Common use of Shelf Registration; Underwritten Offering Clause in Contracts

Shelf Registration; Underwritten Offering. (i) Subject to the provisions of Section 2(l), on or prior to the tenth (10th) day following the Initial Closing, the Company will file a Shelf Registration Statement (which Shelf Registration Statement shall be an Automatic Shelf Registration Statement if the Company is then eligible to file an Automatic Shelf Registration Statement) registering for resale the Registrable Securities under the Securities Act. Until such time as all Registrable Securities cease to be Registrable Securities or the Company is no longer eligible to maintain a Shelf Registration Statement, the Company will keep current and effective such Shelf Registration Statement and file such supplements or amendments to such Shelf Registration Statement (or file a new Shelf Registration Statement (which Shelf Registration Statement shall be an Automatic Shelf Registration Statement if the Company is then eligible to file an Automatic Shelf Registration Statement) when such preceding Shelf Registration Statement expires pursuant to the rules of the Commission) as may be necessary or appropriate in order to keep such Shelf Registration Statement continuously effective and useable for the resale of Registrable Securities under the Securities Act. The Company represents and warrants to LBHI that as of the date of this Agreement, the Company is not an “ineligible issuer” and is a “well known seasoned issuer”, in each case as defined under the Securities Act. (ii) Upon the written request of LBHI from time to time (an “Underwritten Offering Request”), the Company will cooperate with the LBHI Group and any Underwriter in effecting an Underwritten Offering pursuant to a Shelf Registration Statement as promptly as reasonably practicable following receipt of such Underwritten Offering Request; provided, however, that (x) LBHI shall not be entitled to make more than two (2) Underwritten Offering Requests that result in priced Underwritten Offerings in any twelve (12) month period (the “Priced Underwritten Offering Requests”); (y) LBHI will be deemed to have requested the removal of any Registrable Securities held by any LBHI Group Member from any Underwritten Offering Request and to have rescinded the Underwritten Offering Request, with the same effects as provided in Section 2(g), automatically if: (I) the Launch Date in respect of such Underwritten Offering has not occurred by the end of the fifth (5th) Business Day after the following conditions have been met: (I-i) the Company has made available to LBHI a Prospectus under an effective Registration Statement naming the designated member or members of the LBHI Group as selling stockholders and the Underwriter(s) and containing such other information as is required under the Securities Act and the rules of the Commission in a form ready for filing, assuming that as of such time (X) the Company has otherwise complied with its applicable obligations in Section 2(k) and (Y) LBHI has otherwise complied with its obligations in Section 2(m), and (I-ii) the Company has notified LBHI in writing that the Company has complied with the provisions of this clause (I) and that the five (5) Business Day period referenced in this clause (I) is commencing), or (II) the Underwritten Offering has not been priced by the end of the third (3rd) Business Day after the Launch Date, assuming that the Launch Date occurred before the expiration of the five (5) Business Day period referenced in clause (II) above); provided, further, that in the case of both clause (I) and clause (II) above such Underwritten Offering Request shall not be counted as a utilized Underwritten Offering Request for purposes of the limits in this Section 2(a)(ii) (other than clause (z) hereof) and Section 2(g); and (z) LBHI shall not be entitled to make in the aggregate more than four (4) Underwritten Offering Requests, including two (2) Priced Underwritten Offering Requests and two (2) Underwritten Offering Requests that are deemed rescinded or affirmatively rescinded, in any twelve (12) month period (for the avoidance of doubt, if there are two (2) Priced Underwritten Offering Requests in any twelve (12) month period this clause shall not be interpreted as allowing LBHI to make any further Underwritten Offering requests until the expiration of the then current twelve (12) month period). Each Underwritten Offering Request will specify the number of Registrable Securities proposed by LBHI to be included in such Underwritten Offering, the intended method of distribution and the estimated gross proceeds of such Underwritten Offering, which may not be less than $100 million. LBHI may change the number of Registrable Securities proposed to be offered in any Underwritten Offering at any time prior to the Launch Date of the Underwritten Offering so long as such change would