Common use of Limitations on Registration on Request Clause in Contracts

Limitations on Registration on Request. Notwithstanding anything to the contrary contained herein, the registration rights granted to the Holders in Section 2.2(a) are subject to the following limitations: (i) the Holders shall be entitled to require the Company to, and the Company shall be required to, effect no more than one registration pursuant to Section 2.2(a)(i) hereof and no more than two registrations pursuant to Section 2.2(a)(ii) hereof (provided, however, that the aggregate offering value of the shares to be registered pursuant to any such registration shall be at least $2,500,000 unless the Holders then own shares with a value less than $2,500,000); (ii) the Company shall not be required to effect a registration pursuant to Section 2.2(a) if, at the time the Initiating Holder or Holders deliver the request therefor to the Company, the Company is not eligible to use Form S-3 (or any successor or similar form); provided, however, that so long as this Agreement is in effect the Company shall use its best efforts to ensure that the Company is at all times from the date hereof until the expiration of the Investors' right to request the registration of Registrable Securities pursuant to Section 2.2(a) hereof eligible to use Form S-3; (iii) the Company shall not be required to effect a registration pursuant to Section 2.2(a) if, with respect thereto, the managing underwriter, the Commission, the Securities Act or the rules and regulations thereunder, or the form on which the registration statement is to be filed, would require the conduct of an audit other than the regular audit conducted by the Company at the end of its fiscal year, but rather the filing may be delayed until the completion of such regular audit (unless the Holders agree to pay the expenses of the Company in connection with such an audit other than the regular audit) and (iv) the Holders shall not be entitled to require the Company to, and the Company shall not be required to, effect a registration pursuant to Section 2.2(a)(ii) within six (6) months following the effective date of another registration pursuant to Section 2.2(a)(ii).

Limitations on Registration on Request. Notwithstanding anything in this Section 3.1 to the contrary contained hereincontrary, in no event will the registration rights granted Company be required to the Holders in (i) effect more than three registrations pursuant to this Section 2.2(a) are 3.1, (subject to the following limitations: last sentence of Section 3.1(f) and 3.6(b)), it being understood that Initiating Holders are entitled to one registration and up to two additional conditional registrations as set forth below in this Section 3.1(g), (iii) effect a registration in which the aggregate amount of Registrable Securities has a Value less than US$25,000,000, unless the Value of Registrable Securities outstanding is less than US$25,000,000 in which case the Company shall be obligated to effect one and only one registration of no less than US$5,000,000 in Value of Registrable Securities pursuant to this Section 3.1, subject to the other provisions hereof, unless less than US$5,000,000 in Value of Registrable Securities remain outstanding due to a prior partial redemption of Registrable Securities by HM, in which case such $5,000,000 minimum shall not apply, or (iii) file a registration statement pursuant to this Section 3.1 within the twelve-month period occurring immediately subsequent to the effectiveness (within the meaning of Section 3.1(d)) of a registration statement filed pursuant to this Section 3.1 or pursuant to Section 3.2. The conditions to any second and third registrations under this Section 3.1 are as follows: (A) Selling Holders shall be entitled to require the Company to, and the Company shall be required to, effect no more than one a second registration pursuant to Section 2.2(a)(i) hereof and no more than two registrations pursuant to Section 2.2(a)(ii) hereof (provided, however, that the aggregate offering value of the shares to be registered pursuant to any such registration shall be at least $2,500,000 unless the Holders then own shares with a value less than $2,500,000); (ii) the Company shall not be required to effect a registration pursuant to Section 2.2(a) if, at the time immediately preceding a sale in the Initiating Holder first registration, such Selling Holders either (i) hold Preferred Shares which on an as converted basis would cause them, without giving effect to any other holdings of Common Stock acquired other than upon conversion of Preferred Shares, to hold an ownership interest in HM of greater than 33 1/3% based on market capitalization, or Holders deliver the request therefor (ii) stand to the Companyreceive, the Company is not eligible to use Form S-3 (or any successor or similar form); provided, however, that so long as this Agreement is in effect the Company shall use its best efforts to ensure that the Company is at all times from