Common use of Rule 415; Cutbacks Clause in Contracts

Rule 415; Cutbacks. Notwithstanding the other provisions of this Agreement, if at any time the SEC takes the position that some or all of the Registrable Securities may not be included in the Registration Statement because (i) the inclusion of such Registrable Securities violates the provisions of Rule 415 under the Securities Act as a result of the number of shares included in such Registration Statement, (ii) the Registrable Securities cannot be sold as an “at the market offering,” and/or (iii) the Warrant Shares may not be registered prior to exercise of the Warrants and/or many not be sold on a delayed or continuous basis under Rule 415, the Company shall (A) remove from the Registration Statement such portion of the Registrable Securities (the “Cut Back Shares”) and/or (B) 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 (collectively, the “SEC Restrictions”). Any cut-back imposed pursuant to this Section 6.2(b) shall be allocated among the Purchasers on a pro rata basis and shall be allocated first to any Warrant Shares. No Registration Penalty shall accrue on any Cut Back Shares until such time as the Company is able to effect the registration of the Cut Back Shares in accordance with any SEC Restrictions (such date, the “Restriction Termination Date”). From and after the Restriction Termination Date, all of the provisions of this Section 6.2 (including the Registration Penalty provisions) shall again be applicable to the Cut Back Shares; provided, however, that for such purposes the Closing Date shall be deemed to be the Restriction Termination Date.

Rule 415; Cutbacks. Notwithstanding the any other provisions provision of this Agreement, if at any time the staff of the SEC takes the position that some or all of the Registrable Securities may not be included in the Registration Statement because (i) the inclusion of such Registrable Securities violates the provisions of Rule 415 under the Securities Act as any SEC Guidance sets forth a result of limitation on the number of shares included in such Registration Statement, (ii) the Registrable Securities cannot be sold as an “at the market offering,” and/or (iii) the Warrant Shares may not permitted to be registered prior on a particular Shelf Registration Statement as a secondary offering (and notwithstanding that the Company used diligent efforts to exercise advocate with the staff of the Warrants and/or many not be sold on SEC for the registration of all or a delayed or continuous basis under Rule 415greater portion of Registrable Securities), the Company shall reduce the number of Registrable Securities on a pro rata basis based on the total number of unregistered Registrable Securities held by such Holders. In the event of a cutback hereunder, the Company shall give each Holder at least five (A5) remove from Trading Days prior written notice along with the calculations as to such Xxxxxx’s allotment. In the event the Company amends a Shelf Registration Statement in accordance with the foregoing, the Company will use its reasonable best efforts to file with the SEC, on the earliest practical date on which the Company is permitted by SEC Guidance to file such portion of additional Shelf Registration Statement related to the Registrable Securities (the “Cut Back SharesAdditional Filing Deadline”), one or more Registration Statement(s) and/or on Form S-3 (or such other form available as provided in Section 2.1(a)(ii)) to register for resale those Registrable Securities that were not registered for resale on the initial Shelf Registration Statement and cause such Shelf Registration Statement(s) to be declared effective on or prior to the earlier of (i) in the event that such additional Shelf Registration Statement (x) is not subject to a review by the SEC, sixty (60) calendar days after the earlier of (A) the applicable Additional Filing Deadline and (B) agree to the date such restrictions and limitations on the registration and resale of the Registrable Securities as additional Shelf Registration Statement was filed with the SEC may require and (y) is subject to assure a review by the Company’s compliance SEC, ninety (90) calendar days after the earlier of (A) the applicable Additional Filing Deadline and (B) the date such additional Shelf Registration Statement was filed with the requirements of Rule 415 SEC and (collectively, ii) five (5) Business Days after the date the Company receives written notification from the SEC that such additional Shelf Registration(s) will not be reviewed (the “SEC RestrictionsAdditional Effectiveness Deadline”). Any cut-back imposed pursuant to this Section 6.2(b) shall be allocated among By 9:30 a.m. New York time on the Purchasers on a pro rata basis and shall be allocated first to second Business Day following the date any Warrant Shares. No such additional Shelf Registration Penalty shall accrue on any Cut Back Shares until such time as Statement is declared effective by the SEC, the Company is able to effect shall file with the registration of the Cut Back Shares SEC in accordance with any SEC Restrictions (such date, Rule 424 under the “Restriction Termination Date”). From and after Securities Act the Restriction Termination Date, all of the provisions of this Section 6.2 (including the Registration Penalty provisions) shall again be applicable to the Cut Back Shares; provided, however, that for such purposes the Closing Date shall be deemed final Prospectus to be the Restriction Termination Dateused in connection with sales pursuant to such additional Shelf Registration Statement.

