Common use of Cutback Clause in Contracts

Cutback. (i) With respect to any Demand Registration for an underwritten offering, any Company Initiated Resale Registration for an underwritten offering, any Underwritten Shelf Take-Down, in each case that does not include Issuer Unit Equivalents being sold for the account of the Company, or any other registration for an underwritten offering that does not include Issuer Unit Equivalents being sold for the account of the Company, if the IM Underwriter or Company Underwriter, as applicable, advises the Company in its good faith opinion that the amount of Registrable Securities requested to be included in such registration, including Registrable Securities requested to be included pursuant to SECTION 2.2, exceeds the amount which can be sold in such offering without adversely affecting the distribution of the Registrable Securities being offered, then the Company will reduce the Registrable Securities to be included in such offering pro rata based on the amount of Issuer Units owned by each Holder requesting to include Registrable Securities in such registration under any of SECTION 2.1, SECTION 2.2 or SECTION 2.5. (ii) With respect to any Demand Registration for an underwritten offering, any Company Initiated Resale Registration for an underwritten offering or any Underwritten Shelf Take-Down that does include Issuer Unit Equivalents being sold for the account of the Company, if the IM Underwriter or Company Underwriter, as applicable, advises the Company in its good faith opinion that the amount of Issuer Unit Equivalents being sold for the account of the Company together with the Registrable Securities requested by the Holders to be included in such registration, including Registrable Securities requested to be included pursuant to SECTION 2.2, exceeds the amount which can be sold in such offering without adversely affecting the distribution of the Issuer Unit Equivalents and Registrable Securities being offered, then the Company will reduce the Issuer Unit Equivalents and Registrable Securities to be included in such offering by (i) first only including the total number of Registrable Securities of the Holders in such offering with each such Holder entitled to include its pro rata share based on the number of Issuer Units that are owned by such Holder and constitute Registrable Securities and (ii) second, to the extent that all Registrable Securities of the Holders can be included, then only including the total number of Issuer Unit Equivalents being sold for the account of the Company (in addition to all such Registrable Securities being sold by Holders) that the Company so determines can be included. (b) If the Company Underwriter advises the Company in its good faith opinion that the amount of Issuer Unit Equivalents being sold for the account of the Company together with the Registrable Securities requested to be included in an underwritten offering contemplated by SECTION 2.2(b) (other than a registration subject to SECTION 2.4(a)) exceeds the amount which can be sold in such offering without adversely affecting the distribution of the Issuer Unit Equivalents and Registrable Securities being offered, then the Company will reduce the Issuer Unit Equivalents and Registrable Securities to be included in such offering by (i) first only including the Issuer Unit Equivalents (or portion thereof) being sold for the account of the Company that the Company so determines can be included and (ii) second, to the extent that all Issuer Unit Equivalents being sold for the account of the Company can be included, then only including the total number of Registrable Securities of the Holders in such offering as the Company so determines can be included (in addition to all such Issuer Unit Equivalents being sold for the account of the Company) with each such Holder entitled to include its pro rata share based on the number of Issuer Units that are owned by such Holder and constitute Registrable Securities.

Cutback. (i) With respect In the case of a registration pursuant to any Demand Registration for Section 2.1 hereof, whenever the Majority Participating Holders shall request that such registration shall be effected pursuant to an underwritten offering, any Company Initiated Resale Registration for an underwritten offeringsuch registration shall be so effected, any Underwritten Shelf Take-Down, in each case that does not include Issuer Unit Equivalents being sold for and only securities which are to be distributed by the account of the Company, or any other registration for an underwritten offering that does not include Issuer Unit Equivalents being sold for the account of the Company, if the IM Underwriter or Company Underwriter, as applicable, advises the Company in its good faith opinion that the amount of Registrable Securities requested to underwriters may be included in such registration. Such underwriters shall be designated by the following method: (i) the Company will provide a list to the Majority Participating Holders of six (6) underwriters, including Registrable Securities requested to each of which shall be included on the list of the top twenty (20) equity underwriters in the United States, (ii) the Majority Participating Holders may then remove no more than three (3) underwriters from such list, and (iii) the Company may then designate the underwriters for the underwritten offering pursuant to SECTION 2.2Section 2.1 from those remaining underwriters on such list. If requested by such underwriters, exceeds the amount which can be Company and each participating seller will enter into an underwriting agreement with such underwriters for such offering containing such representations and warranties by the Company and such other terms and provisions applicable