Common use of Priority on Secondary Registrations Clause in Contracts

Priority on Secondary Registrations. (a) If a Piggyback Registration is an underwritten secondary registration on behalf of holders of the Company's securities, and the managing underwriters advise the Company in writing that in their opinion the number of securities requested to be included in such registration exceeds the number which can be sold in such offering, the Company will include in such registration (i) first, the securities requested to be included therein by the holders requesting such registration, (ii) second, the Registrable Securities, Series 1 Registrable Securities, the Xxxxx Securities and the Bear Xxxxxxx Securities requested to be included in such registration, provided, that if the managing underwriters in good faith determine that a lower number of securities should be included, then the Company shall be required to include in the underwriting only that lower number of securities, and the holders of Registrable Securities, Series 1 Registrable Securities, Xxxxx Securities and Bear Xxxxxxx Securities who have requested registration shall participate in the underwriting pro rata based upon their total ownership, on a fully diluted basis, of any such securities requested to be included in such registration and (iii) third, other securities requested to be included in such registration. The Company hereby agrees that whenever it grants piggyback rights to any holder of its securities after the date hereof, such holder's piggyback rights will be expressly subordinated to the piggyback rights granted to the holders of the Registrable Securities under this Article II.

Priority on Secondary Registrations. (a) If a Piggyback Registration is an underwritten secondary registration on behalf of holders of the Company's securities, Other Security Holders (other than a Kojaian Holder) and the managing underwriters underwriter(s) of such offering advise the Company in writing that in their opinion good faith judgment the number aggregate amount of securities securities, including Registrable Securities, of the Company that all Holders and all Other Security Holders have requested to be included in such registration exceeds the maximum number which of securities, including Registrable Securities, that can reasonably be expected to be sold in such offering without adversely affecting the success of the offering, then the Company will include the Registrable Securities and such other securities in the Registration Statement relating to such registration in the following order of priority: (i) first, the securities requested to be in included therein by in such registration of the holders Other Security Holders (other than a Kojaian Holder) requesting such registration, registration and the securities of Kojaian Holders requested to be included in such registration pro rata on the basis of the number of securities of the Company owned by such Other Security Holders and Kojaian Holders (ii) second, if no securities of the Other Security Holders initiating the registration request or the Kojaian Holders were excluded pursuant to clause (i) of this Section 3(c), the Registrable Securities, Series 1 Registrable Securities, the Xxxxx Securities and the Bear Xxxxxxx Securities requested to be included in such registration, provided, that if registration by the managing underwriters in good faith determine that a lower number Holders pro rata among such Holders on the basis of securities should be included, then the Company shall be required to include in the underwriting only that lower number of securities, and the holders aggregate amount of Registrable Securities, Series 1 Registrable Securities, Xxxxx Securities and Bear Xxxxxxx Securities who have requested registration shall participate in the underwriting pro rata based upon their total ownership, on a fully diluted basis, of any such securities requested to be included in by each such registration and Holder, and (iii) third, other if no securities of the Other Security Holders initiating the registration request or the Kojaian Holders were excluded pursuant to clause (i) of this Section 3(c), and if no Registrable Securities requested to be included in by the Holders were excluded pursuant to clause (ii) of this Section 3(c), the securities the Company proposes to sell; provided, that if such registration. The Company hereby agrees that whenever it grants piggyback rights to any holder registration contemplates an “over-allotment option” on the part of its securities after the date hereofunderwriters, such holder's piggyback rights will be expressly subordinated to the piggyback rights granted extent such over-allotment option is exercised and Other Security Holders initiating the registration request or the Kojaian Holders were excluded from registering securities pursuant to the holders provisions of this Section 3(c) or Holders were excluded from registering any Registrable Securities pursuant to the provisions of this Section 3(c), then the over-allotment option shall be exercised first with respect to such securities of the Other Security Holders initiating the registration request and the Kojaian Holders and second such Registrable Securities under this Article IISecurities, in each case, to the extent of such exclusion.

Priority on Secondary Registrations. (a) If a Piggyback Registration is an underwritten secondary registration on behalf of holders of the Company's securitiessecurities (other than the Registrable Securities), and the managing underwriters Managing Underwriters advise the Company in writing that in their opinion the number of securities requested to be included in such registration exceeds the number which can be sold in such offering without adversely affecting the marketability of the offering, the Company will include in such registration (A) if such registration is on behalf of holders of the Eligible Series C Securities, (i) first, the securities requested to be included in such registration under the Series C Registration Rights Agreement, and (ii) second, the Registrable Securities requested to be included in such registration and any Other Registrable Stock (excluding Eligible Series C Securities) and any other securities requested to be included therein (including by the Company, subject to Section 3(e)), pro rata among such Holders and the holders of such Other Registrable Stock and other securities on the basis of the number of shares requested to be included in such registration by each such holder, in each case up to the greatest number of shares of Common Stock which in the reasonable opinion of such underwriters can be sold in an orderly manner in the price range of such offering; or (B) if such registration is not on behalf of holders of the Eligible Series C Securities (i) first, the securities requested to be included therein by the holders requesting such registration, and (ii) second, the greatest number of the Registrable Securities, Series 1 Other Registrable Securities, the Xxxxx Securities Stock and the Bear Xxxxxxx Securities any other securities requested to be included in therein (including by the Company, subject to Section 3(e)), pro rata among such registration, provided, that if the managing underwriters in good faith determine that a lower number of securities should be included, then the Company shall be required to include in the underwriting only that lower number of securities, Holders and the holders of such Other Registrable Securities, Series 1 Registrable Securities, Xxxxx Securities Stock and Bear Xxxxxxx Securities who have requested registration shall participate in other securities on the underwriting pro rata based upon their total ownership, on a fully diluted basis, basis of any such securities the number of shares requested to be included in such registration and (iii) third, other securities requested to be included in such registration. The Company hereby agrees that whenever it grants piggyback rights to any holder of its securities after the date hereof, by each such holder's piggyback rights will be expressly subordinated , in each case up to the piggyback rights granted to greatest number of shares of Common Stock which in the holders reasonable opinion of such underwriters can be sold in an orderly manner in the Registrable Securities under this Article IIprice range of such offering.

Priority on Secondary Registrations. (a) If a Piggyback Registration is relates to an underwritten secondary registration on behalf of holders of the Company's securitiessecurities other than the Holders of Registrable Securities, and the managing underwriters Underwriters advise the Company (a copy of such notice if in writing or prompt communication of the content of such notice, if oral, to be provided by the Company to each Holder requesting registration) that in their opinion the number of securities requested to be included in such registration exceeds the number which can be sold in such without materially adversely affecting the successful marketability of the offering, the Company will include in such registration only such number of securities that in the opinion of such Underwriters can be sold without materially adversely affecting the successful marketability of the offering, which securities will be so included in the following order of priority: (i) first, the securities requested to be included therein by the holders requesting such registration, (ii) second, registration and the Registrable Securities, Series 1 Registrable Securities, the Xxxxx Securities and the Bear Xxxxxxx Securities requested to be included in such registration, provided, that if pro rata among the managing underwriters in good faith determine that a lower holders of such securities and Registrable Securities on the basis of the number of securities should be included, then the Company shall be required to include in the underwriting only that lower number of securities, and the holders of Registrable Securities, Series 1 Registrable Securities, Xxxxx Securities and Bear Xxxxxxx Securities who have requested registration shall participate in the underwriting pro rata based upon their total ownership, on a fully diluted basis, of any such securities so requested to be included in therein owned by each such registration holder, and (iiiii) thirdsecond, other securities requested to be included in such registration. The ; provided, however, that in the event the Company hereby agrees that whenever it grants piggyback rights to will not, by virtue of this Section 2(e), include in any holder of its securities after the date hereof, such holder's piggyback rights will be expressly subordinated to the piggyback rights granted to the holders registration all of the Registrable Securities under this Article IIof any Holder requested to be included in such registration, such Holder may, upon written notice to the Company given within three days of the time such Holder first is notified of such matter, reduce the amount of Registrable Securities it desires to have included in such registration, whereupon only the Registrable Securities, if any, it desires to have included will be so included and the Holders not so reducing shall be entitled to a corresponding increase in the amount of Registrable Securities to be included in such registration. Notwithstanding the foregoing, any employee of the Company or any subsidiary thereof will not be entitled to participate, directly or indirectly, in any such registration to the extent that the managing Underwriter determines in good faith that the participation of such employee in such registration would adversely affect the marketability or offering price of the securities being sold in such registration.

Priority on Secondary Registrations. (a) If a Piggyback Registration is an underwritten secondary registration on behalf of holders of the Company's securitiesPubco’s securities other than holders of Registrable Securities, and the managing underwriters advise the Company Pubco in writing that in their opinion the number of securities requested to be included in such registration exceeds the number of securities which can be sold in such offering without adversely affecting the marketability, proposed offering price, timing or method of distribution of the offering, the Company will Pubco shall include in such registration (i) first, the securities requested to be included therein by the holders initially requesting such registrationregistration and the Class C Unit Registrable Securities requested to be included in such registration by the holders of Class C Unit Registrable Securities (pro rata among the holders of such Class C Unit Registrable Securities on the basis of the number of Class C Unit Registrable Securities owned by each such holder), (ii) second, the Controlling Investor Registrable Securities, Series 1 Registrable Securities, the Xxxxx Securities and the Bear Xxxxxxx Securities requested to be included in such registrationregistration by the Controlling Investors which, provided, that if the managing underwriters in good faith determine that a lower number of securities should be included, then the Company shall be required to include in the underwriting only that lower number opinion of securitiessuch underwriters, and can be sold, without any such adverse effect (pro rata among the holders of such Registrable SecuritiesSecurities on the basis of the number of Registrable Securities owned by each such holder), Series 1 Registrable Securities, Xxxxx Securities and Bear Xxxxxxx Securities who have requested registration shall participate in the underwriting pro rata based upon their total ownership, on a fully diluted basis, of any such securities requested to be included in such registration and (iii) third, other securities requested to be included in such registration. The Company hereby agrees that whenever it grants piggyback rights to registration which, in the opinion of such underwriters, can be sold, without any holder of its securities after the date hereof, such holder's piggyback rights will be expressly subordinated to the piggyback rights granted to the holders of the Registrable Securities under this Article IIadverse effect.

Priority on Secondary Registrations. (a) If a Piggyback Registration is consists only of an underwritten secondary registration on behalf of holders of securities of the Company's securitiesCompany (other than pursuant to Section 10(a)), and the managing underwriters underwriter(s) for the offering being registered by the Company advise the Company in writing that in its/their opinion the number of securities Registrable Securities requested to be included in such registration exceeds the number which can be sold in such offeringoffering without materially adversely affecting the distribution of such securities by the Company, the Company will include in such registration (iA) first, the securities requested to be included therein by the holders requesting such registration, (ii) second, registration and the Registrable Securities, Series 1 Registrable Securities, the Xxxxx Securities and the Bear Xxxxxxx Securities requested to be included in such registrationregistration above, providedpro rata, that if among all such holders on the managing underwriters in good faith determine that a lower basis of the number of securities should be included, then the Company shall be required to include in the underwriting only that lower number of securities, and the holders of Registrable Securities, Series 1 Registrable Securities, Xxxxx Securities and Bear Xxxxxxx Securities who have requested registration shall participate in the underwriting pro rata based upon their total ownership, on a fully diluted basis, of any such securities shares requested to be included in by each such registration holder and (iiiB) thirdsecond, other securities requested to be included in such registration. The Notwithstanding the foregoing, if any such underwriter shall determine in good faith and advise the Company hereby agrees in writing that whenever it grants piggyback rights to any holder of its securities after the date hereof, such holder's piggyback rights will be expressly subordinated to the piggyback rights granted to the holders distribution of the Registrable Securities requested to be included in the registration concurrently with the securities being registered by the Company would materially adversely affect the distribution of such securities by the Company, then the Holders of such Registrable Securities shall delay their offering and sale for such period ending on the earliest of (1) 90 days following the effective date of the Company's registration statement, (2) the day upon which the underwriting syndicate, if any, for such offering shall have been disbanded or, (3) such date as the Company, managing underwriter and Holders of Registrable Securities shall otherwise agree. In the event of such delay, the Company shall file such supplements, post-effective amendments and take any such other steps as may be necessary to permit such Holders to make their proposed offering and sale for a period of 120 days immediately following the end of such period of delay. If any party disapproves of the terms of any such underwriting, it may elect to withdraw therefrom by written notice to the Company, the underwriter, and Strasbourger. Notwithstanding the foregoing, the Company shall not be required to file a registration statement to include Shares pursuant to this Section 10(b) if an opinion of independent counsel, reasonably satisfactory to counsel for the Company and counsel for Strasbourger, that the Shares proposed to be disposed of may be transferred pursuant to the provisions of Rule 144 under this Article IIthe Act, shall have been delivered to counsel for the Company.

Priority on Secondary Registrations. (a) If a Piggyback Registration is an underwritten a secondary registration on behalf of holders of the Company's securities, Registrant’s securities other than Registrable Securities and the managing underwriters advise the Company Registrant in writing that in their opinion the number of securities requested to be included in such registration exceeds the number which can be sold in such offeringOptimal Number, the Company will Registrant shall include in such registration (i) first, the securities requested to be included therein by the holders requesting such registrationregistration up to the Optimal Number, (ii) second, the Registrable Securities, Series 1 Registrable Securities, Securities of the Xxxxx Securities and Registrant requested by the Bear Xxxxxxx Securities requested Participating Unitholders to be included in such registration, provided, that if the managing underwriters in good faith determine that therein up to a lower number of securities should be includedthat, then when combined with the Company shall be required securities included in such registration pursuant to include in clause (i) preceding, causes the underwriting only that lower total number of securitiessecurities included in such registration to be equal to the Optimal Number, and pro rata among the holders of such Registrable Securities on the basis of the number of such Registrable Securities owned by each such Participating Unitholder, and (ii) third, if and to the extent permitted by the holder(s) of a majority of the Brentwood Securities, Series 1 Registrable Securities, Xxxxx Securities and Bear Xxxxxxx Securities who have requested registration shall participate in other securities of the underwriting pro rata based upon their total ownership, on a fully diluted basis, of any such securities Registrant requested to be included in such registration and (iii) thirdup to a number of securities that, other when combined with the securities requested to be included in such registration. The Company hereby agrees that whenever it grants piggyback rights registration pursuant to any holder clauses (i) and (ii) preceding, causes the total number of its securities after the date hereof, included in such holder's piggyback rights will registration to be expressly subordinated equal to the piggyback rights granted to Optimal Number, pro rata among the holders of such securities on the basis of the number of securities owned by each such holder (to the extent permitted to be so included, in the case of securities which are not Registrable Securities under this Article IISecurities).

Priority on Secondary Registrations. (a) If a Piggyback Registration is an underwritten secondary registration on behalf of holders of the Company's securities’s securities other than a Demand Registration (a “Secondary Registration”), and the managing underwriters advise the Company in writing that in their opinion the number of securities requested to be included in such registration exceeds the number which can be sold in such without adversely affecting the marketability of the offering, the Company will shall include in such registration (i) first, except to the extent otherwise previously agreed to by holders of a majority of the Registrable Securities, the securities requested to be included therein by the holders requesting such registration, (ii) second, together with the Registrable Securities, Series 1 Registrable Securities, the Xxxxx Securities and the Bear Xxxxxxx Securities requested to be included in such registration, provided, that if the managing underwriters in good faith determine that a lower number of securities should be included, then the Company shall be required to include in the underwriting only that lower number of securities, and pro rata among the holders of Registrable Securities, Series 1 Registrable Securities, Xxxxx Securities and Bear Xxxxxxx Securities who have requested registration shall participate in the underwriting pro rata based upon their total ownership, on a fully diluted basis, of any such securities requested to be included in and Registrable Securities on the basis of the amount of such registration securities owned by each such holder, and (iiiii) thirdsecond, other securities requested to be included in such registration. The Company hereby agrees registration pro rata among the holders of such securities on the basis of the amount of such securities owned by each such holder; provided, however, that whenever it grants piggyback rights to in the event that any holder of Aldabra Registrable Securities was prevented from participating in a Prior Registration as a result of his, her or its securities shares being held in a share escrow account, the pro rata share referenced in clause (i) shall be, for each holder of Registrable Securities requesting inclusion of Registrable Securities in the first Piggyback Registration after the date hereofEscrow Release Date, determined as such holder's piggyback rights will ’s Revised Pro Rata Share; provided further, however that the foregoing proviso shall be expressly subordinated disregarded if the Revised Pro Rata Share was applied in a Demand Registration or another Piggyback Registration prior to such Piggyback Registration. Notwithstanding anything herein to the piggyback rights granted to contrary, if the holders managing underwriters determine that the inclusion of the Aldabra Registrable Securities under this Article IIor Registrable Securities held by management of the Company proposed to be included in any such offering would adversely affect the marketability of such offering, the Company may exclude such number of Aldabra Registrable Securities or Registrable Securities held by management of the Company pro rata as necessary or desirable to negate such adverse impact.

Priority on Secondary Registrations. (a) If a Piggyback Registration is an underwritten secondary registration on behalf of holders of any Person other than the Company's securities, Selling Stockholder (the “Other Stockholder”) and the managing underwriters advise the Company Board of Directors in writing that in their opinion the total number of securities shares of Equity Securities (including the Registrable Shares) requested to be included in the registration would create a substantial risk of materially and adversely affecting the ability of the underwriters to effect such offering, then the Company shall promptly provide the Selling Stockholder with a copy of such opinion and consult with the Selling Stockholder with respect to such opinion, and after such consultation shall include in such registration exceeds only such number of shares of Equity Securities (including the number Registrable Shares) which the managing underwriters determine can be sold in such offering without materially and adversely affecting the ability of the underwriters to execute such offering, the . The Company will shall include in such registration (i) first, 100% of the Registrable Shares that the Selling Stockholder proposes to sell and, if the Other Stockholder has registration rights granted by the Company with the approval of the Selling Stockholder, 100% of the Equity Securities that such Other Stockholder proposes to sell, allocated, if necessary, pro rata between the Selling Stockholder and such Other Stockholder on the basis of the number of shares of Common Stock owned by each such person; and (ii) second, only if all the Equity Securities referred to in clause (i) have been included, any other securities requested to be included therein by the holders requesting such registration, (ii) second, the Registrable Securities, Series 1 Registrable Securities, the Xxxxx Securities and the Bear Xxxxxxx Securities requested to be included in such registration, provided, that if the managing underwriters in good faith determine that a lower number of securities should be included, then the Company shall be required to include in the underwriting only that lower number of securities, and the holders of Registrable Securities, Series 1 Registrable Securities, Xxxxx Securities and Bear Xxxxxxx Securities who have requested registration shall participate in the underwriting pro rata based upon their total ownership, on a fully diluted basis, of any such securities requested to determined can be included in such registration and (iii) third, other securities requested to be included in such registration. The Company hereby agrees that whenever it grants piggyback rights to any holder of its securities after the date hereof, such holder's piggyback rights will be expressly subordinated pursuant to the piggyback rights granted to the holders of the Registrable Securities under this Article IIpreceding sentence.