the date hereof until the expiration of the Investors' right to request the registration a sale of Registrable Securities pursuant to Section 2.2(asuch registration, gross proceeds of less than 95% of the Option Writer's cost basis in such Registrable Securities (which cost basis shall include the amount paid by Option Writer for the relevant Preferred Shares, plus accrued but unpaid dividends thereon). Notwithstanding the foregoing, in the first registration (unless clause (A)(ii) hereof eligible above applies, in which case the holders can withdraw from such first registration), the Selling Holders shall be obligated to use Form S-3; sell Registrable Securities with an aggregate value of at least 1/3 of the aggregate value of the outstanding Preferred Shares (valued on an as converted basis) and Common Stock issued upon conversion of Preferred Shares. (B) Selling Holders shall be entitled to a third registration if, at the time immediately preceding a sale in the second registration, such Selling Holders either (i) hold Preferred Shares which on an as converted basis would cause them, without giving effect to any other holdings of Common Stock acquired other than upon conversion of Preferred Shares, to hold an ownership interest in HM of greater than 33 1/3% based on market capitalization, or (ii) stand to receive, in a sale of Registrable Securities pursuant to such registration, gross proceeds of less than 90% of the Option Writer's cost basis in such Registrable Securities (which cost basis shall include the amount paid by Option Writer for the relevant Preferred Shares, plus accrued but unpaid dividends thereon). Notwithstanding the foregoing, in the second registration (unless clause (B)(ii) above applies, in which case the Selling Holders can withdraw from such second registration), the Selling Holders shall be obligated to sell Registrable Securities with an aggregate value of at least 1/2 of the aggregate value of the outstanding Preferred Shares (valued on an as converted basis) and Common Stock issued upon conversion of Preferred Shares. (C) In any third registration, the Selling Holders shall be obligated to (i) sell all of the Common Stock that they then hold, (ii) convert all of the Preferred Shares that they then hold into Common Stock and sell such Common Stock (unless such Preferred Shares cannot be converted as set forth in the definition of Registrable Securities above, in which case clause (C)(iii) below applies), (iii) sell all of the Company shall Preferred Shares that they then hold which cannot be required to effect a registration pursuant to Section 2.2(a) ifconverted and must therefore be registered in accordance with the definition of Registrable Securities above, with respect thereto, the managing underwriter, the Commission, the Securities Act or the rules and regulations thereunder, or the form on which the registration statement is to be filed, would require the conduct of an audit other than the regular audit conducted by the Company at the end of its fiscal year, but rather the filing may be delayed until the completion of such regular audit (unless the Holders agree to pay the expenses of the Company in connection with such an audit other than the regular audit) and (iv) the Holders shall not be entitled to require the Company to, and the Company shall not be required to, effect a registration sell all other securities that they then hold pursuant to Section 2.2(a)(ii) within six (6) months following 6.13 of the effective date of another registration pursuant to Section 2.2(a)(ii)Option Agreement.

Limitations on Registration on Request. Notwithstanding -------------------------------------- anything in this Section 3.1 to the contrary contained hereincontrary, in no event will the registration rights granted Company be required to the Holders in (i) effect more than five registrations pursuant to this Section 2.2(a) are 3.1, (subject to the following limitations: last sentence of Section 3.1(f) and 3.6(b)), it being understood that Initiating Holders are entitled to one registration for each issuance of Registrable Securities and up to two additional conditional registrations as set forth below in this Section 3.1(g), (iii) effect a registration in which the aggregate amount of Registrable Securities has a Value less than US$25,000,000, unless the Value of Registrable Securities outstanding is less than US$25,000,000 in which case the Company shall be obligated to effect one and only one registration of no less than US$5,000,000 in Value of Registrable Securities pursuant to this Section 3.1, subject to the other provisions hereof, unless less than US$5,000,000 in Value of Registrable Securities remain outstanding due to a prior partial redemption of Registrable Securities by the Company, in which case such $5,000,000 minimum shall not apply, or (iii) file a registration statement pursuant to this Section 3.1 within the twelve-month period occurring immediately subsequent to the effectiveness (within the meaning of