Rule 415; Cutbacks. Notwithstanding the other provisions of this Agreement, if If at any time the SEC takes the position that the offering of some or all of the Registrable Securities may not be included in the a Registration Statement because (i) the inclusion of such Registrable Securities violates is not eligible to be made on a delayed or continuous basis under the provisions of Rule 415 under the Securities 1933 Act as a result of the number of shares included in such Registration Statement, (ii) the Registrable Securities cannot or requires any Investor to be sold named as an “at underwriter”, the market offering,” and/or (iii) Company shall use its commercially reasonable best efforts to persuade the Warrant Shares may SEC that the offering contemplated by the Registration Statement is a valid secondary offering and not be registered prior to exercise an offering “by or on behalf of the Warrants and/or many not issuer” as defined in Rule 415 and that none of the Investors is an “underwriter”. The 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 sold on a delayed or continuous basis under Rule 415made to the SEC to which the Investors’ counsel reasonably objects. In the event that, despite the Company’s commercially reasonable efforts and compliance with the terms of this Section 2(d), the SEC refuses to alter its position, the Company shall (Ai) remove from the Registration Statement such portion of the Registrable Securities (the “Cut Back Shares”) and/or (Bii) 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 415 415; provided, however, that the Company shall not agree to name any Investor as an “underwriter” in such Registration Statement without the prior written consent of such Investor (collectively, the “SEC Restrictions”). Any cut-back imposed on the Investors pursuant to this Section 6.2(b2(d) shall be allocated among the Purchasers Investors on a pro rata basis and shall be allocated first to any Warrant Shares. No Registration Penalty shall accrue on any Cut Back Shares until such time as basis, unless the Company is able to effect the registration of the Cut Back Shares in accordance with any SEC Restrictions (such date, the “Restriction Termination Date”). From and after the Restriction Termination Date, all of the provisions of this Section 6.2 (including the Registration Penalty provisions) shall again be applicable to the Cut Back Shares; provided, however, that for such purposes the Closing Date shall be deemed to be the Restriction Termination Dateotherwise require or provide.

Rule 415; Cutbacks. Notwithstanding the other provisions of this Agreement, if If at any time the SEC takes the position that the offering of some or all of the Registrable Securities may not be included or the Other Registrable Securities in the a Registration Statement because (i) the inclusion of such Registrable Securities violates is not eligible to be made on a delayed or continuous basis under the provisions of Rule 415 under the Securities 1933 Act as a result of the number of shares included in such Registration Statement, (ii) the Registrable Securities cannot or requires any Buyer to be sold named as an “at underwriter”, the market offering,” and/or (iii) Company shall use its commercially reasonable best efforts to persuade the Warrant Shares may SEC that the offering contemplated by the Registration Statement is a valid secondary offering and not be registered prior to exercise an offering “by or on behalf of the Warrants and/or many not issuer” as defined in Rule 415 and that none of the Buyers is an “underwriter”. The Buyers collectively (other than the Insiders) shall have the right to each have a single counsel representing them participate in any meetings or discussions with the SEC regarding the SEC’s position and to have their counsel comment on any written submission made to the SEC with respect thereto. No such written submission shall be sold on a delayed or continuous basis under Rule 415made to the SEC to which the Buyers' counsel reasonably objects. In the event that, despite the Company’s commercially reasonable efforts and compliance with the terms of this Section 2(e), the SEC refuses to alter its position, the Company shall (Ai) remove from the Registration Statement such portion of the Registrable Securities (the “Cut Back Shares”) and/or (Bii) 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 415 415; 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 pursuant to this Section 6.2(b2(d) shall be allocated first, to the Insider Shares pro rata among the Purchasers on a holders thereof, and second, to the remaining Registrable Securities held by Buyer's pro rata basis and among them, unless the SEC Restrictions otherwise require or provide. No liquidated damages shall be allocated first accrue on or as to any Warrant Cut Back Shares. No Registration Penalty shall accrue cut-back will be imposed on any Cut Back Shares until such time as the Company is able to effect the registration of the Cut Back Shares in accordance with any SEC Restrictions (such date, the “Restriction Termination Date”). From and after the Restriction Termination Date, all of the provisions of this Section 6.2 (including the Registration Penalty provisions) shall again be applicable to the Cut Back Shares; provided, however, that for such purposes the Closing Date shall be deemed to be the Restriction Termination DateOther Registrable Securities.

