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 to remove from the Initial Registration Statement any Cut Back Shares, the Company shall file an additional registration statement covering such Cut Back Shares (the “Additional Registration Statement”), as soon as practicable thereafter, but in no event, unless permitted by the SEC, earlier than the later of (i) the date which is sixty (60) days after the date substantially all of the Registrable Shares registered under the Initial Registration Statement have been sold and (ii) the date six (6) months from the effective date of the Initial Registration Statement. The Company will use its commercially reasonable efforts to cause each Additional Registration Statement to become effective as soon as practicable but in no event later than sixty (60) days following the date on which the Additional Registration Statement is filed (the “Additional
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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 Notwithstanding the provisions of Rule 415 under 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 Act stating that the total amount or requires kind of securities that they and any Holder 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 named as an “underwriter”, offered for the Company accounts of Holders shall use its commercially reasonable efforts be reduced pro rata based on the number of Registrable Securities then requested to persuade the SEC that the offering contemplated be included 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 extent necessary to reduce the total amount of Registrable Securities to be included in such written submission shall offering to that recommended by such managing underwriter or underwriters (which amount may 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”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 shall may not agree to name any Holder as an “underwriter” include in such Registration Statement without the prior written consent of such Holderoffering any securities other than (i) Registrable Securities and (ii) securities, and provided furtherif any, that any cut-back imposed on the Holders pursuant Company is offering for sale for its own account in a primary underwritten offering. If Management Securities are proposed to this Section 2.2(a)(i) shall be allocated among the Holders on included in a pro rata basis based on Registration in which the number of Registrable Shares held by each Holder at Securities to be included therein is the time such Registration Statement is filed, unless the SEC Restrictions otherwise require or provide. If any subject of a cut-back is so imposed on upon the Holdersadvice of the managing underwriter or underwriters, each Holder shall have then as between the right to determine Holders of Management Securities and the number and type Holders of Non-Management Securities, the proration of Registrable Shares Securities shall be made in accordance with this paragraph. The Holders of Non-Management Securities shall be entitled to be covered by offer one hundred and twenty-five percent (125%) of the Initial Registration Statement (up to an aggregate number of Registrable Shares equal Securities which they would have been entitled to such Holder’s offer but for the provisions of this paragraph, and the number of Management Securities which the Holders thereof shall be entitled to offer shall be reduced pro rata share of by the total number of Registrable Shares permitted to be covered by such Initial Registration Statement) by written notice additional Non-Management Securities included in the offering pursuant to the Companyprovisions of this paragraph.
(b) In the event the Company is required to remove from the Initial Registration Statement any Cut Back Shares, the Company shall file an additional registration statement covering such Cut Back Shares (the “Additional Registration Statement”), as soon as practicable thereafter, but in no event, unless permitted by the SEC, earlier than the later of (i) the date which is sixty (60) days after the date substantially all of the Registrable Shares registered under the Initial Registration Statement have been sold and (ii) the date six (6) months from the effective date of the Initial Registration Statement. The Company will use its commercially reasonable efforts to cause each Additional Registration Statement to become effective as soon as practicable but in no event later than sixty (60) days following the date on which the Additional Registration Statement is filed (the “Additional
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