Common use of Piggyback Offerings Clause in Contracts

Piggyback Offerings. 3.1.1. If the Shelf Registration Statement has not yet been filed and declared effective or if the Shelf Registration Statement is not then effective, if the Company proposes to file a registration statement under the Securities Act to permit the sale or resale of any shares of Common Stock for its own account or for the account of any holder of Common Stock in an Underwritten Offering (other than a registration statement on Form S-4 or Form S-8 or any substitute form that may be adopted by the SEC or any registration statement filed in connection with an exchange offer or offering of securities solely to the Company’s existing security holders or under an employee benefit plan and only on a form that would permit the registration of Registrable Securities) (a “Piggyback Registration Statement”), then the Company shall as soon as practicable give written notice of such proposed filing to the Holders (but in no event less than five Business Days before the anticipated filing date of such registration statement), and such notice shall offer each Holder the opportunity to register and sell in such Underwritten Offering such number of Registrable Securities as each such Holder may request; provided, however, that the Company shall not be required to provide such notice or make such offer to the Holders if the Company has been advised by the managing Underwriter(s) that the inclusion of any Registrable Securities may have a Material Adverse Effect. Each Holder agrees that the fact that such a notice has been delivered shall constitute confidential information, and each Holder agrees not to disclose that such notice has been delivered or effect any public sale or distribution of Common Stock until the earlier of (a) the date and time on which the registration statement prepared in connection with such notice has been filed with the SEC and (b) 20 days after the date of such notice. Subject to Section 3.2, the Company shall include in each such Piggyback Registration Statement and related Underwritten Offering all Registrable Securities requested by the Holders to be included therein by written notice to the Company within 10 days after the Company’s notice referred to above was given (in accordance with Section 10.3) (except that (i) if the managing Underwriter(s) determine that marketing factors require a shorter time period and the Holders are so informed in the applicable written notice, the Holders’ written request for inclusion must be made within five days and (ii) in the case of an “overnight” offering or a “bought deal,” the Holders’ written request for inclusion must be made within one Business Day); provided, however, that the Company may at any time withdraw or cease proceeding with any such registration prior to effectiveness of such registration whether or not any Holder has elected to include any Registrable Securities in such registration. Each Holder shall be permitted to withdraw all or part of such Holder’s Registrable Securities from a Piggyback Registration Statement at any time prior to the effective date thereof. 3.1.2. On and after the date on which the Shelf Registration Statement has been declared effective, if the Company or any holder of Common Stock proposes to sell any shares of Common Stock in an Underwritten Offering and the Shelf Registration Statement is then effective, then the Company shall promptly give written notice of such proposed offering to the Holders, and such notice shall offer each Holder the opportunity to sell its Registrable Securities in such offering as each such Holder may request (a “Piggyback Offering”). Each Holder agrees that the fact that such a notice has been delivered shall constitute confidential information, and such Holder agrees not to disclose that such notice has been delivered or effect any public sale or distribution of Common Stock until the earlier of (a) the date and time on which the registration statement or prospectus supplement prepared in connection with such notice has been filed with the SEC and (b) 20 days after the date of such notice. Subject to Section 3.2, the Company shall include in each such Piggyback Offering all Registrable Securities requested to be included therein by written notice to the Company within 10 days after the Company’s notice referred to above was given (in accordance with Section 10.3) (except that (i) if the managing Underwriter(s) determine that marketing factors require a shorter time period and the Holders are so informed in the applicable written notice, the Holders’ written request for inclusion must be made within five days and (ii) in the case of an “overnight” offering or a “bought deal,” the Holders’ written request for inclusion must be made within one Business Day); provided, however, that the Company may at any time withdraw or cease proceeding with any such offering prior to the launch of such offering whether or not any Holder has elected to include any Registrable Securities in such offering. Each Holder shall be permitted to withdraw all or part of such Holder’s Registrable Securities from a Piggyback Offering at any time prior to the launch of such offering.