Rule 415; Cutbacks. Notwithstanding the other provisions of this Agreement, if If at any time the SEC takes the position that the offering of some or all of the Registrable Securities may not be included in the a Registration Statement because (i) the inclusion of such Registrable Securities violates is not eligible to be made on a delayed or continuous basis under the provisions of Rule 415 under the Securities 1933 Act as a result of the number of shares included in such Registration Statement, (ii) the Registrable Securities cannot or requires any Investor to be sold named as an “at underwriter”, the market offering,” and/or (iii) Company shall use its reasonable best efforts to persuade the Warrant Shares may SEC that the offering contemplated by the Registration Statement is a valid secondary offering and not be registered prior to exercise an offering “by or on behalf of the Warrants and/or many not issuer” as defined in Rule 415 and that none of the Investors is an “underwriter”. The 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 sold on a delayed or continuous basis under Rule 415made to the SEC to which the Investors’ counsel reasonably objects. In the event that, despite the Company’s reasonable best efforts and compliance with the terms of this Section 2(e), the SEC refuses to alter its position, the Company shall (Ai) remove from the Registration Statement such portion of the Registrable Securities (the “Cut Back Shares”) and/or (Bii) 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 415 415; provided, however, that the Company shall not agree to name any Investor as an “underwriter” in such Registration Statement without the prior written consent of such Investor (collectively, the “SEC Restrictions”). Any cut-back imposed on the Investors pursuant to this Section 6.2(b2(d) shall be allocated among the Purchasers Investors on a pro rata basis and shall be allocated first to any the Warrant Shares and then the Shares, unless the SEC Restrictions otherwise require or provide. No Registration Penalty 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 effect the registration of file a Registration Statement covering the Cut Back Shares in accordance with any SEC Restrictions (the earliest of such date, the “Restriction Cut Back Termination Date”). From and after the Restriction Cut Back Termination Date, all of the provisions of this Section 6.2 2 (including the Registration Penalty liquidated damages provisions) shall again be applicable to the Cut Back Shares; provided, however, that for such purposes purposes, references to the Closing Date and the Filing Date, as applicable, shall be deemed to be the Restriction Cut Back Termination Date.

