Common use of Rule 415; Cutback Clause in Contracts

Rule 415; Cutback. If at any time the Staff takes the position that the offering of some or all of the Registrable Securities in a 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 Purchaser to be named as an “underwriter,” the Company shall use its reasonable best efforts to persuade the Commission 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 Purchasers is an “underwriter.” In the event that, despite the Company’s reasonable best efforts and compliance with the terms of this Section 10.2, the Staff refuses to alter its position, the Company shall (i) remove from the Registration Statement such portion of the Registrable Securities (the “Cut Back Securities”) and/or (ii) agree to such restrictions and limitations on the registration and resale of the Registrable Securities as the Staff 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 Purchaser as an “underwriter” in such Registration Statement without the prior written consent of such Purchaser. Any cutback imposed on the Purchasers pursuant to this Section 10.2 shall be allocated among the Purchasers on a pro rata basis, unless the SEC Restrictions otherwise require or provide or the Purchasers otherwise agree.

Rule 415; Cutback. If at any time the Staff SEC takes the position that the offering of some or all of the Registrable Securities in a Registration Statement is not eligible to be made on a delayed or continuous basis under the provisions of Rule 415 under the Securities 1933 Act or requires any Purchaser Investor to be named as an “"underwriter,” ", the Company shall use its reasonable best efforts to persuade the Commission 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 Purchasers Investors is an “"underwriter.” " In the event that, despite the Company’s reasonable 's best efforts and compliance with the terms of this Section 10.22(d), the Staff SEC refuses to alter its position, the Company shall (i) remove from the Registration Statement such portion of the Registrable Securities (the “"Cut Back Securities”Shares") and/or (ii) agree to such restrictions and limitations on the registration and resale of the Registrable Securities as the Staff SEC may require to assure the Company’s 's compliance with the requirements of Rule 415 (collectively, the “"SEC Restrictions”"); provided, however, that the Company shall not agree to name any Purchaser Investor as an “"underwriter” " in such Registration Statement without the prior written consent of such PurchaserInvestor. Any cutback cut-back imposed on the Purchasers Investors pursuant to this Section 10.2 2(d) shall be allocated among the Purchasers Investors on a pro rata basis, unless the SEC Restrictions otherwise require or provide or the Purchasers Investors otherwise agree.

Rule 415; Cutback. If at any time the Staff Commission takes the position that the offering of some or all of the Registrable Securities in a 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 Purchaser Holder to be named as an “underwriter,” the Company shall use its commercially reasonable best efforts to persuade the Commission 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 Purchasers Investors is an “underwriter.” The Holders shall have the right to comment or have their counsel comment on any written submission made to the Commission with respect thereto. No such written submission shall be made to the Commission to which the Holders’ counsel reasonably objects. In the event that, despite the Company’s commercially reasonable best efforts and compliance with the terms of this Section 10.21(d), the Staff Commission refuses to alter its position, the Company shall (i) remove from the Registration Statement such portion of the Registrable Securities (the “Cut Back SecuritiesShares”) and/or (ii) agree to such restrictions and limitations on the registration and resale of the Registrable Securities as the Staff Commission 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 Purchaser Holder as an “underwriter” in such Registration Statement without the prior written consent of such PurchaserHolder. Any cutback cut-back imposed on the Purchasers Investors pursuant to this Section 10.2 1(d) shall be allocated among the Purchasers Holders on a pro rata basis, unless the SEC Restrictions otherwise require or provide or the Purchasers Holders otherwise agree.

Rule 415; Cutback. If at any time the Staff staff of the Commission (“Staff”) takes the position that the offering of some or all of the Registrable Securities Shares in a 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 Purchaser Holder to be named as an “underwriter,” the Company shall (in consultation with legal counsel to Holder) use its commercially reasonable best efforts to persuade the Commission 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 Purchasers Hxxxxx is not an “underwriter.” In the event that, despite the Company’s commercially reasonable best efforts and compliance with the terms of this Section 10.21.3, the Staff refuses to alter its position, the Company shall (i) remove from the Registration Statement such portion of the Registrable Securities Shares (the “Cut Back SecuritiesShares”) and/or (ii) agree to such restrictions and limitations on the registration and resale of the Registrable Securities Shares as the Staff may require to assure the Company’s compliance with the requirements of Rule 415 (collectively, the “SEC RestrictionsRestrictions ”); provided, however, that the Company shall not agree to name any Purchaser Hxxxxx as an “underwriter” in such Registration Statement without the prior written consent of such Purchaser. Any cutback imposed on the Purchasers pursuant to this Section 10.2 shall be allocated among the Purchasers on a pro rata basis, unless the SEC Restrictions otherwise require or provide or the Purchasers otherwise agreeHxxxxx.

