Common use of Form of Registration Statement Clause in Contracts

Form of Registration Statement. The Company shall, as expeditiously as possible and in any event within sixty (60) days after receipt of a request for a Demand Registration pursuant to Section 2.1, prepare and file with the Commission a Registration Statement on any form for which the Company then qualifies or which counsel for the Company shall deem appropriate and which form shall be available for the sale of all Registrable Securities to be registered thereunder in accordance with the intended method(s) and plan of distribution thereof; provided, that the Company shall have the right to defer any Demand Registration for up to thirty (30) days, and any Piggy-Back Registration for such period as may be applicable to deferment of any demand registration to which such Piggy-Back Registration relates, in each case if the Company shall furnish to the holders a certificate signed by the Chief Executive Officer or Chairman of the Board of the Company stating that, in the good faith judgment of the Board of Directors of the Company, it would be materially detrimental to the Company and its stockholders for such Registration Statement to be effected at such time; provided, further, that the Company shall not have the right to exercise the right set forth in the immediately preceding proviso more than once in any 365-day period in respect of a Demand Registration hereunder. In addition, the Company may elect to register for resale shares of Common Stock held by other security holders of the Company, so long as (i) the Registrable Securities of the Selling Demand Holders to be registered will not be reduced thereby; (ii) if such registration is an underwritten offering, such other security holders agree in writing to sell the Common Stock on the same terms and conditions as apply to the Registrable Securities being sold by the Holders, (iii) any Common Stock held by other security holders of the Company to be registered for resale and/or resold will not, in the opinion of the managing Underwriter(s) adversely affect the proposed offering price, the timing, the distribution method, or the probability of success of such offering of the Registrable Securities being sold; and (iv) the Company will be responsible for any and all costs (including reasonable attorneys’ fees) incurred by the Selling Demand Holders arising out of the registration of such other security holder’s Common Stock. Riverwood (if any ▇▇ ▇▇▇▇▇▇ is participating in the Demand Registration) or the Demand Holder(s) (if no ▇▇ ▇▇▇▇▇▇ is participating in the Demand Registration), shall be entitled to select counsel for the Selling Demand Holders.

Form of Registration Statement. The Company shall, as expeditiously as possible and in any event within sixty (60) days after receipt of a request for a Demand Registration pursuant to Section 2.12(a), prepare and file with the Commission a Registration Statement registration statement on any form for which the Company then qualifies or which counsel for the Company shall deem appropriate and which form shall be available for the sale of all Registrable Securities to be registered thereunder in accordance with the intended method(s) and plan of distribution thereof; provided, that the Company shall have the right to defer any Demand Registration for up to thirty forty-five (3045) days, and any Piggy-Back Registration for such period as may be applicable to deferment of any demand registration to which such Piggy-Back Registration relates, in each case if the Company shall furnish to the holders Holder a certificate signed by the Chief Executive Officer or Chairman of the Board of Directors of the Company stating that, in the good faith judgment of the Board of Directors of the Company, it would be materially detrimental to the Company and its stockholders for such Registration Statement registration statement to be effected at such time; provided, further, that the Company shall not have the right to exercise the right set forth in the immediately preceding proviso more than once twice in any 365-day period in respect of a Demand Registration hereunder. In addition, the Company may elect to register for resale shares of Common Stock held by other security holders of the Company, so long as (i) the Registrable Securities of the Selling Demand Holders Holder to be registered will not be reduced thereby; (ii) if such registration is an underwritten offering, such other security holders agree in writing to sell the Common Stock on the same terms and conditions as apply to the Registrable Securities being sold by the HoldersHolder, (iii) if such registration is an underwritten offering, any Common Stock held by other security holders of the Company to be registered for resale and/or resold will not, in the opinion of the managing Underwriter(s) adversely affect the proposed offering price, the timing, the distribution method, or the probability of success of such offering of the Registrable Securities being sold; and (iv) the Company will be responsible for any and all costs (including reasonable attorneys’ fees) incurred by the Selling Demand Holders Holder arising out of the registration of such other security holder’s Common Stock. Riverwood (if any ▇▇ ▇▇▇▇▇▇ is participating in the Demand Registration) or the Demand Holder(s) (if no ▇▇ ▇▇▇▇▇▇ is participating in the Demand Registration), shall be entitled to select counsel for the Selling Demand Holders.