Section 3.1(d)) of a registration statement filed pursuant to this Section 3.1 or pursuant to Section 3.2. The conditions to any second and third registrations under this Section 3.1 are as follows: (A) Selling Holders shall be entitled to require the Company to, and the Company shall be required to, effect no more than one a second registration pursuant to Section 2.2(a)(i) hereof and no more than two registrations pursuant to Section 2.2(a)(ii) hereof (provided, however, that the aggregate offering value of the shares to be registered pursuant to any such registration shall be at least $2,500,000 unless the Holders then own shares with a value less than $2,500,000); (ii) the Company shall not be required to effect a registration pursuant to Section 2.2(a) if, at the time immediately preceding a sale in the Initiating Holder or first registration, such Selling Holders deliver the request therefor either (i) hold Preferred Shares which on an as converted basis would cause them, without giving effect to the Companyany other holdings of Common Stock acquired other than upon conversion of Preferred Shares, to hold an ownership interest in the Company is not eligible of greater than 33 1/3% based on market capitalization or (ii) stand to use Form S-3 (or any successor or similar form); providedreceive, however, that so long as this Agreement is in effect the Company shall use its best efforts to ensure that the Company is at all times from the date hereof until the expiration of the Investors' right to request the registration a sale of Registrable Securities pursuant to Section 2.2(asuch registration, gross proceeds of less than 95% of the Option Writer's cost basis in such Registrable Securities (which cost basis shall include the amount paid by Option Writer for the relevant Preferred Shares, plus accrued but unpaid dividends thereon). Notwithstanding the foregoing, in the first registration (unless clause (A)(ii) hereof eligible above applies, in which case the holders can withdraw from such first registration), the Selling Holders shall be obligated to use Form S-3; sell Registrable Securities with an aggregate value of at least 1/3 of the aggregate value of the outstanding Preferred Shares (valued on an as converted basis) and Common Stock issued upon conversion of Preferred Shares. (B) Selling Holders shall be entitled to a third registration if, at the time immediately preceding a sale in the second registration, such Selling Holders either (i) hold Preferred Shares which on an as converted basis would cause them, without giving effect to any other holdings of Common Stock acquired other than upon conversion of Preferred Shares, to hold an ownership interest in the Company of greater than 33 1/3% based on market capitalization or (ii) stand to receive, in a sale of Registrable Securities pursuant to such registration, gross proceeds of less than 90% of the Option Writer's cost basis in such Registrable Securities (which cost basis shall include the amount paid by Option Writer for the relevant Preferred Shares, plus accrued but unpaid dividends thereon). Notwithstanding the foregoing, in the second registration (unless clause (B)(ii) above applies, in which case the Selling Holders can withdraw from such second registration), the Selling Holders shall be obligated to sell Registrable Securities with an aggregate value of at least 1/3 of the aggregate value of the outstanding Preferred Shares (valued on an as converted basis) and Common Stock issued upon conversion of Preferred Shares. (C) In any third registration, the Selling Holders shall be obligated to (i) sell all of the Common Stock that they then hold, (ii) convert all of the Preferred Shares that they then hold into Common Stock and sell such Common Stock (unless such Preferred Shares cannot be converted as set forth in the definition of Registrable Securities above, in which case clause (C)(iii) below applies), (iii) sell all of the Company shall Preferred Shares that they then hold which cannot be required to effect a registration pursuant to Section 2.2(a) if, converted and must therefore be registered in accordance with respect thereto, the managing underwriter, the Commission, the definition of Registrable Securities Act or the rules and regulations thereunder, or the form on which the registration statement is to be filed, would require the conduct of an audit other than the regular audit conducted by the Company at the end of its fiscal year, but rather the filing may be delayed until the completion of such regular audit (unless the Holders agree to pay the expenses of the Company in connection with such an audit other than the regular audit) above and (iv) the Holders shall not be entitled to require the Company to, and the Company shall not be required to, effect a registration sell all other securities that they then hold pursuant to Section 2.2(a)(ii) within six (6) months following 6.13 of the effective date of another registration pursuant to Section 2.2(a)(ii)Option Agreement.

