Common use of Rule 415 Clause in Contracts

Rule 415. Cutback. 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 Investor to be named as an "underwriter", if the Company believes, in its discretion and upon the advice of counsel, that the Registrable Securities are eligible for registration under Rule 415 or that the Investor is not an "underwriter" for the purposes of the 1933 Act and the registration, the Company shall use 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 for the purposes of Rule 415 and that the Investor is not an "underwriter." The Investor shall provide to the Company in writing all information requested by the Company to support the Investor's contention that it is not an "underwriter." The Investor shall have the right to participate or have its counsel participate in any meetings or discussions with the SEC regarding the SEC's position and to comment or have its counsel comment on any written submission made to the SEC with respect thereto. No such written submission regarding the foregoing specifying the Investor shall be made to the SEC to which the Investor's counsel reasonably objects. In no event shall Company agree to name the Investor as an "underwriter" in such Registration Statement without the prior written consent of the Investor. 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 (i) remove from the Registration Statement the portion of the Registrable Securities required by the SEC as a condition to the use of Rule 415, with the first Registrable Securities to be removed being the Warrant Shares (the "Cut Back Shares") and/or (ii) except for naming Investor as an underwriter, agree to such restrictions and limitations on the registration and resale of the Registrable Securities, in each case as the SEC may request as a condition to the declaration of the effectiveness of the Registration Statement. If one of the conditions to the declaration of the Registration Statement's effectiveness is naming the Investor as an underwriter, the Company shall, at the request of the Investor, withdraw the Registration Statement. Following any such withdrawal, the Company shall, within thirty (30) days after up to two (2) requests by Investor, refile the Registration Statement. In connection with any such refiling, the Company shall, at the request of the Investor, withdraw the Registration Statement if the SEC again requests as a condition to the declaration of the effectiveness of the Registration Statement, that the Investor be named as an underwriter.

Rule 415. Cutback. (i) If at any time the staff of the SEC (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 1933 Act or requires any Investor to be named as an "“underwriter", if ” (the Company believes, in its discretion and upon the advice of counsel, that the Registrable Securities are eligible for registration under Rule 415 or that the Investor is not an "underwriter" for the purposes of the 1933 Act and the registration“Staff Interpretation”), the Company shall use its commercially reasonable efforts to persuade the SEC Staff that the offering contemplated by the Registration Statement is a valid secondary offering and not an offering “by or on behalf of the issuer for the purposes of issuer” as defined in Rule 415 and that none of the Investor Investors is an “underwriter”. The date on which the Staff informs the Company that the Staff Interpretation applies to the Registrable Securities is hereinafter referred to as the “Interpretation Date.” (ii) In the event that, despite the Company’s commercially reasonable efforts and compliance with the terms of this Section 2(d), the Staff refuses to allow all of the Registrable Securities to be included in the Registration Statement and/or insists that one or more of the Investors must be named as an “underwriter”, the Company shall (i) use commercially reasonable efforts to resolve any other remaining Staff comments as promptly as possible and, in any event, no later than the 30th day following the Interpretation Date (the “Interpretation Deadline Date”) and, (ii) within two Business Days of the earlier of the Interpretation Deadline Date or the resolution of any other Staff comments, file with the SEC a request for acceleration of the effectiveness of the Registration Statement as then on file with the SEC (which shall not include any changes requested or required by the Staff pursuant to the Staff Interpretation unless the Investors and the Company mutually agree otherwise) to a date and time not more than two Business Days after the date such request is filed (the “Acceleration Date”). (iii) If the amended Registration Statement is not declared effective on or prior to 5:30 p.m., New York time, on the second Business Day following the Acceleration Date (the “Acceleration Deadline”), then no later than 5:30 p.m., New York time, on the Business Day immediately following the Acceleration Deadline, the Company shall file with the SEC an "underwriteramendment to the Registration Statement (the “Section 8 Amendment”) to remove the delaying legend placed on the Registration Statement pursuant to Rule 473(a), which Section 8 Amendment shall include the legend specified in Rule 473(b) to the effect that the amended Registration