to the Company as are customarily contained in underwriting agreements with respect to secondary distributions, including, without limitation, indemnity and contribution. In each such registration pursuant to Section 2.1, each Shareholder agrees that without the consent of the managing underwriter, for a period from fifteen (15) days prior to the effective date of the registration statement until ninety (90) days after such effective date, such Shareholder will not directly or indirectly sell, offer to sell, grant any option for the sale of, or otherwise dispose of any common equity or securities convertible into common equity except (x) for Registered Securities sold in such registered offering without adversely affecting the distribution and (y) transfers to Permitted Transferees of the Registrable Securities being offeredsuch Shareholder, then each of whom shall have furnished to the Company will reduce and the Registrable Securities managing underwriter their written consent to be included in such offering pro rata based on the amount of Issuer Units owned bound by each Holder requesting to include Registrable Securities in such registration under any of SECTION 2.1, SECTION 2.2 or SECTION 2.5. (ii) With respect to any Demand Registration for an underwritten offering, any Company Initiated Resale Registration for an underwritten offering or any Underwritten Shelf Take-Down that does include Issuer Unit Equivalents being sold for the account of the Company, if the IM Underwriter or Company Underwriter, as applicable, advises the Company in its good faith opinion that the amount of Issuer Unit Equivalents being sold for the account of the Company together with the Registrable Securities requested by the Holders to be included in such registrationthis Agreement, including Registrable Securities requested to be included pursuant to SECTION 2.2, exceeds the amount which can be sold in such offering without adversely affecting the distribution of the Issuer Unit Equivalents and Registrable Securities being offered, then the Company will reduce the Issuer Unit Equivalents and Registrable Securities to be included in such offering by (i) first only including the total number of Registrable Securities of the Holders in such offering with each such Holder entitled to include its pro rata share based on the number of Issuer Units that are owned by such Holder and constitute Registrable Securities and (ii) second, to the extent that all Registrable Securities of the Holders can be included, then only including the total number of Issuer Unit Equivalents being sold for the account of the Company (in addition to all such Registrable Securities being sold by Holders) that the Company so determines can be includedthis Section 2. (b) If the Company Underwriter advises the Company in its good faith opinion that the amount of Issuer Unit Equivalents being sold for the account of the Company together with the Registrable Securities requested to be included in an underwritten offering contemplated by SECTION 2.2(b) (other than a registration subject to SECTION 2.4(a)) exceeds the amount which can be sold in such offering without adversely affecting the distribution of the Issuer Unit Equivalents and Registrable Securities being offered, then the Company will reduce the Issuer Unit Equivalents and Registrable Securities to be included in such offering by (i) first only including the Issuer Unit Equivalents (or portion thereof) being sold for the account of the Company that the Company so determines can be included and (ii) second, to the extent that all Issuer Unit Equivalents being sold for the account of the Company can be included, then only including the total number of Registrable Securities of the Holders in such offering as the Company so determines can be included (in addition to all such Issuer Unit Equivalents being sold for the account of the Company) with each such Holder entitled to include its pro rata share based on the number of Issuer Units that are owned by such Holder and constitute Registrable Securities.

Cutback. (iIf the lead managing underwriter of an offering covered by Section 1(a) With respect to any Demand Registration for an underwritten offering, any Company Initiated Resale Registration for an underwritten offering, any Underwritten Shelf Take-Down, in each case that does not include Issuer Unit Equivalents being sold for the account of the Company, or any other registration for an underwritten offering that does not include Issuer Unit Equivalents being sold for the account of the Company, if the IM Underwriter or Company Underwriter, as applicable, advises this Agreement shall advise the Company in writing on or before the date five days prior to the date then scheduled for such offering that, in its good faith opinion that opinion, the amount of Common Stock (including Grantee Common Stock Registrable Securities Shares) requested to be included in such registration, including Registrable Securities requested to be included pursuant to SECTION 2.2, registration exceeds the amount which can be sold in such offering without adversely affecting the distribution of the Registrable Securities Common Stock being offered, then the Company will reduce include in such registration: (i) in the Registrable Securities case of a Company Registration, first, any shares proposed to be included in offered by the Company; second, the shares of Common Stock which have been requested to be registered by the holders requesting such offering registration pursuant to the ATX Agreement, the Voyager Agreement and/or the Booth Agreement (the "Existing Agreements"), as applicable, allocated, if necessary, pro rata based among such holders requesting such registration on the amount basis of Issuer Units owned