.38 shall be transmitted by the transfer agent of the Company to each Purchaser by crediting the account of such Purchaser’s prime broker with the Depositary Trust Company System. For purposes of this Section 4.38, “Trading Day” shall mean a day on which the New York Stock Exchange or NASDAQ is open for trading of equity securities of any issuer listed on such national securities exchange.

Removal of Restrictive Legend. (a) Stock This Warrant and the certificates evidencing the Warrant Shares shall not contain any legend restricting the transfer thereof: (including the legend set forth in Section 5(f) below) (iA) while a registration statement (including a Registration Statement Statement, as defined in the Registration Rights Agreement) covering the sale or resale of such Shares security is effective under the Securities Act, or (iiB) following any sale of such Securities Warrant and/or Warrant Shares pursuant to Rule 144, or (iiiC) if such Warrant and/or Warrant Shares are eligible for sale under Rule 144 without any restriction as to the number of securities as of a particular date that can then be immediately sold and the adequate current public information requirement of Rule 144(c)(1) no longer applies to the sale of Shares144(b)(1), or (ivD) if such legend is not required under applicable requirements of the Securities Act (including judicial interpretations and pronouncements issued by the Commission’s staffstaff of the SEC) and such lack of requirement is confirmed by a legal opinion reasonably satisfactory to (collectively, the Company. (b) “Unrestricted Conditions”). The Company shall cause its counsel to issue a legal opinion to the Company’s transfer agent Transfer Agent promptly after the date any Registration Statement relating to the resale of the Shares has been declared effective by the Commission Effective Date if required by the Company’s transfer agent to effect the issuance of this Warrant or the Warrant Shares, as applicable, without a restrictive legend or removal of the legend hereunder. If the Unrestricted Conditions are met at the time of issuance of this Warrant or the Warrant Shares, then such Warrant or Warrant Shares, as applicable, shall be issued free of all legends. The Company agrees that following the relevant effective date or Effective Date at such time as the Unrestricted Conditions are met or such legend is otherwise no longer required under this Section 4.38paragraph, it will, no later than 3 three (3) Trading Days following the delivery (the “Unlegended Shares Delivery Deadline”) by a Purchaser the Holder to the Company’s transfer agent Company or the Transfer Agent of this Warrant and a certificate representing the Warrant Shares issued with a restrictive legend (such datethird Trading Day, the “Legend Removal Date”), deliver or cause to be delivered to such Purchaser Holder this Warrant and/or a certificate (or electronic transfer) representing such Shares shares that is free from all restrictive or and other legends. The Company may not make any notation on its records or give instructions to any transfer agent of the Company that enlarge the restrictions on transfer set forth in this Section 4.38 or Section 5(f) below. Certificates for Shares subject to legend removal under this Section 4.38 shall be transmitted by the transfer agent of the Company to each Purchaser by crediting the account of such Purchaser’s prime broker with the Depositary Trust Company System. For purposes of this Section 4.38paragraph, “Trading Day” Effective Date’ shall mean a day on which the New York Stock Exchange or NASDAQ date that the Registration Statement that the Company is open for trading of equity securities of any issuer listed on such national securities exchangerequired to file pursuant to the Registration Rights Agreement has been declared effective by the SEC.