not reduce the estimated gross proceeds of the Underwritten Offering to less than $100 million. (iii) The Company will have the right to delay an Underwritten Offering by LBHI following receipt of an Underwritten Offering Request if the Company intends to effect its own Underwritten Offering by giving LBHI written notice of such intent (a “Stand-Down Notice”), whereby the Company’s obligation to cooperate with the LBHI Group and any Underwriter in effecting an Underwritten Offering pursuant to Section 2(a)(ii) shall be suspended until the later of the Resumption Date or the date of expiration of any “lock-up” agreement required to be entered into by LBHI pursuant to Section 3(b) with respect to the Company’s Underwritten Offering; provided, however, that (w) the Company will not be entitled to give a Stand-Down Notice until after the first (1st) anniversary of the Initial Closing; (x) the Company will not be entitled to deliver a Stand-Down Notice in respect of an Underwritten Offering Request later than 5 p.m. New York time on the next Business Day following receipt of such Underwritten Offering Request; (y) the Company will not be entitled to more than one (1) Stand-Down Notice in any twelve (12) month period; and (z) the Company will be deemed to have rescinded the Stand-Down Notice automatically, whereby the Company’s obligation to cooperate with the LBHI Group and any Underwriter in effecting an Underwritten Offering pursuant to Section 2(a)(ii) shall resume, if (I) the Launch Date in respect of the Company’s Underwritten Offering has not occurred by the end of the seventh (7th) Business Day after the date of the Underwritten Offering Request or (II) the Company’s Underwritten Offering has not been priced by the end of the third (3rd) Business Day after the Launch Date (the date following automatic rescission of a Stand-Down Notice pursuant to either clause (I) and clause (II) above, a “Resumption Date”). LBHI acknowledges and agrees that the receipt of any Stand-Down Notice may constitute material non-public information regarding the Company and shall keep the existence and contents of any Stand-Down Notice confidential. Notwithstanding anything to the contrary contained herein, if LBHI determines to rescind any prior Underwritten Offering Request or Demand Notice following receipt of a Stand-Down Notice, then LBHI may, at its election, give written notice of such election to the Company; provided, however, that such rescinded Underwritten Offering Request or Demand Notice shall not be counted as an Underwritten Offering Request or Demand Notice for purposes of the limits in Section 2(a)(ii) and Section 2(b)(i), respectively, without any requirement to reimburse the Company for any related expenses incurred by the Company.

Shelf Registration; Underwritten Offering. (ia) Subject to the provisions of Section 2(l)5.11 and the limitations set forth in Section 4.2(a) on the number of shares of Common Stock that may be sold during the period referred to therein, at any time after the third anniversary of the date hereof until the sixth anniversary of the date hereof, at the request of any Stockholder (which, for purposes of this Article V, shall be deemed to include each holder of Registrable Shares) and on or prior to the tenth (10th) business day following the Initial Closingsixth anniversary of the Effective Time, the Company will file a Shelf Registration Statement (which Shelf Registration Statement shall be an Automatic Shelf Registration Statement (as defined in Rule 405 under the Securities Act) if the Company is then eligible to file an Automatic Shelf Registration Statement) registering for resale all of the Registrable Securities Shares under the Securities Act. Until such time as all Registrable Securities Shares cease to be Registrable Securities Shares or the Company is no longer eligible to maintain a Shelf Registration Statement, the Company will keep current and effective such Shelf Registration Statement and file such supplements or amendments to such Shelf Registration Statement (or file a new Shelf Registration Statement (which Shelf Registration Statement shall be an Automatic Shelf Registration Statement if the Company is then eligible to file an Automatic Shelf Registration Statement) when such preceding Shelf Registration Statement expires pursuant to the rules of the CommissionSEC) as may be necessary or appropriate in order to keep such Shelf Registration Statement continuously effective and useable for the resale of all Registrable Securities Shares under the Securities Act. The Company represents and warrants to LBHI each Stockholder that as of the date of this Agreement, the Company is not an “ineligible issuer” and is a “well known seasoned issuer”, in each case as defined under the Securities Act. (iib) Upon the written request of LBHI any Stockholder from time to time (an “Underwritten Offering Request”), the