Common use of Allocation of Registration Opportunities Clause in Contracts

Allocation of Registration Opportunities. (a) With respect to any Company-initiated registration pursuant to Section 1.3 hereof, if the underwriters determine in their sole discretion that marketing conditions require a limitation on the number of shares to be underwritten, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, which the underwriters determine in their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling shareholders according to the total amount of securities requested to be included therein by each such selling shareholder or in such other proportions as shall mutually be agreed to by such selling shareholders), but in no event shall (i) the amount of securities of the selling Holders included in the offering be reduced unless the securities of all other selling stockholders included in the offering are first completely excluded from the offering, or (ii) the amount of securities of the selling Holders included in the offering be reduced below twenty five percent (25%) of the total amount of securities included in such offering, unless such offering is the initial public offering of the Company’s securities, in which case such Holders may be excluded entirely if the underwriters make the determination described above and if the securities of all other selling stockholders are excluded entirely. For purposes of apportionment, for any selling shareholder which is a Holder of Registrable Securities and which is a partnership, limited liability company or corporation, the partners (or retired partners), members (or retired members) and shareholders of such selling shareholder, or the estates and family Table of Contents members of any such partners (retired partners), members (or retired members) or shareholders and any trusts for the benefit of any of the foregoing persons (and including in the case of Fidelity any Fidelity Entity) shall be deemed to be a single “selling shareholder” and any pro rata reduction with respect to such “selling shareholder” shall be based upon the aggregate amount of shares carrying registration rights owned by all entities and individuals included in such “selling shareholder” as defined in this sentence.

Allocation of Registration Opportunities. (a) With respect If a registration is to any Company-initiated be ---------------------------------------- an underwritten registration pursuant to Section 1.3 hereof, if and the managing underwriters determine thereof advise the Company in writing that in their sole discretion that marketing conditions require a limitation on opinion the number of shares to be underwritten, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, which the underwriters determine in their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling shareholders according to the total amount of securities requested to be included therein in the registration (including all shares desired to be included by the Company or by any other party holding demand or piggyback registration rights) exceeds the number which can be sold in the offering, then: (A) if the registration is initiated by the Holder under Section 4.1(a) hereof, then the Company shall include in the registration (x) first, any securities the Company proposes to sell; and (y) second, the Registrable Securities the Holder proposes to sell, together as one group with any securities proposed to be sold by any other party then having piggyback registration rights but not any demand registration rights, pro rata according to the total number of Voting Securities owned by each such selling shareholder or in such other proportions party (provided, however, that if as shall mutually be agreed to by such selling shareholders), but in no event shall (i) the amount of securities of the selling Holders included in the offering be reduced unless the securities of all other selling stockholders included in the offering are first completely excluded from the offering, or (ii) the amount of securities of the selling Holders included in the offering be reduced below twenty five percent (25%) of the total amount of securities included in such offering, unless such offering is the initial public offering a result of the Company’s securities's registration of any securities the Company proposes to sell, in the Holder is unable to register all of the Registrable Securities the Holder proposes to sell pursuant to the notice by which case such Holders may registration was initiated, then the Holder shall have the right to initiate an additional registration under Section 4.1(a) hereof); and (z) third, the shares proposed to be excluded entirely sold by any other party having piggyback registration rights, together as one group pro rata according to the total Voting Securities owned by each; or (B) if the underwriters make registration is initiated by the determination described above Company, then the Company shall include in the registration (y) first, the securities the Company proposes to sell and (z) second, the shares proposed to be sold by the Holder and any other party having piggyback registration rights, together as one group pro rata according to the total Voting Securities owned by each; or (C) if the registration is initiated by a party other than the Holder or the Company, then the Company shall include in the registration (x) first, any securities the Company proposes to sell, and (y) second, the shares proposed to be sold by the party exercising its demand registration right, together as one group with any shares proposed to be sold by any party then having piggyback registration rights but not any demand registration rights, pro rata according to the total number of all Voting Securities owned by each such party, and (z) third, any shares proposed to be sold by the Holder and any other selling stockholders are excluded entirelyparty having registration rights, pro rata according to the total number of Voting Securities owned by each such party. For purposes of apportionment, for any selling shareholder which is a Holder of Registrable Securities and which is not included in a partnership, limited liability company or corporation, the partners (or retired partners), members (or retired members) and shareholders of such selling shareholder, or the estates and family Table of Contents members of any such partners (retired partners), members (or retired members) or shareholders and any trusts for the benefit of any of registration pursuant to the foregoing persons (and including in the case of Fidelity any Fidelity Entity) shall be deemed withdrawn therefrom, and the Company shall have no obligation to be a single “selling shareholder” and any pro rata reduction with respect to register such “selling shareholder” shall be based upon the aggregate amount of shares carrying registration rights owned by all entities and individuals included in such “selling shareholder” as defined in this sentenceRegistrable Securities.

