TO BE REGISTERED BY THE
COMPANY FOR ITS OWN ACCOUNT, WHICH IN THE OPINION OF SUCH UNDERWRITERS CAN BE SO
SOLD; PROVIDED, HOWEVER, THAT THE COMPANY SHALL HAVE THE RIGHT (THE "PRIORITY
RIGHT") TO RECEIVE PRIORITY OVER ALL HOLDERS OF REGISTRABLE SECURITIES AND
PERSONS WITH OTHER REGISTRATION RIGHTS (OTHER THAN BSMB REQUESTING HOLDERS) IN
ANY DEMAND REGISTRATION TO BE EFFECTED UNDER THIS SECTION 5A WITH RESPECT TO
SECURITIES THAT THE COMPANY PROPOSES TO INCLUDE IN SUCH REGISTRATION FOR ITS OWN
ACCOUNT BY GIVING WRITTEN NOTICE OF ITS ELECTION TO EXERCISE SUCH PRIORITY RIGHT
TO SUCH PERSONS AND TO THE REQUESTING HOLDERS; AND THEREAFTER, PRIORITY WILL BE
AS SET FORTH IN (I)- (II) ABOVE.
(D)
THE COMPANY SHALL BE OBLIGATED TO EFFECT A MAXIMUM OF FOUR (4) DEMAND
REGISTRATIONS ON FORM S-1 OR FORM S-2 (OR SIMILAR LONG-FORM REGISTRATION FORMS)
AND AN UNLIMITED NUMBER OF REGISTRATIONS ON FORM S-3 (OR SIMILAR SHORT-FORM
REGISTRATION FORMS) FOR THE BSMB INVESTORS.
ANY DEMAND REGISTRATION REQUESTED
MUST BE FOR A FIRMLY UNDERWRITTEN PUBLIC OFFERING (TO BE MANAGED BY AN
UNDERWRITER OR UNDERWRITERS OF RECOGNIZED NATIONAL STANDING SELECTED BY THE BSMB
REQUESTING HOLDERS AND REASONABLY ACCEPTABLE TO THE COMPANY).
THE COMPANY SHALL
NOT BE OBLIGATED TO EFFECT ANY DEMAND REGISTRATION WITHIN A PERIOD OF SIX (6)
MONTHS AFTER THE EFFECTIVE DATE OF ANY PREVIOUS REGISTRATION STATEMENT.
THE
COMPANY MAY DEFER NOT MORE THAN TWO (2) TIMES FOR A PERIOD NOT TO EXCEED 90 DAYS
IN THE AGGREGATE DURING ANY 12-MONTH PERIOD FROM EACH RECEIPT OF THE REQUEST TO
FILE A REGISTRATION STATEMENT FOR A DEMAND REGISTRATION IF THE BOARD IN GOOD
FAITH DETERMINES THAT SUCH DEMAND REGISTRATION MIGHT REASONABLY BE EXPECTED TO
HAVE A MATERIALLY ADVERSE EFFECT ON ANY PROPOSAL OR PLAN BY THE COMPANY OR ANY
OF ITS SUBSIDIARIES TO ENGAGE IN ANY ACQUISITION OF ASSETS (OTHER THAN IN THE
ORDINARY COURSE OF BUSINESS) OR ANY MERGER, CONSOLIDATION, TENDER OFFER OR OTHER
MATERIAL TRANSACTIONS; PROVIDED, THAT IN SUCH EVENT, THE BSMB REQUESTING HOLDERS
SHALL BE ENTITLED TO WITHDRAW SUCH REQUEST AND, IF SUCH REQUEST IS WITHDRAWN,
SUCH DEMAND REGISTRATION SHALL NOT COUNT AS A DEMAND REGISTRATION.
(E)
IN CONNECTION WITH ANY DEMAND REGISTRATION PURSUANT TO THIS SECTION 5A,
EACH PARTY TO THIS AGREEMENT SHALL VOTE, OR CAUSE TO BE VOTED, ALL SECURITIES OF
THE COMPANY OVER WHICH IT HAS THE POWER TO VOTE OR DIRECT THE VOTING TO EFFECT
ANY STOCK SPLIT WHICH, IN THE OPINION OF THE SOLE OR MANAGING UNDERWRITER, IS
NECESSARY TO FACILITATE THE EFFECTIVENESS OF SUCH DEMAND REGISTRATION.
(F)
ANY HOLDER OF REGISTRABLE SECURITIES SHALL BE ENTITLED TO WITHDRAW SUCH
HOLDER'S REQUEST TO PARTICIPATE IN ANY DEMAND REGISTRATION THAT IS AN
UNDERWRITTEN OFFERING AT ANY TIME PRIOR TO THE EXECUTION AND DELIVERY OF THE
RELATED UNDERWRITING AGREEMENT.
5B
Incidental Registration.
(A)
AT ANY TIME THE COMPANY PROPOSES OR IS REQUIRED TO REGISTER ANY SHARES OF
COMMON STOCK PURSUANT TO A REGISTRATION STATEMENT UNDER THE SECURITIES ACT
(OTHER THAN IN
11
CONNECTION WITH A BUSINESS ACQUISITION OR COMBINATION, AN EMPLOYEE BENEFIT