Rule 415; Cutbacks. Notwithstanding the other provisions of this Agreement, if If at any time the SEC takes the position that the offering of some or all of the Registrable Securities may not be included in the a Registration Statement because (i) the inclusion of such Registrable Securities violates is not eligible to be made on a delayed or continuous basis under the provisions of Rule 415 under the Securities 1933 Act as a result of the number of shares included in such Registration Statement, (ii) the Registrable Securities cannot or requires any Investor to be sold named as an “at underwriter”, the market offering,” and/or (iii) Company shall use its commercially reasonable best efforts to persuade the Warrant Shares may SEC that the offering contemplated by the Registration Statement is a valid secondary offering and not be registered prior to exercise an offering “by or on behalf of the Warrants and/or many not issuer” as defined in Rule 415 and that none of the Investors is an “underwriter”. The 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 sold on a delayed or continuous basis under Rule 415made to the SEC to which the Investors’ counsel reasonably objects. In the event that, despite the Company’s commercially reasonable efforts and compliance with the terms of this Section 2(d), the SEC refuses to alter its position, the Company shall (Ai) remove from the Registration Statement such portion of the Registrable Securities (the “Cut Back Shares”) and/or (Bii) 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 415 415; provided, however, that the Company shall not agree to name any Investor as an “underwriter” in such Registration Statement without the prior written consent of such Investor (collectively, the “SEC Restrictions”). Any cut-back imposed on the Investors pursuant to this Section 6.2(b2(d) shall be allocated among the Purchasers Investors on a pro rata basis and shall be allocated first to any Warrant Sharesbasis, unless the SEC Restrictions otherwise require or provide. No Registration Penalty liquidated damages shall accrue on or as to any Cut Back Shares until the earlier of (i) the six-month anniversary of the Closing Date or (ii) such time as the Company is able to effect the registration of the Cut Back Shares in accordance with any SEC Restrictions (the earlier of such datedates, the “Restriction Termination Date”). From and after the Restriction Termination Date, all of the provisions of this Section 6.2 2 (including the Registration Penalty liquidated damages provisions) shall again be applicable to the Cut Back Shares; provided, however, that for such purposes the Closing Date shall be deemed to be the Restriction Termination Date.

Rule 415; Cutbacks. Notwithstanding the other provisions of this Agreement, if If at any time the SEC takes the position that the offering of some or all of the Registrable Securities may not be included in the a Registration Statement because (i) the inclusion of such Registrable Securities violates is not eligible to be made on a delayed or continuous basis under the provisions of Rule 415 under the Securities 1933 Act as a result of the number of shares included in such Registration Statement, (ii) the Registrable Securities cannot or requires any Buyer to be sold named as an “at underwriter”, the market offering,” and/or (iii) Company shall use its reasonable best efforts to persuade the Warrant Shares may SEC that the offering contemplated by the Registration Statement is a valid secondary offering and not be registered prior to exercise an offering “by or on behalf of the Warrants and/or many not 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 sold on a delayed or continuous basis under Rule 415made 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 (Ai) remove from the Registration Statement such portion of the Registrable Securities (the “Cut Back Shares”) and/or (Bii) 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 415 415; 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 6.2(b2(d) shall be allocated among the Purchasers Buyers on a pro rata basis and shall be allocated first to any Warrant Sharesbasis. No Registration Penalty 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 effect the registration of file a Registration Statement covering the Cut Back Shares in accordance with any SEC Restrictions (the earliest of such date, the “Restriction Cut Back Termination Date”). From and after the Restriction Cut Back Termination Date, all of the provisions of this Section 6.2 2 (including the Registration Penalty liquidated damages provisions) shall again be applicable to the Cut Back Shares; provided, however, that for such purposes purposes, references to the Closing Date and the Filing Date, as applicable, shall be deemed to be the Restriction Cut Back Termination Date.