Statement shall thereafter become effective in accordance with the provisions of Section 8(a) of the 1933 Act." (iv) In the event that the SEC commences an investigation, examination or other proceeding with respect to the Registration Statement pursuant to Section 8(e) of the 1933 Act, the Company and, if required, the Investors, shall cooperate therewith in good faith and shall take such action as shall be necessary to prohibit the issuance of a stop order pursuant to Section 8(d) of the 1933 Act on the grounds that any of them have failed to cooperate with any such investigation, examination or other proceeding; provided, however, that no party shall be required to waive any attorney-client privilege or attorney work product privilege in connection therewith. (v) In the event that the SEC commences (i) a refusal order proceeding pursuant to Section 8(b) of the 1933 Act with respect to the Registration Statement or (ii) a stop order proceeding pursuant to Section 8(d) of the 1933 Act with respect to the Registration Statement, the Company shall diligently oppose any such proceedings unless (A) SSF, (B) the Company and (C) any other Investor who is required to be named an underwriter in the Registration Statement or whose Registrable Securities are required to be cut back in the Registration Statement as a result of the Staff Interpretation and who agrees to participate in the costs thereof as provided below (a “Participating Investor”), mutually agree at any time not to oppose such proceedings or to continue such opposition. The costs of such opposition shall be borne by SSF and each Participating Investor on a pro rata basis calculated based on the number of Registrable Securities held by SSF or a Participating Investor compared to the total number of Registrable Securities held by SSF and all Participating Investors. SSF and each Participating Investor shall provide have the right to participate in such proceedings. In connection with its opposition of such proceedings, the Company shall retain counsel reasonably satisfactory to SSF and each Participating Investor (which shall be SSF’s counsel unless SSF otherwise agrees). The Company shall not agree to any settlement or compromise of any proceeding without the prior written consent of SSF and each Participating Investors, which shall not be unreasonably withheld or delayed. (vi) In the event that the SEC issues (i) a refusal order pursuant to Section 8(b) of the 1933 Act refusing to declare the Registration Statement effective or (ii) a stop order pursuant to Section 8(d) of the 1933 Act with respect to the Company in writing all information requested by Registration Statement, the Company shall file with the United States Court of Appeals for the District of Columbia Circuit and diligently prosecute through appropriate proceedings a petition for judicial review of any such order in a timely fashion in accordance with the provisions of Section 9(a) of the 1933 Act to support a final, nonappealable determination unless SSF, the Investor's contention that it is Company and any Participating Investor mutually agree otherwise. The costs of prosecuting such petition shall be borne by SSF and each Participating Investor on the basis specified in clause (v) above. SSF and each Participating Investor shall have the right to participate in such proceedings. In connection with such proceedings, the Company shall retain counsel reasonably satisfactory to SSF and each Participating Investor (which shall be SSF’s counsel unless SSF otherwise agrees). The Company shall not an "underwriteragree to any settlement or compromise of any proceeding without the prior written consent of SSF and each Participating Investors, which shall not be unreasonably withheld or delayed." The Investor (vii) SSF and each Participating Investors shall have the right to participate or have its counsel participate in any meetings or discussions with the Staff or the SEC regarding the SEC's position Staff Interpretation and to comment or have its their counsel comment on any written submission made to the Staff, the SEC or any court with respect thereto. No such written submission regarding the foregoing specifying the Investor shall be made to by the SEC Company to which the Investor's counsel to SSF or a Participating Investor reasonably objects. In no event shall . (viii) So long as the Company agree to name the Investor as an "underwriter" is in such Registration Statement without the prior written consent of the Investor. In the event that, despite the Company's commercially reasonable efforts and compliance with the terms of this Section 2(d), all time periods specified in Section 2(c)(i) shall be tolled and no liquidated damages shall accrue or be payable pursuant to Section 2(c)(i) of this Agreement solely as a result of the failure of the amended Registration Statement to become effective due to the Staff Interpretation, in each case until the earliest of (i) the date that the Registration Statement (as amended, if necessary, by the Section 8 Amendment) is declared effective by the SEC; provided, however, that if the Registration Statement becomes effective automatically pursuant to Section 8(a) of the 1933 Act after the Company has received