Priority on Secondary Registrations. (a) If a Piggyback Registration is consists only of an underwritten secondary registration on behalf of for holders of securities of the Company's securitiesCompany (other than pursuant to Section 10(a)), and the managing underwriters for such offering advise the Company in writing that in their opinion the number of securities Registrable Securities requested to be included in such registration exceeds the number which can be sold in such offeringoffering without materially adversely affecting the distribution of such securities by the Company, the Company will include in such registration (iA) first, the securities requested to be included therein by the holders requesting such registration, (ii) second, registration and the Registrable Securities, Series 1 Registrable Securities, the Xxxxx Securities and the Bear Xxxxxxx Securities requested to be included in such registration, provided, that if pro rata among all such holders on the managing underwriters in good faith determine that a lower basis of the number of securities should be included, then the Company shall be required to include in the underwriting only that lower number of securities, and the holders of Registrable Securities, Series 1 Registrable Securities, Xxxxx Securities and Bear Xxxxxxx Securities who have requested registration shall participate in the underwriting pro rata based upon their total ownership, on a fully diluted basis, of any such securities shares requested to be included in by each such registration holder and (iiiB) thirdsecond, other securities requested to be included in such registration. The Notwithstanding the foregoing, if any such underwriter determines in good faith and advises the Company hereby agrees in writing that whenever it grants piggyback rights to any holder of its securities after the date hereof, such holder's piggyback rights will be expressly subordinated to the piggyback rights granted to the holders of distribution the Registrable Securities under this Article IIrequested to be included in the registration concurrently with the securities being registered by the Company would material adversely affect the distribution of such securities by the Company, then the Holders of such Registrable Securities shall delay their offering and sale for such period ending on the earliest of (1) 90 days following the effective date of the Company's registration statement, (2) the day upon which the underwriting syndicate, if any, for such offering has been disbanded or, (3) such date as the Company, managing underwriter and Holders of Registrable Securities otherwise agree. If such a delay occurs, the Company shall file such supplements, post- effective amendments and take any other steps necessary to permit such Holders to make their proposed offering and sale for a period of the later of 180 days immediately following the end of such delay or the period of time in which the registration statement is otherwise effective. If any party disapproves of the terms of any such underwriting, it may elect to withdraw therefrom by written notice to the Company and the Underwriters.

Priority on Secondary Registrations. (a) If a Piggyback Registration is an underwritten secondary registration on behalf of holders of the CompanyCorporation's securitiessecurities pursuant to the exercise of such holders' demand registration rights or otherwise (other than a Demand Registration), and the managing underwriters advise the Company Corporation in writing that in their opinion the number of securities requested to be included in such registration exceeds the number of securities which can be sold in such offeringoffering without materially and adversely affecting the offering or the offering price (the "Secondary Limit"), the Company Corporation will include in such registration securities not in excess of the Secondary Limit in the following order: (i) first, up to the securities requested full number of Registrable Securities and Warrant Related Registrable Securities proposed to be included therein by (if such number exceeds the Secondary Limit, the securities to be registered shall be allocated among the holders of Registrable Securities and the holders of Warrant Related Registrable Securities requesting such registration, (ii) second, to be included in the registration pro rata among them on the basis of the total number of Registrable Securities and Warrant Related Registrable Securities, Series 1 Registrable Securities, the Xxxxx Securities and the Bear Xxxxxxx Securities requested to be included in such registration, provided, registration (provided that if the managing underwriters in good faith determine that a lower number of securities should Registrable Securities to be included, then the Company registered shall be required to include in the underwriting only that lower number of securities, and allocated among the holders of Registrable Securities, Series 1 Registrable Securities, Xxxxx Securities and Bear Xxxxxxx Securities who have requested registration shall participate requesting to be included in the underwriting registration pro rata based upon on the basis of the total number of Registrable Securities held by their total ownershiprespective holders requesting inclusion in the registration)), on a fully diluted basis(ii) up to the full number of securities the Corporation proposes to sell, (iii) up to the full number of any such securities requested to be included in such registration by other holders of securities permitted to include securities in such Piggyback Registration, (if such number (together with the number of securities included pursuant to clauses (i) and (iiiii)) thirdexceeds the Secondary Limit, the other securities to be registered shall be allocated pro rata among such holders on the basis of the number of securities requested to be included in such registration. The Company hereby agrees that whenever it grants piggyback rights to any holder of its securities after the date hereof, therein by each such holder's piggyback rights will ) and (iv) any additional securities (which together with those securities included pursuant to clauses (i), (ii) and (iii) do not exceed the Secondary Limit) as may be expressly subordinated to agreed upon by the piggyback rights granted to the holders of the Registrable Securities under this Article IICorporation and any other securityholders.

Priority on Secondary Registrations. (a) If a Piggyback Registration is an underwritten secondary registration on behalf of holders of the Company's securities, and the managing underwriters advise the Company in writing that in their good faith opinion the number of securities requested to be included in such registration exceeds the number which can be sold in such offeringoffering within a price range acceptable to the holders on whose behalf the registration is being made, the Company will shall include any securities to be sold in such registration in the following order: (ia) first, the securities requested which such holders propose to be included therein by the holders requesting such registrationsell, (iib) second, the Registrable Securities, Series 1 Registrable Securities, the Xxxxx Securities and the Bear Xxxxxxx Securities requested to be included in such registration, provided, registration by the Piggyback Holders in accordance with Section 3.1 provided that if the managing underwriters determine in good faith determine that a lower number of securities Registrable Securities should be included, then the Company shall be required to include in the underwriting such registration only that lower number of securities, and the holders of Registrable Securities, Series 1 Registrable Securities, Xxxxx Securities and Bear Xxxxxxx Securities who have requested registration such Piggyback Holders shall participate in the underwriting such registration on a pro rata based upon their total ownership, on a fully diluted basis, basis in accordance with the number of any such securities Registrable Securities requested to be included in such registration by each such Piggyback Holder, and (iiic) third, any other securities requested proposed to be included in such registration. The If securities of Other Piggyback Holders are to be included in such Piggyback Registration, the Company hereby agrees that whenever it grants piggyback rights shall use its best efforts to any holder of its securities after effect the date hereof, such holder's piggyback rights will be expressly subordinated priority required by this Section with respect to the piggyback rights granted to Piggyback Holders and the holders of the Registrable Securities under this Article IIOther Piggyback Holders.

Priority on Secondary Registrations. (a) If a Piggyback Registration is an underwritten secondary registration on behalf of holders of the Company's securities, securities and the managing underwriters advise the Company in writing that in their opinion the number of securities requested to be included in such registration exceeds are such that the number which can success of the offering would be sold in such offeringmaterially and adversely affected, the Company will include any securities to be sold in such registration in the following order: (i) first, the securities requested to be included therein by the holders requesting of such registrationholders, (ii) second, the Registrable Securities, Series 1 Registrable Securities, the Xxxxx Securities and the Bear Xxxxxxx Securities requested to be included in such registrationregistration by the Piggyback Holders pursuant to Section 3.1 hereof, providedprovided that, that if the managing underwriters in good faith determine that a lower number of securities Registrable Securities should be included, then the Company shall be required to include in the underwriting such registration only that lower number of securitiesRegistrable Securities, and the holders of Registrable Securities, Series 1 Registrable Securities, Xxxxx Securities and Bear Xxxxxxx Securities who have requested registration Piggyback Holders shall participate in the underwriting registration pro rata based upon their total ownership, on a fully diluted basisFully Diluted Basis, of any Registrable Securities, provided, further, that if the managing underwriters determine in good faith that a lower number of Registrable Securities held by Management Stockholders and/or Additional Management Stockholders than such securities requested to pro rata portion should be included, then such lower number shall be included in such registration and, as a result thereof, a greater number of Registrable Securities owned by the other Stockholders may be sold and (iii) third, other securities requested to be included in such registration. The Company hereby agrees that whenever it grants piggyback rights to any holder of its securities after the date hereof, such holder's piggyback rights will be expressly subordinated to the piggyback rights granted to the holders of the Registrable Securities under this Article II.

Priority on Secondary Registrations. (a) If a Piggyback Registration is part of an underwritten secondary registration on behalf of for holders of securities of the Company's securities, Company (other than pursuant to Section 10(a)) and not a primary registration for the Company and the managing underwriters advise underwriter(s) for such offering advise(s) the Company in writing that that, in their opinion its opinion, the number amount of securities requested to be offered should be limited in order to assure a successful offering, the amount of Registrable Securities to be included in such registration exceeds statement shall be so limited and shall be allocated among the persons selling such securities in the following order of priority: (x) first, securities subject to any demand or other piggyback registration rights granted by the Company before the Effective Date, (y) next, Registrable Securities in proportion, as nearly as practicable, to the number which can of Registrable Securities desired and eligible to be sold by each Holder of such Registrable Securities and (z) next, any other shares of Common Stock subject to similar demand or piggyback registration rights granted by the Company in proportion, as nearly as practicable, to the number of shares of Common Stock desired and eligible to be sold by each holder of such Common Stock. Notwithstanding the provisions of this Section 10(b), the Company shall have the right at any time and for any reason or for no reason after having given written notice pursuant to this Section 10(b) (irrespective of whether a written request for inclusion of any such securities has been made) to elect not to file any such proposed registration statement, or to withdraw the same after the filing but before the effective date thereof and, thereupon, shall be relieved from its obligation to proceed with such registration. If any registration pursuant to this paragraph (b) is an underwritten offering, the Company will include in such registration (i) first, the securities requested to be included therein by the holders requesting such registration, (ii) second, the Registrable Securities, Series 1 Registrable Securities, the Xxxxx Securities and the Bear Xxxxxxx Securities requested to be included in such registration, provided, that if the managing underwriters in good faith determine that a lower number of securities should be included, then the Company shall be required entitled to include select the underwriter or managing underwriter(s) (in the underwriting only that lower number case of securities, and the holders a syndicated offering) of Registrable Securities, Series 1 Registrable Securities, Xxxxx Securities and Bear Xxxxxxx Securities who have requested registration shall participate in the underwriting pro rata based upon their total ownership, on a fully diluted basis, of any such securities requested to be included in such registration and (iii) third, other securities requested to be included in such registration. The Company hereby agrees that whenever it grants piggyback rights to any holder of its securities after the date hereof, such holder's piggyback rights will be expressly subordinated to the piggyback rights granted to the holders of the Registrable Securities under this Article IIoffering.

Priority on Secondary Registrations. (a) If a Piggyback Registration is an underwritten secondary registration on behalf of holders of the Company's securities, and the managing underwriters advise the Company in writing that in their opinion the number of securities requested to be included in such registration exceeds the number which can be sold in such offering without adversely affecting the marketability of the offering, the Company will include in such registration (i) first, the securities requested to be included therein by the holders requesting such registration, (ii) second, the Registrable Securities, Series 1 Registrable Securities, the Xxxxx Securities and the Bear Xxxxxxx Securities requested to be included in such registration, provided, that if the managing underwriters in good faith determine that a lower number of securities should be included, then the Company shall be required to include in the underwriting only that lower number of securities, and pro rata among the holders of such Registrable Securities, Series 1 Securities on the basis of the number of Registrable Securities, Xxxxx Securities and Bear Xxxxxxx owned by each holder of Registrable Securities who have requested registration shall participate in the underwriting pro rata based upon their total ownership, on a fully diluted basis, of any such securities requested to be included participating in such registration offering, and (iiiii) third, second other securities requested to be included in such registration. The Company hereby agrees ; provided, that whenever it grants piggyback rights to any holder of its securities after the date hereof, such holder's piggyback rights will be expressly subordinated to the piggyback rights granted to if the holders of the Registrable Securities under would be precluded from having priority in any such Piggyback Registration over the holders of other securities requested to be included in such registration pursuant to any registration rights agreement listed on Schedule 4.30 of the Purchase Agreement, then the holders of Registrable Securities requested to be included in any such registration shall be entitled to participate in such piggyback registration pro rata with such holders of other securities (other than the shares included because of Demand Registration Rights) requested to be included in such registration; provided, further, however, the rights of the holders of Registrable Securities pursuant to this Article IIparagraph 2(d) shall be subject to the rights of PacifiCorp. Financial Services, Inc. pursuant to paragraph 2.2(b) of the Registration Rights Agreement between the Company and PacifiCorp Financial Services, Inc., dated March 20, 1997.

Priority on Secondary Registrations. (a) If a Piggyback Registration is an underwritten secondary registration on behalf of holders of the Company's securitiesClass A Shares (which includes a Synthetic Offering, with any such Synthetic Offering being deemed an underwritten offering of Registrable Shares solely for purposes of this Agreement) (it being understood that Demand Registrations on behalf of holders of Registrable Shares are addressed in Section 3 rather than in this Section 4(c)), and the managing underwriters advise the Company in writing that in their opinion the number of securities Class A Shares requested to be included in such registration exceeds the number which can be sold in an orderly manner in such offering within a price range acceptable to the holders initially requesting such registration and without adversely affecting the marketability of the offering, then the Company will shall include in such registration Piggyback Registration (i) first, the securities number of Registrable Shares requested to be included therein by in such Piggyback Registration, pro rata among the holders of such Registrable Shares according to the number of Registrable Shares held by each such holder relative to the total number of Registrable Shares held by all such holders of Registrable Shares requesting to include Registrable Shares in such registrationPiggyback Registration as of the date the Company provided written notice of such Piggyback Registration to the holders of Registrable Shares (while subject to each such holder of Registrable Shares including in such Piggyback Registration no more than the number of Registrable Shares requested by such holder to be included in such Piggyback Registration) and, if all Registrable Shares requested to be included in such Piggyback Registration have been included, (ii) second, the Registrable Securities, Series 1 Registrable Securities, the Xxxxx Securities and the Bear Xxxxxxx Securities any other Class A Shares requested to be included in such registration, provided, that if the managing underwriters in good faith determine that a lower number of securities should be included, then such manner as the Company shall be required to include in the underwriting only that lower number of securities, and the holders of Registrable Securities, Series 1 Registrable Securities, Xxxxx Securities and Bear Xxxxxxx Securities who have requested registration shall participate in the underwriting pro rata based upon their total ownership, on a fully diluted basis, of any such securities requested to be included in such registration and (iii) third, other securities requested to be included in such registration. The Company hereby agrees that whenever it grants piggyback rights to any holder of its securities after the date hereof, such holder's piggyback rights will be expressly subordinated to the piggyback rights granted to the holders of the Registrable Securities under this Article IImay determine.

Priority on Secondary Registrations. (a) If a Piggyback Registration is relates to an underwritten secondary registration on behalf public offering of securities by holders of the Company's securities, ’s securities ( the “Selling Stockholders”) and the managing underwriters underwriter(s) advise the Company in writing that in their opinion opinion, the number of securities requested to be included in such registration the Piggyback Registration exceeds the number which that can be sold in an orderly manner in such offeringoffering within a price range acceptable to the Selling Stockholders, the Company will include in such registration the Piggyback Registration (i) first, the securities requested to be included therein by of the holders requesting such registration, Selling Stockholders; (ii) second, the Registrable Securities, Series 1 Registrable Securities, the Xxxxx Securities and the Bear Xxxxxxx Securities requested to be included in such registration, provided, that if pro rata among the managing underwriters in good faith determine that a lower Holders and all other holders of registration rights from the Company based on the ratio of the number of securities should be included, then Registrable Securities that each such Person has requested the Company shall be required to include in the underwriting only that lower Piggyback Registration over the total number of securities, and the holders of Registrable Securities, Series 1 Registrable Securities, Xxxxx Securities and Bear Xxxxxxx Securities who have requested registration shall participate in the underwriting pro rata based upon their total ownership, on a fully diluted basis, of any such securities requested to be included in such registration the Piggyback Registration; and (iii) third, other securities requested to be included in such registration. The Company hereby agrees that whenever it grants piggyback rights to any holder of its securities after the date hereof, such holder's piggyback rights will be expressly subordinated to the piggyback rights granted to pro rata among the holders of such securities based on the Registrable Securities under this Article IIratio of the number of such other securities that each such holder has requested the Company include in the Piggyback Registration over the total number of other securities requested to be included in the Piggyback Registration by such other holders.

Priority on Secondary Registrations. (a) If a Piggyback Registration is solely an underwritten secondary registration on behalf of holders of the Company's securities, and the managing underwriters advise the Company in writing that in their opinion the number of securities requested to be included in such registration exceeds the number which can be sold in such offering without adversely affecting the marketability of the offering, then, (A) if such Piggyback Registration is filed under the Securities Act on or prior to the end of the 42nd month after the month in which the Closing under the Purchase Agreement occurs, the Company will shall include in such registration (i) first, the Registrable Securities requested to be included in such registration, pro rata among the holders of such Registrable Securities on the basis of the number of shares owned by each such holder, (ii) second, the securities requested to be included therein by the holders requesting such registration, (ii) second, the Registrable Securities, Series 1 Registrable Securities, the Xxxxx Securities and the Bear Xxxxxxx Securities requested to be included in such registration, provided, that if the managing underwriters in good faith determine that a lower number of securities should be included, then the Company shall be required to include in the underwriting only that lower number of securities, and the holders of Registrable Securities, Series 1 Registrable Securities, Xxxxx Securities and Bear Xxxxxxx Securities who have requested registration shall participate in the underwriting pro rata based upon their total ownership, on a fully diluted basis, of any such securities requested to be included in such registration and (iii) third, other securities requested to be included in such registration. The Company hereby agrees that whenever it grants piggyback rights to any holder of its securities ; and (B) if such Piggyback Registration is filed under the Securities Act after the date hereofend of the 42nd month after the month in which the Closing under the Purchase Agreement occurs, the Company shall include in such holder's piggyback rights will registration the Registrable Securities and all other securities requested to be expressly subordinated to the piggyback rights granted to included in such registration, pro rata among the holders of the such Registrable Securities under this Article IIand other securities on the basis of the number of shares owned by each holder thereof.

Priority on Secondary Registrations. (a) If a Piggyback Registration is an underwritten secondary registration on behalf of holders of the Company's securities’s securities other than holders of Registrable Securities (it being understood that secondary registrations on behalf of holders of Registrable Securities are addressed in Section 1 rather than this Section 2(c)), and the managing underwriters advise the Company in writing that that, in their opinion opinion, the number of securities requested to be included in such registration exceeds the number which can be sold in an orderly manner in such offeringoffering within a price range acceptable to the holders of a majority of the securities initially requested to be included in such registration, then the Company will shall include in such registration (i) first, the securities requested to be included therein by the holders requesting such registrationregistration that, in the opinion of such underwriters, can be sold in an orderly manner within such price range, pro rata among the holders of such securities and the holders of such securities on the basis of the number of securities owned by each such holder (ii) second, upon the consent of the holders requesting such registration, if applicable, the Registrable Securities, Series 1 Registrable Securities, the Xxxxx Securities and the Bear Xxxxxxx Securities requested to be included in such registrationregistration that, provided, that if the managing underwriters in good faith determine that a lower number of securities should be included, then the Company shall be required to include in the underwriting only that lower number opinion of securitiessuch underwriters, can be sold in an orderly manner within such price range, pro rata among the holders of such securities and the holders of such Registrable SecuritiesSecurities on the basis of the number of securities owned by each such holder, Series 1 Registrable Securities, Xxxxx Securities and Bear Xxxxxxx Securities who have requested registration shall participate in the underwriting pro rata based upon their total ownership, on a fully diluted basis, of any such securities requested to be included in such registration and (iii) third, other securities requested (and permitted) to be included in such registration. The Company hereby agrees that whenever it grants piggyback rights to any holder , if any, that, in the opinion of its securities after the date hereofsuch underwriters, can be sold in an orderly manner within such holder's piggyback rights will be expressly subordinated to the piggyback rights granted to the holders of the Registrable Securities under this Article IIprice range.