the number of shares of Common Stock Beneficially Owned by each Holder such holder at the time; and third, the shares of Common Stock which have been requested to be registered by the Grantee and any other holder of common shares entitled to incidental or piggyback registration ("Other Registration"), allocated, if necessary, pro rata among such holders requesting to include Registrable Securities in such registration under any on the basis of SECTION 2.1, SECTION 2.2 or SECTION 2.5.the number of shares of Common Stock Beneficially Owned by such holder at the time; and (ii) With respect in the case of a Third Party Demand Registration, first, any shares proposed to any be offered by the stockholder or stockholders exercising their right to cause the Company to proceed with such Third Party Demand Registration for an underwritten offering(the "Initiating Third Party Holders"); second, any Company Initiated Resale Registration for an underwritten offering or any Underwritten Shelf Take-Down that does include Issuer Unit Equivalents being sold for the account of shares proposed to be offered by the Company; third, if the IM Underwriter or Company Underwriter, as applicable, advises the Company in its good faith opinion that the amount shares of Issuer Unit Equivalents being sold for the account of the Company together with the Registrable Securities Common Stock which have been requested to be registered by the Holders holders requesting such registration pursuant to the Existing Agreements, excluding any shares Beneficially Owned by the Initiating Third Party Holders, to be included in such registration, including Registrable Securities allocated, if necessary, pro rata among such holders requesting such registration on the basis of the number of shares of Common Stock Beneficially Owned by such holder at the time; and fourth, the shares of Common Stock which have been requested to be included pursuant registered by the Grantee and any other holder entitled to SECTION 2.2Other Registration, exceeds allocated, if necessary, pro rata among such holders requesting such registration on the amount which can be sold in such offering without adversely affecting the distribution basis of the Issuer Unit Equivalents and Registrable Securities being offerednumber of shares of Common Stock Beneficially Owned by such holder at the time; provided, then however, that in the event the Company will reduce not, by virtue of the Issuer Unit Equivalents and implementation of the foregoing cutback mechanism, include in any such registration all of the Grantee Common Stock Registrable Securities Shares requested to be included in such offering by (i) first only including registration, the total number of Registrable Securities Grantee may, upon written notice to the Company given within three days of the Holders in date the Grantee is first notified of such offering with each such Holder entitled to include its pro rata share based on the number of Issuer Units that are owned by such Holder and constitute Registrable Securities and (ii) secondmatter, to the extent that all Registrable Securities of the Holders can be included, then only including the total number of Issuer Unit Equivalents being sold for the account of the Company (in addition to all such Registrable Securities being sold by Holders) that the Company so determines can be included. (b) If the Company Underwriter advises the Company in its good faith opinion that reduce the amount of Issuer Unit Equivalents being sold for the account of Grantee Common Stock Registrable Shares the Company together with the Registrable Securities requested Grantee desires to be included in an underwritten offering contemplated by SECTION 2.2(b) (other than a registration subject to SECTION 2.4(a)) exceeds the amount which can be sold in such offering without adversely affecting the distribution of the Issuer Unit Equivalents and Registrable Securities being offered, then the Company will reduce the Issuer Unit Equivalents and Registrable Securities to be have included in such offering by (i) first registration, whereupon only including the Issuer Unit Equivalents (or portion thereof) being sold Grantee Common Stock Registrable Shares, if any, the Grantee desires to have included will be considered for the account of the Company that the Company so determines can be included and (ii) second, to the extent that all Issuer Unit Equivalents being sold for the account of the Company can be included, then only including the total number of Registrable Securities of the Holders in such offering as the Company so determines can be included (in addition to all such Issuer Unit Equivalents being sold for the account of the Company) with each such Holder entitled to include its pro rata share based on the number of Issuer Units that are owned by such Holder and constitute Registrable Securitiesinclusion.

Cutback. If, in connection with a Piggyback Registration, any managing underwriter (or, if such Piggyback Registration is not an Underwritten Offering, a nationally recognized independent investment bank selected by the Corporation and reasonably acceptable to the Stockholders holding a majority of the Registrable Securities included in such Piggyback Registration, and whose fees and expenses shall be borne solely by the Corporation) advises the Corporation in writing that, in its opinion, the inclusion of all the Common Shares sought to be included in such Piggyback Registration by (i) With respect the Corporation, (ii) others who have sought to have Common Shares registered in such Piggyback Registration pursuant to rights to “piggyback” such registration (such Persons being “Other Piggyback Sellers”), (iii) the Piggyback Sellers that request to participate in such registration or