Piggyback Offerings. 3.1.1. If (A) In the Shelf Registration Statement has not yet been filed and declared effective or if the Shelf Registration Statement is not then effective, if event that the Company proposes shall seek to file a registration statement under the Securities Act to permit the sale or resale undertake an offering of any registered shares of Common Stock for its own account or of the Company (whether for the account of the Company or the account of any holder securityholder of Common Stock in an Underwritten Offering (the Company other than a registration statement an offering pursuant to the Registration Rights Agreement dated as of August 30, 2005 by and among the Company and BMSIF) after the Eligible Filing Date and on or before the third anniversary of the Eligible Filing Date, except in the case of an offering registered on Form S-4 or Form S-8 (or any substitute form that may be adopted by the SEC or any registration statement filed in connection with an exchange offer or offering of securities solely to the Company’s existing security holders or under an employee benefit plan and only on a form that would permit successor form) for the registration of Registrable Securities) (securities to be offered in a “Piggyback Registration Statement”)transaction of the type referred to in Rule 145 promulgated under the Act or to be offered to employees of and/or consultants to the Company or subsidiaries thereof, then the Company shall as soon as practicable first give written notice of such proposed filing thereof (the "Company Notice") to the Holders (but in no event Investor, which Company Notice shall be given not less than five fifteen (15) Business Days before prior to the anticipated filing date initiation of the registration statement related to such registration statement), offering and such notice shall offer each Holder the Investor the opportunity to register and sell include any or all of its Registrable Shares in such Underwritten Offering such number of Registrable Securities as each such Holder may request; provided, however, that the Company shall not be required to provide such notice or make such offer to the Holders if the Company has been advised by the managing Underwriter(s) that the inclusion of any Registrable Securities may have a Material Adverse Effect. Each Holder agrees that the fact that such a notice has been delivered shall constitute confidential information, and each Holder agrees not to disclose that such notice has been delivered or effect any public sale or distribution of Common Stock until the earlier of (a) the date and time on which the registration statement prepared related to such offering, subject to the limitations contained in connection with such notice has been filed with Section 6.2(c) hereof. (B) The Investor shall advise the SEC and Company in writing within ten (b10) 20 business days after the date of such notice. Subject to Section 3.2receipt of the Company Notice, specifying the number of Registrable Shares, if any, the Investor seeks to include in the registration statement related to such offering The Company shall thereupon include in each the registration statement related to such Piggyback Registration Statement and related Underwritten Offering all offering the number of Registrable Securities Shares so requested by the Holders Investor to be included therein by written notice included, subject to Section 6.2(c) hereof, and, if required shall use commercially reasonable efforts to effect registration of such Registrable Shares under the Company within 10 days after the Company’s notice referred to above was given (in accordance with Section 10.3) (except that (i) if the managing Underwriter(s) determine that marketing factors require a shorter time period and the Holders are so informed in the applicable written notice, the Holders’ written request for inclusion must be made within five days and (ii) in the case of an “overnight” offering or a “bought deal,” the Holders’ written request for inclusion must be made within one Business Day)Act; provided, however, that the Company may at any time withdraw or cease proceeding with any such registration prior to effectiveness of such registration whether or not any Holder has elected to include any Registrable Securities in such registration. Each Holder shall be permitted to withdraw all or part of such Holder’s Registrable Securities from a Piggyback Registration Statement at any time prior to the effective date thereof. 3.1.2. On and after the date on which the Shelf Registration Statement has been declared effective, if the Company or any holder of Common Stock proposes to sell any shares of Common Stock in an Underwritten Offering and the Shelf Registration Statement is then effective, then the Company shall promptly give written notice of such proposed offering to the Holders, and such notice shall offer each Holder the opportunity to sell its Registrable Securities in such offering as each such Holder may request (a “Piggyback Offering”). Each Holder agrees that the fact that such a notice has been delivered shall constitute confidential information, and such Holder agrees not to disclose that such notice has been delivered or effect any public sale or distribution of Common Stock until the earlier of (a) the date and