Priority on Secondary Registrations. (a) If a Piggyback Registration is an underwritten secondary registration on behalf of holders of the Company's securities, and the managing underwriters advise the Company and the holders of Registrable Securities in writing that in their opinion the number of securities requested to be included in such registration exceeds the number which can be sold in an orderly manner in such offeringoffering within a price range acceptable to the holders of a majority of the securities initially requesting such registration, the Company will shall include in such registration (i) first, the securities requested to be included therein by the holders requesting such registration, (ii) second, registration and the Registrable Securities, Series 1 Registrable Securities, the Xxxxx Securities and the Bear Xxxxxxx Securities requested to be included in such registration, providedallocated pro rata among holders requesting the registration, that if the managing underwriters in good faith determine that a lower number of securities should be includedFunds, then the Company shall be required to include in the underwriting only that lower number of securities, and the holders of CSO Registrable Securities, Series 1 Registrable Securities, Xxxxx Securities and Bear Xxxxxxx the Executives based on the number Registrable Securities who have requested registration shall participate owned, in the underwriting aggregate, by the holders requesting the registration, the Funds, the holders of CSO Registrable Securities and the Executives, respectively (with the Registrable Securities which are included in the registration for the holders requesting the registration, the Funds, the holders of CSO Registrable Securities and the Executives being allocated among the holders within each such group pro rata based upon their total ownership, on a fully diluted basis, the number of any such securities requested to be included Registrable Securities owned by each holder within the group or in such registration other manner as the holders within each group shall otherwise agree) and (iiiii) thirdsecond, other securities requested to be included in such registration. The Company hereby agrees that whenever it grants piggyback rights to any holder of its securities after the date hereof, such holder's piggyback rights will be expressly subordinated to the piggyback rights granted to the holders of the Registrable Securities under this Article II.

Priority on Secondary Registrations. (a) If a Piggyback Registration is an underwritten secondary registration on behalf of holders of the Company's securities, securities and the managing underwriters advise the Company in writing that in their opinion the number of securities requested to be included in such registration exceeds are such that the number which can success of the offering would be sold in such offeringmaterially and adversely affected, the Company will include any securities to be sold in such registration in the following order: (i) first, the securities requested to be included therein by the holders requesting of such registrationholders, (ii) second, the Registrable Securities, Series 1 Registrable Securities, the Xxxxx Securities and the Bear Xxxxxxx Securities requested to be included in such registrationregistration by the Piggyback Holders pursuant to Section 3.1 hereof, providedprovided that, that if the managing underwriters in good faith determine that a lower number of securities Registrable Securities should be included, then the Company shall be required to include in the underwriting such registration only that lower number of securitiesRegistrable Securities, and the holders of Registrable Securities, Series 1 Registrable Securities, Xxxxx Securities and Bear Xxxxxxx Securities who have requested registration Piggyback Holders shall participate in the underwriting registration pro rata based upon their total ownership, on a fully diluted basis, of any Registrable Securities, provided, further, that if the managing underwriters determine in good faith that a lower number of Registrable Securities held by Management Stockholders (as defined herein and as defined in the Original Registration Rights Agreement) and/or Additional Stockholders (as defined herein and as defined in the Original Registration Rights Agreement) than such securities requested to pro rata portion should be included, then such lower number shall be included in such registration and, as a result thereof, a greater number of Registrable Securities owned by the other Stockholders may be sold and (iii) third, other securities requested to be included in such registration. The Company hereby agrees that whenever it grants piggyback rights to any holder of its securities after the date hereof, such holder's piggyback rights will be expressly subordinated to the piggyback rights granted to the holders of the Registrable Securities under this Article II.

Priority on Secondary Registrations. (a) If a Piggyback Registration is an underwritten secondary registration on behalf of holders a holder of the Company's securities’s securities other than Registrable Securities pursuant to demand registration rights, and the managing underwriters advise the Company in writing that in their opinion the number of securities requested to be included in such registration exceeds the number which can be sold in such offering and/or that the number of shares of Registrable Securities proposed to be included in any such registration would adversely affect the price per share of the Company’s equity securities to be sold in such offering, the Company will shall include in such registration (i) first, the securities requested to be included therein by the holders requesting such registration, pro rata among the holders of such securities on the basis of the number of securities requested to be registered by such holders, and (ii) second, the other securities, including Registrable Securities, Series 1 Registrable Securities, the Xxxxx Securities and the Bear Xxxxxxx Securities requested to be included in such registration, provided, that if the managing underwriters in good faith determine that a lower number of securities should be included, then the Company shall be required to include in the underwriting only that lower number of securities, and the holders of Registrable Securities, Series 1 Registrable Securities, Xxxxx Securities and Bear Xxxxxxx Securities who have requested registration shall participate in the underwriting pro rata based upon their total ownership, on a fully diluted basis, of any such securities requested to be included in such registration pro rata among (A) the holders of such securities who have been granted registration rights pursuant to (i) that certain Registration Rights Agreement dated as of May 22, 2006, as amended to date, between the Company and VTEX Energy, Inc., (ii) that certain Registration Rights Agreement dated as of March 20, 1998, between the Company and Energy Systems Investors, LLC, and (iii) that certain Warrant Purchase Agreement dated the date hereof between the Company and Silver Point Capital Partners Group, LLC, and (iv) that certain Warrant Purchase Agreement dated the date hereof between the Company and Kenmont Special Opportunities Master Fund L.P., and (B) the Holders collectively, on the basis of the number of securities requested to be registered by such holders, including the Holders, or as such holders, including the Holders, may otherwise agree and (iii) third, other securities requested to be included in such registration. The Company hereby agrees that whenever it grants piggyback rights to any holder of its securities after the date hereof, such holder's piggyback rights will be expressly subordinated to the piggyback rights granted to the holders of the Registrable Securities under this Article II.

Priority on Secondary Registrations. (a) If a Piggyback Registration is an underwritten secondary registration on behalf of holders of the Company's securities, Other Security Holders and the managing underwriters underwriter(s) of such offering advise the Company in writing that in their opinion good faith judgment the number aggregate amount of securities securities, including Registrable Securities, of the Company that all Holders and all Other Security Holders have requested to be included in such registration exceeds the maximum number which of securities, including Registrable Securities, that can reasonably be expected to be sold in such offering without adversely affecting the success of the offering, then the Company will include the Registrable Securities and such other securities in the Registration Statement relating to such registration in the following order of priority: (i) first, the securities requested to be included therein by the holders requesting such registration, (ii) second, the Registrable Securities, Series 1 Registrable Securities, the Xxxxx Securities and the Bear Xxxxxxx Securities requested to be included in such registration, provided, that if registration by the managing underwriters in good faith determine that a lower number Holders pro rata among such Holders on the basis of securities should be included, then the Company shall be required to include in the underwriting only that lower number of securities, and the holders aggregate principal amount of Registrable SecuritiesSecurities requested to be included by each such Holder, (ii) second, Series 1 if no Registrable SecuritiesSecurities were excluded pursuant to clause (i) of this Section 3(c), Xxxxx securities other than Registrable Securities and Bear Xxxxxxx Securities who have requested registration shall participate in the underwriting pro rata based upon their total ownership, on a fully diluted basis, of any such securities requested to be included in such registration and (iii) third, by the Holders pro rata among such Holders on the basis of the aggregate amount of such other securities requested to be included by all such Holders, and (iii) third, if no Registrable Securities or other securities requested to be included by the Holders were excluded pursuant to clause (i) or (ii) of this Section 3(c), securities of the Company requested to be included in such registration. The registration by Other Security Holders pro rata among such Other Security Holders on the basis of the aggregate amount of such securities requested to be included by all such Other Security Holders the securities the Company hereby agrees proposes to sell; provided, that whenever it grants piggyback rights to any holder if such registration contemplates an “over-allotment option” on the part of its securities after the date hereofunderwriters, such holder's piggyback rights will be expressly subordinated to the piggyback rights granted extent such over-allotment option is exercised and Holders were excluded from registering any Registrable Securities or other securities pursuant to the holders priority provisions of this Section 3(c), then the over-allotment option shall be exercised first with respect to such Registrable Securities and second with respect to such other securities of the Registrable Securities under this Article IIHolders, in each case, to the extent of such exclusion.

Priority on Secondary Registrations. (a) If a Piggyback Registration is consists only of an underwritten secondary registration on behalf of for holders of securities of the Company's securitiesCompany (other than pursuant to Section 10(a)), and the managing underwriters underwriter(s) for such offering advise the Company in writing that in their opinion the number of securities Registrable Securities requested to be included in such registration exceeds the number which can be sold in such offeringoffering without materially adversely affecting the distribution of such securities by the Company, the Company will include in such registration (iA) first, the securities requested to be included therein by the holders requesting such registration, (ii) second, registration and the Registrable Securities, Series 1 Registrable Securities, the Xxxxx Securities and the Bear Xxxxxxx Securities requested to be included in such registration, provided, that if pro rata among all such holders on the managing underwriters in good faith determine that a lower basis of the number of securities should be included, then the Company shall be required to include in the underwriting only that lower number of securities, and the holders of Registrable Securities, Series 1 Registrable Securities, Xxxxx Securities and Bear Xxxxxxx Securities who have requested registration shall participate in the underwriting pro rata based upon their total ownership, on a fully diluted basis, of any such securities shares requested to be included in by each such registration holder, provided, however, the Company will use its best efforts to include not less than 20% of the Registrable Securities, and (iiiB) thirdsecond, other securities requested to be included in such registration. The Notwithstanding the foregoing, if any such underwriter determines in good faith and advises the Company hereby agrees in writing that whenever it grants piggyback rights to any holder of its securities after the date hereof, such holder's piggyback rights will be expressly subordinated to the piggyback rights granted to the holders distribution of the Registrable Securities under this Article II.requested to be included in the registration concurrently with the securities being registered by the Company would materially adversely affect the distribution of such securities by the Company, then the Holders of such Registrable Securities shall delay their offering and sale for such period ending on the earliest of (1) 90 days following the effective date of the Company's registration statement, (2) the day upon which the underwriting syndicate, if

Priority on Secondary Registrations. (a) If a Piggyback Registration is consists only of an underwritten secondary registration on behalf of holders of securities of the Company's securitiesCompany (other than pursuant to Section 10(a)), and the managing underwriters underwriter(s) for the offering being registered by the Company advise the Company in writing that in its/their opinion the number of securities Registrable Securities requested to be included in such registration exceeds the number which can be sold in such offeringoffering without materially adversely affecting the distribution of such securities by the Company, the Company will include in such registration (iA) first, the securities requested to be included therein by the holders requesting such registration, (ii) second, registration and the Registrable Securities, Series 1 Registrable Securities, the Xxxxx Securities and the Bear Xxxxxxx Securities requested to be included in such registrationregistration above, providedpro rata, that if among all such holders on the managing underwriters in good faith determine that a lower basis of the number of securities should be included, then the Company shall be required to include in the underwriting only that lower number of securities, and the holders of Registrable Securities, Series 1 Registrable Securities, Xxxxx Securities and Bear Xxxxxxx Securities who have requested registration shall participate in the underwriting pro rata based upon their total ownership, on a fully diluted basis, of any such securities shares requested to be included in by each such registration holder and (iiiB) thirdsecond, other securities requested to be included in such registration. The Notwithstanding the foregoing if any such underwriter shall determine in good faith and advise the Company hereby agrees in writing that whenever it grants piggyback rights to any holder the distribution of its securities after the date hereof, such holder's piggyback rights will be expressly subordinated to the piggyback rights granted to the holders of the Registrable Securities under this Article II.requested to be included in the registration concurrently with the securities being registered by the Company would materially adversely affect the distribution of such securities by the Company, then the Holders of such Registrable Securities shall delay their offering and We for such period ending on the earliest of (1) 90 days following the effective date of the Company's registration statement, (2) the day upon which the underwriting syndicate, if any, for such offering shall have been disbanded or, (3) such date as the Company, managing underwriter and Holders of Registrable Securities shall otherwise agree. In the event of such delay, the Company shall file such supplements, post-effective amendments and take any such other steps as may be necessary to permit such Holders to Take their proposed offering and sale for a period of 120 days immediately following the end of such period of delay. If any party disapproves of the terms of any, such underwriting, it may elect to withdraw therefrom by written notice to the Company, the underwriter, and Underwriter. Notwithstanding the foregoing, the Company shall not be required

Priority on Secondary Registrations. (a) If a Piggyback Registration is an underwritten secondary registration on behalf of holders of the Company's securitiessecurities (other than a Demand Registration requested by the holders of Investor Registrable Securities pursuant to Section 1 of this Agreement), and the managing underwriters advise the Company in writing that in their opinion the number of securities requested to be included in such registration exceeds the number which can be sold in an orderly manner in such offeringoffering within a price range acceptable to the holders of a majority of the Registrable Securities to be included in such registration, the Company will shall include in such registration (i) first, the securities requested to be included therein by the holders requesting such registrationregistration pursuant to Demand Registrations, (ii) second, the Investor Registrable Securities, Series 1 Registrable Securities, the Xxxxx Securities and the Bear Xxxxxxx Warrant Registrable Securities requested to be included in such registration, provided, that if the managing underwriters in good faith determine that a lower number of securities should be included, then the Company shall be required to include in the underwriting only that lower number of securities, and pro rata among the holders of such Registrable SecuritiesSecurities on the basis of the number of shares owned by each such holder, Series 1 (iii) third, the Executive Registrable SecuritiesSecurities requested to be included in such registration, Xxxxx Securities and Bear Xxxxxxx Securities who have requested registration shall participate in the underwriting pro rata based upon their total ownershipamong the holders of such Registrable Securities on the basis of the number of shares owned by each such holder, on a fully diluted basis(iv) fourth, Other Stockholder Registrable Securities requested to be included in such registration, pro rata among the holders of any such securities on the basis of the number of such securities owned by each such holder and (v) fifth, securities other than Registrable Securities requested to be included in such registration and (iii) thirdwhich in the opinion of such underwriters can be sold without adverse effect, other securities requested to be included in such registration. The Company hereby agrees that whenever it grants piggyback rights to any holder of its securities after the date hereof, such holder's piggyback rights will be expressly subordinated to the piggyback rights granted to pro rata among the holders of such securities on the Registrable Securities under this Article IIbasis of the number of such securities owned by each such holder.

Priority on Secondary Registrations. (a) If a Piggyback Registration is an underwritten secondary registration on behalf of holders a holder of the Company's securities’s securities other than Registrable Securities pursuant to demand registration rights, and the managing underwriters advise the Company in writing that in their opinion the number of securities requested to be included in such registration exceeds the number which can be sold in such offering and/or that the number of shares of Registrable Securities proposed to be included in any such registration would adversely affect the price per share of the Company’s equity securities to be sold in such offering, the Company will shall include in such registration (i) first, the securities requested to be included therein by the holders requesting such registration, pro rata among the holders of such securities on the basis of the number of securities requested to be registered by such holders, and (ii) second, the other securities, including Registrable Securities, Series 1 Registrable Securities, the Xxxxx Securities and the Bear Xxxxxxx Securities requested to be included in such registration, provided, that if the managing underwriters in good faith determine that a lower number of securities should be included, then the Company shall be required to include in the underwriting only that lower number of securities, and the holders of Registrable Securities, Series 1 Registrable Securities, Xxxxx Securities and Bear Xxxxxxx Securities who have requested registration shall participate in the underwriting pro rata based upon their total ownership, on a fully diluted basis, of any such securities requested to be included in such registration pro rata among (A) the holders of such securities who have been granted registration rights pursuant to (i) that certain Registration Rights Agreement dated as of May 22, 2006, as amended to date, between the Company and VTEX Energy, Inc., (ii) that certain Registration Rights Agreement dated as of March 20, 1998, between the Company and Energy Systems Investors, LLC, and (iii) that certain Warrant Purchase Agreement dated the date hereof between the Company and Silver Point Capital Partners Group, LLC, and (iv) that certain Warrant Purchase Agreement dated the date hereof between the Company and Credit Suisse Securities (USA) LLC, and (B) the Holders collectively, on the basis of the number of securities requested to be registered by such holders, including the Holders, or as such holders, including the Holders, may otherwise agree and (iii) third, other securities requested to be included in such registration. The Company hereby agrees that whenever it grants piggyback rights to any holder of its securities after the date hereof, such holder's piggyback rights will be expressly subordinated to the piggyback rights granted to the holders of the Registrable Securities under this Article II.

Priority on Secondary Registrations. (a) If a Piggyback Registration is an underwritten secondary registration on behalf of holders a holder of the Company's securities’s securities other than Registrable Securities pursuant to demand registration rights, and the managing underwriters advise the Company in writing that in their opinion the number of securities requested to be included in such registration exceeds the number which can be sold in such offering and/or that the number of shares of Registrable Securities proposed to be included in any such registration would adversely affect the price per share of the Company’s equity securities to be sold in such offering, the Company will shall include in such registration (i) first, the securities requested to be included therein by the holders requesting such registration, pro rata among the holders of such securities on the basis of the number of securities requested to be registered by such holders, and (ii) second, the other securities, including Registrable Securities, Series 1 Registrable Securities, the Xxxxx Securities and the Bear Xxxxxxx Securities requested to be included in such registration, provided, that if the managing underwriters in good faith determine that a lower number of securities should be included, then the Company shall be required to include in the underwriting only that lower number of securities, and the holders of Registrable Securities, Series 1 Registrable Securities, Xxxxx Securities and Bear Xxxxxxx Securities who have requested registration shall participate in the underwriting pro rata based upon their total ownership, on a fully diluted basis, of any such securities requested to be included in such registration pro rata among (A) the holders of such securities who have been granted registration rights pursuant to (i) that certain Registration Rights Agreement dated as of May 22, 2006, as amended to date, between the Company and VTEX Energy, Inc., (ii) that certain Registration Rights Agreement dated as of March 20, 1998, between the Company and Energy Systems Investors, LLC, (iii) that certain Warrant Purchase Agreement dated the date hereof between the Company and Credit Suisse Securities (USA) LLC, and (iv) that certain Warrant Purchase Agreement dated the date hereof between the Company and Kenmont Special Opportunities Master Fund, L.P., and (B) the Holders collectively, on the basis of the number of securities requested to be registered by such holders, including the Holders, or as such holders, including the Holders, may otherwise agree and (iii) third, other securities requested to be included in such registration. The Company hereby agrees that whenever it grants piggyback rights to any holder of its securities after the date hereof, such holder's piggyback rights will be expressly subordinated to the piggyback rights granted to the holders of the Registrable Securities under this Article II.