Company will cooperate with the LBHI Group requesting Stockholder and any Underwriter in effecting an Underwritten Offering pursuant to a Shelf Registration Statement as promptly as reasonably practicable following receipt of such Underwritten Offering Request; provided, however, that (xi) LBHI the Stockholders together shall not be entitled to make more than two (2) Underwritten Offering Requests that result Requests, where the plan of distribution set forth in priced the Underwritten Offerings Offering Request includes a customary “road show” or other substantial marketing effort by the Company and the underwriter (a “Marketed Underwritten Offering”) in any twelve (12) month period period, it being understood that the Stockholders may make an unlimited number of requests for Underwritten Offerings that are not Marketed Underwritten Offerings; and (ii) the “Priced Underwritten Offering Requests”); (y) LBHI requesting Stockholder will be deemed to have requested the removal of any Registrable Securities Shares held by any LBHI Group Member such Stockholder from any Underwritten Offering Request relating to a Marketed Underwritten Offering and to have rescinded the such Underwritten Offering Request, with the same effects as provided in Section 2(g)5.6, automatically if: (IA) the Launch Date in respect of such Marketed Underwritten Offering has not occurred by the end of the fifth (5th) Business Day after the following conditions have been met: (I-i1) the Company has made available to LBHI the requesting Stockholder a Prospectus prospectus under an effective Registration Statement naming the designated member or members of the LBHI Group Stockholder as a selling stockholders stockholder and the Underwriter(sunderwriter(s) and containing such other information as is required under the Securities Act and the rules of the Commission SEC in a form ready for filing, assuming that as of such time (X) the Company has otherwise complied with its applicable obligations in Section 2(k) 5.10 and (Y) LBHI such Stockholder has otherwise complied with its obligations in Section 2(m)5.12, and (I-ii2) the Company has notified LBHI such Stockholder in writing that the Company has complied with the provisions of this clause (IA) and that the five (5) Business Day period referenced in this clause (IA) is commencing), or (IIB) the such Marketed Underwritten Offering has not been priced by the end of the third (3rd) Business Day after the Launch Date, assuming that the Launch Date occurred before the expiration of the five (5) Business Day period referenced in clause (IIA) above); provided, further, that in the case of both clause (I) and clause (II) above such Underwritten Offering Request shall not be counted as a utilized Underwritten Offering Request for purposes of the limits in this Section 2(a)(ii) (other than clause (z) hereof) and Section 2(g); and (z) LBHI shall not be entitled to make in the aggregate more than four (4) Underwritten Offering Requests, including two (2) Priced Underwritten Offering Requests and two (2) Underwritten Offering Requests that are deemed rescinded or affirmatively rescinded, in any twelve (12) month period (for the avoidance of doubt, if there are two (2) Priced Underwritten Offering Requests in any twelve (12) month period this clause shall not be interpreted as allowing LBHI to make any further Underwritten Offering requests until the expiration of the then current twelve (12) month period). Each Underwritten Offering Request will specify the number of Registrable Securities Shares proposed by LBHI the Stockholder to be included in such Underwritten Offering, the intended method of distribution and the estimated gross proceeds of such Underwritten Offering, which (i) in the case of a Marketed Underwritten Offering, may not be less than $100 million50 million or (ii) in the case of any other Underwritten Offer, may not be less than $25 million or, in either case, if less, all of the Registrable Shares held by the requesting Stockholder. LBHI Subject to Section 5.8, the requesting Stockholder may change the number of Registrable Securities Shares proposed to be offered in any Marketed Underwritten Offering at any time prior to the Launch Date of the such Underwritten Offering so long as such change would not reduce the estimated gross proceeds of the such Marketed Underwritten Offering to less than $100 millionthe applicable minimum amount provided in the preceding sentence. (iii) The Company will have the right to delay an Underwritten Offering by LBHI following receipt of an Underwritten Offering Request if the Company intends to effect its own Underwritten Offering by giving LBHI written notice of such intent (a “Stand-Down Notice”), whereby the Company’s obligation to cooperate with the LBHI Group and any Underwriter in effecting an Underwritten Offering pursuant to Section 2(a)(ii) shall be suspended until the later of the