Form of Registration Statement. The Company shall, as expeditiously as possible and in any event within sixty (60) days after receipt of a request for a Demand Registration pursuant to Section 2.1, prepare and file with the Commission a Registration Statement on any form for which the Company then qualifies or which counsel for the Company shall deem appropriate and which form shall be available for the sale of all Registrable Securities to be registered thereunder in accordance with the intended method(s) and plan of distribution thereof; provided, that the Company shall have the right to defer any Demand Registration for up to thirty (30) days, and any Piggy-Back Registration for such period as may be applicable to deferment of any demand registration to which such Piggy-Back Registration relates, in each case if the Company shall furnish to the holders a certificate signed by the Chief Executive Officer or Chairman of the Board of the Company stating that, in the good faith judgment of the Board of Directors of the Company, it would be materially detrimental to the Company and its stockholders for such Registration Statement to be effected at such time; provided, further, that the Company shall not have the right to exercise the right set forth in the immediately preceding proviso more than once in any 365-day period in respect of a Demand Registration hereunder. In addition, the Company may elect to register for resale shares of Common Stock held by other security holders of the Company, so long as (i) the Registrable Securities of the Selling Demand Holders to be registered will not be reduced thereby; (ii) if such registration is an underwritten offering, such other security holders agree in writing to sell the Common Stock on the same terms and conditions as apply to the Registrable Securities being sold by the Holders, (iii) any Common Stock held by other security holders of the Company to be registered for resale and/or resold will not, in the opinion of the managing Underwriter(s) adversely affect the proposed offering price, the timing, the distribution method, or the probability of success of such offering of the Registrable Securities being sold; and (iv) the Company will be responsible for any and all costs (including reasonable attorneys’ fees) incurred by the Selling Demand Holders arising out of the registration of such other security holder’s Common Stock. Riverwood (if any ▇▇ ▇▇▇▇▇▇ is participating in the The Demand Registration) or the Demand Holder(s) (if no ▇▇ ▇▇▇▇▇▇ is participating in the Demand Registration), Holder shall be entitled to select counsel for the Selling Demand Holders.

Form of Registration Statement. The (a) On or prior to each Filing Date, the Company shall, as expeditiously as possible and in any event within sixty (60) days after receipt of a request for a Demand Registration pursuant to Section 2.1, shall prepare and file with the Commission a Registration Statement covering the resale of all of the Registrable Securities that are not then registered on any form an effective Registration Statement for which an offering to be made on a continuous basis pursuant to Rule 415. Each Registration Statement filed hereunder shall be on Form S-3 (except if the Company is not then qualifies eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form in accordance herewith, subject to the provisions of Section 2(e)) and shall contain (unless otherwise directed by at least 85% in interest of the Holders) substantially the “Plan of Distribution” attached hereto as Annex A and substantially the “Selling Stockholder” section attached hereto as Annex B; provided, however, that no Holder shall be required to be named as an “underwriter” without such Holder’s express prior written consent. Subject to the terms of this Agreement, the Company shall use its best efforts to cause a Registration Statement filed under this Agreement (including, without limitation, under Section 3(c)) to be declared effective under the Securities Act as promptly as possible after the filing thereof, but in any event no later than the applicable Effectiveness Date, and shall use its best efforts to keep such Registration Statement continuously effective under the Securities Act until the date that all Registrable Securities covered by such Registration Statement (i) have been sold, thereunder or which counsel pursuant to Rule 144, or (ii) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders (the “Effectiveness Period”). The Company shall deem appropriate and telephonically request effectiveness of a Registration Statement as of 5:00 p.m. Eastern Time on a Trading Day. The Company shall immediately notify the Holders via facsimile or by e-mail of the effectiveness of a Registration Statement on the same Trading Day that the Company telephonically confirms effectiveness with the Commission, which form shall be the date requested for effectiveness of such Registration Statement. The Company shall, by 9:30 a.m. Eastern Time on the Trading Day after the effective date of such Registration Statement, file a final Prospectus with the Commission as required by Rule 424. Failure to so notify the Holder within one (1) Trading Day of such notification of effectiveness or failure to file a final Prospectus as foresaid shall be deemed an Event under Section 2(d). (b) Notwithstanding the registration obligations set forth in Section 2(a), if the Commission informs the Company that all of the Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly inform each of the Holders thereof and use its