Priority on Secondary Registrations. (a) If a Piggyback Registration piggyback registration is initiated as an underwritten secondary registration on behalf of holders shares of Common Stock (other than the Registrable Shares) owned by securityholders of the Company's securities, and the managing underwriters advise underwriter advises the Company in writing its reasonable opinion that in their opinion the number of securities shares of Common Stock requested to be included in such registration exceeds the number which that can be sold in such offering without having a Material Adverse Effect on such offering, then the Company will shall include in such registration the maximum number of shares that such underwriter advises can be so sold without having such Material Adverse Effect, allocated (i) if such registration is initiated pursuant to demand registration rights contained in one or more of the agreements listed on Schedule 2.1(d) (as in effect on the date hereof) (each such agreement is referred to herein as an "Existing Rights Agreement"), (1) first, the securities requested to be included therein by the holders requesting such registration, shares of Common Stock (ii) second, other than the Registrable Securities, Series 1 Registrable Securities, the Xxxxx Securities and the Bear Xxxxxxx Securities Shares) requested to be included in such registrationsecondary registration by holder(s) of Common Stock then entitled to such registration pursuant to such Existing Rights Agreement, provided(2) second, that if to Registrable Shares requested by Holders to be included in such piggyback registration allocated among such requesting Holders on a pro rata basis based on the managing underwriters in good faith determine that a lower number of securities should be includedshares of Common Stock owned or in such other manner as the Holders may agree, then and (3) third, to shares of Common Stock the Company shall be required proposes to include in the underwriting only that lower number sell and to other shares of securities, and the holders of Registrable Securities, Series 1 Registrable Securities, Xxxxx Securities and Bear Xxxxxxx Securities who have requested registration shall participate in the underwriting pro rata based upon their total ownership, on a fully diluted basis, of any such securities Common Stock requested to be included in such piggyback registration on a pro rata basis based on the number of shares of Common Stock owned or in such other manner as the Company and (iii) thirdsuch holders may agree; provided, other securities however, that if the Registrable Shares may be allocated in such registration at a higher priority pursuant to the terms of the applicable Existing Rights Agreement, then the Registrable Shares requested to be included in such registration. The Company hereby agrees that whenever it grants piggyback secondary registration by holder(s) of Common Stock then entitled to such registration shall be allocated pursuant to the terms of such Existing Rights Agreement, or (ii) if such registration is initiated pursuant to demand registration rights to any holder of its securities granted after the date hereofhereof (each such agreement is referred to herein as a "Subsequent Rights Agreement"), (1) first, to shares of Common Stock (including Registrable Shares) requested to be included in such holder's piggyback rights will secondary registration by holder(s) of Common Stock then entitled to such registration pursuant to agreements with the Company on a pro rata basis based on the number of shares of Common Stock requested to be expressly subordinated to the piggyback rights granted to included or in such other manner as the holders of such securities may agree, and (2) second, to shares of Common Stock the Company proposes to sell and to other shares of Common Stock requested to be included in such piggyback registration on a pro rata basis based on the number of shares of Common Stock requested to be included or in such other manner as the Company and such holders may agree; provided, however, that if the Registrable Securities under this Article IIShares may be allocated in such registration at a higher priority pursuant to the terms of the applicable Subsequent Rights Agreement, then the Registrable Shares requested to be included in such secondary registration by holder(s) of Common Stock then entitled to such registration shall be allocated pursuant to the terms of such Subsequent Rights Agreement.

Priority on Secondary Registrations. (a) If a Piggyback Registration is consists only of an underwritten secondary registration on behalf of holders of securities of the Company's securitiesCompany (other than pursuant to Section 10(a)), and the managing underwriters underwriter(s) for the offering being registered by the Company advise the Company in writing that in its/their opinion the number of securities Registrable Securities requested to be included in such registration exceeds the number which can be sold in such offeringoffering without materially adversely affecting the distribution of such securities by the Company, the Company will include in such registration (iA) first, the securities requested to be included therein by the holders requesting such registration, (ii) second, registration and the Registrable Securities, Series 1 Registrable Securities, the Xxxxx Securities and the Bear Xxxxxxx Securities requested to be included in such registrationregistration above, providedpro rata, that if among all such holders on the managing underwriters in good faith determine that a lower basis of the number of securities should be included, then the Company shall be required to include in the underwriting only that lower number of securities, and the holders of Registrable Securities, Series 1 Registrable Securities, Xxxxx Securities and Bear Xxxxxxx Securities who have requested registration shall participate in the underwriting pro rata based upon their total ownership, on a fully diluted basis, of any such securities shares requested to be included in by each such registration holder and (iiiB) thirdsecond, other securities requested to be included in such registration. The Notwithstanding the foregoing if any such underwriter shall determine in good faith and advise the Company hereby agrees in writing that whenever it grants piggyback rights to any holder the distribution of its securities after the date hereof, such holder's piggyback rights will be expressly subordinated to the piggyback rights granted to the holders of the Registrable Securities requested to be included in the registration concurrently with the securities being registered by the Company would materially adversely affect the distribution of such securities by the Company, then the Holders of such Registrable Securities shall delay their offering and We for such period ending on the earliest of (1) 90 days following the effective date of the Company's registration statement, (2) the day upon which the underwriting syndicate, if any, for such offering shall have been disbanded or, (3) such date as the Company, managing underwriter and Holders of Registrable Securities shall otherwise agree. In the event of such delay, the Company shall file such supplements, post-effective amendments and take any such other steps as may be necessary to permit such Holders to Take their proposed offering and sale for a period of 120 days immediately following the end of such period of delay. If any party disapproves of the terms of any, such underwriting, it may elect to withdraw therefrom by written notice to the Company, the underwriter, and Underwriter. Notwithstanding the foregoing, the Company shall not be required to file a registration statement to include Shares pursuant to this Section 10(b) if an opinion of independent counsel, reasonably satisfactory to counsel for the Company and counsel for Underwriter, that the Shares proposed to be disposed of may be transferred pursuant to the provisions of Rule 144 under this Article IIthe Act, shall have been delivered to counsel for the Company.

Priority on Secondary Registrations. (a) If a Piggyback Registration is an underwritten secondary registration on behalf of holders of the Company's securitiesCorporation’s securities pursuant to the exercise of such holders’ demand registration rights or otherwise (other than a Demand Registration), and the managing underwriters advise the Company Corporation in writing that in their opinion the number of securities requested to be included in such registration exceeds the number of securities which can be sold in such offeringoffering without materially and adversely affecting the offering or the offering price (the “Secondary Limit”), the Company Corporation will include in such registration securities not in excess of the Secondary Limit in the following order: (i) first, up to the securities requested full number of Registrable Securities and Warrant Related Registrable Securities proposed to be included therein by (if such number exceeds the Secondary Limit, the securities to be registered shall be allocated among the holders of Registrable Securities and the holders of Warrant Related Registrable Securities requesting such registration, (ii) second, to be included in the registration pro rata among them on the basis of the total number of Registrable Securities and Warrant Related Registrable Securities, Series 1 Registrable Securities, the Xxxxx Securities and the Bear Xxxxxxx Securities requested to be included in such registration, provided, registration (provided that if the managing underwriters in good faith determine that a lower number of securities should Registrable Securities to be included, then the Company registered shall be required to include in the underwriting only that lower number of securities, and allocated among the holders of Registrable Securities, Series 1 Registrable Securities, Xxxxx Securities and Bear Xxxxxxx Securities who have requested registration shall participate requesting to be included in the underwriting registration pro rata based upon on the basis of the total number of Registrable Securities held by their total ownershiprespective holders requesting inclusion in the registration)), on a fully diluted basis(ii) up to the full number of securities the Corporation proposes to sell, (iii) up to the full number of any such securities requested to be included in such registration by other holders of securities permitted to include securities in such Piggyback Registration, (if such number (together with the number of securities included pursuant to clauses (i) and (iiiii)) thirdexceeds the Secondary Limit, the other securities to be registered shall be allocated pro rata among such holders on the basis of the number of securities requested to be included in such registration. The Company hereby agrees that whenever it grants piggyback rights to any holder of its securities after the date hereof, therein by each such holder's piggyback rights will ) and (iv) any additional securities (which together with those securities included pursuant to clauses (i), (ii) and (iii) do not exceed the Secondary Limit) as may be expressly subordinated to agreed upon by the piggyback rights granted to the holders of the Registrable Securities under this Article IICorporation and any other securityholders.

Priority on Secondary Registrations. If (asubject to paragraph 1(g) If above) a Piggyback Registration is an underwritten secondary registration on behalf of holders of the Company's securities, ’s securities (other than the holders of Registrable Securities hereunder) and the managing underwriters advise the Company in writing that in their opinion the number of securities requested to be included in such registration exceeds the number which can be sold in such offering without adversely affecting the marketability of the offering, the Company will shall include in such registration (i) first, the securities requested to be included therein by the holders requesting such registration, (ii) second, registration and the Investor Registrable Securities, Series 1 Registrable Securities, the Xxxxx Securities and the Bear Xxxxxxx Other Registrable Securities requested to be included in such registration, provided, that if pro rata among the managing underwriters in good faith determine that a lower holders of all such securities on the basis of the number of securities should owned by each such holder; provided that, notwithstanding the foregoing, until the Recapture Date the number of Registrable Securities to be included, then the Company included in any such registration shall be required to include in allocated among the underwriting only that lower number holders of securities, the Investor Registrable Securities and the holders of the Other Registrable Securities, Series 1 Securities so that the holders of Investor Registrable Securities, Xxxxx Securities and Bear Xxxxxxx shall be entitled to include in such registration 61.75% of the aggregate Registrable Securities who have requested registration shall participate in the underwriting pro rata based upon their total ownership, on a fully diluted basis, of any such securities requested to be included in such registration and (iii) thirdallocated pro rata among the holders of such Investor Registrable Securities on the basis of the number of Investor Registrable Securities owned by each such holder immediately prior to such registration), other securities requested the holders of M&C Registrable Securities shall be entitled to include in such registration 33.25% of the aggregate Registrable Securities to be included in such registration. The Company hereby agrees that whenever it grants piggyback rights to any holder of its securities after the date hereof, such holder's piggyback rights will be expressly subordinated to the piggyback rights granted to registration (allocated pro rata among the holders of the such M&C Registrable Securities under this Article IIon the basis of the number of M&C Registrable Securities owned by each such holder immediately prior to such registration), and the holders of BofA Registrable Securities shall be entitled to include in such registration 5% of the aggregate Registrable Securities to be included in such registration (allocated pro rata among the holders of such BofA Registrable Securities on the basis of the number of BofA Registrable Securities owned by each such holder immediately prior to such registration).

Priority on Secondary Registrations. (a) If a Piggyback Registration is an underwritten secondary registration on behalf of holders of the Company's ’s securities, and the managing underwriters advise the Company in writing that in their opinion the number of securities requested to be included in such registration exceeds the number which can be sold in an orderly manner in such offeringoffering within a price range acceptable to the holders initially requesting such registration, the Company will shall include in such registration (i) first, the securities requested to be included therein by the holders requesting such registration, (ii) second, the Preferred Registrable Securities, Series 1 Registrable Securities, the Xxxxx Securities and the Bear Xxxxxxx CISCO Warrant Registrable Securities requested to be included in such registration, provided, that if the managing underwriters in good faith determine that a lower number of securities should be included, then the Company shall be required to include in the underwriting only that lower number of securities, and pro rata among the holders of Registrable Securities, Series 1 Registrable Securities, Xxxxx Securities and Bear Xxxxxxx Securities who have requested registration shall participate in the underwriting pro rata based upon their total ownership, on a fully diluted basis, of any such securities on the basis of the number of securities so requested to be included in therein owned by each such registration holder, (ii) second, the Common Registrable Securities, pro rata among the holders of Common Registrable Securities on the basis of the number of Common Registrable Securities owned by each such holder and (iii) third, other securities requested to be included in such registration. The ; provided that, to the extent (but only to the extent) the managing underwriters advise the Company hereby agrees in writing that whenever it grants piggyback rights to in their opinion Registrable Securities held by holders who are also employees of the Company or any holder of its securities after the date hereofSubsidiaries cannot be included in such offering without adversely effecting such offering, such holder's piggyback rights will be expressly subordinated to the piggyback rights granted to the holders of the Registrable Securities under this Article IIshall not be included in such offering.

Priority on Secondary Registrations. (a) If a Piggyback Registration is an underwritten secondary registration on behalf of holders of the Company's securities, securities other than the Holders and the managing underwriters advise underwriter of such offering advises the Company in writing that in their opinion the number of securities requested to be included in such registration exceeds the number which that can reasonably be sold in such offering, then the Company will shall include in such registration (i) firstFIRST, if such registration is being made on behalf of other stockholders of the Company exercising demand registration rights, then the securities so requested to be included therein by the holders requesting in accordance with such registrationdemand registration rights, (ii) secondSECOND, the Registrable Securities, Series 1 Registrable Securities, the Xxxxx Securities and the Bear Xxxxxxx Securities requested to be included in such registration, provided, that if the managing underwriters in good faith determine that a lower number of securities should be included, then the Company shall be required to include in the underwriting only that lower number of securities, and the holders of Registrable Securities, Series 1 Registrable Securities, Xxxxx Securities and Bear Xxxxxxx Securities who have requested registration shall participate in the underwriting pro rata based upon their total ownership, on a fully diluted basis, of any such other securities requested to be included in such registration by one or more Holders or Existing Rights Holders, on a PRO RATA basis according to the number of securities originally requested to be included by each Holder and Existing Rights Holder, and (iii) thirdTHIRD, other securities requested to be included therein by any other persons having registration rights with respect to securities of the Company. If the managing underwriter of such offering subsequently advises the Company in such registration. The writing that the number of securities that can be sold exceeds the number of securities included in the offering, the Company hereby agrees that whenever it grants piggyback rights shall include in the registration (i) FIRST, the securities proposed to any holder be sold on behalf of its securities after the date hereofother stockholders of the Company exercising demand registration rights, (ii) SECOND, such holder's piggyback rights will additional securities that one or more Holders or Existing Rights Holders had originally requested be expressly subordinated included in the registration, on a PRO RATA basis according to the piggyback number of securities originally requested to be included by each Holder and Existing Rights Holder, and (iii) THIRD, securities requested to be included therein by any other persons having registration rights granted with respect to the holders securities of the Registrable Securities under this Article IICompany.

Priority on Secondary Registrations. (a) If a Piggyback Registration is relates to an underwritten secondary registration on behalf of holders of the Company's securitiessecurities other than the Holders of Registrable Securities, and the managing underwriters Underwriters advise the Company (a copy of such notice if in writing or prompt communication of the content of such notice, if oral, to be provided by the Company to each Holder requesting registration) that in their opinion the number of securities requested to be included in such registration exceeds the number which can be sold in such without materially adversely affecting the successful marketability of the offering, the Company will include in such registration only such number of securities that in the opinion of such Underwriters can be sold without materially adversely affecting the successful marketability of the offering, which securities will be so included in the following order of priority: (i) first, the securities requested to be included therein by the holders requesting such registration, (ii) second, registration and the Registrable Securities, Series 1 Registrable Securities, the Xxxxx Securities and the Bear Xxxxxxx Securities requested to be included in such registration, provided, that if pro rata among the managing underwriters in good faith determine that a lower holders of such securities and Registrable Securities on the basis of the number of securities should be included, then the Company shall be required to include in the underwriting only that lower number of securities, and the holders of Registrable Securities, Series 1 Registrable Securities, Xxxxx Securities and Bear Xxxxxxx Securities who have requested registration shall participate in the underwriting pro rata based upon their total ownership, on a fully diluted basis, of any such securities so requested to be included in therein owned by each such registration holder, and (iiiii) thirdsecond, other securities requested to be included in such registration. The ; provided, however, that in the event the Company hereby agrees that whenever it grants piggyback rights to will not, by virtue of this Section 2(e), include in any holder of its securities after the date hereof, such holder's piggyback rights will be expressly subordinated to the piggyback rights granted to the holders registration all of the Registrable Securities of any Holder requested to be included in such registration, such Holder may, upon written notice to the Company given within three days of the time such Holder first is notified of such matter, reduce the amount of Registrable Securities it desires to have included in such registration, whereupon only the Registrable Securities, if any, it desires to have included will be so included and the Holders not so reducing shall be entitled to a corresponding increase in the amount of Registrable Securities to be included in such registration. Notwithstanding the foregoing, any employee of the Company or any subsidiary thereof will not be entitled to participate, directly or indirectly, in any such registration to the extent that the managing Underwriter determines in good faith that the participation of such employee in such registration would adversely affect the marketability or offering price of the securities being sold in such registration. Other Registrations. If the Company receives a Registration Request or files a Registration Statement with respect to Registrable Securities pursuant to Section 1 or Section 2, and if such registration has not been withdrawn or abandoned, the Company will not file or cause to be effected any other registration of any of its equity securities or securities convertible or exchangeable into or exercisable for its equity securities under the Securities Act (except on Form S-4 or S-8 or any successor or similar forms), whether on its own behalf or at the request of any holder or holders of such securities, from a period beginning on the date of a Registration Request and ending at least 180 days from the effective date of the effectiveness of such Registration Statement, and shall not be required to do so notwithstanding any other provision of this Article IIAgreement.

Priority on Secondary Registrations. (a) If a Piggyback Registration is an underwritten secondary registration offering on behalf of holders of the Company's ’s securities, and the managing underwriters advise the Company in writing that in their opinion the number of securities requested to be included in such registration exceeds the number which can be sold in such offering, the Company will include an orderly manner in such registration (i) first, offering within a price range acceptable to the holders of a majority of the securities requested to be included therein by the holders requesting such registration, (ii) second, the Registrable Securities, Series 1 Registrable Securities, the Xxxxx Securities and the Bear Xxxxxxx Securities requested to be included in such registration, provided, then the total number of securities that if the managing underwriters in good faith determine that a lower number of securities should be included, then the Company shall be required to include in the underwriting only that lower number of securities, and the holders of Registrable Securities, Series 1 Registrable Securities, Xxxxx Securities and Bear Xxxxxxx Securities who have requested registration shall participate in the underwriting pro rata based upon their total ownership, on a fully diluted basis, of any such securities requested to advise can be included in such registration shall be allocated in the following order of priority: (i) first, the number of Registrable Securities of Eligible Holders requested to be included, allocated (A) first, to any Registrable Securities requested to be included by UST, if any; (B) second, if such offering is commenced on or after the date that is one year prior to the Divestiture Date, to any Registrable Securities requested to be included by the Treasury Trust or the GM Trust, allocated pro rata among the Treasury Trust and the GM Trust on the basis of the amount of Registrable Securities owned by each such trust; if during any other period, then pursuant to the immediately following clause (C); and (iiiC) third, pro rata among the respective Eligible Holders thereof on the basis of the amount of Registrable Securities owned by each such Eligible Holder, and (ii) second, the number of other securities requested to be included which in the opinion of such registration. The Company hereby agrees that whenever it grants piggyback rights to any holder underwriters can be sold in an orderly manner within the price range of its securities after the date hereof, such holder's piggyback rights will be expressly subordinated to the piggyback rights granted to the holders of the Registrable Securities under this Article IIoffering.