Resumption Date or the date of expiration of any “lock-up” agreement required to be entered into by LBHI pursuant to Section 3(b) with respect to the Company’s Underwritten Offering; provided, however, that (w) the Company will not be entitled to give a Stand-Down Notice until after the first (1st) anniversary of the Initial Closing; (x) the Company will not be entitled to deliver a Stand-Down Notice in respect of an Underwritten Offering Request later than 5 p.m. New York time on the next Business Day following receipt of such Underwritten Offering Request; (y) the Company will not be entitled to more than one (1) Stand-Down Notice in any twelve (12) month period; and (z) the Company will be deemed to have rescinded the Stand-Down Notice automatically, whereby the Company’s obligation to cooperate with the LBHI Group and any Underwriter in effecting an Underwritten Offering pursuant to Section 2(a)(ii) shall resume, if (I) the Launch Date in respect of the Company’s Underwritten Offering has not occurred by the end of the seventh (7th) Business Day after the date of the Underwritten Offering Request or (II) the Company’s Underwritten Offering has not been priced by the end of the third (3rd) Business Day after the Launch Date (the date following automatic rescission of a Stand-Down Notice pursuant to either clause (I) and clause (II) above, a “Resumption Date”). LBHI acknowledges and agrees that the receipt of any Stand-Down Notice may constitute material non-public information regarding the Company and shall keep the existence and contents of any Stand-Down Notice confidential. Notwithstanding anything to the contrary contained herein, if LBHI determines to rescind any prior Underwritten Offering Request or Demand Notice following receipt of a Stand-Down Notice, then LBHI may, at its election, give written notice of such election to the Company; provided, however, that such rescinded Underwritten Offering Request or Demand Notice shall not be counted as an Underwritten Offering Request or Demand Notice for purposes of the limits in Section 2(a)(ii) and Section 2(b)(i), respectively, without any requirement to reimburse the Company for any related expenses incurred by the Company.

Shelf Registration; Underwritten Offering. (i) Subject to the provisions of Section 2(l), on or prior to the tenth (10th) day following the Initial Closing, the Company will file a Shelf Registration Statement (which Shelf Registration Statement shall be an Automatic Shelf Registration Statement if the Company is then eligible to file an Automatic Shelf Registration Statement) registering for resale the Registrable Securities under the Securities Act. Until such time as all Registrable Securities cease to be Registrable Securities or the Company is no longer eligible to maintain a Shelf Registration Statement, the Company will keep current and effective such Shelf Registration Statement and file such supplements or amendments to such Shelf Registration Statement (or file a new Shelf Registration Statement (which Shelf Registration Statement shall be an Automatic Shelf Registration Statement if the Company is then eligible to file an Automatic Shelf Registration Statement) when such preceding Shelf Registration Statement expires pursuant to the rules of the Commission) as may be necessary or appropriate in order to keep such Shelf Registration Statement continuously effective and useable for the resale of Registrable Securities under the Securities Act. The Company represents and warrants to LBHI and Enterprise that as of the date of this Agreement, the Company is not an “ineligible issuer” and is a “well known seasoned issuer”, in each case as defined under the Securities Act. (ii) Upon the written request of LBHI from time to time (an “Underwritten Offering Request”), the Company will cooperate with the LBHI Group and any Underwriter in effecting an Underwritten Offering pursuant to a Shelf Registration Statement as promptly as reasonably practicable following receipt of such Underwritten Offering Request; provided, however, that (x) LBHI shall not be entitled to make more than two (2) Underwritten Offering Requests that result in priced Underwritten Offerings in any twelve (12) month period (the “Priced Underwritten Offering Requests”); (y) LBHI will be deemed to have requested the removal of any Registrable Securities held by any LBHI Group Member from any Underwritten Offering Request and to have rescinded the Underwritten Offering Request, with the same effects as provided in Section 2(g), automatically if: (I) the Launch Date in respect of such Underwritten Offering has not occurred by the end of the fifth (5th) Business Day after the following conditions have been met: (I-i) the Company has made available to LBHI a Prospectus under an effective Registration Statement naming the designated member or members of the LBHI Group as selling stockholders and the