Allocation of Registration Opportunities. In any circumstance in which all of the shares of Warrant Stock and other Company securities with registration rights (asuch other Company securities being referred to as the "Other Shares") With respect requested to any Company-initiated be included in a registration pursuant on behalf of other selling persons cannot be so included due to Section 1.3 hereofmarketing factors or other reasons, if the underwriters determine Company may limit, to the extent so advised by the managing underwriter(s), the amount of Company securities to be included in their sole discretion that marketing conditions require a limitation on the registration by the holders of Company securities (including the Holder) as discussed in the following sentence. The Company shall so advise all holders of Company securities requesting registration, and, subject to the preceding sentence, the number of shares to be underwritten, then the of Company shall be required to include in the offering only securities that number of such securities, including Registrable Securities, which the underwriters determine in their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling shareholders according to the total amount of securities requested are entitled to be included therein by each such selling shareholder or in such other proportions as shall mutually be agreed to by such selling shareholders), but in no event shall (i) the amount of securities of the selling Holders included in the offering registration and underwriting shall be reduced allocated (A) first to the Company for Company securities being sold for its own account; (B) thereafter to the Other Shares of any persons holding demand registration rights electing to include such securities in the registration (unless the securities terms of all other selling stockholders such person's demand rights permit such person to be included in the offering are first completely excluded from the offering, or (ii) the amount of securities of the selling Holders included in the offering be reduced below twenty five percent (25%) of the total amount of securities included in such offering, unless such offering is the initial public offering of before the Company’s securities, in which case such Holders may be excluded entirely if the underwriters make the determination described above and if the securities of all other selling stockholders are excluded entirely. For purposes of apportionment, for any selling shareholder which is a Holder of Registrable Securities and which is a partnership, limited liability company or corporation, the partners (or retired partners), members (or retired members) and shareholders terms of such selling shareholder, or the estates and family Table of Contents members of any such partners (retired partners), members (or retired members) or shareholders and any trusts for the benefit of any of the foregoing persons (and including in the case of Fidelity any Fidelity Entity) demand rights shall be deemed to be a single “selling shareholder” and any pro rata reduction control with respect to the priority between such “holder and the Company), (C) thereafter to the Other Shares held by persons holding piggyback registration rights electing to include such securities in the registration, on a pro rata fully diluted basis; and (D) thereafter to the Warrant Stock held by persons holding piggyback registration rights electing to include such securities in the registration, on a pro rata fully diluted basis. If other selling shareholder” persons do not request inclusion of the maximum number of Other Shares allocated to them pursuant to the above-described procedure, the remaining portion of such person's allocation shall be based upon reallocated among the aggregate amount other selling persons whose allocations did not satisfy their requests in the order described in subsections (A), (B), (C) and (D) above, pro rata under each such subsection on the basis of the number of shares carrying registration rights owned of Warrant Stock and Other Shares, as applicable, held by such persons, and this procedure shall be repeated until all entities of the shares of Warrant Stock and individuals Other Shares, as applicable, that may be included in such “the registration on behalf of the other selling shareholder” as defined in this sentencepersons have been so allocated.