Priority on Secondary Registrations. (a) If a Series H Piggyback Registration is an underwritten secondary registration on behalf of holders of the Company's securities, and the managing underwriters advise the Company in writing that in their opinion the number of securities requested to be included in such registration exceeds the number which can be sold in such offering, the Company will include in such registration (i) first, the securities requested to be included therein by the holders requesting such registration, provided that at least 25% of the shares to be included in such registration shall be Registrable Series H Securities and, in the case where such registration is not a Demand Registration, Registrable Securities with Priority Securities included before any other Registrable Series H Securities or Registrable Securities, in each case pro rata among the holders of such securities on the basis of the number of such shares requested to be included by such holders, (ii) second, the Registrable SecuritiesSeries H Securities and, Series 1 Registrable Securities, the Xxxxx Securities and the Bear Xxxxxxx Securities requested to be included in such registration, provided, that if the managing underwriters in good faith determine that a lower number of securities should be included, then the Company shall be required to include in the underwriting only that lower number of securitiescase where such registration is not a Demand Registration, and the holders of Registrable Securities, Series 1 Registrable Securities, Xxxxx Securities and Bear Xxxxxxx Securities who have requested registration shall participate in the underwriting pro rata based upon their total ownership, on a fully diluted basis, of any such securities requested to be included in such registration and not included under (i) above with Priority Securities included before any other Registrable Series H Securities or Registrable Securities, in each case pro rata among the holders of securities on the basis of the number of such shares requested to be included by such holders, (iii) third, other securities requested to be included in such registration. The Company hereby agrees that whenever it grants piggyback rights to any holder of its securities after the date hereof, such holder's piggyback rights will be expressly subordinated to the piggyback rights granted to the holders of the Registrable Securities under this Article II.

Priority on Secondary Registrations. (a) If a Piggyback Registration is consists only of an underwritten secondary registration on behalf of holders of securities of the Company's securitiesCompany (other than pursuant to Section 10(a)), and the managing underwriters advise underwriter(s) for such offering advises the Company in writing that in its/their opinion the number of securities Registrable Securities requested to be included in such registration exceeds the number which can be sold in such offeringoffering without materially adversely affecting the distribution of such securities by the Company, the Company will include in such registration (iA) first, the securities requested to be included therein by the holders requesting such registration, ; (iiB) second, the Registrable Securities, Series 1 Registrable Securities, the Xxxxx Securities and the Bear Xxxxxxx Securities requested to be included in such registration, pro rata among all such holders on the basis of the number of shares requested to be included by each such holder (provided, that if the managing underwriters person requesting registration is not a holder of Hibernia Shares, the securities to be included in good faith determine that a lower number of securities should be included, then the Company such registration under this clause (B) shall be required to include in the underwriting only that lower number of securities, Registrable Securities and the holders of Registrable Securities, Series 1 Registrable Securities, Xxxxx Securities and Bear Xxxxxxx Securities who have requested registration shall participate in the underwriting pro rata based upon their total ownership, on a fully diluted basis, of any such securities Hibernia Shares requested to be included in such registration registration, apportioned pro rata among the Holders of Registrable Securities and the holders of the Hibernia Shares); and (iiiC) third, other securities requested to be included in such registration. The Notwithstanding the foregoing, if any such underwriter shall consent to such Registrable Securities being included in the Company's registration statement but shall determine in good faith and advise the Company hereby agrees in writing that whenever it grants piggyback rights to any holder of its securities after the date hereof, such holder's piggyback rights will be expressly subordinated to the piggyback rights granted to the holders distribution of the Registrable Securities requested to be included in the registration concurrently with the securities being registered by the Company would materially adversely affect the distribution of such securities by the Company, then the Holders of such Registrable Securities shall delay their offering and sale for such period ending on the earliest of (1) 90 days following the effective date of the Company's registration statement, (2) the day upon which the underwriting syndicate, if any, for such offering shall have been disbanded or, (3) such date as the Company, managing underwriter and Holders of Registrable Securities shall otherwise agree. In the event of such delay, the Company shall file such supplements, post-effective amendments and take any such other steps as may be necessary to permit such Holders to make their proposed offering and sale for a period of 120 days immediately following the end of such period of delay. If any party disapproves of the terms of any such underwriting, it may elect to withdraw therefrom by written notice to the Company, the underwriter, and the Underwriters. Notwithstanding the foregoing, the Company shall not be required to file a registration statement to include Shares pursuant to this Section 10(b) if independent counsel, reasonably satisfactory to counsel for the Company and counsel for the Underwriters, renders an opinion to the Company that the Shares proposed to be disposed of may be transferred pursuant to the provisions of Rule 144 under this Article IIthe Act or otherwise without registration under the Act.

Priority on Secondary Registrations. (a) If a Piggyback Registration is consists only of an underwritten secondary registration on behalf of holders stockholders of securities of the Company's securities, and the managing underwriters underwriter(s) for the offering being registered by the Company advise the Company in writing that in its/their opinion the number of securities Registrable Securities requested to be included in such registration exceeds the number which can be sold in such offeringoffering without materially adversely affecting the distribution of such securities by the Company then the Company will promptly furnish the Holders of the Registrable Securities with a copy of such letter and, the Company will include in such registration (i) first, the securities requested to be included therein by the holders persons requesting such registration, (ii) registration and second, the Registrable Securities, Series 1 Registrable Securities, the Xxxxx Securities and the Bear Xxxxxxx Securities requested to be included in such registrationregistration above, providedpro rata, that if among the managing underwriters in good faith determine that a lower Holders of Registrable Securities on the basis of the number of securities should be included, then the Company shall be required to include in the underwriting only that lower number of securities, and the holders of Registrable Securities, Series 1 Registrable Securities, Xxxxx Securities and Bear Xxxxxxx Securities who have requested registration shall participate in the underwriting pro rata based upon their total ownership, on a fully diluted basis, of any such securities shares requested to be included in by each such registration and (iii) thirdstockholder, with other securities requested to be included in such registration. The Notwithstanding the foregoing, if any such underwriter shall determine in good faith and advise the Company hereby agrees in writing that whenever it grants piggyback rights to any holder of its securities after the date hereof, such holder's piggyback rights will be expressly subordinated to the piggyback rights granted to the holders distribution of the Registrable Securities requested to be included in the registration concurrently with the securities being registered by the Company would materially adversely affect the distribution of such securities by the Company, then the Holders of such Registrable Securities shall delay their offering and sale for such period ending on the earliest of (i) 90 days following the effective date of the Company's registration statement, (ii) the day upon which the underwriting syndicate, if any, for such offering shall have been disbanded or, (iii) such date as the Company, managing underwriter and Holders of Registrable Securities shall otherwise agree. In the event of such delay, the Company shall file such supplements, post-effective amendments and take any such other steps as may be necessary to permit such Holders to make their proposed offering and sale for a period of ninety (90) days immediately following the end of such period of delay. If any party disapproves of the terms of any such underwriting, it may elect to withdraw therefrom by written notice to the Company, the underwriter, and the Holders. Notwithstanding the foregoing, the Company shall not be required to file a Registration Statement to include Registrable Securities pursuant to this Section 1 if an opinion of independent counsel, reasonably satisfactory to counsel for the Company and counsel for the Holders, shall have been delivered to counsel for the Company, stating that all of the Registrable Securities proposed to be disposed of may be transferred pursuant to the provisions of Rule 144 under this Article IIthe Act.

Priority on Secondary Registrations. (a) If a Piggyback Registration is relates to an underwritten secondary registration on behalf of holders of the Company's securities’s securities other than the Holders of Registrable Securities, and the managing underwriters Underwriters advise the Company (a copy of such notice if in writing or prompt communication of the content of such notice, if oral, to be provided by the Company to each Holder requesting registration) that in their opinion the number of securities requested to be included in such registration exceeds the number which can be sold in such without materially adversely affecting the successful marketability of the offering, the Company will include in such registration only such number of securities that in the opinion of such Underwriters can be sold without materially adversely affecting the successful marketability of the offering, which securities will be so included in the following order of priority: (i) first, the securities requested to be included therein by the holders requesting such registration, (ii) second, registration and the Registrable Securities, Series 1 Registrable Securities, the Xxxxx Securities and the Bear Xxxxxxx Securities requested to be included in such registration, provided, that if pro rata among the managing underwriters in good faith determine that a lower holders of such securities and Registrable Securities on the basis of the number of securities should be included, then the Company shall be required to include in the underwriting only that lower number of securities, and the holders of Registrable Securities, Series 1 Registrable Securities, Xxxxx Securities and Bear Xxxxxxx Securities who have requested registration shall participate in the underwriting pro rata based upon their total ownership, on a fully diluted basis, of any such securities so requested to be included in therein owned by each such registration holder, and (iiiii) thirdsecond, other securities requested to be included in such registration. The ; provided, however, that in the event the Company hereby agrees that whenever it grants piggyback rights to will not, by virtue of this Section 2(e), include in any holder of its securities after the date hereof, such holder's piggyback rights will be expressly subordinated to the piggyback rights granted to the holders registration all of the Registrable Securities under this Article IIof any Holder requested to be included in such registration, such Holder may, upon written notice to the Company given within three days of the time such Holder first is notified of such matter, reduce the amount of Registrable Securities it desires to have included in such registration, whereupon only the Registrable Securities, if any, it desires to have included will be so included and the Holders not so reducing shall be entitled to a corresponding increase in the amount of Registrable Securities to be included in such registration. Notwithstanding the foregoing, any employee of the Company or any subsidiary thereof will not be entitled to participate, directly or indirectly, in any such registration to the extent that the managing Underwriter determines in good faith that the participation of such employee in such registration would adversely affect the marketability or offering price of the securities being sold in such registration.

Priority on Secondary Registrations. (a) If a Piggyback Registration is an ----------------------------------- underwritten secondary registration on behalf of holders of the Company's securitiessecurities (other than the holders of Investor Registrable Securities), and the managing underwriters advise the Company in writing that in their opinion the number of securities requested to be included in such registration exceeds the number which can be sold in such offering without adversely affecting the marketability of the offering, the Company will shall include in such registration (i) first, the securities requested to be included therein by the holders requesting such registration, (ii) second, registration and the Registrable Securities, Series 1 Registrable Securities, the Xxxxx Securities and the Bear Xxxxxxx Securities requested to be included in such registration, provided, that if pro rata among the managing underwriters in good faith determine that a lower holders of such securities on the basis of the number of securities should be included, then the Company shall be required to include in the underwriting only that lower number of securities, and the holders of Registrable Securities, Series 1 Registrable Securities, Xxxxx Securities and Bear Xxxxxxx Securities who have requested registration shall participate in the underwriting pro rata based upon their total ownership, on a fully diluted basis, of any owned by each such securities requested to be included in such registration holder and (iiiii) thirdsecond, any other securities requested to be included in such registration. The Company hereby agrees that whenever it grants piggyback rights ; provided -------- that, notwithstanding the foregoing, in connection with the first two ---- registrations of Investor Registrable Securities pursuant to this Agreement (whether pursuant to a Demand Registration or a Piggyback Registration), if any holder such registration is to be made in connection with an underwritten secondary registration on behalf of its holders of the Company's securities after the date hereof, such holder's piggyback rights will be expressly subordinated to the piggyback rights granted to (other than the holders of Investor Registrable Securities), the Company shall include (i) first, the securities requested to be included therein by the holders requesting such registration and the Investor Registrable Securities under requested to be included in such registration, pro rata among the holders of such securities on the basis of the number of securities owned by each such holder, (ii) second, the Founder Registrable Securities requested to be included in such registration, pro rata among the holders of such Founder Registrable Securities on the basis of the number of Founder Registrable Securities owned by each such holder and (iii) third, any other securities requested to be included in such registration (it being understood, however, that neither the last nor any subsequent registration subject to this Article IIproviso shall count as one of the two registrations subject to this proviso unless the holders of Investor Registrable Securities are able to register and sell at least 75% of the Investor Registrable Securities requested to be included in such registration).

Priority on Secondary Registrations. (a) If a Piggyback Registration is solely an underwritten secondary registration on behalf of holders of the Company's securities, and the managing underwriters advise the Company in writing that in their opinion the number of securities requested to be included in such registration exceeds the number which can be sold in such offering without adversely affecting the marketability of the offering, then, (A) if such Piggyback Registration is filed under the Securities Act on or prior to the end of the 42nd month after the month in which the Closing under the Purchase Agreement occurs, the Company will shall include in such registration (i) first, the Registrable Securities requested to be included in such registration, pro rata among the holders of such Registrable Securities on the basis of the number of shares owned by each such holder, (ii) second, the securities requested to be included therein by the holders requesting such registration, (ii) second, the Registrable Securities, Series 1 Registrable Securities, the Xxxxx Securities and the Bear Xxxxxxx Securities requested to be included in such registration, provided, that if the managing underwriters in good faith determine that a lower number of securities should be included, then the Company shall be required to include in the underwriting only that lower number of securities, and the holders of Registrable Securities, Series 1 Registrable Securities, Xxxxx Securities and Bear Xxxxxxx Securities who have requested registration shall participate in the underwriting pro rata based upon their total ownership, on a fully diluted basis, of any such securities requested to be included in such registration and (iii) third, other securities requested to be included in such registration. The Company hereby agrees that whenever it grants piggyback rights to any holder of its securities ; and (B) if such Piggyback Registration is filed under the Securities Act after the date hereofend of the 42nd month after the month in which the Closing under the Purchase Agreement occurs, the Company shall include in such holder's piggyback rights will registration the Registrable Securities and all other securities requested to be expressly subordinated to the piggyback rights granted to included in such registration, pro rata among the holders of such Registrable Securities and other securities on the basis of the number of shares owned by each holder thereof. provided, however, that notwithstanding clauses (A) and (B) above, if an offering of Registrable Securities (as defined in the Warrant Registration Agreement) by the Holders (as defined in the Warrant Registration Agreement) in accordance with the Warrant Registration Agreement is a Shelf Registration (as defined in the Warrant Registration Agreement) effected in the form of an underwritten offering of Warrant Shares (as defined in the Warrant Registration Agreement), the Company shall include in such registration first, the Registrable Securities under this Article II(as defined in the Warrant Registration Agreement) pro rata among the Holders (as defined in the Warrant Registration Agreement) of such Warrant Shares (as defined in the Warrant Registration Agreement) on the basis of the number of Warrant Shares (as defined in the Warrant Registration Agreement) requested to be included by such Holders (as defined in the Warrant Registration Agreement), and then shall include Registrable Securities and other securities in accordance with the applicable provisions of clauses (A) and (B) above.

Priority on Secondary Registrations. (a) If a Piggyback Registration is an underwritten secondary registration on behalf of holders of the Company's securitiessecurities (other than the holders of Investor Registrable Securities), and the managing underwriters advise the Company in writing that in their opinion the number of securities requested to be included in such registration exceeds the number which can be sold in such offering without adversely affecting the marketability of the offering, the Company will shall include in such registration (i) first, the securities requested to be included therein by the holders requesting such registration, (ii) second, registration and the Registrable Securities, Series 1 Registrable Securities, the Xxxxx Securities and the Bear Xxxxxxx Securities requested to be included in such registration, provided, that if pro rata among the managing underwriters in good faith determine that a lower holders of such securities on the basis of the number of securities should be included, then the Company shall be required to include in the underwriting only that lower number of securities, and the holders of Registrable Securities, Series 1 Registrable Securities, Xxxxx Securities and Bear Xxxxxxx Securities who have requested registration shall participate in the underwriting pro rata based upon their total ownership, on a fully diluted basis, of any owned by each such securities requested to be included in such registration holder and (iii) thirdii)second, any other securities requested to be included in such registration. The Company hereby agrees that whenever it grants piggyback rights ; PROVIDED THAT, notwithstanding the foregoing, in connection with the first two registrations of Investor Registrable Securities pursuant to this Agreement (whether pursuant to a Demand Registration or a Piggyback Registration), if any holder such registration is to be made in connection with an underwritten secondary registration on behalf of its holders of the Company's securities after the date hereof, such holder's piggyback rights will be expressly subordinated to the piggyback rights granted to (other than the holders of Investor Registrable Securities), the Company shall include (i) first, the securities requested to be included therein by the holders requesting such registration and the Investor Registrable Securities under requested to be included in such registration, pro rata among the holders of such securities on the basis of the number of securities owned by each such holder, (ii) second, the Other Registrable Securities requested to be included in such registration, pro rata among the holders of such Other Registrable Securities on the basis of the number of Other Registrable Securities owned by each such holder and (iii) third, any other securities requested to be included in such registration (it being understood, however, that neither the last nor any subsequent registration subject to this Article IIproviso shall count as one of the two registrations subject to this proviso unless the holders of Investor Registrable Securities are able to register and sell at least 75% of the Investor Registrable Securities requested to be included in such registration).