Underwriter(s) and containing such other information as is required under the Securities Act and the rules of the Commission in a form ready for filing, assuming that as of such time (X) the Company has otherwise complied with its applicable obligations in Section 2(k) and (Y) LBHI has otherwise complied with its obligations in Section 2(m), and (I-ii) the Company has notified LBHI in writing that the Company has complied with the provisions of this clause (I) and that the five (5) Business Day period referenced in this clause (I) is commencing), or (II) the Underwritten Offering has not been priced by the end of the third (3rd) Business Day after the Launch Date, assuming that the Launch Date occurred before the expiration of the five (5) Business Day period referenced in clause (II) above); provided, further, that in the case of both clause (I) and clause (II) above such Underwritten Offering Request shall not be counted as a utilized Underwritten Offering Request for purposes of the limits in this Section 2(a)(ii) (other than clause (z) hereof) and Section 2(g); and (z) LBHI shall not be entitled to make in the aggregate more than four (4) Underwritten Offering Requests, including two (2) Priced Underwritten Offering Requests and two (2) Underwritten Offering Requests that are deemed rescinded or affirmatively rescinded, in any twelve (12) month period (for the avoidance of doubt, if there are two (2) Priced Underwritten Offering Requests in any twelve (12) month period this clause shall not be interpreted as allowing LBHI to make any further Underwritten Offering requests until the expiration of the then current twelve (12) month period). Each Underwritten Offering Request will specify the number of Registrable Securities proposed by LBHI to be included in such Underwritten Offering, the intended method of distribution and the estimated gross proceeds of such Underwritten Offering, which may not be less than $100 million. LBHI may change the number of Registrable Securities proposed to be offered in any Underwritten Offering at any time prior to the Launch Date of the Underwritten Offering so long as such change would not reduce the estimated gross proceeds of the Underwritten Offering to less than $100 million. (iii) The Company will have the right to delay an Underwritten Offering by LBHI following receipt of an Underwritten Offering Request if the Company intends to effect its own Underwritten Offering by giving LBHI written notice of such intent (a “Stand-Down Notice”), whereby the Company’s obligation to cooperate with the LBHI Group and any Underwriter in effecting an Underwritten Offering pursuant to Section 2(a)(ii) shall be suspended until the later of the Resumption Date or the date of expiration of any “lock-up” agreement required to be entered into by LBHI pursuant to Section 3(b) with respect to the Company’s Underwritten Offering; provided, however, that (w) the Company will not be entitled to give a Stand-Down Notice until after the first (1st) anniversary of the Initial Closing; (x) the Company will not be entitled to deliver a Stand-Down Notice in respect of an Underwritten Offering Request later than 5 p.m. New York time on the next Business Day following receipt of such Underwritten Offering Request; (y) the Company will not be entitled to more than one (1) Stand-Down Notice in any twelve (12) month period; and (z) the Company will be deemed to have rescinded the Stand-Down Notice automatically, whereby the Company’s obligation to cooperate with the LBHI Group and any Underwriter in effecting an Underwritten Offering pursuant to Section 2(a)(ii) shall resume, if (I) the Launch Date in respect of the Company’s Underwritten Offering has not occurred by the end of the seventh (7th) Business Day after the date of the Underwritten Offering Request or (II) the Company’s Underwritten Offering has not been priced by the end of the third (3rd) Business Day after the Launch Date (the date following automatic rescission of a Stand-Down Notice pursuant to either clause (I) and clause (II) above, a “Resumption Date”). LBHI acknowledges and agrees that the receipt of any Stand-Down Notice may constitute material non-public information regarding the Company and shall keep the existence and contents of any Stand-Down Notice confidential. Notwithstanding anything to the contrary contained herein, if LBHI determines to rescind any prior Underwritten Offering Request or Demand Notice following receipt of a Stand-Down Notice, then LBHI may, at its election, give written notice of such election to the Company; provided, however, that such rescinded Underwritten Offering Request or Demand Notice shall not be counted as an Underwritten Offering Request or Demand Notice for purposes of the limits in Section 2(a)(ii) and Section 2(b)(i), respectively, without any requirement to reimburse the Company for any related expenses incurred by the Company.