written notice that the SEC refuses has ordered an examination, investigation or other proceeding pursuant to alter its positionSection 8(e) of the 1933 Act, the Registration Statement shall not be deemed to have become effective until such time as sales may be made thereunder pursuant to Section 5(c) of the 1933 Act, (ii) the date which is 10 days after receipt by the Company of written notice from SSF or any Participating Investor that the Company is in material breach of this Section 2(d) if such breach is not cured to the reasonable satisfaction of such Investor prior thereto, or (iii) the date on which a court of competent jurisdiction upholds the Staff Interpretation (or modifies the Staff Interpretation in such a manner that either (i) all of the Registrable Securities are not able to be included in the Registration Statement or (ii) one or more of the Investors are required to be named as an “underwriter” therein) by a final and nonappealable judgment. The period specified in this Section 2(d)(viii) is hereinafter referred to as the “Tolling Period.” (ix) In the event that the Staff Interpretation is not contested by the Company in compliance with the terms of this Section 2(d) or is upheld (or modified in a such a manner that either (i) all of the Registrable Securities are not able to be included in the Registration Statement or (ii) one or more of the Investors are required to be named as an “underwriter” therein) by a final and nonappealable judgment of a court of competent jurisdiction, the Company shall (i) remove from the Registration Statement the such portion of the Registrable Securities required by and the SEC as a condition to the use of Rule 415Antidilution Shares, with the first Registrable Securities if applicable, that are not able to be removed being included in the Warrant Shares Registration Statement (which may be all of such securities) (the "“Cut Back Shares"”) and/or (ii) except for naming Investor as an underwriter, agree to such restrictions and limitations on the registration and resale of the Registrable Securities, in each case Securities and the Antidilution Shares as the SEC Staff Interpretation as then in effect may request require to assure the Company’s compliance with the requirements of Rule 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 “415 Restrictions”). Any cut-back imposed pursuant to this Section 2(d)(ix) shall be allocated first to the Antidilution Shares on a pro rata basis among the beneficial owners thereof and second to the Registrable Securities among the Investors on a pro rata basis. Any cut-back affecting the Registrable Securities shall be allocated first to any Warrant Shares, unless the 415 Restrictions otherwise require or provide or an Investor otherwise requests with respect to the portion of any cut-back allocable to it. No liquidated damages shall accrue on or as to any Cut Back Shares during the Tolling Period and until such time as the Company is able to effect the registration of the Cut Back Shares in accordance with any 415 Restrictions (such date, the “Restriction Termination Date”). From and after the Restriction Termination Date, all of the provisions of Section 2 of this Agreement (including the liquidated damages provisions) shall again be applicable to the Cut Back Shares; provided, however, that for such purposes, references to the Initial Closing Date shall be deemed to be the Restriction Termination Date. (x) Time shall be of the essence in the performance of the obligations contained in this Agreement, including, without limitation, the performance of the obligations set forth in this Section 2(d). (xi) The Company acknowledges that SSF and the Participating Investors have specifically requested the inclusion of the provisions set forth in this Section 2(d) as a condition to the declaration of the effectiveness of the Registration Statement. If one of the conditions to the declaration of the Registration Statement's effectiveness is naming the Investor as an underwriter, their investment in the Company shalland that SSF and the Participating Investors would not have made such investment without such provisions. The Company further acknowledges that in the event of any breach of this Section 2(d), SSF and the Participating Investors would suffer a material loss for which damages at law would be difficult or impossible to determine. Accordingly, in addition to all other rights and remedies available to them at law or in equity, SSF and each Participating Investor shall have the request right to have the provisions of the Investor, withdraw the Registration Statement. Following any such withdrawal, this Section 2(d) specifically enforced against the Company shall, within thirty (30) days after up and neither SSF nor any Participating Investor shall be obligated to two (2) requests by Investor, refile the Registration Statement. In post any bond or other security in connection with any action to compel such refiling, the Company shall, at the request of the Investor, withdraw the Registration Statement if the SEC again requests as a condition to the declaration of the effectiveness of the Registration Statement, that the Investor be named as an underwriterspecific performance.