Limitations on Registration on Request. Notwithstanding anything in this Section 3.1 to the contrary contained hereincontrary, in no event will the registration rights granted Company be required to the Holders in (i) effect more than five registrations pursuant to this Section 2.2(a) are 3.1, (subject to the following limitations: last sentence of Section 3.1(f) and 3.6(b)), it being understood that Initiating Holders are entitled to one registration for each issuance of Registrable Securities and up to two additional conditional registrations as set forth below in this Section 3.1(g), (iii) effect a registration in which the aggregate amount of Registrable Securities has a Value less than US$25,000,000, unless the Value of Registrable Securities outstanding is less than US$25,000,000 in which case the Company shall be obligated to effect one and only one registration of no less than US$5,000,000 in Value of Registrable Securities pursuant to this Section 3.1, subject to the other provisions hereof, unless less than US$5,000,000 in Value of Registrable Securities remain outstanding due to a prior partial redemption of Registrable Securities by the Company, in which case such $5,000,000 minimum shall not apply, or (iii) file a registration statement pursuant to this Section 3.1 within the twelve-month period occurring immediately subsequent to the effectiveness (within the meaning of Section 3.1(d)) of a registration statement filed pursuant to this Section 3.1 or pursuant to Section 3.2. The conditions to any second and third registrations under this Section 3.1 are as follows: (A) Selling Holders shall be entitled to require the Company to, and the Company shall be required to, effect no more than one a second registration pursuant to Section 2.2(a)(i) hereof and no more than two registrations pursuant to Section 2.2(a)(ii) hereof (provided, however, that the aggregate offering value of the shares to be registered pursuant to any such registration shall be at least $2,500,000 unless the Holders then own shares with a value less than $2,500,000); (ii) the Company shall not be required to effect a registration pursuant to Section 2.2(a) if, at the time immediately preceding a sale in the Initiating Holder or first registration, such Selling Holders deliver the request therefor either (i) hold Preferred Shares which on an as converted basis would cause them, without giving effect to the Companyany other holdings of Common Stock acquired other than upon conversion of Preferred Shares, to hold an ownership interest in the Company is not eligible of greater than 33 1/3% based on market capitalization or (ii) stand to use Form S-3 (or any successor or similar form); providedreceive, however, that so long as this Agreement is in effect the Company shall use its best efforts to ensure that the Company is at all times from the date hereof until the expiration of the Investors' right to request the registration a sale of Registrable Securities pursuant to Section 2.2(asuch registration, gross proceeds of less than 95% of the Option Writer's cost basis in such Registrable Securities (which cost basis shall include the amount paid by Option Writer for the relevant Preferred Shares, plus accrued but unpaid dividends thereon). Notwithstanding the foregoing, in the first registration (unless clause (A)(ii) hereof eligible above applies, in which case the holders can withdraw from such first registration), the Selling Holders shall be obligated to use Form S-3; sell Registrable Securities with an aggregate value of at least 1/3 of the aggregate value of the outstanding Preferred Shares (valued on an as converted basis) and Common Stock issued upon conversion of Preferred Shares. (B) Selling Holders shall be entitled to a third registration if, at the time immediately preceding a sale in the second registration, such Selling Holders either (i) hold Preferred Shares which on an as converted basis would cause them, without giving effect to any other holdings of Common Stock acquired other than upon conversion of Preferred Shares, to hold an ownership interest in the Company of greater than 33 1/3% based on market capitalization or (ii) stand to receive, in a sale of Registrable Securities pursuant to such registration, gross proceeds of less than 90% of the Option Writer's cost basis in such Registrable Securities (which cost basis shall include the amount paid by Option Writer for the relevant Preferred Shares, plus accrued but unpaid dividends thereon). Notwithstanding the foregoing, in the second registration (unless clause (B)(ii) above applies, in which case the Selling Holders can withdraw from such second registration), the Selling Holders shall be obligated to sell Registrable Securities with an aggregate value of at least 1/3 of the aggregate value of the outstanding Preferred Shares (valued on an as converted basis) and Common Stock issued upon conversion of Preferred Shares. (C) In any third registration, the Selling Holders shall be obligated to (i) sell all of the Common Stock that they then hold, (ii) convert all of the Preferred Shares that they then hold into Common Stock and sell such Common Stock (unless such Preferred Shares cannot be converted as set forth in the definition of Registrable Securities above, in which case clause (C)(iii) below applies), (iii) sell all of the Company shall Preferred Shares that they then hold which cannot be required to effect a registration pursuant to Section 2.2(a) if, converted and must therefore be registered in accordance with respect thereto, the managing underwriter, the Commission, the definition of Registrable Securities Act or the rules and regulations thereunder, or the form on which the registration statement is to be filed, would require the conduct of an audit other than the regular audit conducted by the Company at the end of its fiscal year, but rather the filing may be delayed until the completion of such regular audit (unless the Holders agree to pay the expenses of the Company in connection with such an audit other than the regular audit) above and (iv) the Holders shall not be entitled to require the Company to, and the Company shall not be required to, effect a registration sell all other securities that they then hold pursuant to Section 2.2(a)(ii) within six (6) months following 6.13 of the effective date of another registration pursuant to Section 2.2(a)(ii)Option Agreement.