Common use of Replacement Registration Statement Clause in Contracts

Replacement Registration Statement. If the Staff or the Commission seeks to characterize any offering pursuant to a Registration Statement filed pursuant to this Agreement as constituting an offering of securities that does not permit such Registration Statement to become effective and be used for resales by the Investor on a delayed or continuous basis under Rule 415 at then-prevailing market prices (and not fixed prices), or if after the filing of any Registration Statement pursuant to Section 2(a) or Section 2(c), the Company is otherwise required by the Staff or the Commission to reduce the number of Registrable Securities included in such Registration Statement, then the Company shall reduce the number of Registrable Securities to be included in such Registration Statement (after consultation with the Investor and Legal Counsel as to the specific Registrable Securities to be removed therefrom) until such time as the Staff and the Commission shall so permit such Registration Statement to become effective and be used as aforesaid. Notwithstanding anything in this Agreement to the contrary, if after giving effect to the actions referred to in the immediately preceding sentence, the Staff or the Commission does not permit such Registration Statement to become effective and to be used for resales by the Investor on a delayed or continuous basis under Rule 415 at then-prevailing market prices (and not fixed prices), the Company shall not request acceleration of the Effective Date of such Registration Statement, and the Company shall promptly (but in no event later than the second Business Day following final notification by the Staff) request the withdrawal of such Registration Statement pursuant to Rule 477 under the Securities Act. In the event of any reduction in Registrable Securities pursuant to this paragraph, the Company shall use its commercially reasonable efforts to file one or more New Registration Statements with the Commission in accordance with Section 2(c) until such time as all Registrable Securities have been included in Registration Statements that have been declared effective and the Prospectuses contained therein are available for use by the Investor. Notwithstanding any provision herein or in the Purchase Agreement to the contrary, the Company’s obligations to register Registrable Securities (and any related conditions to the Investor’s obligations) shall be qualified as necessary to comport with any requirement of the Staff or the Commission as addressed in this Section 2(d).

Replacement Registration Statement. If Without limiting the Staff Company’s obligations under Section 7(a), if, prior to January 24, 2020, the Company has not sold Placement Shares pursuant to this Agreement with an aggregate offering price of $40,000,000, then: (i) the Company shall, on or prior to such date, file with the Commission seeks to characterize a new registration statement on Form S-3 (such registration statement, including all documents filed as part thereof or incorporated by reference therein, and including any offering information contained in a prospectus subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act, the “Replacement Registration Statement filed Statement”), including a base prospectus, that permits, among other things, a continuous offering of shares of Common Stock with an aggregate offering price at least equal to the amount by which $40,000,000 exceeds the aggregate offering price of Placement Shares that have been sold pursuant to this Agreement as constituting an of such date (such amount of shares, the “Unsold Placement Shares”), so as to permit the continuation of the offering contemplated by this Agreement until the effective date of securities that does not permit such Replacement Registration Statement in accordance with Rule 415(a)(5)(ii)(B) under the Securities Act; (ii) the Company shall promptly, and in any event within five (5) Business Days after the Commission has declared effective any such Replacement Registration Statement, prepare and file with the Commission pursuant to become effective and be used Rule 424(b) under the Securities Act a prospectus supplement to the base prospectus included as part of such Replacement Registration Statement specifically relating to the Unsold Placement Shares (the “Replacement Prospectus Supplement”); (iii) furnish to the Distribution Agent, for resales use by the Investor on a delayed Distribution Agent, copies of the base prospectus included as part of such Replacement Registration Statement, as supplemented by the Replacement Prospectus Supplement (such base prospectus, including all documents incorporated or continuous basis deemed incorporated therein by reference, to the extent such information has not been superseded or modified in accordance with Rule 412 under the Securities Act (as qualified by Rule 415 at then-prevailing market prices (and not fixed prices430B(g) of the Securities Act), included in the Replacement Registration Statement, as it may be supplemented by the Replacement Prospectus Supplement, in the form in which such base prospectus and/or Replacement Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act, the “Replacement Prospectus”). The Company shall submit a copy of any such Replacement Registration Statement or if Replacement Prospectus Supplement to the Distribution Agent a reasonable period of time prior to filing it with the Commission, and shall consider in good faith any comments the Distribution Agent may have with respect thereto. From and after the effectiveness of the Replacement Registration Statement and the filing of any Registration Statement pursuant to Section 2(a) or Section 2(c)the Replacement Prospectus Supplement, the Company is otherwise required by the Staff or the Commission to reduce the number of Registrable Securities included in such Registration Statement, then the Company shall reduce the number of Registrable Securities to be included in such Registration Statement (after consultation with the Investor and Legal Counsel as to the specific Registrable Securities to be removed therefrom) until such time as the Staff and the Commission shall so permit such Registration Statement to become effective and be used as aforesaid. Notwithstanding anything case may be, any reference in this Agreement to the contrary, if after giving effect to the actions referred to in the immediately preceding sentence, the Staff or the Commission does not permit such Registration Statement to become effective and to be used for resales by the Investor on a delayed or continuous basis under Rule 415 at then-prevailing market prices (and not fixed prices), the Company shall not request acceleration of the Effective Date of such Registration Statement, and the Company Prospectus or the Prospectus Supplement shall promptly (but in no event later than also be deemed to refer to the second Business Day following final notification by the Staff) request the withdrawal of such Replacement Registration Statement pursuant to Rule 477 under the Securities Act. In the event of any reduction in Registrable Securities pursuant to this paragraphStatement, the Company shall use its commercially reasonable efforts to file one or more New Registration Statements with the Commission in accordance with Section 2(c) until such time as all Registrable Securities have been included in Registration Statements that have been declared effective and the Prospectuses contained therein are available for use by the Investor. Notwithstanding any provision herein or in the Purchase Agreement to the contrary, the Company’s obligations to register Registrable Securities (and any related conditions to the Investor’s obligations) shall be qualified as necessary to comport with any requirement of the Staff Replacement Prospectus Supplement or the Commission as addressed in this Section 2(d)Replacement Prospectus, respectively.