Common use of Rule 415; Cutbacks Clause in Contracts

Rule 415; Cutbacks. If at any time the 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 1933 Act or requires any Buyer to be named as an “underwriter”, the Company shall use its reasonable best 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 Buyers is an “underwriter”. The Buyers 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 Buyers’ counsel reasonably objects. In the event that, despite the Company’s reasonable best efforts and compliance with the terms of this Section 2(d), the SEC refuses to alter its position, the Company shall (i) remove from the Registration Statement such portion of the Registrable Securities (the “Cut Back Shares”) and/or (ii) agree to such restrictions and limitations on the registration and resale of the Registrable Securities as the SEC may require to assure the Company’s compliance with the requirements of Rule 415; provided, however, that the Company shall not agree to name any Buyer as an “underwriter” in such Registration Statement without the prior written consent of such Buyer (collectively, the “SEC Restrictions”). Any cut-back imposed on the Buyers pursuant to this Section 2(d) shall be allocated among the Buyers on a pro rata basis. No liquidated damages shall accrue on or as to any Cut Back Shares until the earliest of (i) six months after the date on which the Registration Statement which would have included the Cut Back Shares (the “Affected Registration Statement”) is initially declared effective, (ii) six months after the date on which the Affected Registration Statement was required to become initially effective pursuant to the terms of this Agreement and (iii) such time as the Company is able to file a Registration Statement covering the Cut Back Shares in accordance with any SEC Restrictions (the earliest of such date, the “Cut Back Termination Date”). From and after the Cut Back Termination Date, all of the provisions of this Section 2 (including the liquidated damages provisions) shall again be applicable to the Cut Back Shares; provided, however, that for such purposes, references to the Closing Date and the Filing Date, as applicable, shall be deemed to be the Cut Back Termination Date.

Rule 415; Cutbacks. If at any time the 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 1933 Act or requires any Buyer Investor to be named as an “underwriter”, the Company shall use its reasonable best 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 Buyers Investors is an “underwriter”. The Buyers Investors 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 BuyersInvestors’ counsel reasonably objects. In the event that, despite the Company’s reasonable best efforts and compliance with the terms of this Section 2(d), the SEC refuses to alter its position, the Company shall (i) remove from the Registration Statement such portion of the Registrable Securities (the “Cut Back Shares”) and/or (ii) agree to such restrictions and limitations on the registration and resale of the Registrable Securities as the SEC may require to assure the Company’s compliance with the requirements of Rule 415; provided, however, that the Company shall not agree to name any Buyer Investor as an “underwriter” in such Registration Statement without the prior written consent of such Buyer Investor (collectively, the “SEC Restrictions”). Any cut-back imposed on the Buyers Investors pursuant to this Section 2(d) shall be allocated among the Buyers Investors on a pro rata basis. No liquidated damages shall accrue on or as to any Cut Back Shares until , unless the earliest of (i) six months after the date on which the Registration Statement which would have included the Cut Back Shares (the “Affected Registration Statement”) is initially declared effective, (ii) six months after the date on which the Affected Registration Statement was required to become initially effective pursuant to the terms of this Agreement and (iii) such time as the Company is able to file a Registration Statement covering the Cut Back Shares in accordance with any SEC Restrictions (the earliest of such date, the “Cut Back Termination Date”). From and after the Cut Back Termination Date, all of the provisions of this Section 2 (including the liquidated damages provisions) shall again be applicable to the Cut Back Shares; provided, however, that for such purposes, references to the Closing Date and the Filing Date, as applicable, shall be deemed to be the Cut Back Termination Dateotherwise require or provide.

Rule 415; Cutbacks. If at any time the 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 1933 Act or requires any Buyer Investor to be named as an “underwriter”, the Company shall use its commercially reasonable best 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 Buyers Investors is an “underwriter”. The Buyers Investors 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 BuyersInvestors’ counsel reasonably objects. In the event that, despite the Company’s commercially reasonable best efforts and compliance with the terms of this Section 2(d), the SEC refuses to alter its position, the Company shall (i) remove from the Registration Statement such portion of the Registrable Securities (the “Cut Back Shares”) and/or (ii) agree to such restrictions and limitations on the registration and resale of the Registrable Securities as the SEC may require to assure the Company’s compliance with the requirements of Rule 415; provided, however, that the Company shall not agree to name any Buyer Investor as an “underwriter” in such Registration Statement without the prior written consent of such Buyer Investor (collectively, the “SEC Restrictions”). Any cut-back imposed on the Buyers Investors pursuant to this Section 2(d) shall be allocated among the Buyers Investors on a pro rata basis. No liquidated damages shall accrue on or as to any Cut Back Shares until , unless the earliest of (i) six months after the date on which the Registration Statement which would have included the Cut Back Shares (the “Affected Registration Statement”) is initially declared effective, (ii) six months after the date on which the Affected Registration Statement was required to become initially effective pursuant to the terms of this Agreement and (iii) such time as the Company is able to file a Registration Statement covering the Cut Back Shares in accordance with any SEC Restrictions (the earliest of such date, the “Cut Back Termination Date”). From and after the Cut Back Termination Date, all of the provisions of this Section 2 (including the liquidated damages provisions) shall again be applicable to the Cut Back Shares; provided, however, that for such purposes, references to the Closing Date and the Filing Date, as applicable, shall be deemed to be the Cut Back Termination Dateotherwise require or provide.