Rule 415; Cutbacks. Notwithstanding the other provisions of this Agreement, if If at any time the SEC takes the position that the offering of some or all of the Registrable Securities may not be included in the a Registration Statement because (i) the inclusion of such Registrable Securities violates is not eligible to be made on a delayed or continuous basis under the provisions of Rule 415 under the Securities 1933 Act as a result of the number of shares included in such Registration Statement, (ii) the Registrable Securities cannot or requires any Buyer to be sold named as an “at underwriter”, the market offering,” and/or (iii) Company shall use its reasonable commercial efforts to persuade the Warrant Shares may SEC that the offering contemplated by the Registration Statement is a valid secondary offering and not be registered prior to exercise an offering “by or on behalf of the Warrants and/or many not 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 sold on a delayed or continuous basis under Rule 415made to the SEC to which the Buyers’ counsel reasonably objects. In the event that, despite the Company’s reasonable commercial efforts and compliance with the terms of this Section 2(d), the SEC refuses to alter its position, the Company shall (Ai) remove from the Registration Statement such portion of the Registrable Securities (the “Cut Back Shares”) and/or (Bii) 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 415 415; 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-cut- back imposed on the Buyers pursuant to this Section 6.2(b2(d) shall be allocated among the Purchasers Buyers on a pro rata basis and shall be allocated first to any Warrant Sharesbasis. No Registration Penalty 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 effect the registration of file a Registration Statement covering the Cut Back Shares in accordance with any SEC Restrictions (the earliest of such date, the “Restriction Cut Back Termination Date”). From and after the Restriction Cut Back Termination Date, all of the provisions of this Section 6.2 2 (including the Registration Penalty liquidated damages provisions) shall again be applicable to the Cut Back Shares; provided, however, that for such purposes purposes, references to the Closing Date and the Filing Date, as applicable, shall be deemed to be the Restriction Cut Back Termination Date.

Rule 415; Cutbacks. Notwithstanding the other provisions of this Agreement, if If at any time the SEC takes the position that the offering of some or all of the Registrable Securities may not be included in the a Registration Statement because (i) the inclusion of such Registrable Securities violates is not eligible to be made on a delayed or continuous basis under the provisions of Rule 415 under the Securities 1933 Act as a result of the number of shares included in such Registration Statement, (ii) the Registrable Securities cannot or requires any Investor to be sold named as an “at underwriter”, the market offering,” and/or (iii) Company shall use its best efforts to persuade the Warrant Shares may SEC that the offering contemplated by the Registration Statement is a valid secondary offering and not be registered prior to exercise an offering “by or on behalf of the Warrants and/or many not issuer” as defined in Rule 415 and that none of the Investors is an “underwriter”. The 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 sold on a delayed or continuous basis under Rule 415made to the SEC to which the Investors’ counsel reasonably objects. In the event that, despite the Company’s best efforts and compliance with the terms of this Section 2(d), the SEC refuses to alter its position, the Company shall (Ai) remove from the Registration Statement such portion of the Registrable Securities (the “Cut Back Shares”) and/or (Bii) 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 415 415; provided, however, that the Company shall not agree to name any Investor as an “underwriter” in such Registration Statement without the prior written consent of such Investor (collectively, the “SEC Restrictions”). Any cut-back imposed on the Investors pursuant to this Section 6.2(b2(d) shall be allocated among the Purchasers Investors on a pro rata basis and shall be allocated first to any Warrant Shares. No Registration Penalty shall accrue on any Cut Back Shares until such time as basis, unless the Company is able to effect the registration of the Cut Back Shares in accordance with any SEC Restrictions (such date, the “Restriction Termination Date”). From and after the Restriction Termination Date, all of the provisions of this Section 6.2 (including the Registration Penalty provisions) shall again be applicable to the Cut Back Shares; provided, however, that for such purposes the Closing Date shall be deemed to be the Restriction Termination Dateotherwise require or provide.