time on which the registration statement or prospectus supplement prepared in connection with related to such notice has been filed with offering of the SEC and (b) 20 days after Investor's Registrable Shares if it shall at the date of such notice. Subject to Section 3.2, the Company shall include in each such Piggyback Offering all Registrable Securities requested to be included therein by written notice to the Company within 10 days after the Company’s notice referred to above was given (in accordance with Section 10.3) (except that (i) if the managing Underwriter(s) determine that marketing factors require a shorter time period and the Holders are so informed in the applicable written notice, the Holders’ written request for inclusion must be made within five days and (ii) in the case of an “overnight” offering or a “bought deal,” the Holders’ written request for inclusion must be made within one Business Day); provided, however, that the Company may at any same time withdraw or cease proceeding with any such offering prior the registration statement related to the launch offering of all other shares of Common Stock of the Company originally proposed to be registered. (C) If the managing underwriter of an underwritten offering pursuant to which Registrable Shares are included pursuant to this Section 6.2 shall advise the Investor and the Company in writing that, in its opinion, the number of securities requested to be included in such underwritten offering whether (including securities to be sold by the Company or by other persons not any Holder has elected holding Registrable Shares) exceeds the number which can be sold in such underwritten offering within an acceptable price range, the Company will include in such underwritten offering, to the extent of the number which the Company is so advised can be sold in such underwritten offering, (i) first, securities of the Company that the Company proposes to sell and (ii) second, securities of the Company held by other persons having registration rights proposed to be included in such registration by the holders thereof and the Registrable Shares proposed to be included in such registration by the Investor shall be included pro rata based on the number of shares sought to be included in such registration statement by the holders with rights to include any Registrable Securities shares in such offering. Each Holder registration statement. (D) The Company shall be permitted bear all expenses in connection with the procedures described in paragraphs (a) through (c) of this Section 6.2 and the registration of the Registrable Shares pursuant to withdraw all Section 6.2(b) other than fees and expenses, if any, of legal counsel or part of such Holder’s Registrable Securities from a Piggyback Offering at any time prior other advisers to the launch of such offeringInvestor or underwriting discounts, brokerage fees and commissions incurred by the Investor, if any.

Piggyback Offerings. 3.1.1. If the Shelf Registration Statement has not yet been filed and declared effective or if the Shelf Registration Statement is not then effective, if the Company proposes to file a registration statement under the Securities Act to permit the sale or resale of any shares of Common Stock for its own account or for the account of any holder of Common Stock in an Underwritten Offering (other than a registration statement on Form S-4 or Form S-8 or any substitute form that may be adopted by the SEC or any registration statement filed in connection with an exchange offer or offering of securities solely to the Company’s existing security holders or under an employee benefit plan and only on a form that would permit the registration of Registrable Securities) (a “Piggyback Registration Statement”), then the Company shall as soon as practicable give written notice of such proposed filing to the Holders (but in no event less than five Business Days before the anticipated filing date of such registration statement), and such notice shall offer each Holder the opportunity to register and sell in such Underwritten Offering such number of Registrable Securities as each such Holder may request; provided, however, that the Company shall not be required to provide such notice or make such offer to the Holders if the Company has been advised by the managing Underwriter(s) that the inclusion of any Registrable Securities may have a Material Adverse Effect. Each Holder agrees that the fact that such a notice has been delivered shall constitute confidential information, and each Holder agrees not to disclose that such notice has been delivered or effect any public sale or distribution of Common Stock until the earlier of (a) the date and time on which the registration statement prepared in connection with such notice has been filed with the SEC and (b) 20 days after the date of such notice. Subject to Section 3.2, the Company shall include in each such Piggyback Registration Statement and related Underwritten Offering all Registrable Securities requested by the Holders to be included therein by written notice to the Company within 10 days after the Company’s notice referred to above was given (in accordance with Section 10.3) (except that (i) if the managing Underwriter(s) determine that marketing factors require a shorter time period and the Holders are so informed in the applicable written notice, the Holders’ written request for inclusion must be made within five days and (ii) in the case of an “overnight” offering or a “bought deal,” the Holders’ written request for inclusion must be made within one Business Day); provided, however, that the Company may at any time withdraw or cease proceeding with any such registration prior to effectiveness of such registration whether or not any Holder has elected to include any Registrable Securities in such registration. Each Holder shall be permitted to withdraw all or part of such Holder’s Registrable Securities from a Piggyback Registration Statement at any time prior to the effective date thereof. 