commercially reasonable efforts to file amendments to the Initial Registration Statement as required by the Commission, covering the maximum number of Registrable Securities permitted to be registered by the Commission, on Form S-3 or such other form available to register for resale the Registrable Securities as a secondary offering, subject to the provisions of Section 2(e); with respect to filing on Form S-3 or other appropriate form, and subject to the provisions of Section 2(d) with respect to the payment of liquidated damages; provided, however, that prior to filing such amendment, the Company shall be obligated to use diligent efforts to advocate with the Commission for the sale registration of all of the Registrable Securities in accordance with the SEC Guidance, including without limitation, Compliance and Disclosure Interpretation 612.09. (c) Notwithstanding any other provision of this Agreement and subject to the payment of liquidated damages pursuant to Section 2(d), if the Commission or any SEC Guidance sets forth a limitation on the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering (and notwithstanding that the Company used diligent efforts to advocate with the Commission for the registration of all or a greater portion of Registrable Securities), unless otherwise directed in writing by a Holder as to its Registrable Securities, the number of Registrable Securities to be registered thereunder on such Registration Statement will be reduced as follows: a. First, the Company shall reduce or eliminate any securities to be included other than Registrable Securities; and b. Second, the Company shall reduce Registrable Securities represented by Series E Warrant Shares (applied, in the case that some Series E Warrant Shares may be registered, to the Holders on a pro rata basis based on the total number of unregistered Series E Warrant Shares held by such Holders). In the event of a cutback hereunder, the Company shall give the Holder at least five (5) Trading Days prior written notice along with the calculations as to such Holder’s allotment. In the event the Company amends the Initial Registration Statement in accordance with the intended method(sforegoing, the Company will use its best efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on Form S-3 or such other form available to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended. (d) If: (i) the Initial Registration Statement is not filed on or prior to its Filing Date (if the Company files the Initial Registration Statement without affording the Holders the opportunity to review and plan comment on the same as required by Section 3(a) herein, the Company shall be deemed to have not satisfied this clause (i)), or (ii) the Company fails to file with the Commission a request for acceleration of distribution thereof; provideda Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the Securities Act, within five Trading Days of the date that the Company shall have is notified (orally or in writing, whichever is earlier) by the right Commission that such Registration Statement will not be “reviewed” or will not be subject to defer any Demand further review, if applicable, or (iii) prior to the effective date of a Registration for up to thirty (30) daysStatement, and any Piggy-Back Registration for such period as may be applicable to deferment of any demand registration to which such Piggy-Back Registration relates, in each case if the Company shall furnish fails to the holders file a certificate signed pre-effective amendment and otherwise respond in writing to comments made by the Chief Executive Officer Commission in respect of such Registration Statement within ten (10) calendar days after the receipt of comments by or Chairman of notice from the Board of the Company stating that, Commission that such amendment is required in the good faith judgment of the Board of Directors of the Company, it would be materially detrimental to the Company and its stockholders order for such Registration Statement to be effected declared effective, or (iv) a Registration Statement registering for resale all of the Registrable Securities is not declared effective by the Commission by the Effectiveness Date of the Initial Registration Statement, or (v) after the effective date of a Registration Statement, such Registration Statement ceases for any reason to remain continuously effective as to all Registrable Securities included in such Registration Statement, or the Holders are otherwise not permitted to utilize the Prospectus therein to resell such Registrable Securities, for more than ten (10) consecutive calendar days or more than an aggregate of fifteen (15) calendar days (which need not be consecutive calendar days) during any 12-month period (any such failure or breach being referred to as an “Event”, and for purposes of clauses (i) and (iv), the date on which such Event occurs, and for purpose of clause (ii) the date on which such five (5) Trading Day period is exceeded, and for purpose of clause (iii) the date which such ten (10) calendar day period is exceeded, and for purpose of clause (v) the date on which such ten (10) or fifteen (15) calendar day period, as applicable, is exceeded being referred to as “Event Date”), then, in addition to any other rights the Holders may have hereunder or under applicable law, on each such Event Date and on each monthly anniversary of each such Event Date (if the applicable Event shall not have been cured by such date) until the earlier of the six month anniversary of the date hereof or the applicable