NUMBER OF SHARES OR AGGREGATE AMOUNT OF SECURITYHOLDER SHARES
REPRESENTED BY SUCH RIGHTS.
IN NO EVENT SHALL ANY AMOUNTS PAYABLE TO BEAR
STEARNS MERCHANT MANAGER III (CAYMAN), L.P. (OR ITS DESIGNEES) PURSUANT TO THE
PROFESSIONAL SERVICES AGREEMENT BE DEEMED CONSIDERATION RECEIVED BY BSMB
HEREUNDER.
(C)
IF A COMPANY SALE IS CONSUMMATED, THEN EACH SECURITYHOLDER SHALL BEAR SUCH
PERSON'S PRO RATA SHARE (BASED UPON THE RELATIVE AMOUNT OF CONSIDERATION
RECEIVED BY SUCH SECURITYHOLDER) OF THE COSTS OF ANY SALE OF SECURITYHOLDER
SHARES PURSUANT TO A COMPANY SALE TO THE EXTENT SUCH COSTS ARE INCURRED FOR THE
BENEFIT OF ALL SECURITYHOLDERS AND ARE NOT OTHERWISE PAID BY THE COMPANY OR THE
ACQUIRING PARTY.
COSTS INCURRED BY OR ON BEHALF OF A SECURITYHOLDER FOR SUCH
PERSON'S SOLE BENEFIT SHALL NOT BE CONSIDERED COSTS OF THE TRANSACTION
HEREUNDER.
IN THE EVENT THAT ANY TRANSACTION THAT THE COMPANY OR A BSMB
INVESTOR, AS APPLICABLE, ELECTS TO CONSUMMATE OR CAUSE TO BE CONSUMMATED
PURSUANT TO THIS SECTION 4 IS NOT CONSUMMATED FOR ANY REASON, THE COMPANY SHALL
REIMBURSE THE BSMB INVESTOR FOR ALL ACTUAL AND REASONABLE EXPENSES PAID OR
INCURRED BY THE BSMB INVESTOR IN CONNECTION THEREWITH. NOTWITHSTANDING ANYTHING
TO THE CONTRARY HEREIN, THE COMPANY SHALL REIMBURSE THE MANAGEMENT HOLDERS FOR
THE ACTUAL AND REASONABLE FEES AND OUT-OF-POCKET EXPENSES OF ONE (1) LEGAL
COUNSEL RETAINED BY THE MANAGEMENT HOLDERS SOLELY IN CONNECTION WITH SUCH
COUNSEL'S REVIEW AND NEGOTIATION OF THE DEFINITIVE AGREEMENT WITH RESPECT TO
SUCH COMPANY SALE; PROVIDED, THAT SUCH AMOUNTS (I) SHALL NOT INCLUDE ANY FEES OR
EXPENSES INCURRED IN CONNECTION WITH ANY NEW EMPLOYMENT AGREEMENTS, OPTION
AGREEMENTS, OR ANY OTHER EQUITY DOCUMENTS AND (II) SHALL NOT EXCEED $50,000 IN
THE AGGREGATE.
(D)
THE TAKE-ALONG RIGHT OF THE BSMB MAJORITY HOLDERS SET FORTH IN THIS
SECTION 4 SHALL TERMINATE UPON THE CONSUMMATION OF A COMPANY SALE OR AN IPO.
5.
Registration Rights.
5A
Demand Registrations.
(A)
SUBJECT TO THE PROVISIONS OF THIS SECTION 5 (INCLUDING THE RESTRICTIONS
SET FORTH IN SECTION 5A(D)), EACH OF THE BSMB REQUESTING HOLDERS SHALL HAVE THE
RIGHT (THE "DEMAND RIGHT") TO REQUEST REGISTRATION UNDER THE SECURITIES ACT OF
ALL OR ANY PORTION OF THE REGISTRABLE SECURITIES HELD BY SUCH BSMB REQUESTING
HOLDER(S) BY DELIVERING A WRITTEN NOTICE TO THE PRINCIPAL BUSINESS OFFICE OF THE
COMPANY, WHICH NOTICE IDENTIFIES THE BSMB REQUESTING HOLDERS AND SPECIFIES THE
NUMBER OF REGISTRABLE SECURITIES TO BE INCLUDED IN SUCH REGISTRATION (THE
"REGISTRATION REQUEST").
THE COMPANY SHALL GIVE PROMPT WRITTEN NOTICE OF SUCH
REGISTRATION REQUEST IN ACCORDANCE WITH SECTION 5B(A) (THE "REGISTRATION
NOTICE") TO ALL OTHER HOLDERS OF REGISTRABLE SECURITIES AND SHALL THEREUPON USE
ITS BEST EFFORTS TO EFFECT THE REGISTRATION (A "DEMAND REGISTRATION") UNDER THE
SECURITIES ACT ON ANY FORM AVAILABLE TO THE COMPANY OF:
9
(I)
THE REGISTRABLE SECURITIES REQUESTED TO BE REGISTERED BY THE BSMB
REQUESTING HOLDER AND ALL OTHER REGISTRABLE SECURITIES WHICH THE COMPANY HAS
RECEIVED A WRITTEN REQUEST TO REGISTER WITHIN 15 DAYS AFTER THE REGISTRATION
NOTICE IS GIVEN;
(II)
ANY SECURITIES OF THE COMPANY PROPOSED TO BE INCLUDED