Common use of Second Registration Statement Clause in Contracts

Second Registration Statement. Subject to the consummation of the Third Closing (as defined in the Purchase Agreement), on or prior to 15 days following the Third Closing Date (as defined in the Purchase Agreement) (the “Second Filing Deadline” and together with the First Filing Deadline, as applicable, the “Filing Deadline”), the Company shall prepare and file with the SEC a Registration Statement on Form S-3 (or, if Form S-3 is not then available to the Company, on such form of registration statement as is then available to effect a registration for resale of the Registrable Third Closing Securities) for an offering to be made on a continuous basis pursuant to Rule 415 under the Securities Act (the “Second Shelf Registration Statement” and together with the First Shelf Registration Statement, as applicable, a “Shelf Registration Statement”)). Such Second Shelf Registration Statement shall, subject to the limitations of Form S-3, include the aggregate amount of Registrable Third Closing Securities to be registered therein and shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Second Shelf Registration Statement) the “Plan of Distribution” in substantially the form attached hereto as Annex A. To the extent the staff of the SEC does not permit all of the Registrable Third Closing Securities to be registered on the Second Shelf Registration Statement filed pursuant to this Section 2.1(a) or for any other reason any Registrable Third Closing Securities are not then included in a Registration Statement filed under this Agreement, the Company shall (i) inform each of the Holders thereof and use its commercially reasonable efforts to file amendments to the Second Shelf Registration Statement as required by the Commission and/or (ii) withdraw the Second Shelf Registration Statement and file a new registration statement (a “Second New Registration Statement” and together with the First New Registration Statement, as applicable, a “New Registration Statement”)), in either case covering the maximum number of Registrable Third Closing Securities permitted to be registered by the SEC, on Form S-3 or such other form available to register for resale the Registrable Third Closing Securities as a secondary offering; provided, however, that prior to filing such amendment or Second New Registration Statement, the Company shall be obligated to use its commercially reasonable efforts to advocate with the SEC for the registration of all of the Registrable Third Closing Securities in accordance with the SEC Guidance, including without limitation, the Manual of Publicly Available Telephone Interpretations D.

Second Registration Statement. Subject to If (A) the consummation Second Registration Statement is (B) not filed with the Commission on or before the either the Second Filing Deadline (a “Second Filing Failure”), or (C) is not declared effective by the Commission on or before the Second RS Effectiveness Deadline (an “Second Effectiveness Failure”) or (D) on any day after the Effective Date sales of all of the Third Closing Contingent Exercise Shares required to be included on such Second Registration Statement cannot be made (other than during an Allowable Suspension Period (as defined in Section 5.11)) pursuant to such Second Registration Statement or otherwise (including as a result of a failure to keep such Second Registration Statement effective, to disclose such information as is necessary for sales to be made pursuant to such Second Registration Statement or to register a sufficient number of shares of Common Stock or to maintain the Purchase Agreement), on or prior to 15 days following listing of the Third Closing Date (as defined in the Purchase Agreementshares of Common Stock) (the a “Second Filing Deadline” and together with the First Filing DeadlineMaintenance Failure”) then, as applicable, partial relief for the “Filing Deadline”damages to any Investor by reason of any such delay in or reduction of its ability to sell such Contingent Exercise Shares (which remedy shall not be exclusive of any other remedies available at law or in equity), the Company shall prepare pay to each Investor relating to such Second Registration Statement an amount in cash equal to $0.005 per Contingent Exercise Share then held by the Investor, or issuable to such Investor upon exercise of Contingent Warrants held by the Investor, and file with the SEC a covered by such Second Registration Statement on Form S-3 (or, if Form S-3 is not then available to the Company, on such form of registration statement as is then available to effect a registration for resale each of the Registrable Third Closing Securities) for an offering to be made on a continuous basis pursuant to Rule 415 under the Securities Act (the “Second Shelf Registration Statement” and together with the First Shelf Registration Statement, as applicable, a “Shelf Registration Statement”)). Such Second Shelf Registration Statement shall, subject to the limitations of Form S-3, include the aggregate amount of Registrable Third Closing Securities to be registered therein and shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Second Shelf Registration Statement) the “Plan of Distribution” in substantially the form attached hereto as Annex A. To the extent the staff of the SEC does not permit all of the Registrable Third Closing Securities to be registered on the Second Shelf Registration Statement filed pursuant to this Section 2.1(a) or for any other reason any Registrable Third Closing Securities are not then included in a Registration Statement filed under this Agreement, the Company shall following dates: (i) inform each the day of a Second Filing Failure and on every thirtieth day (pro rated for periods totaling less than thirty (30) days) thereafter until the Holders thereof and use its commercially reasonable efforts to file amendments to the date such Second Shelf Registration Statement as required by the Commission and/or Filing Failure is cured; (ii) withdraw the day of an Second Shelf Registration Statement Effectiveness Failure and file on every thirtieth day (pro rated for periods totaling less than thirty (30) days) thereafter until the date such Second Effectiveness Failure is cured; and (iii) the initial day of a new registration statement Second Maintenance Failure and on every thirtieth day (a “pro rated for periods totaling less than thirty (30) days) thereafter until the date such Second New Registration Statement” and together with the First New Registration Statement, as applicable, a “New Registration Statement”)), in either case covering the maximum number of Registrable Third Closing Securities permitted Maintenance Failure is cured. The payments to be registered by the SEC, on Form S-3 or such other form available to register for resale the Registrable Third Closing Securities as a secondary offering; provided, however, that prior to filing such amendment or Second New Registration Statement, the Company which an Investor shall be obligated entitled to use its commercially reasonable efforts pursuant to advocate with the SEC for the registration of all of the Registrable Third Closing Securities in accordance with the SEC Guidance, including without limitation, the Manual of Publicly Available Telephone Interpretations D.this