offering pursuant to their piggyback registration rights, and (iv) any Demand Registration for an underwritten other proposed sellers of Common Shares (such Persons being “Other Proposed Sellers”), as the case may be, would adversely affect the marketability of the Common Shares sought to be sold pursuant thereto, then the Corporation shall include in the registration statement, or dispose in such offering, any Company Initiated Resale applicable to such Piggyback Registration for only such Common Shares as the Corporation is so advised by such underwriter can be sold without such an underwritten offeringadverse effect, any Underwritten Shelf Take-Down, as follows and in each case that does not include Issuer Unit Equivalents being sold the following order of priority: (a) if the Piggyback Registration relates to an offering for the account Corporation’s own account, then (A) first, such number of Common Shares to be sold by the CompanyCorporation for its own account, or any other registration for an underwritten offering that does not include Issuer Unit Equivalents being sold for the account of the Company(B) second, if the IM Underwriter or Company Underwriter, as applicable, advises the Company in its good faith opinion that the amount of Registrable Securities Common Shares requested to be included in such registrationPiggyback Registration by any Piggyback Sellers and any Other Piggyback Sellers who have piggyback rights that are pari passu to the Piggyback Sellers1, including Registrable Securities requested pro rata among such Piggyback Sellers and Other Piggyback Sellers based upon the number of Common Shares sought to be included pursuant registered or disposed by such holders deemed to SECTION 2.2be owned by such Persons, exceeds the amount which can and (C) third, other Common Shares proposed to be sold by any Other Proposed Sellers; or (b) if the Piggyback Registration relates to an offering other than for the Corporation’s own account, then (A) first, any Common Shares proposed to be sold by any Other Proposed Sellers with a contractual right to include such Common Shares in such offering without adversely affecting the distribution of the Registrable Securities being offeredregistration statement prior to any Stockholder, then the Company will reduce the Registrable Securities (B) second, Common Shares requested to be included in such offering Piggyback Registration by any Piggyback Sellers and any Other Piggyback Sellers who have piggyback rights that are pari passu to the Piggyback Sellers, pro rata among such Piggyback Sellers and Other Piggyback Sellers based on the amount of Issuer Units owned by each Holder requesting to include Registrable Securities in such registration under any of SECTION 2.1, SECTION 2.2 or SECTION 2.5. (ii) With respect to any Demand Registration for an underwritten offering, any Company Initiated Resale Registration for an underwritten offering or any Underwritten Shelf Take-Down that does include Issuer Unit Equivalents being sold for the account of the Company, if the IM Underwriter or Company Underwriter, as applicable, advises the Company in its good faith opinion that the amount of Issuer Unit Equivalents being sold for the account of the Company together with the Registrable Securities requested by the Holders to be included in such registration, including Registrable Securities requested to be included pursuant to SECTION 2.2, exceeds the amount which can be sold in such offering without adversely affecting the distribution of the Issuer Unit Equivalents and Registrable Securities being offered, then the Company will reduce the Issuer Unit Equivalents and Registrable Securities to be included in such offering by (i) first only including the total number of Registrable Securities of the Holders in such offering with each such Holder entitled to include its pro rata share based on upon the number of Issuer Units that are owned Common Shares sought to be registered or disposed by such Holder and constitute Registrable Securities holders, and (iiC) secondthird, the other Common Shares proposed to the extent that all Registrable Securities of the Holders can be included, then only including the total number of Issuer Unit Equivalents being sold for the account of the Company (in addition to all such Registrable Securities being sold by Holders) that the Company so determines can be included. (b) If the Company Underwriter advises the Company in its good faith opinion that the amount of Issuer Unit Equivalents being sold for the account of the Company together with the Registrable Securities requested any Other Proposed Sellers or to be included in an underwritten offering contemplated sold by SECTION 2.2(b) (other than a registration subject to SECTION 2.4(a)) exceeds the amount which can be sold in such offering without adversely affecting Corporation as determined by the distribution of the Issuer Unit Equivalents and Registrable Securities being offered, then the Company will reduce the Issuer Unit Equivalents and Registrable Securities to be included in such offering by (i) first only including the Issuer Unit Equivalents (or portion thereof) being sold for the account of the Company that the Company so determines can be included and (ii) second, to the extent that all Issuer Unit Equivalents being sold for the account of the Company can be included, then only including the total number of Registrable Securities of the Holders in such offering as the Company so determines can be included (in addition to all such Issuer Unit Equivalents being sold for the account of the Company) with each such Holder entitled to include its pro rata share based on the number of Issuer Units that are owned by such Holder and constitute Registrable SecuritiesCorporation.