Rule 415. Cutback. (i) If at any time the staff of the SEC (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 1933 Act or requires any Investor to be named as an "“underwriter", if ” (the Company believes, in its discretion and upon the advice of counsel, that the Registrable Securities are eligible for registration under Rule 415 or that the Investor is not an "underwriter" for the purposes of the 1933 Act and the registration“Staff Interpretation”), the Company shall use its commercially reasonable best efforts to persuade the SEC Staff that the offering contemplated by the Registration Statement is a valid secondary offering and not an offering “by or on behalf of the issuer for the purposes of issuer” as defined in Rule 415 and that none of the Investor Investors is an “underwriter”. The date on which the Staff informs the Company that the Staff Interpretation applies to the Registrable Securities is hereinafter referred to as the “Interpretation Date.” (ii) In the event that, despite the Company’s commercially reasonable efforts and compliance with the terms of this Section 2(d), the Staff refuses to allow all of the Registrable Securities to be included in the Registration Statement and/or insists that one or more of the Investors must be named as an “underwriter”, the Company shall (i) use commercially reasonable best efforts to resolve any other remaining Staff comments as promptly as possible and, in any event, no later than the 30th day following the Interpretation Date (the “Interpretation Deadline Date”) and, (ii) within two Business Days of the earlier of the Interpretive Deadline Date or the resolution of any other Staff comments, file with the SEC a request for acceleration of the effectiveness of the Registration Statement as then on file with the SEC (which shall not include any changes requested or required by the Staff pursuant to the Staff Interpretation) to a date and time not more than two Business Days after the date such request is filed (the “Acceleration Date”). (iii) If the amended Registration Statement is not declared effective on or prior to 5:30 p.m., New York time, on the second Business Day following the Acceleration Date (the “Acceleration Deadline”), then no later than 5:30 p.m., New York time, on the Business Day immediately following the Acceleration Deadline, the Company shall file with the SEC an "underwriteramendment to the Registration Statement (the “Section 8 Amendment”) to remove the delaying legend placed on the Registration Statement pursuant to Rule 473(a), which Section 8 Amendment shall include the legend specified in Rule 473(b) to the effect that the amended Registration Statement shall thereafter become effective in accordance with the provisions of Section 8(a) of the 1933 Act." (iv) In the event that the SEC commences an investigation, examination or other proceeding with respect to the Registration Statement pursuant to Section 8(e) of the 1933 Act, the Company and, if required, the Investors, shall cooperate therewith in good faith and shall take such action as shall be necessary to prohibit the issuance of a stop order pursuant to Section 8(d) of the 1933 Act on the grounds that any of them have failed to cooperate with any such investigation, examination or other proceeding; provided, however, that no party shall be required to waive any attorney-client privilege or attorney work product privilege in connection therewith. (v) In the event that the SEC commences (i) a refusal order proceeding pursuant to Section 8(b) of the 1933 Act with respect to the Registration Statement or (ii) a stop order proceeding pursuant to Section 8(d) of the 1933 Act with respect to the Registration Statement, the Company shall diligently oppose any such proceedings unless (A) SSF, (B) the Company and (C) any other Investor who is required to be named an underwriter in the Registration Statement or whose Registrable Securities are required to be cut back in the Registration Statement as a result of the Staff Interpretation and who agrees to participate in the costs thereof as provided below (a “Participating Investor”), mutually agree at any time not to oppose such proceedings or to continue such opposition. The costs of such opposition shall be borne by SSF and each Participating Investor on a pro rata basis calculated based on the number of Registrable Securities held by SSF or a Participating Investor compared to the total number of Registrable Securities held by SSF and all Participating Investors. SSF and each Participating Investor shall provide have the right to participate in such proceedings. In connection with its opposition of such proceedings, the Company shall retain counsel reasonably satisfactory to SSF and each Participating Investor (which shall be SSF’s counsel unless SSF otherwise agrees). The Company shall not agree to any settlement or compromise of any proceeding without the prior written consent of SSF and each Participating Investors, which shall not be unreasonably withheld or delayed. (vi) In the event that the SEC issues (i) a refusal order pursuant to Section 8(b) of the 1933 Act refusing to declare the Registration Statement effective or (ii) a stop order pursuant to Section 8(d) of the 1933 Act with respect to the Company in writing all information requested by Registration Statement, the Company shall file with the United States Court of Appeals for the District of Columbia Circuit and diligently prosecute through appropriate proceedings a petition for judicial review of any such order in a timely fashion in accordance with the provisions of Section 9(a) of the 1933 Act to support a final, nonappealable determination unless SSF, the Investor's contention that it is Company and any Participating Investor mutually agree otherwise. The costs of prosecuting such petition shall be borne by SSF and each Participating Investor on the basis specified in clause (v) above. SSF and each Participating Investor shall have the right to participate in such proceedings. In connection with such proceedings, the Company shall retain counsel reasonably satisfactory to SSF and each Participating Investor (which shall be SSF’s counsel unless SSF otherwise agrees). The Company shall not an "underwriteragree to any settlement or compromise of any proceeding