Priority on Secondary Registrations. (a) If a Piggyback Registration is an underwritten secondary registration on behalf of holders of securities of the Company's securities, and the managing underwriters advise underwriter thereof advises the Company in writing that in their it its opinion the number of securities Shares requested to be included in such registration statement exceeds the number which can be sold in such offeringoffering without materially adversely affecting the distribution of such securities, then the Company will include in such registration (i) first, statement the securities requested to be included therein by the holders requesting such registration, (ii) second, the Registrable Securities, Series 1 Registrable Securities, the Xxxxx Securities and the Bear Xxxxxxx Securities requested to be included in such registration, provided, that if the managing underwriters in good faith determine that a lower number of securities should be included, then the Company shall be required to include in the underwriting only that lower number of securities, and the holders of Registrable Securities, Series 1 Registrable Securities, Xxxxx Securities and Bear Xxxxxxx Securities who have requested registration shall participate in the underwriting pro rata based upon their total ownership, on a fully diluted basis, of any such securities requested to be included in such registration statement by selling, Securityholders on a pro rata basis, with such rights to inclusion being apportioned among the Warrant Holder and (iii) third, the other holders of any other securities requesting registration according to the market value of Shares and other securities requested by them, respectively, to be included registered. Notwithstanding the foregoing the Company shall not be required to include Shares within the coverage of a registration statement being filed pursuant to this Paragraph 9 (a) (ii) if, in the opinion of counsel for both the Company and Warrant Holder, all of the Shares proposed to be registered may be immediately transferred pursuant to the provisions of Rule 144 under the Securities Act. (b) If at any time after August 4, 1998 and prior to the third (-')rd) anniversary of the earlier of the expiration of the Warrant herein granted and the purchase of the final Shares remaining, subject to such registrationWarrant Shares issued or issuable upon exercise of the Warrant herein granted are not then registered under one or more Piggyback Registrations and then covered by a prospectus complying with the requirements of the Securities Act, the Warrant Holder i-nay by written notice to the Company require Company to file a registration statement Lender the Securities Act covering Such Shares as Warrant Holder may specify In Such notice. Warrant Holder shall be entitled so to require Company to file a registration statement pursuant to this Paragraph 7 (b) on only one (1) occasion. The Company hereby agrees that whenever it grants piggyback rights will file such a registration statement within ninety (90) days of receipt of such notice; and thereafter will prosecute such registration statement diligently to effectiveness, will cause such registration statement to become effective as promptly as practicable; will promptly file all such supplements and post-effective amendments to such registration statement and take any holder such other actions as may be necessary or appropriate to make available to Warrant Holder on as continuous a basis as is practicable a prospectus meeting the requirements of its securities after the Securities Act through the earliest of (a) the date hereofon which the final Shares have been sold and distributed by Warrant Holder, such holder's piggyback rights will (b) the date on which, in the opinion of counsel for both the Company and Warrant Holder, all of the Shares which Warrant Holder then holds may be expressly subordinated immediately transferred pursuant to the piggyback rights granted provisions of Rule 144 under the Securities Act, and (c) August 4, 2004. In that regard, the Company makes no representations or warranties as to its ability to have any registration statement or post-effective amendment thereto declared effective. (c) In the event of any registration of a security pursuant to this Paragraph 7, the Company shall indemnify the Warrant Holder and its officers and directors against all losses, claims, damages and liabilities caused by any untrue statement or alleged untrue statement of a material fact contained in any registration statement or prospectus (and as amended or supplemented) relating to such registration, or caused by any omission or alleged omission to state a material fact required to be stated therein or necessary to make the statement therein not misleading in light of the circumstances under which they are made unless such statement or omission was made in reliance upon and in conformity with information furnished to the holders Company by the Warrant Holder with expressly for use therein. The Warrant Holder shall also indemnify the Company, its officers and directors and each underwriter of the Registrable Securities under Shares so registered with respect to losses, claims damages and Shares so registered with respect to losses, claims damages and liabilities caused by an untrue statement or omission made in reliance upon and in conformity with information furnished by the Warrant Holder to the Company in writing expressly for use in such registration statement or prospectus. (d) All expenses of any registration referred to in this Article IIParagraph 7, except the fees and disbursement of counsel to the Warrant Holder, underwriting commissions or discounts and any transfer or other taxes applicable to the transfer of Shares by the Warrant Holder, shall be borne by the Company. (e) Following the exercise of the Warrant hereunder, the Warrant Holder shall promptly advise the Company when Warrant Holder no longer holds any shares acquired through the exercise of Warrants granted hereunder, and upon the request of the Company, the Warrant Holder shall advise the Company from time to time of the number of Shares then held by Warrant Holder which were acquired through the exercise of Warrants granted hereunder.

Priority on Secondary Registrations. (a) If a Piggyback Registration piggyback registration is initiated as an underwritten secondary registration on behalf of holders shares of Common Stock (other than the Registrable Shares) owned by securityholders of the Company's securities, and the managing underwriters advise underwriter advises the Company in writing its reasonable opinion that in their opinion the number of securities shares of Common Stock requested to be included in such registration exceeds the number which that can be sold in such offering without having a Material Adverse Effect on such offering, then the Company will shall include in such registration the maximum number of shares that such underwriter advises can be so sold without having such Material Adverse Effect, allocated (i) if such registration is initiated pursuant to demand registration rights contained in one or more of the agreements listed on Schedule 2.1(d) (as in effect on the date hereof) (each such agreement is referred to herein as an “Existing Rights Agreement”), (1) first, the securities requested to be included therein by the holders requesting such registration, shares of Common Stock (ii) second, other than the Registrable Securities, Series 1 Registrable Securities, the Xxxxx Securities and the Bear Xxxxxxx Securities Shares) requested to be included in such registrationsecondary registration by holder(s) of Common Stock then entitled to such registration pursuant to such Existing Rights Agreement, provided(2) second, that if to Registrable Shares requested by Holders to be included in such piggyback registration allocated among such requesting Holders on a pro rata basis based on the managing underwriters in good faith determine that a lower number of securities should be includedshares of Common Stock owned or in such other manner as the Holders may agree, then and (3) third, to shares of Common Stock the Company shall be required proposes to include in the underwriting only that lower number sell and to other shares of securities, and the holders of Registrable Securities, Series 1 Registrable Securities, Xxxxx Securities and Bear Xxxxxxx Securities who have requested registration shall participate in the underwriting pro rata based upon their total ownership, on a fully diluted basis, of any such securities Common Stock requested to be included in such piggyback registration on a pro rata basis based on the number of shares of Common Stock owned or in such other manner as the Company and (iii) thirdsuch holders may agree; provided, other securities however, that if the Registrable Shares may be allocated in such registration at a higher priority pursuant to the terms of the applicable Existing Rights Agreement, then the Registrable Shares requested to be included in such registration. The Company hereby agrees that whenever it grants piggyback secondary registration by holder(s) of Common Stock then entitled to such registration shall be allocated pursuant to the terms of such Existing Rights Agreement, or (ii) if such registration is initiated pursuant to demand registration rights to any holder of its securities granted after the date hereofhereof (each such agreement is referred to herein as a “Subsequent Rights Agreement”), (1) first, to shares of Common Stock (including Registrable Shares) requested to be included in such holder's piggyback rights will secondary registration by holder(s) of Common Stock then entitled to such registration pursuant to agreements with the Company on a pro rata basis based on the number of shares of Common Stock requested to be expressly subordinated to the piggyback rights granted to included or in such other manner as the holders of such securities may agree, and (2) second, to shares of Common Stock the Company proposes to sell and to other shares of Common Stock requested to be included in such piggyback registration on a pro rata basis based on the number of shares of Common Stock requested to be included or in such other manner as the Company and such holders may agree; provided, however, that if the Registrable Securities under this Article IIShares may be allocated in such registration at a higher priority pursuant to the terms of the applicable Subsequent Rights Agreement, then the Registrable Shares requested to be included in such secondary registration by holder(s) of Common Stock then entitled to such registration shall be allocated pursuant to the terms of such Subsequent Rights Agreement.

Priority on Secondary Registrations. (a) If a Piggyback Registration is an underwritten secondary registration on behalf of holders of the Company's securities, and the managing underwriters advise underwriter advises the Company in writing that in their opinion the number of Registrable Securities requested to be included exceeds the number of Registrable Securities which can be included in such registration within a price range acceptable to the holders of the Company's securities on whose behalf the registration is being effected, the Company will include any securities to be sold in such registration in the following order: (a) first, the securities which such holders propose to sell; (b) second, the Registrable Securities requested to be included in such registration exceeds the number which can be sold in such offering, the Company will include in such registration (i) first, the securities requested to be included therein by the holders requesting such registrationPiggyback Holders, (ii) second, the Registrable Securities, Series 1 Registrable Securities, the Xxxxx Securities and the Bear Xxxxxxx Securities requested to be included in such registration, provided, provided that if the managing underwriters underwriter determines in good faith determine that a lower number of securities Registrable Securities should be included, then the Company shall be required to include in the underwriting such registration only that lower number of securitiesRegistrable Securities, and the holders of Registrable Securities, Series 1 Registrable Securities, Xxxxx Securities and Bear Xxxxxxx Securities who have requested registration Piggyback Holders shall participate in the underwriting such registration on a pro rata based upon their total ownership, on a fully diluted basis, basis in accordance with the number of any such securities Registrable Securities requested to be included in such registration by each Piggyback Holder, provided, further, that if the managing underwriter determines in good faith that a lower number of Registrable Securities held by Management Stockholders and Additional Management Stockholders than such pro rata portion should be included, then such lower number shall be included and, as a result thereof, a greater number of Registrable Securities owned by the other Stockholders may be sold; and (iiic) third, any other securities requested proposed to be included in such registration. The Company hereby agrees that whenever it grants piggyback rights to any holder of its securities after the date hereof, such holder's piggyback rights will be expressly subordinated to the piggyback rights granted to the holders of the Registrable Securities under this Article II.

Priority on Secondary Registrations. (a) If a Piggyback Registration is consists only of an underwritten secondary registration on behalf of holders of securities of the Company's securities, and the managing underwriters advise underwriter(s) for such offering advises the Company in writing that in its/their opinion the number of securities Registrable Securities requested to be included in such registration exceeds the number which can be sold in such offeringoffering without materially adversely affecting the distribution of such securities, the Company will include in such registration (iA) first, the securities requested to be included therein by the holders requesting such registration, and (iiB) second, the Registrable Securities, Series 1 Registrable Securities, the Xxxxx Securities and the Bear Xxxxxxx Securities requested to be included in such registration, provided, that if the managing underwriters in good faith determine that a lower number registration and securities of securities should be included, then the Company shall be required to include in the underwriting only that lower number holder of securities, and the holders of Registrable Securities, Series 1 Registrable Securities, Xxxxx Securities and Bear Xxxxxxx Securities who have requested registration shall participate in the underwriting pro rata based upon their total ownership, on a fully diluted basis, of any such other securities requested to be included in such registration statement, pro rata among all such holders on the basis of the number of shares requested to be included by each such holder, provided, however, the Company will use its best efforts to include not less than 20% of the Registrable Securities. Notwithstanding the foregoing, if any such underwriter shall determine in good faith and (iii) third, other securities advise the Company in writing that the distribution of the Registrable Securities requested to be included in the registration concurrently with the securities being registered by the Company would materially adversely affect the distribution of such registration. The Company hereby agrees that whenever it grants piggyback rights to any holder of its securities after by the date hereofCompany, such holder's piggyback rights will be expressly subordinated to the piggyback rights granted to then the holders of such Registrable Securities shall delay their offering and sale for such period ending on the earliest of (1) 90 days following the effective date of the Company’s registration statement, (2) the day upon which the underwriting syndicate, if any, for such offering shall have been disbanded or, (3) such date as the Company, managing underwriter and holders of Registrable Securities shall otherwise agree. In the event of such delay, the Company shall file such supplements, post-effective amendments and take any such other steps as may be necessary to permit such holders to make their proposed offering and sale for a period of 120 days immediately following the end of any such period of delay. If any party disapproves the terms of any such underwriting, it may elect to withdraw therefrom by written notice to the Company, the underwriter, and the holder. Notwithstanding the foregoing, the Company shall not be required to file a registration statement to include shares pursuant to this Section 12 if independent counsel, reasonably satisfactory to the Company, renders an opinion to the Company that the Registrable Securities proposed to be disposed of may be transferred pursuant to the provisions of Rule 144 under this Article IIthe Securities Act or otherwise without registration under the Securities Act.

Priority on Secondary Registrations. (a) If a Piggyback Registration is consists only of an underwritten secondary registration on behalf of holders of securities of the Company's securitiesCOMPANY, and the managing underwriters advise underwriter(s) for such offering advises the Company COMPANY in writing that in its/their opinion the number of securities Registrable Securities requested to be included in such registration exceeds the number which can be sold in such offeringoffering without materially adversely affecting the distribution of such securities, the Company COMPANY will include in such registration (i1) first, the securities requested to be included therein by the holders requesting such registration, and (ii2) second, the Registrable Securities, Series 1 Registrable Securities, the Xxxxx Securities and the Bear Xxxxxxx Securities requested to be included in such registration, provided, that if the managing underwriters in good faith determine that a lower number registration and securities of securities should be included, then the Company shall be required to include in the underwriting only that lower number holder of securities, and the holders of Registrable Securities, Series 1 Registrable Securities, Xxxxx Securities and Bear Xxxxxxx Securities who have requested registration shall participate in the underwriting pro rata based upon their total ownership, on a fully diluted basis, of any such other securities requested to be included in such registration statement, pro rata among all such holders on the basis of the number of shares requested to be included by each such holder, provided, however, the COMPANY will use its best efforts to include not less than 20% of the Registrable Securities. Notwithstanding the foregoing, if any such underwriter shall determine in good faith and (iii) third, other securities advise the COMPANY in writing that the distribution of the Registrable Securities requested to be included in the registration concurrently with the securities being registered by the COMPANY would materially adversely affect the distribution of such registration. The Company hereby agrees that whenever it grants piggyback rights to any holder of its securities after by the date hereofCOMPANY, such holder's piggyback rights will be expressly subordinated to the piggyback rights granted to then the holders of such Registrable Securities shall delay their offering and sale for such period ending on the earliest of (x) 90 days following the effective date of the COMPANY's registration statement, (y) the day upon which the underwriting syndicate, if any, for such offering shall have been disbanded or, (z) such date as the COMPANY, managing underwriter and holders of Registrable Securities shall otherwise agree. In the event of such delay, the COMPANY shall file such supplements, post-effective amendments and take any such other steps as may be necessary to permit such holders to make their proposed offering and sale for a period of 120 days immediately following the end of any such period of delay. If any party disapproves the terms of any such underwriting, it may elect to withdraw therefrom by written notice to the COMPANY, the underwriter, and the holder. Notwithstanding the foregoing, the COMPANY shall not be required to file a registration statement to include shares pursuant to this Article VI if independent counsel, reasonably satisfactory to the COMPANY, renders an opinion to the COMPANY that the Registrable Securities proposed to be disposed of may be transferred pursuant to the provisions of Rule 144 under this Article IIthe Securities Act or otherwise without registration under the Securities Act.

Priority on Secondary Registrations. (a) If a Piggyback Registration is an underwritten secondary registration on behalf of holders of the Company's ’s securities, other than a Demand Registration pursuant to Section 2, and the managing underwriters advise the Company in writing that in their opinion the number of securities requested to be included in such registration exceeds the number which can be sold in an orderly manner in such offeringoffering within a price range acceptable to the holders of a majority of the securities to be included in such registration, then the Company will include total number of securities that the managing underwriters advise can be included in such registration shall be allocated in the following order of priority: (i) first, pro rata among VGG Holding and the securities requested to be included therein Class A Holders on the basis of the amount of Registrable Securities owned by the holders requesting such registration, them; (ii) second, the number of Registrable SecuritiesSecurities requested to be included, Series 1 pro rata among the Class B Holders on the basis of the amount of Registrable SecuritiesSecurities owned by them; and (iii) third, the Xxxxx Securities and the Bear Xxxxxxx Securities number of other securities requested to be included in such registration. Notwithstanding anything herein to the contrary, provided, that if the managing underwriters advise the Company that in good faith determine that a lower number their opinion the total amount of securities should securities, including Registrable Securities, requested by the management employees of the Company to be includedincluded in such offering exceeds the amount advisable to be sold for the offering to be successfully offered, then the Company shall be required to include in the underwriting offering only that lower number of securities, and the holders of including Registrable Securities, Series 1 Registrable Securities, Xxxxx Securities and Bear Xxxxxxx Securities who have requested registration shall participate in of management employees of the underwriting pro rata based upon their total ownership, on a fully diluted basis, of any such securities requested to be included in such registration and (iii) third, other securities requested to be included in such registration. The Company hereby agrees that whenever it grants piggyback rights to any holder of its securities after which the date hereof, such holder's piggyback rights managing underwriters believe will be expressly subordinated to advisable for the piggyback rights granted to the holders success of the Registrable Securities under this Article IIoffering.

Priority on Secondary Registrations. (a) If a Piggyback Registration is an underwritten secondary registration on behalf of holders of the Company's securitiesOther Registrable Securities, and the managing underwriters advise the Company in writing that in their opinion the number of securities requested to be included in such registration exceeds the number which can be sold in an orderly manner in such offeringoffering within a price range acceptable to the holders of a majority of the Registrable Securities to be included in such registration, the Company will shall include in such registration (i) first, the securities requested to be included therein by the holders of Other Registrable Securities requesting such registration, (ii) second, the Investor Registrable Securities, Series 1 Registrable Securities, the Xxxxx Securities and the Bear Xxxxxxx Securities requested to be included in such registration, provided, that if the managing underwriters in good faith determine that a lower number of securities should be included, then the Company shall be required to include in the underwriting only that lower number of securities, and pro rata among the holders of such Investor Registrable Securities, Series 1 Registrable Securities, Xxxxx Securities and Bear Xxxxxxx Securities who have requested registration shall participate in on the underwriting pro rata based upon their total ownership, on a fully diluted basis, basis of any the number of shares owned by such securities requested to be included in such registration and holders; (iii) third, other securities the Seller Registrable Securities requested to be included in such registration. The Company hereby agrees that whenever it grants piggyback rights to any holder of its securities after the date hereof, such holder's piggyback rights will be expressly subordinated to the piggyback rights granted to pro rata among the holders of the such Seller Registrable Securities under this Article II.on the basis of the number of shares owned by such holders; (iv) fourth, the Management Registrable Securities requested to be included in such registration, pro rata among the holders of such Management Registrable Securities on the basis of the number of shares owned by

Priority on Secondary Registrations. (a) If a Piggyback Registration is an underwritten secondary registration on behalf of holders of the Company's securitiessecurities (other than the holders of Investor Registrable Securities), and the managing underwriters advise the Company in writing that in their opinion the number of securities requested to be included in such registration exceeds the number which can be sold in such offering without adversely affecting the marketability of the offering, the Company will shall include in such registration (i) first, the securities requested to be included therein by the holders requesting such registration, (ii) second, registration and the Registrable Securities, Series 1 Registrable Securities, the Xxxxx Securities and the Bear Xxxxxxx Securities requested to be included in such registration, provided, that if pro rata among the managing underwriters in good faith determine that a lower holders of such securities on the basis of the number of securities should be included, then the Company shall be required to include in the underwriting only that lower number of securities, and the holders of Registrable Securities, Series 1 Registrable Securities, Xxxxx Securities and Bear Xxxxxxx Securities who have requested registration shall participate in the underwriting pro rata based upon their total ownership, on a fully diluted basis, of any owned by each such securities requested to be included in such registration holder and (iiiii) thirdsecond, any other securities requested to be included in such registration. The Company hereby agrees that whenever it grants piggyback rights ; provided that, notwithstanding the foregoing, in connection with the first two registrations of Investor Registrable Securities pursuant to this Agreement (whether pursuant to a Demand Registration or a Piggyback Registration), if any holder such registration is to be made in connection with an underwritten secondary registration on behalf of its holders of the Company's securities after the date hereof, such holder's piggyback rights will be expressly subordinated to the piggyback rights granted to (other than the holders of Investor Registrable Securities), the Company shall include (i) first, the securities requested to be included therein by the holders requesting such registration and the Investor Registrable Securities under requested to be included in such registration, pro rata among the holders of such securities on the basis of the number of securities owned by each such holder, (ii) second, the Other Registrable Securities requested to be included in such registration, pro rata among the holders of such Other Registrable Securities on the basis of the number of Other Registrable Securities owned by each such holder and (iii) third, any other securities requested to be included in such registration (it being understood, however, that neither the last nor any subsequent registration subject to this Article IIproviso shall count as one of the two registrations subject to this proviso unless the holders of Investor Registrable Securities are able to register and sell at least 75% of the Investor Registrable Securities requested to be included in such registration).