3.1.2. On and after the date on which the Shelf Registration Statement has been declared effective, if the Company or any holder of Common Stock proposes to sell any shares of Common Stock in an Underwritten Offering and the Shelf Registration Statement is then effective(a “Piggyback Offering”), then the Company shall promptly give written notice of such proposed offering (a “Piggyback Offering Notice”) to the Major Holders and the Tug Hill Holders, and such which notice shall be given at least five Business Days (or if such offering is a bought deal or overnight offering, at least two Business Days) before the preliminary prospectus supplement or registration statement, as applicable, for such offering is filed. Such Piggyback Offering Notice shall (a) set forth the anticipated date of the Piggyback Offering and the number of shares of Common Stock that are proposed to be offered and (b) offer each Major Holder and Tug Hill Holder the opportunity to sell its Registrable Securities in such offering the Piggyback Offering as each such Major Holder and Tug Hill Holder may request request; provided, however, that in the event that the Company proposes to effectuate the Piggyback Offering (which, for the avoidance of doubt, may be for its own account or for the account of a “holder of Common Stock) pursuant to an effective registration statement of the Company other than an Automatic Shelf Registration Statement, only Registrable Securities of Major Holders and Tug Hill Holders that are subject to an effective Shelf Registration Statement may be included in such Piggyback Offering and the Company shall not be required to give a Piggyback Offering Notice to any Major Holder or Tug Hill Holder that is not eligible to be included in such Piggyback Offering”). Each Whether or not a Major Holder or Tug Hill Holder elects to participate in Piggyback Offering, each Major Holder and Tug Hill Holder agrees that such notice (including the fact that such a notice has been delivered delivered) shall constitute confidential information, and such Major Holder and Tug Hill Holder agrees not to disclose any information relating to such notice (including that such notice has been delivered or effect any public sale or distribution of Common Stock delivered) until such time as the earlier of (a) the date and time on which the registration statement or prospectus supplement prepared in connection with Underwritten Offering contemplated by such notice Piggyback Offering Notice has been filed with publicly announced or abandoned (notice of which, in the SEC and (b) 20 days after the date of latter case, shall be provided promptly to such noticeMajor Holder or Tug Hill Holder). Subject to Section 3.2, the Company shall include in each such Piggyback Offering all Registrable Securities requested to be included therein by written notice to the Company within 10 days after the Company’s notice referred to above was given three Business Days (in accordance with Section 10.3) (except that (i) or if the managing Underwriter(s) determine that marketing factors require Piggyback Offering is a shorter time period and the Holders are so informed in the applicable written noticebought deal or overnight offering, the Holders’ written request for inclusion must be made within five days and (ii) in the case of an “overnight” offering or a “bought deal,” the Holders’ written request for inclusion must be made within one Business Day)) after the Piggyback Offering Notice was given; provided, however, that the Company may at any time withdraw or cease proceeding with any such offering prior to the launch of such offering Piggyback Offering whether or not any Major Holder or Tug Hill Holder has elected to include any Registrable Securities in such offering. If no request for inclusion from a Holder is delivered to the Company within the applicable response period provided in this Section 3.1, such Holder shall have no further right to participate in such Piggyback Offering. Each Holder shall be permitted to withdraw all or part of such Holder’s Registrable Securities from a Piggyback Offering at any time prior to the launch execution of an underwriting agreement with respect thereto. Notwithstanding the foregoing, if a Piggyback Offering is a bought deal or overnight offering and the investment bank or Managing Underwriter advises the Company in writing that the giving of a Piggyback Offering Notice would have a Material Adverse Effect, no such offeringnotice shall be required (and the Holders shall have no right to include their Registrable Securities in such Piggyback Offering).