Cutback. (i) With respect to any Demand Registration for an underwritten offering, any Company Initiated Resale Registration for an underwritten offering, any Underwritten Shelf Take-Down, in each case that does not include Issuer Unit Common Stock Equivalents being sold for the account of the Company, or any other registration for an underwritten offering that does not include Issuer Unit Common Stock Equivalents being sold for the account of the Company, if the IM Underwriter or Company Underwriter, as applicable, advises the Company in its good faith opinion that the amount of Registrable Securities requested to be included in such registration, including Registrable Securities requested to be included pursuant to SECTION 2.2, exceeds the amount which can be sold in such offering without adversely affecting the distribution of the Registrable Securities being offered, then the Company will reduce the Registrable Securities to be included in such offering pro rata based on the amount of Issuer Units Common Stock owned by each Holder requesting to include Registrable Securities in such registration under any of SECTION 2.1, SECTION 2.2 or SECTION 2.5. (ii) With respect to any Demand Registration for an underwritten offering, any Company Initiated Resale Registration for an underwritten offering or any Underwritten Shelf Take-Down that does include Issuer Unit Common Stock Equivalents being sold for the account of the Company, if the IM Underwriter or Company Underwriter, as applicable, advises the Company in its good faith opinion that the amount of Issuer Unit Common Stock Equivalents being sold for the account of the Company together with the Registrable Securities requested by the Holders to be included in such registration, including Registrable Securities requested to be included pursuant to SECTION 2.2, exceeds the amount which can be sold in such offering without adversely affecting the distribution of the Issuer Unit Common Stock Equivalents and Registrable Securities being offered, then the Company will reduce the Issuer Unit Common Stock Equivalents and Registrable Securities to be included in such offering by (i) first only including the total number of Registrable Securities of the Holders in such offering with each such Holder entitled to include its pro rata share based on the number of Issuer Units shares of Common Stock that are owned by such Holder and constitute Registrable Securities and (ii) second, to the extent that all Registrable Securities of the Holders can be included, then only including the total number of Issuer Unit Common Stock Equivalents being sold for the account of the Company (in addition to all such Registrable Securities being sold by Holders) that the Company so determines can be included. (b) If the Company Underwriter advises the Company in its good faith opinion that the amount of Issuer Unit Common Stock Equivalents being sold for the account of the Company together with the Registrable Securities requested to be included in an underwritten offering contemplated by SECTION 2.2(b) (other than a registration subject to SECTION 2.4(a)) exceeds the amount which can be sold in such offering without adversely affecting the distribution of the Issuer Unit Common Stock Equivalents and Registrable Securities being offered, then the Company will reduce the Issuer Unit Common Stock Equivalents and Registrable Securities to be included in such offering by (i) first only including the Issuer Unit Common Stock Equivalents (or portion thereof) being sold for the account of the Company that the Company so determines can be included and (ii) second, to the extent that all Issuer Unit Common Stock Equivalents being sold for the account of the Company can be included, then only including the total number of Registrable Securities of the Holders in such offering as the Company so determines can be included (in addition to all such Issuer Unit Common Stock Equivalents being sold for the account of the Company) with each such Holder entitled to include its pro rata share based on the number of Issuer Units shares of Common Stock that are owned by such Holder and constitute Registrable Securities.

Cutback. (i) With respect to any Demand Registration for an underwritten offeringRegistration, any Company Initiated Resale Registration for an underwritten offeringRegistration, any Underwritten Shelf Take-Down, in each case that does not include Issuer Unit Equivalents Registrable Securities being sold for the account of the Company, or any other registration for an underwritten offering that does not include Issuer Unit Equivalents Registrable Securities being sold for the account of the Company, if the IM Underwriter or Company Underwriter, as applicable, advises shall reasonably determine (after consultation with the Company in its good faith opinion relevant underwriter) that the amount of Registrable Securities requested to be included in such registration, including Registrable Securities requested to be included pursuant to SECTION 2.2, exceeds the amount which can be sold in such offering without adversely affecting the distribution of the Registrable Securities being offered, then the Company will reduce the Registrable Securities to be included in such offering pro rata based on the amount of Issuer Units Common Stock (with all Warrants considered on a fully exercised basis for purposes of both the numerator and denominator) owned by each Holder requesting to include Registrable Securities in such registration under any of SECTION 2.1, SECTION 2.2 or SECTION 2.5. (ii) With respect to any Demand Registration for an underwritten offeringRegistration, any Company Initiated Resale Registration for an underwritten offering or any Underwritten Shelf Take-Down that does include Issuer Unit Equivalents Registrable Securities being sold for the account of the Company, if the IM Underwriter or Company Underwriter, as applicable, advises shall reasonably determine (after consultation with the Company in its good faith opinion relevant underwriter) that the amount of Issuer Unit Equivalents Registrable Securities being sold for the account of the Company together with the Registrable Securities requested by the Holders to be included in such registration, including Registrable Securities requested to be included pursuant to SECTION 2.2, exceeds the amount which can be sold in such offering without adversely affecting the distribution of the Issuer Unit Equivalents and Registrable Securities being offered, then the Company will reduce the Issuer Unit Equivalents and Registrable Securities to be included in such offering by (i) first only including the total number of Registrable Securities of the Holders in such offering with each such Holder entitled to include its pro rata share based on the number of Issuer Units shares of Common Stock (with all Warrants considered on a fully exercised basis for purposes of both the numerator and denominator) that are owned by such Holder and constitute Registrable Securities and (ii) second, to the extent that all Registrable Securities of the Holders can be included, then only including the total number of Issuer Unit Equivalents Registrable Securities being sold for the account of the Company (in addition to all such Registrable Securities being sold by Holders) that the Company so determines can be included. (b) If the Company Underwriter advises reasonably determines (after consultation with the Company in its good faith opinion relevant underwriter) that the amount of Issuer Unit Equivalents being sold for the account of the Company together with the Registrable Securities requested to be included in an underwritten offering contemplated by SECTION 2.2(b) (other than a registration subject to SECTION 2.4(a)) exceeds the amount which can be sold in such offering without adversely affecting the distribution of the Issuer Unit Equivalents and Registrable Securities being offered, then the Company will reduce the Issuer Unit Equivalents and Registrable Securities to be included in such offering by (i) first only including the Issuer Unit Equivalents Registrable Securities (or portion thereof) being sold for the account of the Company that the Company so determines can be included and (ii) second, to the extent that all Issuer Unit Equivalents Registrable Securities being sold for the account of the Company can be included, then only including the total number of Registrable Securities of the Holders in such offering as the Company so determines can be included (in addition to all such Issuer Unit Equivalents Registrable Securities being sold for the account of the Company) with each such Holder entitled to include its pro rata share based on the number of Issuer Units shares of Common Stock (with all Warrants considered on a fully exercised basis for purposes of both the numerator and denominator) that are owned by such Holder and constitute Registrable Securities.