Rule 415; Cutback. If at any time the Staff Commission takes the position that the offering of some or all of the Registrable Securities in a 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 Purchaser Holder to be named as an “underwriter,” ”, the Company shall use its reasonable best efforts to persuade the Commission 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 Purchasers Holders is an “underwriter.” ”. In the event that, despite the Company’s reasonable best efforts and compliance with the terms of this Section 10.22(b), the Staff Commission refuses to alter its position, the Company shall (i) remove from the Registration Statement such portion of the Registrable Securities (the “Cut Back SecuritiesShares”) and/or (ii) agree to such restrictions and limitations on the registration and resale of the Registrable Securities as the Staff Commission 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 Purchaser Holder as an “underwriter” in such Registration Statement without the prior written consent of such PurchaserHolder. Any cutback cut-back imposed on the Purchasers Holders pursuant to this Section 10.2 2(b) shall be allocated among the Purchasers Holders on a pro rata basis, unless the SEC Restrictions otherwise require or provide or the Purchasers Holders otherwise agree.

Rule 415; Cutback. If at any time the Staff SEC takes the position that the offering of some or all of the Registrable Securities in a Registration Statement is not eligible to be made on a delayed or continuous basis under the provisions of Rule 415 under the Securities 1933 Act or requires any Purchaser Holder to be named as an “underwriter,” ”, the Company shall use its commercially reasonable best efforts to persuade the Commission 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 Purchasers Holders is an “underwriter.” ”. The Holders 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 the Holders’ counsel reasonably objects. In the event that, despite the Company’s commercially reasonable best efforts and compliance with the terms of this Section 10.22(d), the Staff SEC refuses to alter its position, the Company shall (i) remove from the Registration Statement such portion of the Registrable Securities (the “Cut Back SecuritiesShares”) and/or (ii) agree to such restrictions and limitations on the registration and resale of the Registrable Securities as the Staff 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 Purchaser as an “underwriter” in such Registration Statement without the prior written consent of such Purchaser. Any cutback cut-back imposed on the Purchasers Holders pursuant to this Section 10.2 2(d) shall be allocated among the Purchasers Holders on a pro rata basisbasis and shall be applied first to any Conversion Shares, unless the SEC Restrictions otherwise require or provide or the Purchasers Holders otherwise agree.

Rule 415; Cutback. If at any time the Staff staff of the Commission (“Staff”) takes the position that the offering of some or all of the Registrable Securities Shares in a 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 Purchaser Holder to be named as an “underwriter,” the Company shall (in consultation with legal counsel to Holder) use its commercially reasonable best efforts to persuade the Commission 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 Purchasers Holder is not an “underwriter.” In the event that, despite the Company’s commercially reasonable best efforts and compliance with the terms of this Section 10.21.3, the Staff refuses to alter its position, the Company shall (i) remove from the Registration Statement such portion of the Registrable Securities Shares (the “Cut Back SecuritiesShares”) and/or (ii) agree to such restrictions and limitations on the registration and resale of the Registrable Securities Shares as the Staff 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 Purchaser Holder as an “underwriter” in such Registration Statement without the prior written consent of such Purchaser. Any cutback imposed on the Purchasers pursuant to this Section 10.2 shall be allocated among the Purchasers on a pro rata basis, unless the SEC Restrictions otherwise require or provide or the Purchasers otherwise agreeHolder.

Rule 415; Cutback. If Notwithstanding anything else to the contrary set forth in this Agreement or the Purchase Agreement, if at any time the Staff SEC takes the position or the Company reasonably believes on the advice of counsel that the offering of some or all of the Registrable Securities in a Registration Statement is not eligible to be made on a delayed or continuous basis under the provisions of Rule 415 under the Securities 1933 Act or requires any Purchaser to be named as an “underwriter,” the Company shall use its reasonable best efforts to persuade the Commission 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 Purchasers is an “underwriter.” In the event that, despite the Company’s reasonable best efforts and compliance with the terms of this Section 10.2, the Staff refuses to alter its position”, the Company shall (i) remove from the Registration Statement such portion of the Registrable Securities (the “Cut Back SecuritiesShares”) and/or (ii) agree to such restrictions and limitations on the registration and resale of the Registrable Securities as the Staff 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 Purchaser as an “underwriter” in such Registration Statement without the prior written consent of such Purchaser. Any cutback cut-back imposed on the Purchasers pursuant to this Section 10.2 2(d) shall be allocated among the Purchasers on a pro rata basis, unless the SEC Restrictions otherwise require or provide a different allocation (and with respect to any Purchaser the removal of such additional Registrable Securities as may be required to avoid “underwriter” status of such Purchaser in the Company’s opinion upon the advice of counsel unless such Purchaser consents to being named an “underwriter” in the Registration), or the Company and the Majority Purchasers mutually otherwise agree.