Rule 415; Cutbacks. Notwithstanding the any other provisions provision of this Agreement, if at any time the staff of the SEC takes the position that some or all of the Registrable Securities may not be included in the Registration Statement because (i) the inclusion of such Registrable Securities violates the provisions of Rule 415 under the Securities Act as any SEC Guidance sets forth a result of limitation on the number of shares included in such Registration Statement, (ii) the Registrable Securities cannot be sold as an “at the market offering,” and/or (iii) the Warrant Shares may not permitted to be registered prior on a particular Shelf Registration Statement as a secondary offering (and notwithstanding that the Company used diligent efforts to exercise advocate with the staff of the Warrants and/or many not be sold on SEC for the registration of all or a delayed or continuous basis under Rule 415greater portion of Registrable Securities), the Company shall reduce the number of Registrable Securities on a pro rata basis based on the total number of unregistered Registrable Securities held by such Holders. In the event of a cutback hereunder, the Company shall give each Holder at least five (A5) remove from Trading Days prior written notice along with the calculations as to such Holder’s allotment. In the event the Company amends a Shelf Registration Statement in accordance with the foregoing, the Company will use its reasonable best efforts to file with the SEC, on the earliest practical date on which the Company is permitted by SEC Guidance to file such portion of additional Shelf Registration Statement related to the Registrable Securities (the “Cut Back SharesAdditional Filing Deadline”), one or more Registration Statement(s) and/or on Form S-3 (or such other form available as provided in Section 2.1(a)(ii)) to register for resale those Registrable Securities that were not registered for resale on the initial Shelf Registration Statement and cause such Shelf Registration Statement(s) to be declared effective on or prior to the earlier of (i) in the event that such additional Shelf Registration Statement (x) is not subject to a review by the SEC, sixty (60) calendar days after the earlier of (A) the applicable Additional Filing Deadline and (B) agree to the date such restrictions and limitations on the registration and resale of the Registrable Securities as additional Shelf Registration Statement was filed with the SEC may require and (y) is subject to assure a review by the Company’s compliance SEC, ninety (90) calendar days after the earlier of (A) the applicable Additional Filing Deadline and (B) the date such additional Shelf Registration Statement was filed with the requirements of Rule 415 SEC and (collectively, ii) five (5) Business Days after the date the Company receives written notification from the SEC that such additional Shelf Registration(s) will not be reviewed (the “SEC RestrictionsAdditional Effectiveness Deadline”). Any cut-back imposed pursuant to this Section 6.2(b) shall be allocated among By 9:30 a.m. New York time on the Purchasers on a pro rata basis and shall be allocated first to Business Day following the date any Warrant Shares. No such additional Shelf Registration Penalty shall accrue on any Cut Back Shares until such time as Statement is declared effective by the SEC, the Company is able to effect shall file with the registration of the Cut Back Shares SEC in accordance with any SEC Restrictions (such date, Rule 424 under the “Restriction Termination Date”). From and after Securities Act the Restriction Termination Date, all of the provisions of this Section 6.2 (including the Registration Penalty provisions) shall again be applicable to the Cut Back Shares; provided, however, that for such purposes the Closing Date shall be deemed final prospectus to be the Restriction Termination Dateused in connection with sales pursuant to such additional Shelf Registration Statement.

Rule 415; Cutbacks. Notwithstanding the any other provisions provision of this Agreement, if at any time the SEC takes the position that some or all staff of the Registrable Securities may not be included in the Registration Statement because (i) the inclusion of such Registrable Securities violates the provisions of Rule 415 under the Securities Act as Commission or any SEC Guidance sets forth a result of limitation on the number of shares included in such Registration Statement, (ii) the Registrable Securities cannot be sold as an “at the market offering,” and/or (iii) the Warrant Shares may not permitted to be registered prior on the Resale Registration Statement (and notwithstanding that the Company used diligent efforts to exercise advocate with the staff of the Warrants and/or many not be sold on Commission for the registration of all or a delayed or continuous basis under Rule 415greater portion of Registrable Securities), the Company shall reduce the number of Registrable Securities on a pro rata basis based on the total number of unregistered Registrable Securities held by such Holders. In the event of a cutback hereunder, the Company shall give each Holder at least five (A5) remove from Trading Days prior written notice along with the calculations as to such Holder’s allotment. In the event the Company amends the Resale Registration Statement in accordance with