Allocation of Registration Opportunities. (a) With respect to In connection with any Company-initiated registration offering pursuant to Section 1.3 hereofhereof involving an underwriting of shares of the Company's capital stock, if the Company shall not be required to include any of the Holders' securities in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by it, and then only in such quantity as the underwriters determine in their sole discretion that marketing conditions require a limitation on will not jeopardize the number success of shares the offering by the Company. If the total amount of securities, including Registrable Securities, requested by shareholders to be underwrittenincluded in such offering exceeds the amount of securities to be sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, which the underwriters determine in their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling shareholders according to the total amount of securities requested entitled to be included therein owned by each such selling shareholder or in such other proportions as shall mutually be agreed to by such selling shareholders); provided, however, that the managing underwriter shall limit or exclude up to all of the securities of holders of capital stock of the Company as follows: (i) first, among securities requested to be included in such registration by any shareholder of the Company other than a Holder and otherwise eligible to be included in such registration, (ii) second, ratably among the Series B/C Registrable Securities requested by the Holders to be included in such registration and otherwise eligible to be included in such registration, (iii) third, ratably among the Series E Registrable Securities requested by the Holders to be included in such registration and otherwise eligible to be included in such registration, and (iv) fourth, among the securities which the Company proposes to sell; but in no event shall (i) the amount of securities of the selling Holders included in the offering be reduced unless the securities of all other selling stockholders included in the offering are first completely excluded from the offering, or (ii) the amount of securities of the selling Holders included in the offering be reduced below twenty five percent (2520%) of the total amount of securities included in such offering; provided, unless such offering is further, that in the initial public offering event of the Company’s securitiesIPO, the number of shares held by the Holders and any other shareholder proposed to be included in which case such Holders the offering may be excluded entirely if the underwriters make the determination described above and if the securities of all other selling stockholders are excluded entirelyreduced to zero. For purposes of the preceding provisions concerning apportionment, for any selling shareholder which is a Holder holder of Registrable Securities and which is a partnership, limited liability company partnership or corporation, the partners, retired partners (or retired partners), members (or retired members) and shareholders of such selling shareholderholder, or the estates and family Table of Contents members of any such partners (and retired partners), members (or retired members) or shareholders partners and any trusts for the benefit of any of the foregoing persons (and including in the case of Fidelity any Fidelity Entity) shall be deemed to be a single “"selling shareholder” ," and any pro pro-rata reduction with respect to such “"selling shareholder” " shall be based upon the aggregate amount of shares carrying registration rights owned by all entities and individuals included in such “"selling shareholder” ," as defined in this sentence.

Allocation of Registration Opportunities. (a) With respect In any circumstance in ---------------------------------------- which all of the Registrable Securities, Prior Registrable Securities and Other Securities requested to any Company-initiated be included in a registration pursuant to Section 1.3 hereofon behalf of the Holders, if Prior Holders and/or Other Stockholders cannot be so included as a result of limitations imposed by the underwriters determine in their sole discretion that marketing conditions require a limitation on the aggregate number of shares of Registrable Securities, Prior Registrable Securities and Other Securities which may be so included, the number of shares to be underwritten, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, Prior Registrable Securities and Other Securities which the underwriters determine in their sole discretion will not jeopardize the success of the offering (the securities may be so included to shall be apportioned allocated among the Holders, the Prior Holders and Other Stockholders requesting inclusion of securities in the following manner and order: (i) pro rata among the selling shareholders according Prior Holders on the basis of the number of Prior Registrable Securities that would be held by such Prior Holders assuming conversion; provided, however, that, so that such allocation shall not operate to reduce the total amount aggregate number of securities requested Registrable Securities, Prior Registrable Securities and/or Other Securities to be included therein by each such selling shareholder or in such Registration, if any Prior Holders do not request inclusion of the maximum number of Prior Registrable Securities allocated to them pursuant to the above-described procedure, the remaining portion of their allocation shall be reallocated among the other proportions as shall mutually Prior Holders whose allocations did not satisfy their requests pro rata on the basis of the number of Prior Registrable Securities that would be agreed to held by such selling shareholders)Prior Holders, but in no event assuming conversion, and this procedure shall (i) the amount of securities be repeated until all of the selling Holders Prior Registrable Securities that may be included in the offering be reduced unless registration on behalf of the securities of all other selling stockholders included in the offering are first completely excluded from the offering, or Prior Holders have been so allocated; (ii) pro rata among the amount of securities of Holders and Other Stockholders, assuming conversion; provided, however, that, so