Event is cured, the Company shall pay to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to the product of 1.0% multiplied by the aggregate Exercise Price of the Series E Warrants then held by such Holder. If the Company fails to pay any partial liquidated damages pursuant to this Section in full within seven days after the date payable, the Company will pay interest thereon at a rate of 18% per annum (or such time; providedlesser maximum amount that is permitted to be paid by applicable law) to the Holder, furtheraccruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro rata basis for any portion of a month prior to the cure of an Event. (e) If Form S-3 is not available for the registration of the resale of Registrable Securities hereunder, the Company shall (i) register the resale of the Registrable Securities on another appropriate form and (ii) undertake to register the Registrable Securities on Form S-3 as soon as such form is available, provided that the Company shall not have maintain the right to exercise the right set forth in the immediately preceding proviso more than once in any 365-day period in respect of a Demand Registration hereunder. In addition, the Company may elect to register for resale shares of Common Stock held by other security holders effectiveness of the Company, so long Registration Statement then in effect until such time as (i) a Registration Statement on Form S-3 covering the Registrable Securities of has been declared effective by the Selling Demand Holders to be registered will not be reduced thereby; Commission. (iif) if such registration is an underwritten offering, such other security holders agree in writing to sell the Common Stock on the same terms and conditions as apply Notwithstanding anything to the Registrable Securities being sold by the Holderscontrary contained herein, (iii) any Common Stock held by other security holders of in no event shall the Company be permitted to be registered for resale and/or resold will not, in name any Holder or affiliate of a Holder as any Underwriter without the opinion of the managing Underwriter(s) adversely affect the proposed offering price, the timing, the distribution method, or the probability of success prior written consent of such offering of the Registrable Securities being sold; and (iv) the Company will be responsible for any and all costs (including reasonable attorneys’ fees) incurred by the Selling Demand Holders arising out of the registration of such other security holder’s Common Stock. Riverwood (if any ▇▇ ▇▇▇▇▇▇ is participating in the Demand Registration) or the Demand Holder(s) (if no ▇▇ ▇▇▇▇▇▇ is participating in the Demand Registration), shall be entitled to select counsel for the Selling Demand HoldersHolder.

Form of Registration Statement. The Company shall, as expeditiously as possible and in any event within sixty (60) days after receipt of a request for a Demand Registration pursuant to Section 2.12(a), prepare and file with the Commission a Registration Statement registration statement on any form for which the Company then qualifies or which counsel for the Company shall deem appropriate and which form shall be available for the sale of all Registrable Securities to be registered thereunder in accordance with the intended method(s) and plan of distribution thereof; provided, that the Company shall have the right to defer any Demand Registration for up to thirty (30) days, and any Piggy-Back Registration for such period as may be applicable to deferment of any demand registration to which such Piggy-Back Registration relates, in each case if the Company shall furnish to the holders Holders a certificate signed by the Chief Executive Officer or Chairman of the Board of the Company stating that, in the good faith judgment of the Board of Directors of the Company, it would be materially detrimental to the Company and its stockholders for such Registration Statement registration statement to be effected at such time; provided, further, that the Company shall not have the right to exercise the right set forth in the immediately preceding proviso more than once in any 365-day period in respect of a Demand Registration hereunder. In addition, the Company may elect to register for resale shares of Common Stock held by other security holders of the Company, so long as (i) the Registrable Securities of the Selling Demand Holders to be registered will not be reduced thereby; (ii) if such registration is an underwritten offering, such other security holders agree in writing to sell the Common Stock on the same terms and conditions as apply to the Registrable Securities being sold by the Holders, (iii) if such registration is an underwritten offering, any Common Stock held by other security holders of the Company to be registered for resale and/or resold will not, in the opinion of the managing Underwriter(s) adversely affect the proposed offering price, the timing, the distribution method, or the probability of success of such offering of the Registrable Securities being sold; and (iv) the Company will be responsible for any and all costs (including reasonable attorneys’ fees) incurred by the Selling Demand Holders arising out of the registration of such other security holder’s Common Stock. Riverwood (if any ▇▇ ▇▇▇▇▇▇ is participating in the Demand Registration) or the Demand Holder(s) (if no ▇▇ ▇▇▇▇▇▇ is participating in the Demand Registration), The Majority-in-Interest shall be entitled to select counsel for the Selling Demand Holders, whose expenses shall be borne by the Company.