Priority on Secondary Registrations. (a) If a Piggyback Registration is consists only of an underwritten secondary registration on behalf of holders of securities of the Company's securitiesCompany (other than pursuant to Section 10(a)), and the managing underwriters underwriter(s) for the offering being registered by the Company advise the Company in writing that in its/their opinion the number of securities Registrable Securities requested to be included in such registration exceeds the number which can be sold in such offeringoffering without materially adversely affecting the distribution of such securities by the Company, the Company will include in such registration (iA) first, the securities requested to be included therein by the holders requesting such registration, (ii) second, registration and the Registrable Securities, Series 1 Registrable Securities, the Xxxxx Securities and the Bear Xxxxxxx Securities requested to be included in such registrationregistration above, providedpro rata, that if among all such holders on the managing underwriters in good faith determine that a lower basis of the number of securities should be included, then the Company shall be required to include in the underwriting only that lower number of securities, and the holders of Registrable Securities, Series 1 Registrable Securities, Xxxxx Securities and Bear Xxxxxxx Securities who have requested registration shall participate in the underwriting pro rata based upon their total ownership, on a fully diluted basis, of any such securities shares requested to be included in by each such registration holder and (iiiB) thirdsecond, other securities requested to be included in such registration. The Notwithstanding the foregoing if any such underwriter shall determine in good faith and advise the Company hereby agrees in writing that whenever it grants piggyback rights to any holder the distribution of its securities after the date hereof, such holder's piggyback rights will be expressly subordinated to the piggyback rights granted to the holders of the Registrable Securities requested to be included in the registration concurrently with the securities being registered by the Company would materially adversely affect the distribution of such securities by the Company, then the Holders of such Registrable Securities shall delay their offering for such period ending on the earliest of (1) 90 days following the effective date of the Company's registration statement, (2) the day upon which the underwriting syndicate, if any, for such offering shall have been disbanded or, (3) such date as the Company, managing underwriter and Holders of Registrable Securities shall otherwise agree. In the event of such delay, the Company shall file such supplements, post-effective amendments and take any such other steps as may be necessary to permit such Holders to make their proposed offering and sale for a period of 120 days immediately following the end of such period of delay. If any party disapproves of the terms of 10 12 any, such underwriting, it may elect to withdraw therefrom by written notice to the Company, the underwriter, and Underwriter. Notwithstanding the foregoing, the Company shall not be required to file a registration statement to include Shares pursuant to this Section 10(b) if an opinion of independent counsel, reasonably satisfactory to counsel for the Company and counsel for Underwriter, that the Shares proposed to be disposed of may be transferred pursuant to the provisions of Rule 144 under this Article IIthe Act, shall have been delivered to counsel for the Company.

Priority on Secondary Registrations. (a) If a Piggyback Registration is consists only of an underwritten secondary registration on behalf of holders of securities of the Company's securitiesCompany (other than pursuant to Section 10(a)), and the managing underwriters underwriter(s) for the offering being registered by the Company advise the Company in writing that in its/their opinion the number of securities Registrable Securities requested to be included in such registration exceeds the number which can be sold in such offeringoffering without materially adversely affecting the distribution of such securities by the Company, the Company will include in such registration (iA) first, the securities requested to be included therein by the holders requesting such registration, (ii) second, registration and the Registrable Securities, Series 1 Registrable Securities, the Xxxxx Securities and the Bear Xxxxxxx Securities requested to be included in such registrationregistration above, providedpro rata, that if among all such holders on the managing underwriters in good faith determine that a lower basis of the number of securities should be included, then the Company shall be required to include in the underwriting only that lower number of securities, and the holders of Registrable Securities, Series 1 Registrable Securities, Xxxxx Securities and Bear Xxxxxxx Securities who have requested registration shall participate in the underwriting pro rata based upon their total ownership, on a fully diluted basis, of any such securities shares requested to be included in by each such registration holder and (iiiB) thirdsecond, other securities requested to be included in such registration. The Notwithstanding the foregoing, if any such underwriter(s) shall determine in good faith and advise the Company hereby agrees in writing that whenever it grants piggyback rights to any holder of its securities after the date hereof, such holder's piggyback rights will be expressly subordinated to the piggyback rights granted to the holders distribution of the Registrable Securities requested to be included in the registration concurrently with the securities being registered by the Company would materially adversely affect the distribution of such securities by the Company, then the Holders of such Registrable Securities shall not participate in the Company's distribution by the underwriter(s) and shall delay their offering and sale for such period ending on the earliest of (1) 90 days following the effective date of the Company's registration statement, (2) the day upon which the underwriting syndicate, if any, for such offering shall have been disbanded or (3) such date as the Company, managing underwriter and Holders of Registrable Securities shall not participate in the Company's distribution by the underwriter(s) and shall otherwise agree. In the event of such delay, the Company shall file such supplements, post-effective amendments and take any such other steps as may be necessary to permit such Holders to make their proposed offering and sale for a period of 120 days immediately following the end of such period of delay. If any party disapproves of the terms of any such underwriting, it may elect to withdraw therefrom by written notice to the Company, the underwriter, and Xxxxxxxxx Xxxx. Notwithstanding the foregoing, the Company shall not be required to file a registration statement to include Shares pursuant to this Section 10(b) if an opinion of counsel, reasonably satisfactory to counsel for Xxxxxxxxx Xxxx, that the Shares proposed to be disposed of may be transferred pursuant to the provisions of Rule 144 under this Article IIthe Act shall have been delivered to the Company and Xxxxxxxxx Xxxx.

Priority on Secondary Registrations. (a) If a Piggyback Registration is consists only of an underwritten secondary registration on behalf of holders of securities of the Company's securitiesIssuer, and the managing underwriters advise underwriter(s) for such offering advises the Company Issuer in writing that in its/their opinion the number of securities Warrant Shares requested to be included in such registration exceeds the number which can be sold in such offeringoffering without materially adversely affecting the distribution of such securities, the Company Issuer will include in such registration (iA) first, the securities requested to be included therein by the holders requesting such registration, and (iiB) second, the Registrable Securities, Series 1 Registrable Securities, the Xxxxx Securities and the Bear Xxxxxxx Securities Warrant Shares requested to be included in such registration, provided, that if the managing underwriters in good faith determine that a lower number registration and securities of securities should be included, then the Company shall be required to include in the underwriting only that lower number holder of securities, and the holders of Registrable Securities, Series 1 Registrable Securities, Xxxxx Securities and Bear Xxxxxxx Securities who have requested registration shall participate in the underwriting pro rata based upon their total ownership, on a fully diluted basis, of any such other securities requested to be included in such registration statement, pro rata among all such holders on the basis of the number of shares requested to be included by each such holder, provided, however, the Issuer will use its best efforts to include not less than 20% of the Warrant Shares. Notwithstanding the foregoing, if any such underwriter shall determine in good faith and (iii) third, other securities advise the Issuer in writing that the distribution of the Warrant Shares requested to be included in the registration concurrently with the securities being registered by the Issuer would materially adversely affect the distribution of such registration. The Company hereby agrees that whenever it grants piggyback rights to any holder of its securities after by the date hereofIssuer, such holder's piggyback rights will be expressly subordinated to the piggyback rights granted to then the holders of such Warrant Shares shall delay their offering and sale for such period ending on the Registrable earliest of (1) 90 days following the effective date of the Issuer's registration statement, (2) the day upon which the underwriting syndicate, if any, for such offering shall have been disbanded or, (3) such date as the Issuer, managing underwriter and holders of Warrant Shares shall otherwise agree. In the event of such delay, the Issuer shall file such supplements, post-effective amendments and take any such other steps as may be necessary to permit such holders to make their proposed offering and sale for a period of 120 days immediately following the end of any such period of delay. If any party disapproves the terms of any such underwriting, it may elect to withdraw therefrom by written notice to the Issuer, the underwriter, and the holder. Notwithstanding the foregoing, the Issuer shall not be required to file a registration statement to include shares pursuant to this Section 8 if independent counsel, reasonably satisfactory to the Issuer, renders an opinion to the Issuer that the Warrant Shares proposed to be disposed of may be transferred pursuant to the provisions of Rule 144 under the Securities Act or otherwise without registration under this Article IIthe Securities Act.

Priority on Secondary Registrations. (a) If a Piggyback Registration is an underwritten secondary registration on behalf of holders of the Company's securities, and the managing underwriters advise the Company in writing that in their good faith opinion the number of securities requested to be included in such registration exceeds the number which can be sold in such offeringoffering within a price range acceptable to the holders on whose behalf the registration is being made, the Company will shall include any securities to be sold in such registration in the following order: (ia) first, the securities requested which such holders propose to be included therein by the holders requesting such registrationsell, (iib) second, the Registrable Securities, Series 1 Registrable Securities, the Xxxxx Securities and the Bear Xxxxxxx Securities requested to be included in such registrationregistration by the Piggyback Holders in accordance with Section 3.1, provided, provided that if the managing underwriters determine in good faith determine that a lower number of securities Registrable Securities should be included, then the Company shall be required to include in the underwriting such registration only that lower number of securities, and the holders of Registrable Securities, Series 1 Registrable Securities, Xxxxx Securities and Bear Xxxxxxx Securities who have requested registration such Piggyback Holders shall participate in the underwriting such registration on a pro rata based upon their total ownership, on a fully diluted basis, basis in accordance with the number of any such securities Registrable Securities requested to be included in such registration by each such Piggyback Holder, and (iiic) third, any other securities requested proposed to be included in such registration. The If securities of Other Piggyback Holders are to be included in such Piggyback Registration, the Company hereby agrees that whenever it grants piggyback rights shall use its best efforts to any holder of its securities after effect the date hereof, such holder's piggyback rights will be expressly subordinated priority required by this Section with respect to the piggyback rights granted to Piggyback Holders and the holders of the Registrable Securities under this Article IIOther Piggyback Holders.

Priority on Secondary Registrations. (a) If a Piggyback Registration is an underwritten secondary registration on behalf of holders of the Company's ’s securities, and the managing underwriters advise the Company in writing that in their opinion the number of securities requested to be included in such registration exceeds the number which can be sold in such offering without adversely affecting the marketability of the offering, the Company will shall include in such registration (i) first, the securities requested to be included therein by the holders requesting such registration, (ii) second, the Registrable Securities, Series 1 Registrable Securities, the Xxxxx Securities and the Bear Xxxxxxx Securities requested to be included in such registration, provided, that if the managing underwriters in good faith determine that a lower number of securities should be included, then the Company shall be required to include in the underwriting only that lower number of securities, registration and the holders of Registrable Securities, Series 1 Registrable Securities, Xxxxx Securities and Bear Xxxxxxx Securities who have requested registration shall participate in the underwriting pro rata based upon their total ownership, on a fully diluted basis, of any such other securities requested to be included in such registration pursuant to contractual obligations with the Company, pro rata among the holders of such securities on the basis of the number of securities owned by each such holder and (iiiii) third, other securities requested to be included in such registration. The Notwithstanding any other provision of this Agreement if any SEC Guidance sets forth a limitation on the number of Registrable Securities permitted to be registered on a particular Registration Statement (and notwithstanding that the Company hereby agrees used diligent efforts to advocate with the Commission for the registration of all or a greater portion of Registrable Securities), unless otherwise directed in writing by a Holder as to its Registrable Securities, the number of Registrable Securities to be registered on such Registration Statement will first be reduced by Registrable Securities represented by Warrant Shares (applied, in the case that whenever it grants piggyback rights to any holder of its securities after the date hereofsome Warrant Shares may be registered, such holder's piggyback rights will be expressly subordinated to the piggyback rights granted Holders on a pro rata basis based on the total number of unregistered Warrant Shares held by such Holders), and second by Registrable Securities represented by Conversion Shares (applied, in the case that some Conversion Shares may be registered, to the holders Holders on a pro rata basis based on the total number of the Registrable Securities under this Article IIunregistered Conversion Shares held by such Holders).

Priority on Secondary Registrations. (a) If a Piggyback Registration is an underwritten secondary registration on behalf of holders of the Company's securities, and the managing underwriters advise underwriter advises the Company in writing that in their opinion the number of Registrable Securities requested to be included exceeds the number of Registrable Securities which can be included in such registration within a price range acceptable to the holders of the Company's Registration Rights Agreement securities on whose behalf the registration is being effected, the Company will include any securities to be sold in such registration in the following order: (a) first, the securities which such holders propose to sell; (b) second, the Registrable Securities requested to be included in such registration exceeds the number which can be sold in such offering, the Company will include in such registration (i) first, the securities requested to be included therein by the holders requesting such registrationPiggyback Holders, (ii) second, the Registrable Securities, Series 1 Registrable Securities, the Xxxxx Securities and the Bear Xxxxxxx Securities requested to be included in such registration, provided, provided that if the managing underwriters underwriter determines in good faith determine that a lower number of securities Registrable Securities should be included, then the Company shall be required to include in the underwriting such registration only that lower number of securitiesRegistrable Securities, and the holders of Registrable Securities, Series 1 Registrable Securities, Xxxxx Securities and Bear Xxxxxxx Securities who have requested registration Piggyback Holders shall participate in the underwriting such registration on a pro rata based upon their total ownership, on a fully diluted basis, basis in accordance with the number of any such securities Registrable Securities requested to be included in such registration by each Piggyback Holder, provided, further, that if the managing underwriter determines in good faith that a lower number of Registrable Securities held by Management Stockholders and Additional Management Stockholders than such pro rata portion should be included, then such lower number shall be included and, as a result thereof, a greater number of Registrable Securities owned by the other Stockholders may be sold; and (iiic) third, any other securities requested proposed to be included in such registration. The Company hereby agrees that whenever it grants piggyback rights to any holder of its securities after the date hereof, such holder's piggyback rights will be expressly subordinated to the piggyback rights granted to the holders of the Registrable Securities under this Article II.

Priority on Secondary Registrations. (a) If a Piggyback Registration is an --- ----------------------------------- underwritten secondary registration on behalf of holders of the Company's securities, and the managing underwriters advise the Company in writing that in their opinion the number of securities requested to be included in such registration exceeds the number which can be sold in an orderly manner in such offeringoffering within a price range acceptable to the holders initially requesting such registration, then the Company will shall include in such registration (i) first, the securities requested to be included therein by the holders requesting such registration, (ii) second, the Registrable Securities, Series 1 Registrable Securities, the Xxxxx Securities and the Bear Xxxxxxx Securities requested to be included in such registration, provided, that if the managing underwriters in good faith determine that a lower number of securities should be included, then the Company shall be required to include in the underwriting only that lower number of securities, and pro rata among the holders of such Registrable SecuritiesSecurities on the basis of the number of shares of Registrable Securities owned by each such holder, Series 1 Registrable Securities(iii) third, Xxxxx Securities and Bear Xxxxxxx Securities who have requested registration shall participate in the underwriting pro rata based upon their total ownership, on a fully diluted basis, of any such securities Warrant Shares requested to be included in such registration registration, pro rata among the Holders of such Warrant Shares on the basis of the amount of Warrant Shares owned by each such Holder of Warrant Shares, (iv) fourth, the Convertible Note Shares requested to be included in such registration, pro rata among the Holders of such Convertible Note Shares on the basis of the amount of Convertible Note Shares owned by each such Holder of Convertible Note Shares, and (iiiv) thirdfifth, other securities requested to be included in such registration. The Company hereby agrees that whenever it grants piggyback rights to any holder of its securities after the date hereof, such holder's piggyback rights will be expressly subordinated to the piggyback rights granted to the holders of the Registrable Securities under this Article II.

Priority on Secondary Registrations. (a) If a Piggyback Registration is relates to an underwritten secondary registration on behalf public offering of holders equity securities held solely by other shareholders of the Company's securities, securities and the managing underwriter or underwriters advise the Company in writing that in their opinion the number of securities requested to be included in such registration exceeds the number which can be sold in an orderly manner in such offeringoffering within a price range acceptable to the persons (as defined below) initially requesting such registration, the Company will include in such registration (i) first, the securities requested to be included therein by the holders persons requesting such registration, (ii) secondsecond (subject to Section 2(a)(iv) of that certain Registration Rights Agreement dated September 22, 1999 between the Company and the persons listed on Schedule I thereto, provided that such Section has not been waived with respect to any other persons or entities who desire to participate in such registration), the Registrable Securities, Series 1 Registrable Securities, Shares and other securities of the Xxxxx Securities and Company with piggyback registration rights that are pari passu with the Bear Xxxxxxx Securities Holders requested to be included in such registration, provided, that if pro rata among the managing underwriters in good faith determine that a lower number Holders of securities should be included, then the Company shall be required to include in the underwriting only that lower number of securities, such Registrable Shares and the holders of Registrable Securities, Series 1 Registrable Securities, Xxxxx Securities and Bear Xxxxxxx Securities who have requested registration shall participate in such other securities on the underwriting pro rata based upon their total ownership, on a fully diluted basis, basis of any the number of shares owned by each such securities requested to be included in such registration Holder or holder and (iii) thirdthird (subject to Section 2(a)(iv) of that certain Registration Rights Agreement dated September 22, 1999 between the Company and the persons listed on Schedule I thereto, provided that such Section has not been waived with respect to any other persons or entities who desire to participate in such registration), other securities requested to be included in such registration. The Company hereby agrees that whenever it grants piggyback rights to any holder of its securities after the date hereof, such holder's piggyback rights will be expressly subordinated to the piggyback rights granted to the holders of the Registrable Securities under this Article II.

Priority on Secondary Registrations. (a) If a Piggyback Registration is an underwritten secondary registration on behalf of holders of the CompanyLLC's securities, securities (and is not a Demand Registration) and the managing underwriters advise the Company LLC in writing that in their opinion the number or class of securities of the class registered in such Piggyback Registration requested to be included in such registration exceeds the number or class which can be sold in such offering without adversely affecting the marketability of the offering, the Company LLC will include in such registration (i) first, the securities requested to be included therein by the holders requesting such registration, (ii) second, (A) to the extent LLC Registrable Securities, Series 1 Registrable SecuritiesSecurities requested for inclusion therein need to be reduced as a result of such advice, the Xxxxx Securities and the Bear Xxxxxxx LLC Registrable Securities requested to be included in such registration, provided, that if the managing underwriters in good faith determine that a lower number of securities should be included, then the Company shall be required to include in the underwriting only that lower number of securities, and pro rata among the holders of such LLC Registrable SecuritiesSecurities on the basis of the number of shares of LLC Registrable Securities owned by each such holder and (B) to the extent CSX Senior Registrable Securities requested for inclusion therein need to be reduced as a result of such advice, Series 1 the CSX Senior Registrable Securities, Xxxxx Securities and Bear Xxxxxxx Securities who have requested registration shall participate in the underwriting pro rata based upon their total ownership, on a fully diluted basis, of any such securities requested to be included in such registration pro rata among holders of CSX Senior Registrable Securities on the basis of the number of units of CSX Registrable Securities owned by each such holder, and (iii) third, other securities requested to be included in such registration. The Company hereby agrees that whenever it grants piggyback rights to any holder of its securities after the date hereof, such holder's piggyback rights will be expressly subordinated to the piggyback rights granted to registration not covered by clause (i) above pro rata among the holders of such securities on the Registrable Securities under this Article IIbasis of the number of shares owned by each such holder.