Piggyback Offerings. 3.1.1. If A. At any time following the Shelf Registration Statement has not yet been filed and declared effective or if date on which the Shelf Registration Statement is not then effectiveShares are converted to Common Stock, subject to the other restrictions contained in this Section 4, if the Company proposes proposes, other than pursuant to file Section 3, to conduct or facilitate any offering (a registration statement “Piggyback Offering”) of any equity securities of the Company (collectively, “Other Securities”) for public sale under the Securities Act (whether proposed to permit the be offered for sale or resale of any shares of Common Stock for its own account or for the account of any holder of Common Stock in an Underwritten Offering (other than a registration statement on Form S-4 or Form S-8 or any substitute form that may be adopted by the SEC Company or by any registration statement filed other Person), the Company shall use its reasonable best efforts to conduct such Piggyback Offering in connection with an exchange offer or offering of securities solely to the Company’s existing security holders or under an employee benefit plan and only on a form that manner which would permit the registration inclusion of Registrable SecuritiesSecurities in such Piggyback Offering and the Company will give prompt written notice, but in any event within ten (10) days of such proposed Piggyback Offering, (a which notice shall specify the intended method or methods of disposition and the number and type of Other Securities proposed to be included in such Piggyback Offering) to the Controlling Purchaser of its intention to do so (such notice, an “Piggyback Registration StatementNotice”), then and upon the written request of the Controlling Purchaser delivered to the Company within five (5) Business Days after the giving of any such notice (which request shall specify the number of Registrable Securities requested to be disposed of by Purchasers), the Company shall as soon as practicable use its reasonable best efforts to cause to be included in such Piggyback Offering of Other Securities, such Registrable Securities requested by the Controlling Purchaser to be included in such Piggyback Offering; provided, however, that: i. if, at any time after giving such written notice of its intention to conduct or facilitate a Piggyback Offering and prior to the date of the final prospectus in respect of a Piggyback Offering, the Company shall determine for any reason not to conduct or facilitate the Piggyback Offering, the Company may, at its election, give written notice of such proposed filing determination to the Holders (but in no event less than five Business Days before Controlling Purchaser, if the anticipated filing date of such registration statement), and such notice shall offer each Holder Controlling Purchaser requested the opportunity to register and sell in such Underwritten Offering such number inclusion of Registrable Securities as each in such Holder Piggyback Offering, and thereupon the Company shall be relieved of its obligation to include the Registrable Securities in the Piggyback Offering (but not from its obligation to pay registration expenses in accordance with Section 7 of this Agreement to the extent incurred in connection therewith); ii. the Company will not be required to include any Registrable Securities in any Piggyback Offering pursuant to this Section 4 if the Company shall have been advised by the managing underwriter for the offering that, in such firm’s good faith opinion, the inclusion of Registrable Securities in such offering at that time may requestinterfere with an orderly sale and distribution of the Other Securities being sold in such offering or materially and adversely affect the price of such Other Securities; provided, however, that if an offering of some but not all of the Registrable Securities requested to be included by the Controlling Purchaser and securities of all other Persons having rights to include securities held by them in such offering would not adversely affect the distribution or price of the securities to be sold in the offering in the good faith opinion of such firm, then the Company will include in such offering: first, the Other Securities to be offered for the Company’s account and pursuant to demands of other stockholders, second, the Registrable Securities of the Purchasers as well as all other shares of Common Stock of third party stockholders that are entitled to participate in the offering under other registration rights agreements, allocated pro rata among the Registrable Securities of the Purchasers and the shares of Common Stock held by such third parties based on the number of shares of Common Stock that the Purchasers and third party stockholders have elected to include in such offering as of the date of the Piggyback Notice and