without the prior written consent of SSF and each Participating Investors, which shall not be unreasonably withheld or delayed." The Investor (vii) SSF and each Participating Investors shall have the right to participate or have its counsel participate in any meetings or discussions with the Staff or the SEC regarding the SEC's position Staff Interpretation and to comment or have its their counsel comment on any written submission made to the Staff, the SEC or any court with respect thereto. No such written submission regarding the foregoing specifying the Investor shall be made to by the SEC Company to which the Investor's counsel to SSF or a Participating Investor reasonably objects. In no event shall . (viii) So long as the Company agree to name the Investor as an "underwriter" is in such Registration Statement without the prior written consent of the Investor. In the event that, despite the Company's commercially reasonable efforts and compliance with the terms of this Section 2(d), no liquidated damages shall accrue or be payable pursuant to Section 2(c)(i) of this Agreement solely as a result of the failure of the amended Registration Statement to become effective due to the Staff Interpretation until the earliest of (i) the date that the Registration Statement (as amended, if necessary, by the Section 8 Amendment) is declared effective by the SEC; provided, however, that if the Registration Statement becomes effective automatically pursuant to Section 8(a) of the 1933 Act after the Company has received written notice that the SEC refuses has ordered an examination, investigation or other proceeding pursuant to alter its positionSection 8(e) of the 1933 Act, the Registration Statement shall not be deemed to have become effective until such time as sales may be made thereunder pursuant to Section 5(c) of the 1933 Act, (ii) the date which is 10 days after receipt by the Company of written notice from SSF or any Participating Investor that the Company is in material breach of the terms hereof is such breach is not cured to the reasonable satisfaction of such Investor prior thereto, or (iii) the date on which a court of competent jurisdiction upholds the Staff Interpretation (or modifies the Staff Interpretation in such a manner that either (i) all of the Registrable Securities are not able to be included in the Registration Statement or (ii) one or more of the Investors are required to be named as an “underwriter” therein) by a final and nonappealable judgment. (ix) In the event that the Staff Interpretation is not contested by the Company in compliance with the terms of this Section 2(d) or is upheld (or modified in a such a manner that either (i) all of the Registrable Securities are not able to be included in the Registration Statement or (ii) one or more of the Investors are required to be named as an “underwriter” therein) by a final and nonappealable judgment of a court of competent jurisdiction, the Company shall (i) remove from the Registration Statement the such portion of the Registrable Securities required by the SEC as a condition to the use of Rule 415, with the first Registrable Securities to be removed being the Warrant Shares (the "“Cut Back Shares"”) and/or (ii) except for naming Investor as an underwriter, agree to such restrictions and limitations on the registration and resale of the Registrable SecuritiesSecurities as the Staff Interpretation as then in effect 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 Investor as an “underwriter” in such Registration Statement without the prior written consent of such Investor (collectively, the “415 Restrictions”). Any cut-back imposed on the Investors pursuant to this Section 2(d)(ix) shall be allocated among the Investors on a pro rata basis, and shall be allocated first to any Warrant Shares, unless, in each case either case, the 415 Restrictions otherwise require or provide. No liquidated damages shall accrue on or as to any Cut Back Shares until such time as the SEC may request Company is able to effect the registration of the Cut Back Shares in accordance with any 415 Restrictions (such date, the “Restriction Termination Date”). From and after the Restriction Termination Date, all of the provisions of Section 2 of this Agreement (including the liquidated damages provisions) shall again be applicable to the Cut Back Shares; provided, however, that for such purposes, references to the Initial Closing Date shall be deemed to be the Restriction Termination Date. (x) Time shall be of the essence in the performance of the obligations contained in this Agreement, including, without limitation, the performance of the obligations set forth in this Section 2(d). (xi) The Company acknowledges that SSF and the Participating Investors have specifically requested the inclusion of the provisions set forth in this Section 2(d) as a condition to the declaration of the effectiveness of the Registration Statement. If one of the conditions to the declaration of the Registration Statement's effectiveness is naming the Investor as an underwriter, their investment in the Company shalland that SSF and the Participating Investors would not have made such investment without such provisions. The Company further acknowledges that in the event of any breach of this Section 2(d), SSF and the Participating Investors would suffer a material loss for which damages at law would be difficult or impossible to determine. Accordingly, in addition to all other rights and remedies available to them at law or in equity, SSF and each Participating Investor shall have the request right to have the provisions of the Investor, withdraw the Registration Statement. Following any such withdrawal, this Section 2(d) specifically enforced against the Company shall, within thirty (30) days after up and neither SSF nor any Participating Investor shall be obligated to two (2) requests by Investor, refile the Registration Statement. In post any bond or other security in connection with any action to compel such refiling, the Company shall, at the request of the Investor, withdraw the Registration Statement if the SEC again requests as a condition to the declaration of the effectiveness of the Registration Statement, that the Investor be named as an underwriterspecific performance.