Cutback. (i) With respect to any Demand Registration for an underwritten offering, any Company Initiated Resale Registration for an underwritten offering, In the event that the managing Underwriters of any Underwritten Shelf Take-Down, in each case that does not include Issuer Unit Equivalents being sold for Offering contemplated by Section 7.3(a) inform the account Company and the holder or holders of Investor Shares requesting the inclusion of the Company, or any other registration for an underwritten Investor Shares in such offering that does not include Issuer Unit Equivalents being sold for the account of the Company, if the IM Underwriter or Company Underwriter, as applicable, advises the Company in its good faith opinion writing that the dollar amount or number of Registrable Securities Shares that have been requested to be included in such registration, including Registrable Securities requested to be included pursuant to SECTION 2.2, exceeds the amount which can be sold in such offering without adversely affecting Underwritten Offering exceeds the distribution Maximum Number of the Registrable Securities being offeredShares, then the Company will reduce the Registrable Securities to be included shall include in such offering pro rata based on the amount of Issuer Units owned by each Holder requesting to include Registrable Securities in such registration under any of SECTION 2.1, SECTION 2.2 or SECTION 2.5.offering: (ii) With respect to any Demand Registration for an underwritten offering, any Company Initiated Resale Registration for an underwritten offering or any Underwritten Shelf Take-Down that does include Issuer Unit Equivalents being sold for the account of the Company, if the IM Underwriter or Company Underwriter, as applicable, advises the Company in its good faith opinion that the amount of Issuer Unit Equivalents being sold for the account of the Company together with the Registrable Securities requested by the Holders to be included in such registration, including Registrable Securities requested to be included pursuant to SECTION 2.2, exceeds the amount which can be sold in such offering without adversely affecting the distribution of the Issuer Unit Equivalents and Registrable Securities being offered, then the Company will reduce the Issuer Unit Equivalents and Registrable Securities to be included in such offering by (i) first only including in the total number of Registrable Securities of event such Underwritten Offering was proposed by the Holders in such offering with each such Holder entitled Company to include sell its pro rata share based on equity securities for its own account: (i) first, equity securities proposed to be sold by the number of Issuer Units that are owned by such Holder and constitute Registrable Securities Company for its own account, and (ii) second, to the extent that all Registrable Securities the Maximum Number of Shares has not been reached under the Holders can be includedforegoing clause (i), then only including Investor Shares which the total number of Issuer Unit Equivalents being sold for the account of the Company (in addition to all such Registrable Securities being sold by Holders) that the Company so determines can be included. (b) If the Company Underwriter advises the Company in its good faith opinion that the amount of Issuer Unit Equivalents being sold for the account of the Company together with the Registrable Securities Investor Group has requested to be included in an underwritten offering contemplated by SECTION 2.2(b) (other than a registration subject to SECTION 2.4(a)) exceeds the amount which can be sold in such offering without adversely affecting the distribution of the Issuer Unit Equivalents and Registrable Securities being offered, then the Company will reduce the Issuer Unit Equivalents and Registrable Securities to be included in such offering Underwritten Offering and the equity securities of any other stockholder who has the right and who has requested to have equity securities included in such Underwritten Offering that can be sold without exceeding the Maximum Number of Shares, allocated Pro Rata among each such holder of Investor Shares and each such other participating stockholder; and (ii) in the event such Underwritten Offering was proposed by another stockholder who has the right to request an Underwritten Offering: (i) first only including the Issuer Unit Equivalents (or portion thereof) being sold for the account first, equity securities of the Company that the Company so determines can be included and such stockholder, (ii) second, to the extent that all Issuer Unit Equivalents being the Maximum Number of Shares has not been reached under the foregoing clause (i), equity securities proposed to be sold for the account of by the Company for its own account, and (iii) third, to the extent that the Maximum Number of Shares has not been reached under the foregoing clauses (i) and (ii), Investor Shares which the Investor Group has requested be included in such Underwritten Offering that can be includedsold without exceeding the Maximum Number of Shares, then only including allocated Pro Rata among each such holder of Investor Shares. The holder or holders of Investor Shares to be distributed by such Underwriters shall be parties to the total number of Registrable Securities of the Holders in such offering as underwriting agreement between the Company so determines can be included (in addition to and such Underwriters and any necessary or appropriate custody agreements, shall execute appropriate powers of attorney, and shall take all such Issuer Unit Equivalents being sold for actions as are reasonably requested by the account managing Underwriters in order to expedite or facilitate the registration or the disposition of the Company) with each such Holder entitled to include its pro rata share based on the number of Issuer Units that are owned by such Holder and constitute Registrable SecuritiesInvestor Shares.