that such allocation shall not operate to reduce the selling Holders included in the offering be reduced below twenty five percent (25%) of the total amount of securities included in such offering, unless such offering is the initial public offering of the Company’s securities, in which case such Holders may be excluded entirely if the underwriters make the determination described above and if the securities of all other selling stockholders are excluded entirely. For purposes of apportionment, for any selling shareholder which is a Holder aggregate number of Registrable Securities and which is a partnership, limited liability company or corporation, the partners (or retired partners), members (or retired members) and shareholders of such selling shareholder, or the estates and family Table of Contents members of any such partners (retired partners), members (or retired members) or shareholders and any trusts for the benefit of any of the foregoing persons (and including in the case of Fidelity any Fidelity Entity) shall be deemed Other Securities to be a single “selling shareholder” and any pro rata reduction with respect to such “selling shareholder” shall be based upon the aggregate amount of shares carrying registration rights owned by all entities and individuals included in such “selling shareholder” as defined registration, if any Holder or Other Stockholder does not request inclusion of the maximum number of Registrable Securities and/or Other Securities allocated to them pursuant to the above-described procedure, the remaining portion of their allocation shall be reallocated among those Holders and Other Stockholders whose allocations did not satisfy their requests pro rata on the basis of the number of Registrable Securities or Other Securities that would be held by such Holder or Other Stockholder, assuming conversion, and this procedure shall be repeated until all of the Registrable Securities and Other Securities which may be included in the registration on behalf of the Holders and Other Stockholders have been so allocated. The Company shall not limit the number of Registrable Securities or Prior Registrable Securities to be included in a registration pursuant to this sentenceAgreement in order to include securities held by securityholders with no registration rights.

Allocation of Registration Opportunities. (a) With respect In connection with any offering involving an underwriting of shares of the Company's capital stock pursuant hereto, the Company shall not be required to include any Company-initiated registration pursuant to Section 1.3 hereofof the Registrable Securities in such underwriting unless the Holder accepts the terms of the underwriting as agreed upon between the Company and the underwriters selected by it, if and then only in such quantity as the underwriters determine in their sole discretion that marketing conditions require a limitation on good faith will not jeopardize the number success of shares the offering. If the total amount of securities, including Registrable Securities, requested by stockholders to be underwrittenincluded in such offering exceeds the amount of securities that the underwriters determine in good faith is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including the Registrable Securities, which the underwriters determine in their sole discretion good faith will not jeopardize the success of the offering (offering. In such an event and to the extent necessary to comply with the foregoing, the managing underwriter shall limit or exclude up to all of the securities so included to be apportioned pro rata of holders of capital stock of the Company as follows: (i) first, among the selling shareholders according to the total amount of securities requested to be included therein by each such selling shareholder or in such registration by any stockholder of the Company other proportions as shall mutually than (A) the Holder or (B) any holders of Company securities with a contractual right to affirmatively require the Company to file a registration statement relating to such holders' securities (each, a "Demand Right Holder"); (ii) second, among the Registrable Securities requested to be agreed to included in such registration by such selling shareholders), the Holder but in no event shall (i) the amount of securities of the selling Holders included in the offering be reduced unless the securities of all other selling stockholders included in the offering are first completely excluded from the offering, or (ii) the amount of securities of the selling Holders included in the offering such Registrable Securities be reduced below twenty twenty-five percent (25%) of the total amount of securities included in such offeringoffering (calculated, unless such offering is for the initial public offering of the Company’s securitiespurposes hereof, in which case such Holders may be excluded entirely if the underwriters make aggregate with the determination described above and if securities held by the holder of any other Warrant, or portion thereof, issued pursuant to the Consulting Agreement); (iii) third, among the securities of all other selling stockholders are excluded entirelythe Company (i.e., primary shares); and (iv) fourth, among the securities of the Demand Right Holders, if any. For purposes of the preceding provisions concerning apportionment, for any selling shareholder Holder which is a Holder of Registrable Securities and which is a partnership, limited liability company partnership or corporation, the partners, retired partners (or retired partners), members (or retired members) and shareholders stockholders of such selling shareholderHolder, or the estates and family Table of Contents members of any such partners (and retired partners), members (or retired members) or shareholders partners and any trusts for the benefit of any of the foregoing persons (and including in the case of Fidelity any Fidelity Entity) shall be deemed to be a single “selling shareholder” Holder for the purposes hereof, and any pro pro-rata reduction with respect to such “selling shareholder” Holder shall be based upon the aggregate amount of shares carrying registration rights owned by all entities and individuals included in such “selling shareholder” Holder (as defined in this sentencedescribed herein).