third, all Other Securities requested to be included in such Piggyback Offering; and iii. the Company shall not be required to provide such give notice or make such offer to the Holders if the Company has been advised by the managing Underwriter(s) that the inclusion of any Registrable Securities may have a Material Adverse Effect. Each Holder agrees that the fact that such a notice has been delivered shall constitute confidential informationof, and each Holder agrees not to disclose that such notice has been delivered or effect any public sale or distribution Piggyback Offering of Common Stock until Registrable Securities under this Section 4 incidental to, the earlier offering of (a) the date and time on which the registration statement prepared any of its securities in connection with such notice has been filed with the SEC mergers, consolidations, acquisitions, exchange offers, subscription offers, dividend reinvestment plans, stock options or other employee benefit or compensation plans or any offering pursuant to that certain At Market Issuance Sales Agreement, dated June 16, 2011, by and (b) 20 days after the date of such notice. Subject to Section 3.2, between the Company shall include in each such Piggyback Registration Statement and related Underwritten Offering all XxXxxxxx, Xxxxx & Vlak LLC. B. No inclusion of Registrable Securities requested by the Holders to be included therein by written notice to in any Piggyback Offering under this Section 4 shall relieve the Company within 10 days after of its obligations (if any) to effect the Company’s notice referred registration of Registrable Securities or facilitate a Shelf Takedown pursuant to above was given (in accordance with Section 10.3) (except that (i) if the managing Underwriter(s) determine that marketing factors require a shorter time period Sections 2 and the Holders are so informed in the applicable written notice3. C. The Controlling Purchaser agrees, the Holders’ written request for inclusion must be made within five days and (ii) in the case of an “overnight” offering or a “bought deal,” the Holders’ written request for inclusion must be made within one Business Day); provided, however, that the Company may at any time withdraw or cease proceeding with any such registration prior to effectiveness of such registration whether or not any Holder has elected to include any Registrable Securities in such registration. Each Holder shall be permitted to withdraw all or part of such Holder’s Registrable Securities from a Piggyback Registration Statement at Offering, to consider in good faith any time prior to reasonable request by the effective date thereof. 3.1.2. On and after the date on which the Shelf Registration Statement has been declared effective, if the Company or any holder managing underwriter of Common Stock proposes to sell any shares of Common Stock in an Underwritten Offering and the Shelf Registration Statement is then effective, then the Company shall promptly give written notice of such proposed offering to the Holders, and such notice shall offer each Holder the opportunity to sell its Registrable Securities in such offering as each such Holder may request (a “Piggyback Offering”). Each Holder agrees that the fact that such a notice has been delivered shall constitute confidential information, and such Holder agrees not to disclose that such notice has been delivered or effect any public sale or distribution of Common Stock until the earlier of (a) the date and time on which the registration statement or prospectus supplement prepared in connection with such notice has been filed with the SEC and (b) 20 days after the date of such notice. Subject to Section 3.2, the Company shall include in each such Piggyback Offering all Registrable Securities requested to be included therein by written notice that the Controlling Purchaser enter into a reasonable and customary lock up with respect to the Company within 10 days after the Company’s notice referred to above was given (in accordance with Section 10.3) (except that (i) if the managing Underwriter(s) determine that marketing factors require a shorter time period and the Holders are so informed in the applicable written notice, the Holders’ written request for inclusion must be made within five days and (ii) in the case of an “overnight” offering or a “bought deal,” the Holders’ written request for inclusion must be made within one Business Day); provided, however, that capital stock of the Company may at any time withdraw or cease proceeding with any such offering prior to held by the launch of such offering whether or not any Holder has elected to include any Registrable Securities in such offering. Each Holder shall be permitted to withdraw all or part of such Holder’s Registrable Securities from a Piggyback Offering at any time prior to the launch of such offeringControlling Purchaser.