Cutback. (iIf the lead managing underwriter of an offering covered by Section 1(a) With respect to any Demand Registration for an underwritten offering, any Company Initiated Resale Registration for an underwritten offering, any Underwritten Shelf Take-Down, in each case that does not include Issuer Unit Equivalents being sold for the account of the Company, or any other registration for an underwritten offering that does not include Issuer Unit Equivalents being sold for the account of the Company, if the IM Underwriter or Company Underwriter, as applicable, advises this Agreement shall advise the Company in writing on or before the date five days prior to the date then scheduled for such offering that, in its good faith opinion that opinion, the amount of Common Stock (including Grantee Common Stock Registrable Securities Shares) requested to be included in such registration, including Registrable Securities requested to be included pursuant to SECTION 2.2, registration exceeds the amount which can be sold in such offering without adversely affecting the distribution of the Registrable Securities Common Stock being offered, then the Company will reduce include in such registration: (i) in the Registrable Securities case of a Company Registration, first, any shares proposed to be included in offered by the Company; second, the shares of Common Stock which have been requested to be registered by the holders requesting such offering registration pursuant to the ATX Agreement, the Voyager Agreement and/or the Booth Agreement (the "EXISTING AGREEMENTS"), as applicable, allocated, if necessary, pro rata based among such holders requesting such registration on the amount basis of Issuer Units owned the number of shares of Common Stock Beneficially Owned by each Holder such holder at the time; and third, the shares of Common Stock which have been requested to be registered by the Grantee and any other holder of common shares entitled to incidental or piggyback registration ("OTHER REGISTRATION"), allocated, if necessary, pro rata among such holders requesting to include Registrable Securities in such registration under any on the basis of SECTION 2.1, SECTION 2.2 or SECTION 2.5.the number of shares of Common Stock Beneficially Owned by such holder at the time; and (ii) With respect in the case of a Third Party Demand Registration, first, any shares proposed to any be offered by the stockholder or stockholders exercising their right to cause the Company to proceed with such Third Party Demand Registration for an underwritten offering(the "INITIATING THIRD PARTY HOLDERS"); second, any Company Initiated Resale Registration for an underwritten offering or any Underwritten Shelf Take-Down that does include Issuer Unit Equivalents being sold for the account of shares proposed to be offered by the Company; third, if the IM Underwriter or Company Underwriter, as applicable, advises the Company in its good faith opinion that the amount shares of Issuer Unit Equivalents being sold for the account of the Company together with the Registrable Securities Common Stock which have been requested to be registered by the Holders holders requesting such registration pursuant to the Existing Agreements, excluding any shares Beneficially Owned by the Initiating Third Party Holders, to be included in such registration, including Registrable Securities allocated, if necessary, pro rata among such holders requesting such registration on the basis of the number of shares of Common Stock Beneficially Owned by such holder at the time; and fourth, the shares of Common Stock which have been requested to be included pursuant registered by the Grantee and any other holder entitled to SECTION 2.2Other Registration, exceeds allocated, if necessary, pro rata among such holders requesting such registration on the amount which can be sold in such offering without adversely affecting the distribution basis of the Issuer Unit Equivalents and Registrable Securities being offerednumber of shares of Common Stock Beneficially Owned by such holder at the time; provided, then however, that in the event the Company will reduce not, by virtue of the Issuer Unit Equivalents and implementation of the foregoing cutback mechanism, include in any such registration all of the Grantee Common Stock Registrable Securities Shares requested to be included in such offering by (i) first only including registration, the total number of Registrable Securities Grantee may, upon written notice to the Company given within three days of the Holders in date the Grantee is first notified of such offering with each such Holder entitled to include its pro rata share based on the number of Issuer Units that are owned by such Holder and constitute Registrable Securities and (ii) secondmatter, to the extent that all Registrable Securities of the Holders can be included, then only including the total number of Issuer Unit Equivalents being sold for the account of the Company (in addition to all such Registrable Securities being sold by Holders) that the Company so determines can be included. (b) If the Company Underwriter advises the Company in its good faith opinion that reduce the amount of Issuer Unit Equivalents being sold for the account of Grantee Common Stock Registrable Shares the Company together with the Registrable Securities requested Grantee desires to be included in an underwritten offering contemplated by SECTION 