Allocation of Registration Opportunities. (a) With respect to Except as otherwise provided in this Agreement, in any Company-initiated registration pursuant to Section 1.3 hereof, if the underwriters determine circumstance in their sole discretion that marketing conditions require a limitation on the number of shares to be underwritten, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, which the underwriters determine in their sole discretion will not jeopardize the success all of the offering (the securities so included to be apportioned pro rata among the selling shareholders according to the total amount of securities Registrable Securities and Other Shares requested to be included therein in a registration on behalf of the Holders or Other Stockholders cannot be so included as a result of limitations in the aggregate number of Registrable Securities and Other Shares that may be so included, the number of Registrable Securities and Other Shares (if any) shall be excluded, first by each such selling shareholder or in such other proportions as shall mutually be agreed to excluding Other Shares, pro rata on the basis of the number of Other Shares held by such selling shareholders)Other Stockholders, but in no event shall (i) and thereafter by excluding Registrable Securities, pro rata on the amount of securities basis of the selling Holders included in number of Registrable Securities held by such Holders, until the offering aggregate number of Registrable Securities and Other Shares (if any) may be reduced unless the securities of all other selling stockholders included in the offering are first completely excluded from the offering, or (ii) the amount of securities of the selling Holders included in the offering be reduced below twenty five percent (25%) of the total amount of securities included in such offering, unless such offering is the initial public offering registration. If any Holder or Other Stockholder does not request inclusion of the Companymaximum number of Registrable Securities and Other Shares allocated to such person pursuant to the above described formula, the remaining portion of such person’s securitiesallocation shall be reallocated among those requesting Holders and/or Other Stockholders whose allocations did not satisfy their requests, in which case such Holders pro rata on the same basis as described above, and this procedure shall be repeated until all of the Registrable Securities and/or Other Shares that may be excluded entirely if included in such registration on behalf of the underwriters make the determination described above and if the securities of all other selling stockholders are excluded entirelyHolders and/or Other Stockholders have been so allocated. For purposes of the preceding sentence concerning apportionment, for any selling shareholder which stockholder that is a Holder of Registrable Securities and which that is a partnershipventure capital fund, limited liability company partnership or corporation, the partners (or such Holder together with all partners, retired partners), members, retired members (and other equity owners or retired members) and shareholders Affiliates of such selling shareholderHolder, or the estates and family Table of Contents members Family Members of any such partners (retired partners), members (or retired members) or shareholders individuals and any trusts for the benefit of any of the foregoing persons (and including in the case of Fidelity any Fidelity Entity) shall be deemed to be a single “selling shareholderHolder,” and any pro rata reduction with respect to such “selling shareholderHolder” shall be based upon the aggregate amount of shares carrying registration rights Registrable Securities owned by all such related entities and individuals included in such “selling shareholder” as defined in this sentenceindividuals.