GIVING
WRITTEN NOTICE TO THE COMPANY AND THE MANAGING UNDERWRITER, IF ANY, ON OR BEFORE
THE FIFTH BUSINESS DAY PRIOR TO THE PLANNED EFFECTIVE DATE OF SUCH PIGGYBACK
REGISTRATION. THE COMPANY MAY TERMINATE OR WITHDRAW ANY
43
REGISTRATION UNDER THIS SECTION 4.10(A)(4) PRIOR TO THE EFFECTIVENESS OF SUCH
REGISTRATION, WHETHER OR NOT THE INVESTOR OR ANY OTHER HOLDERS HAVE ELECTED TO
INCLUDE REGISTRABLE SECURITIES IN SUCH REGISTRATION.
"SPECIAL REGISTRATION"
MEANS THE REGISTRATION OF (I) EQUITY SECURITIES AND/OR OPTIONS OR OTHER RIGHTS
IN RESPECT THEREOF SOLELY REGISTERED ON FORM S-4 OR FORM S-8 (OR SUCCESSOR
FORM), (II) SHARES OF EQUITY SECURITIES AND/OR OPTIONS OR OTHER RIGHTS IN
RESPECT THEREOF TO BE OFFERED TO DIRECTORS, MEMBERS OF MANAGEMENT, EMPLOYEES,
CONSULTANTS, CUSTOMERS, LENDERS OR VENDORS OF THE COMPANY OR COMPANY
SUBSIDIARIES OR IN CONNECTION WITH DIVIDEND REINVESTMENT PLANS AND
(III) SECURITIES WITH RESPECT TO A PERMITTED RIGHTS OFFERING OR 382 RIGHTS PLAN.
(5)
IF THE REGISTRATION REFERRED TO IN SECTION 4.10(A)(4) IS PROPOSED
TO BE UNDERWRITTEN, THE COMPANY WILL SO ADVISE THE INVESTOR AND ALL OTHER
HOLDERS AS A PART OF THE WRITTEN NOTICE GIVEN PURSUANT TO SECTION 4.10(A)(4).
IN SUCH EVENT, THE RIGHT OF THE INVESTOR AND ALL OTHER HOLDERS TO REGISTRATION
PURSUANT TO THIS SECTION 4.10(A) WILL BE CONDITIONED UPON SUCH PERSONS'
PARTICIPATION IN SUCH UNDERWRITING AND THE INCLUSION OF SUCH PERSONS'
REGISTRABLE SECURITIES IN THE UNDERWRITING, AND EACH SUCH PERSON WILL (TOGETHER
WITH THE COMPANY AND THE OTHER PERSONS DISTRIBUTING THEIR SECURITIES THROUGH
SUCH UNDERWRITING) ENTER INTO AN UNDERWRITING AGREEMENT IN CUSTOMARY FORM WITH
THE UNDERWRITER OR UNDERWRITERS SELECTED FOR SUCH UNDERWRITING BY THE COMPANY.
IF ANY PARTICIPATING PERSON DISAPPROVES OF THE TERMS OF THE UNDERWRITING, SUCH
PERSON MAY ELECT TO WITHDRAW THEREFROM BY WRITTEN NOTICE TO THE COMPANY, THE
MANAGING UNDERWRITER AND THE INVESTOR.
(6)
EXCEPT AS OTHERWISE DISCLOSED TO THE INVESTOR, THE COMPANY
REPRESENTS AND WARRANTS THAT IT HAS NOT GRANTED TO ANY HOLDER OF ITS SECURITIES
AND AGREES THAT IT SHALL NOT GRANT "PIGGYBACK" REGISTRATION RIGHTS TO ONE OR
MORE THIRD PARTIES TO INCLUDE THEIR SECURITIES IN THE SHELF REGISTRATION
STATEMENT OR IN AN UNDERWRITTEN OFFERING UNDER THE SHELF REGISTRATION STATEMENT
PURSUANT TO SECTION 4.10(A)(2).
IF A PIGGYBACK REGISTRATION UNDER
SECTION 4.10(A)(4) RELATES TO AN UNDERWRITTEN PRIMARY OFFERING ON BEHALF OF THE
COMPANY, AND IN EITHER CASE THE MANAGING UNDERWRITERS ADVISE THE COMPANY THAT IN
THEIR REASONABLE OPINION THE NUMBER OF SECURITIES REQUESTED TO BE INCLUDED IN
SUCH OFFERING EXCEEDS THE NUMBER WHICH CAN BE SOLD WITHOUT ADVERSELY AFFECTING
THE MARKETABILITY OF SUCH OFFERING (INCLUDING AN ADVERSE EFFECT ON THE PER SHARE
OFFERING PRICE), THE COMPANY WILL INCLUDE IN SUCH REGISTRATION OR PROSPECTUS
ONLY SUCH NUMBER OF SECURITIES THAT IN THE REASONABLE OPINION OF SUCH
UNDERWRITERS CAN BE SOLD WITHOUT ADVERSELY AFFECTING THE MARKETABILITY OF THE
OFFERING (INCLUDING AN ADVERSE EFFECT ON THE PER SHARE OFFERING PRICE), WHICH
SECURITIES WILL BE SO INCLUDED IN THE FOLLOWING ORDER OF PRIORITY: (I) FIRST, IN
THE CASE OF A PIGGYBACK REGISTRATION UNDER SECTION 4.10(A)(4), THE SECURITIES
THE COMPANY PROPOSES