2.2(b) (other than a registration subject to SECTION 2.4(a)) exceeds the amount which can be sold in such offering without adversely affecting the distribution of the Issuer Unit Equivalents and Registrable Securities being offered, then the Company will reduce the Issuer Unit Equivalents and Registrable Securities to be have included in such offering by (i) first registration, whereupon only including the Issuer Unit Equivalents (or portion thereof) being sold Grantee Common Stock Registrable Shares, if any, the Grantee desires to have included will be considered for the account of the Company that the Company so determines can be included and (ii) second, to the extent that all Issuer Unit Equivalents being sold for the account of the Company can be included, then only including the total number of Registrable Securities of the Holders in such offering as the Company so determines can be included (in addition to all such Issuer Unit Equivalents being sold for the account of the Company) with each such Holder entitled to include its pro rata share based on the number of Issuer Units that are owned by such Holder and constitute Registrable Securitiesinclusion.

Cutback. (ia) With respect to any Demand Registration for an underwritten offering, any If the Company Initiated Resale Registration for an underwritten offering, any Underwritten Shelf Take-Down, in each case that does not include Issuer Unit Equivalents being sold for the account of the Company, or any other registration for an underwritten offering that does not include Issuer Unit Equivalents being sold for the account of the Company, if shall reasonably determine (after consultation with the IM Underwriter or Company Underwriter, as applicable, advises the Company in its good faith opinion ) that the amount of Registrable Securities requested to be included in such registration, including Registrable Securities requested to be included pursuant to SECTION 2.2, Demand Registration exceeds the amount which can be sold in such offering without adversely affecting the distribution of the Registrable Securities being offered, then the Company will reduce the Registrable Securities to be included in such offering pro rata based on the amount of Issuer Units owned by each Holder requesting to include Registrable Securities in such registration under any of SECTION 2.1, SECTION 2.2 or SECTION 2.5. (ii) With respect to any Demand Registration for an underwritten offering, any Company Initiated Resale Registration for an underwritten offering or any Underwritten Shelf Take-Down that does include Issuer Unit Equivalents being sold for the account of the Company, if the IM Underwriter or Company Underwriter, as applicable, advises the Company in its good faith opinion that the amount of Issuer Unit Equivalents being sold for the account of the Company together with the Registrable Securities requested by the Holders to be included in such registration, including Registrable Securities requested to be included pursuant to SECTION 2.2, exceeds the amount which can be sold in such offering without adversely affecting the distribution of the Issuer Unit Equivalents and Registrable Securities being offered, then the Company will reduce the Issuer Unit Equivalents and Registrable Securities to be included in such offering by (i) first only including the total number of Registrable Securities of the Holders in such offering with owned by each such Holder entitled to include its pro rata share based on the number of Issuer Units that are owned by such Initiating Holder and constitute Registrable Securities and (ii) second, to the extent that all Registrable Securities of the Holders can be included, then only including the total number of Issuer Unit Equivalents being sold for the account of the Company (in addition to all such Registrable Securities being sold by Holders) that the Company so determines can be includedNon-Initiating Holder. (b) If the Company Underwriter advises reasonably determines (after consultation with the Company in its good faith opinion relevant underwriter) that the amount of Issuer Unit Equivalents being sold for the account of the Company together with the Registrable Securities requested to be included in an underwritten offering contemplated by SECTION 2.2(b) (other than a registration subject to SECTION 2.4(a)) exceeds the amount which can be sold in such offering without adversely affecting the distribution of the Issuer Unit Equivalents and Registrable Securities being offered, then the Company will reduce the Issuer Unit Equivalents and Registrable Securities to be included in such offering by (i) first only including the Issuer Unit Equivalents Registrable Securities (or portion thereof) being sold for the account of the Company that the Company so determines can be included and (ii) second, to the extent that all Issuer Unit Equivalents Registrable Securities being sold for the account of the Company can be included, then only including the total number of Registrable Securities of the Holders in such offering as the Company so determines can be included (in addition to all such Issuer Unit Equivalents Registrable Securities being sold for the account of the Company) with each such Holder entitled to include its pro rata share based on the number of Issuer Units that are Registrable Securities owned and proposed to be included by such Holder and constitute Registrable SecuritiesHolder.