Rule 415; Cutbacks. If at any time the 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 1933 Act or requires any Buyer Investor to be named as an “underwriter”, the Company shall use its commercially reasonable best 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 Buyers Investors is an “underwriter”. The Buyers Investors 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 BuyersInvestors’ counsel reasonably objects. In the event that, despite the Company’s commercially reasonable best efforts and compliance with the terms of this Section 2(d), the SEC refuses to alter its position, the Company shall (i) remove from the Registration Statement such portion of the Registrable Securities (the “Cut Back Shares”) and/or (ii) agree to such restrictions and limitations on the registration and resale of the Registrable Securities as the SEC may require to assure the Company’s compliance with the requirements of Rule 415; provided, however, that the Company shall not agree to name any Buyer Investor as an “underwriter” in such Registration Statement without the prior written consent of such Buyer Investor (collectively, the “SEC Restrictions”). Any cut-back imposed on the Buyers Investors pursuant to this Section 2(d) shall be allocated among the Buyers Investors on a pro rata basis, unless the SEC Restrictions otherwise require or provide. No liquidated damages shall accrue on or as to any Cut Back Shares until the earliest earlier of (i) six months after the date on which six-month anniversary of the Registration Statement which would have included the Cut Back Shares (the “Affected Registration Statement”) is initially declared effective, Closing Date or (ii) six months after the date on which the Affected Registration Statement was required to become initially effective pursuant to the terms of this Agreement and (iii) such time as the Company is able to file a Registration Statement covering effect the registration of the Cut Back Shares in accordance with any SEC Restrictions (the earliest earlier of such datedates, the “Cut Back Restriction Termination Date”). From and after the Cut Back Restriction Termination Date, all of the provisions of this Section 2 (including the liquidated damages provisions) shall again be applicable to the Cut Back Shares; provided, however, that for such purposes, references to the Closing Date and the Filing Date, as applicable, shall be deemed to be the Cut Back Termination Date.

Rule 415; Cutbacks. If at any time the 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 1933 Act or requires any Buyer Investor to be named as an “underwriter”, the Company shall use its commercially reasonable best 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 Buyers Investors is an “underwriter”. The Buyers Investors 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 BuyersInvestors’ counsel reasonably objects. In the event that, despite the Company’s commercially reasonable best efforts and compliance with the terms of this Section 2(d), the SEC refuses to alter its position, the Company shall (i) remove from the Registration Statement such portion of the Registrable Securities (the “Cut Back Shares”) and/or (ii) agree to such restrictions and limitations on the registration and resale of the Registrable Securities as the SEC may require to assure the Company’s compliance with the requirements of Rule 415; provided, however, that the Company shall not agree to name any Buyer Investor as an “underwriter” in such Registration Statement without the prior written consent of such Buyer Investor (collectively, the “SEC Restrictions”). Any cut-back imposed on the Buyers Investors pursuant to this Section 2(d) shall be allocated among the Buyers Investors on a pro rata basis, unless the SEC Restrictions otherwise require or provide. No liquidated damages shall accrue on or as to any Cut Back Shares until the earliest of (i) six months after the date on which the Registration Statement which would have included the Cut Back Shares (the “Affected Registration Statement”) is initially declared effective, (ii) six months after the date on which the Affected Registration Statement was required to become initially effective pursuant to the terms of this Agreement and (iii) such time as the Company is able to file a Registration Statement covering effect the registration of the Cut Back Shares in accordance with any SEC Restrictions (the earliest of such date, the “Cut Back Restriction Termination Date”). From and after the Cut Back Restriction Termination Date, all of the provisions of this Section 2 (including the liquidated damages provisions) shall again be applicable to the Cut Back Shares; provided, however, that for such purposes, references to the Closing Date, the Adjustment Date and the Filing Qualification Date, as applicable, shall be deemed to be the Cut Back Restriction Termination Date.

Rule 415; Cutbacks. If at any time the 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 1933 Act or requires any Buyer Investor to be named as an “underwriter”, the Company shall use its reasonable best 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 Buyers Investors is an “underwriter”. The Buyers Investors 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 BuyersInvestors’ counsel reasonably objects. In the event that, despite the Company’s reasonable best efforts and compliance with the terms of this Section 2(d2(e), the SEC refuses to alter its position, the Company shall (i) remove from the Registration Statement such portion of the Registrable Securities (the “Cut Back Shares”) and/or (ii) agree to such restrictions and limitations on the registration and resale of the Registrable Securities as the SEC may require to assure the Company’s compliance with the requirements of Rule 415; provided, however, that the Company shall not agree to name any Buyer Investor as an “underwriter” in such Registration Statement without the prior written consent of such Buyer Investor (collectively, the “SEC Restrictions”). Any cut-back imposed on the Buyers Investors pursuant to this Section 2(d) shall be allocated among the Buyers Investors on a pro rata basisbasis and shall be allocated first to the Warrant Shares and then the Shares, unless the SEC Restrictions otherwise require or provide. No liquidated damages shall accrue on or as to any Cut Back Shares until the earliest of (i) six months after the date on which the Registration Statement which would have included the Cut Back Shares (the “Affected Registration Statement”) is initially declared effective, (ii) six months after the date on which the Affected Registration Statement was required to become initially effective pursuant to the terms of this Agreement and (iii) such time as the Company is able to file a Registration Statement covering the Cut Back Shares in accordance with any SEC Restrictions (the earliest of such date, the “Cut Back Termination Date”). From and after the Cut Back Termination Date, all of the provisions of this Section 2 (including the liquidated damages provisions) shall again be applicable to the Cut Back Shares; provided, however, that for such purposes, references to the Closing Date and the Filing Date, as applicable, shall be deemed to be the Cut Back Termination Date.