Priority on Secondary Registrations. (a) If a Piggyback Registration is consists only of an underwritten secondary registration on behalf of for holders of securities of the Company's securitiesCompany (other than pursuant to Section 10(a)), and the managing underwriters underwriter(s) for such offering advise the Company in writing that in their opinion the number of securities Registrable Securities requested to be included in such registration exceeds the number which can be sold in such offeringoffering without materially adversely affecting the distribution of such securities by the Company, the Company will include in such registration (iA) first, the securities requested to be included therein by the holders requesting such registration, (ii) second, registration and the Registrable Securities, Series 1 Registrable Securities, the Xxxxx Securities and the Bear Xxxxxxx Securities requested to be included in such registration, provided, that if pro rata among all such holders on the managing underwriters in good faith determine that a lower basis of the number of securities should be included, then the Company shall be required to include in the underwriting only that lower number of securities, and the holders of Registrable Securities, Series 1 Registrable Securities, Xxxxx Securities and Bear Xxxxxxx Securities who have requested registration shall participate in the underwriting pro rata based upon their total ownership, on a fully diluted basis, of any such securities shares requested to be included in by each such registration holder, provided, however, the Company will use its best efforts to include not less than 20% of the Registrable Securities, and (iiiB) thirdsecond, other securities requested to be included in such registration. The Notwithstanding the foregoing, if any such underwriter determines in good faith and advises the Company hereby agrees in writing that whenever it grants piggyback rights to any holder of its securities after the date hereof, such holder's piggyback rights will be expressly subordinated to the piggyback rights granted to the holders distribution of the Registrable Securities requested to be included in the registration concurrently with the securities being registered by the Company would materially adversely affect the distribution of such securities by the Company, then the Holders of such Registrable Securities shall delay their offering and sale for such period ending on the earliest of (1) 90 days following the effective date of the Company's registration statement, (2) the day upon which the underwriting syndicate, if any, for such offering has been disbanded or, (3) such date as the Company, managing underwriter and Holders of Registrable Securities otherwise agree. If such a delay occurs, the Company shall file such supplements, post- effective amendments and take any other steps necessary to permit such Holders to make their proposed offering and sale for a period of 180 days immediately following the end of such delay. If any party disapproves of the terms of any such underwriting, it may elect to withdraw therefrom by written notice to the Company, the underwriter, and the Underwriters. However, the Company shall not be required to file a registration statement to include Shares pursuant to Section 10(a) or this Section 10(b) if counsel, reasonably satisfactory to the Company, renders an opinion to the Company that the Shares proposed to be disposed of may be transferred pursuant to the provisions of Rule 144 under this Article IIthe Act or otherwise without registration under the Act.

Priority on Secondary Registrations. (a) If a Piggyback Registration is an underwritten secondary registration on behalf of holders of the Company's securitiesOther Registrable Securities, and the managing underwriters advise the Company in writing that in their opinion the number of securities requested to be included in such registration exceeds the number which can be sold in an orderly manner in such offeringoffering within a price range acceptable to the holders of a majority of the Registrable Securities to be included in such registration, the Company will shall include in such registration (i) first, the securities requested to be included therein by the holders of Other Registrable Securities requesting such registration, (ii) second, the Investor Registrable Securities, Series 1 Registrable Securities, the Xxxxx Securities and the Bear Xxxxxxx Securities requested to be included in such registration, provided, that if the managing underwriters in good faith determine that a lower number of securities should be included, then the Company shall be required to include in the underwriting only that lower number of securities, and pro rata among the holders of such Investor Registrable Securities, Series 1 Registrable Securities, Xxxxx Securities and Bear Xxxxxxx Securities who have requested registration shall participate in on the underwriting pro rata based upon their total ownership, on a fully diluted basis, basis of any the number of shares owned by such securities requested to be included in such registration and holders; (iii) third, other securities the Seller Registrable Securities requested to be included in such registration. The Company hereby agrees that whenever it grants piggyback rights to any holder of its securities after the date hereof, such holder's piggyback rights will be expressly subordinated to the piggyback rights granted to pro rata among the holders of the such Seller Registrable Securities under this Article IIon the basis of the number of shares owned by such holders; (iv) fourth, the Management Registrable Securities requested to be included in such registration, pro rata among the holders of such Management Registrable Securities on the basis of the number of shares owned by such holders; and (v) fifth, any non-requesting Other Registrable Securities requested to be included in such registration, pro rata among the holders thereof on the basis of the number of their securities requested to be included therein.

Priority on Secondary Registrations. (a) If a Piggyback Registration is an underwritten secondary registration on behalf of initiated by holders of the Company's securities, and the managing underwriters advise securities who hereafter obtain demand registration rights from the Company in writing connection with the issuance of such securities by the Company and if the managing underwriter gives the Company its written opinion that in their opinion the dollar amount or number of securities requested to be included in such the registration exceeds the dollar amount or number which of securities that can be sold in such offeringsold, the Company will include the securities in such the registration (i) in the following order of priority: first, to the extent of the number or dollar amount of securities that in the underwriter's opinion can be sold, the securities requested to be included therein in the registration by the holders requesting of securities who possess such registrationdemand registration rights, (ii) allocated among the holders of those securities in such proportions as the Company and those holders may agree; second, up to the full number of or dollar amount of securities the Company proposes to sell; and third, to the extent of the balance, the Registrable Securities, Series 1 Registrable Securities, the Xxxxx Securities and the Bear Xxxxxxx Securities requested to be included in such registration, provided, that if the managing underwriters in good faith determine that a lower number of securities should be included, then the Company shall be required to include in the underwriting only that lower number of securities, and the holders of Registrable Securities, Series 1 Registrable Securities, Xxxxx Securities and Bear Xxxxxxx Securities who have requested registration shall participate in the underwriting pro rata based upon their total ownership, on a fully diluted basis, of any such securities requested to be included in such registration and (iii) third, other securities requested to be included in such registration. The Company hereby agrees that whenever it grants piggyback rights to any holder the registration by the holders of its securities after the date hereof, such holder's piggyback rights will be expressly subordinated to the piggyback rights granted to Registrable Securities and by the holders of the Company's securities who hereafter obtain registration rights from the Company in connection with the issuance of such securities by the Company (allocated pro rata among the holders of all such securities on the basis of the dollar amount or number of such securities owned by such holders, with the understanding that in the case of Registrable Securities under this Article IIowned by Carol's Family or Fran's Family the ownership of the entire Family shall be considered in determining the pro rata amount and each member of either such Family selling securities shall be entitled to a pro rata share of the amount allocated to the Family based upon the actual amount owned by the Family member). If, after including all such securities, the underwriters determine that there are additional securities that can be sold, then such additional securities may be added to the registration. In the event that the managing underwriter advises the Company that an underwriters' over-allotment option is necessary or advisable, the preceding priority shall apply to the determination of which securities are to be included in the primary portion of such registration and, if necessary, the overallotment portion of such registration.

Priority on Secondary Registrations. (a) If a Piggyback Registration is an underwritten secondary registration on behalf of holders of the Company's securities, and the managing underwriters advise the Company in writing (with a copy to each holder of Registrable Securities requesting registration) that in their opinion the number of securities requested to be included in such registration exceeds the number which can be sold in such offering without adversely affecting the marketability of the offering, the Company will include in such registration (i) firstFIRST, the securities requested to be included therein by the holders requesting such registration, pro rata among the holders of such securities on the basis of the number of shares owned by each such holder; provided that if such registration is demanded by a holder of GTCR Registrable Securities or Other Registrable Securities, then this clause (i) shall not be applicable and priority shall be determined as set forth in paragraph 1(d); (ii) secondSECOND, any securities the Company is required to include pursuant to the Purchase Options, (iii) THIRD, any securities held by persons other than the holders of Registrable Securities or Other Registrable Securities which the Company is required to include pursuant to registration rights granted by the Company prior to the date hereof, (iv) FOURTH, the number of Registrable Securities, Series 1 Registrable Securities, the Xxxxx Securities and the Bear Xxxxxxx Other Registrable Securities requested to be included in such registrationincluded, provided, that if pro rata among the managing underwriters in good faith determine that a lower respective holders thereof on the basis of the number of securities should be included, then the Company shall be required to include in the underwriting only that lower number of securities, and the holders of Total Registrable Securities, Series 1 Registrable Securities, Xxxxx Securities and Bear Xxxxxxx Securities who have requested registration shall participate in the underwriting pro rata based upon their total ownership, on a fully diluted basis, of any owned by each such securities requested to be included in such registration holder; and (iiiv) thirdFIFTH, other securities requested to be included in such registration. The Company hereby agrees that whenever it grants piggyback rights to any holder of its securities after the date hereof, such holder's piggyback rights will be expressly subordinated to the piggyback rights granted to registration pro-rata among the holders of such securities on the Registrable Securities under this Article IIbasis of the number of shares of such securities owned by each such holder.

Priority on Secondary Registrations. (a) If Subject to paragraph (b) of ----------------------------------- this Section 2.3, if a Piggyback Registration is an underwritten secondary registration on behalf of holders of the Company's securities, and the managing underwriters advise the Company in writing that in their opinion the number of securities requested to be included in such registration exceeds the number which can be sold in such offering, the Company will include in such registration (i) first, the securities requested to be included therein by the holders requesting such registration, (ii) second, the Registrable Securities, Series 1 Registrable Securities, the Xxxxx Securities and the Bear Xxxxxxx Securities any securities held by Steinhardt requested to be included in such registration, provided, that if the managing underwriters in good faith -------- determine that a lower number of securities should be included, then the Company shall be required to include in the underwriting only that lower number of securities, and the holders of Registrable Securities, Series 1 Registrable Securities, Xxxxx Securities and Bear Xxxxxxx Securities who have requested registration and Steinhardt shall participate in the underwriting pro rata based upon their total ownership, on a fully diluted basis, of any such securities requested to be included in such registration and (iii) third, other securities requested to be included in such registration; provided, however, -------- ------- that for two years from the date of this Agreement the securities Steinhardt proposes to sell shall be second in priority (i.e., such securities shall be included before the Registrable Securities). (b) If a Piggyback Registration is an underwritten secondary registration on behalf of holders of the Company's securities and is a Purchase Registration, and the managing underwriters advise the Company in writing that in their opinion the number of securities requested to be included in such registration exceeds the number which can be sold in such offering, the Company will include in such registration (i) first, the securities requested to be included therein by the holders requesting such registration and the Registrable Securities and the securities held by Steinhardt requested to be included in such registration, provided, that if the managing underwriters in good faith determine that a lower -------- number of securities should be included, then the Company shall be required to include in the underwriting only that lower number of securities, and the holders requesting such registration, the holders of Registrable Securities who requested to be included in such registration and Steinhardt shall participate in the underwriting pro rata based upon their total ownership, on a fully diluted basis, of any such securities requested to be included in such registration and (ii) second, other securities requested to be included in such registration pursuant to piggyback rights. The Company hereby agrees that whenever it grants piggyback rights to any holder of its securities after the date hereof, such holder's piggyback rights will be expressly subordinated to the piggyback rights granted to the holders of the Registrable Securities under this Article II.

Priority on Secondary Registrations. (a) If a Piggyback ----------------------------------- Registration is consists only of an underwritten secondary registration on behalf of holders of securities of the Company's securitiesCompany (other than pursuant to Section 10(a)), and the managing underwriters advise underwriter(s) for such offering advises the Company in writing that in its/their opinion the number of securities Registrable Securities requested to be included in such registration exceeds the number which can be sold in such offeringoffering without materially adversely affecting the distribution of such securities by the Company, the Company will include in such registration (iA) first, the securities requested to be included therein by the holders requesting such registration, ; (iiB) second, the Registrable Securities, Series 1 Registrable Securities, the Xxxxx Securities and the Bear Xxxxxxx Securities requested to be included in such registration, pro rata among all such holders on the basis of the number of shares requested to be included by each such holder (provided, that if the managing underwriters person requesting registration is not a holder of Hibernia Shares, the securities to be included in good faith determine that a lower number of securities should be included, then the Company such registration under this clause (B) shall be required to include in the underwriting only that lower number of securities, Registrable Securities and the holders of Registrable Securities, Series 1 Registrable Securities, Xxxxx Securities and Bear Xxxxxxx Securities who have requested registration shall participate in the underwriting pro rata based upon their total ownership, on a fully diluted basis, of any such securities Hibernia Shares requested to be included in such registration registration, apportioned pro rata among the Holders of Registrable Securities and the holders of the Hibernia Shares); and (iiiC) third, other securities requested to be included in such registration. The Notwithstanding the foregoing, if any such underwriter shall consent to such Registrable Securities being included in the Company's registration statement but shall determine in good faith and advise the Company hereby agrees in writing that whenever it grants piggyback rights to any holder of its securities after the date hereof, such holder's piggyback rights will be expressly subordinated to the piggyback rights granted to the holders distribution of the Registrable Securities requested to be included in the registration concurrently with the securities being registered by the Company would materially adversely affect the distribution of such securities by the Company, then the Holders of such Registrable Securities shall delay their offering and sale for such period ending on the earliest of (1) 90 days following the effective date of the Company's registration statement, (2) the day upon which the underwriting syndicate, if any, for such offering shall have been disbanded or, (3) such date as the Company, managing underwriter and Holders of Registrable Securities shall otherwise agree. In the event of such delay, the Company shall file such supplements, post-effective amendments and take any such other steps as may be necessary to permit such Holders to make their proposed offering and sale for a period of 120 days immediately following the end of such period of delay. If any party disapproves of the terms of any such underwriting, it may elect to withdraw therefrom by written notice to the Company, the underwriter, and the Underwriters. Notwithstanding the foregoing, the Company shall not be required to file a registration statement to include Shares pursuant to this Section 10(b) if independent counsel, reasonably satisfactory to counsel for the Company and counsel for the Underwriters, renders an opinion to the Company that the Shares proposed to be disposed of may be transferred pursuant to the provisions of Rule 144 under this Article IIthe Act or otherwise without registration under the Act.

Priority on Secondary Registrations. (a) If a Piggyback Registration is an underwritten secondary registration on behalf of holders of the CompanyCorporation's securitiessecurities pursuant to the exercise of such holders' demand registration rights or otherwise (other than a Demand Registration), and the managing underwriters advise the Company Corporation in writing that in their opinion the number of securities requested to be included in such registration exceeds the number of securities which can be sold in such offeringoffering without materially and adversely affecting the offering or the offering price (the "Secondary Limit"), the Company Corporation will include in such registration securities not in excess of the Secondary Limit in the following order: (i) first, up to the securities requested full number of Registrable Securities and Warrant Related Registrable Securities proposed to be included therein by (if such number exceeds the Secondary Limit, the securities to be registered shall be allocated among the holders of Registrable Securities and the holders of Warrant Related Registrable Securities requesting such registration, (ii) second, to be included in the registration pro rata among them on the basis of the total number of Registrable Securities and Warrant Related Registrable Securities, Series 1 Registrable Securities, the Xxxxx Securities and the Bear Xxxxxxx Securities requested to be included in such registration, provided, registration (provided that if the managing underwriters in good faith determine that a lower number of securities should Registrable 7 Securities to be included, then the Company registered shall be required to include in the underwriting only that lower number of securities, and allocated among the holders of Registrable Securities, Series 1 Registrable Securities, Xxxxx Securities and Bear Xxxxxxx Securities who have requested registration shall participate requesting to be included in the underwriting registration pro rata based upon on the basis of the total number of Registrable Securities held by their total ownershiprespective holders requesting inclusion in the registration)), on a fully diluted basis(ii) up to the full number of securities the Corporation proposes to sell, (iii) up to the full number of any such securities requested to be included in such registration by other holders of securities permitted to include securities in such Piggyback Registration, (if such number (together with the number of securities included pursuant to clauses (i) and (iiiii)) thirdexceeds the Secondary Limit, the other securities to be registered shall be allocated pro rata among such holders on the basis of the number of securities requested to be included in such registration. The Company hereby agrees that whenever it grants piggyback rights to any holder of its securities after the date hereof, therein by each such holder's piggyback rights will ) and (iv) any additional securities (which together with those securities included pursuant to clauses (i), (ii) and (iii) do not exceed the Secondary Limit) as may be expressly subordinated to agreed upon by the piggyback rights granted to the holders of the Registrable Securities under this Article IICorporation and any other securityholders.

Priority on Secondary Registrations. (a) If a Piggyback Registration is consists only of an underwritten secondary registration on behalf of holders of securities of the Company's securities, and the managing underwriters advise underwriter(s) for such offering advises the Company in writing that in its/their opinion the number of securities Registrable Securities requested to be included in such registration exceeds the number which can be sold in such offeringoffering without materially adversely affecting the distribution of such securities, the Company will include in such registration (iA) first, the securities requested to be included therein by the holders requesting such registration, and (iiB) second, the Registrable Securities, Series 1 Registrable Securities, the Xxxxx Securities and the Bear Xxxxxxx Securities requested to be included in such registration, provided, that if the managing underwriters in good faith determine that a lower number registration and securities of securities should be included, then the Company shall be required to include in the underwriting only that lower number holder of securities, and the holders of Registrable Securities, Series 1 Registrable Securities, Xxxxx Securities and Bear Xxxxxxx Securities who have requested registration shall participate in the underwriting pro rata based upon their total ownership, on a fully diluted basis, of any such other securities requested to be included in such registration statement, pro rata among all such holders on the basis of the number of shares requested to be included by each such holder, provided, however, the Company will use its best efforts to include not less than 20% of the Registrable Securities. Notwithstanding the foregoing, if any such underwriter shall determine in good faith and (iii) third, other securities advise the Company in writing that the distribution of the Registrable Securities requested to be included in the registration concurrently with the securities being registered by the Company would materially adversely affect the distribution of such registration. The Company hereby agrees that whenever it grants piggyback rights to any holder of its securities after by the date hereofCompany, such holder's piggyback rights will be expressly subordinated to the piggyback rights granted to then the holders of such Registrable Securities shall delay their offering and sale for such period ending on the earliest of (1) 90 days following the effective date of the Company’s registration statement, (2) the day upon which the underwriting syndicate, if any, for such offering shall have been disbanded or, (3) such date as the Company, managing underwriter and holders of Registrable Securities shall otherwise agree. In the event of such delay, the Company shall file such supplements, post-effective amendments and take any such other steps as may be necessary to permit such holders to make their proposed offering and sale for a period of 120 days immediately following the end of any such period of delay. If any party disapproves the terms of any such underwriting, it may elect to withdraw therefrom by written notice to the Company, the underwriter, and the holder. Notwithstanding the foregoing, the Company shall not be required to file a registration statement to include shares pursuant to this Section 11 if independent counsel, reasonably satisfactory to the Company, renders an opinion to the Company that the Registrable Securities proposed to be disposed of may be transferred pursuant to the provisions of Rule 144 under this Article IIthe Securities Act or otherwise without registration under the Securities Act.