the foregoing, the Company will use its reasonable best efforts to file with the Commission, on the earliest practical date on which the Company is permitted by SEC Guidance to file such portion of additional Resale Registration Statement related to the Initial Registrable Securities (the “Cut Back SharesAdditional Filing Deadline”), one or more registration statement(s) and/or on Form F-3 (or such other form available as provided in Section 2(a)) to register for resale those Initial Registrable Securities that were not registered for resale on the initial Resale Registration Statement and cause such Resale Registration Statement(s) to be declared effective on or prior to the earlier of (i) in the event that such additional Resale Registration Statement (x) is not subject to a review by the Commission, sixty (60) calendar days after the earlier of (A) the applicable Additional Filing Deadline and (B) agree to the date such restrictions and limitations on the registration and resale of the Registrable Securities as the SEC may require to assure the Company’s compliance additional Resale Registration Statement was filed with the requirements Commission and (y) is subject to a review by the Commission, ninety (90) calendar days after the earlier of Rule 415 (collectively, A) the applicable Additional Filing Deadline and (B) the date such additional Resale Registration Statement was filed with the Commission and (ii) five (5) Business Days after the date the Company receives written notification from the Commission that such additional Resale Registration(s) will not be reviewed (the “SEC RestrictionsAdditional Effectiveness Deadline”). Any cut-back imposed pursuant to this Section 6.2(b) shall be allocated among By 5:30 p.m. New York time on the Purchasers on a pro rata basis and shall be allocated first to Business Day following the date any Warrant Shares. No such additional Resale Registration Penalty shall accrue on any Cut Back Shares until such time as Statement is declared effective by the Commission, the Company is able to effect shall file with the registration of the Cut Back Shares Commission in accordance with any SEC Restrictions (such date, Rule 424 under the “Restriction Termination Date”). From and after Securities Act the Restriction Termination Date, all of the provisions of this Section 6.2 (including the Registration Penalty provisions) shall again be applicable to the Cut Back Shares; provided, however, that for such purposes the Closing Date shall be deemed final prospectus to be the Restriction Termination Dateused in connection with sales pursuant to such additional Resale Registration Statement.

Rule 415; Cutbacks. Notwithstanding the other provisions of this Agreement, if If at any time the SEC takes the position that the offering of some or all of the Registrable Securities may not be included in the a Registration Statement because (i) the inclusion of such Registrable Securities violates is not eligible to be made on a delayed or continuous basis under the provisions of Rule 415 under the Securities 1933 Act as a result of the number of shares included in such Registration Statement, (ii) the Registrable Securities cannot or requires any Investor to be sold named as an “at underwriter”, the market offering,” and/or (iii) Company shall use its commercially reasonable best efforts to persuade the Warrant Shares may SEC that the offering contemplated by the Registration Statement is a valid secondary offering and not be registered prior to exercise an offering “by or on behalf of the Warrants and/or many not issuer” as defined in Rule 415 and that none of the Investors is an “underwriter”. The 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 sold on a delayed or continuous basis under Rule 415made to the SEC to which the Investors’ counsel reasonably objects. In the event that, despite the Company’s commercially reasonable efforts and compliance with the terms of this Section 2(d), the SEC refuses to alter its position, the Company shall (Ai) remove from the Registration Statement such portion of the Registrable Securities (the “Cut Back Shares”) and/or (Bii) 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 415 415; provided, however, that the Company shall not agree to name any Investor as an “underwriter” in such Registration Statement without the prior written consent of such Investor (collectively, the “SEC Restrictions”). Any cut-back imposed on the Investors pursuant to this Section 6.2(b2(d) shall be allocated among the Purchasers Investors on a pro rata basis and shall be allocated first to any Warrant Sharesbasis, unless the SEC Restrictions otherwise require or provide. No Registration Penalty liquidated damages shall accrue on or as to any Cut Back Shares until such time as the Company is able to effect the registration of the Cut Back Shares in accordance with any SEC Restrictions (such date, the “Restriction Termination Date”). From and after the Restriction Termination Date, all of the provisions of this Section 6.2 2 (including the Registration Penalty liquidated damages provisions) shall again be applicable to the Cut Back Shares; provided, however, that for such purposes purposes, references to the Closing Date, the Adjustment Date and the Qualification Date, as applicable, shall be deemed to be the Restriction Termination Date.