Common use of Shelf Takedowns Clause in Contracts

Shelf Takedowns. Subject to the expiration or waiver of any applicable lockup pursuant to Section 2.4(d), upon the written request of the Demand Party at any time and from time to time, the Company will facilitate in the manner described in this Agreement a “takedown” promptly of the Demand Party’s Registrable Securities off of an effective shelf registration statement. Upon the written request of the Demand Party, the Company will file and seek the effectiveness of a post-effective amendment to an existing shelf registration statement or a prospectus supplement in order to register up to the number of the Demand Party’s Registrable Securities previously taken down off of such shelf by the Demand Party and not yet “reloaded” onto such shelf registration statement. In connection with the exercise by the Demand Party of a demand right pursuant to this Section 2.2(f), where the contemplated plan of distribution includes a customary “road show” or other substantial marketing effort by the Company and the underwriters (a “Marketed Underwritten Shelf Offering”), the Demand Party shall also deliver the applicable demand request to any Non-Sponsor Holders of Registrable Securities included on the applicable shelf registration statement and, subject to the limitations in Section 2.2(e), the Demand Party shall permit each such Non-Sponsor Holder to include all or a portion of its Registrable Securities in the Marketed Underwritten Shelf Offering if such Non-Sponsor Holder notifies the Demand Party and the Company within two days after delivery of the demand request to such Non-Sponsor Holder of its election to participate (which election shall specify the number of Registrable Securities intended to be disposed of by such Non-Sponsor Holder). For the avoidance of doubt, any proposed offer and sale of Registrable Securities to one or more purchasers or underwriters by means of a block trade, bought deal or direct sale shall not be deemed to be a Marketed Underwritten Shelf Offering.

Shelf Takedowns. Subject to the expiration or waiver of any applicable lockup pursuant to Section 2.4(d), upon Upon the written request of the Demand Party at any time and from time to time, the Company will shall facilitate in the manner described in this Agreement a “takedown” promptly of the Demand Party’s Registrable Securities off of an effective shelf registration statement. Upon the written request of the Demand Party, the Company will shall file and seek the effectiveness of a post-effective amendment to an existing shelf registration statement or a prospectus supplement in order to register up to the number of the Demand Party’s Registrable Securities previously taken down off of such shelf by the Demand Party and not yet “reloaded” onto such shelf registration statement. In connection with the exercise by the Demand Party of a demand right pursuant to this Section 2.2(f), where the contemplated plan of distribution includes a customary “road show” or other substantial marketing effort by the Company and the underwriters (a “Marketed Underwritten Shelf Offering”), the Demand Party shall also deliver the applicable demand request to any Non-Sponsor Holders of Registrable Securities included on the applicable shelf registration statement and, subject to the limitations in Section 2.2(e), the Demand Party Sponsor Holders shall permit each such Non-Sponsor Holder to include all or a portion of its Registrable Securities in the Marketed Underwritten Shelf Offering if such Non-Sponsor Holder notifies the Demand Party and the Company within two days after delivery of the demand request to such Non-Sponsor Holder of its election to participate (which election shall specify the number of Registrable Securities intended to be disposed of by such Non-Sponsor Holder). For the avoidance of doubt, any proposed offer and sale of Registrable Securities to one or more purchasers or underwriters by means of a block trade, bought deal or direct sale shall not be deemed to be a Marketed Underwritten Shelf Offering. Notwithstanding the foregoing, the Company shall not be obligated to facilitate a “takedown” under this Section 2.2(f) if, in the good faith judgment of the Board, the Company is in possession of material non-public information the disclosure of which would be materially adverse to the Company and would not otherwise be required under Law, in which case the filing of the applicable prospectus or prospectus supplement may be delayed until the earlier of the second Business Day after such conditions shall have ceased to exist and the 60th day after receipt by the Company of the written request from a Demand Party to effect the takedown under this Section 2.2(f); provided that the number of any such delays or any delay pursuant to Section 2.2(a)(z) or 2.2(h) shall not exceed two in any twelve (12) month period.

Shelf Takedowns. Subject to At any time when a Shelf Registration statement is effective and its use has not been suspended by the expiration or waiver of any applicable lockup Company pursuant to Section 2.4(d2(c), upon the written request of demand (a “Takedown Demand”) by any Equity Holder that is a Shelf Participant holding Registrable Shares at such time (the Demand Party at any time and from time to time“Initiating Equity Holder”), the Company will facilitate in the manner described in this Agreement a “takedown” promptly of the Demand Party’s Registrable Securities off of an effective shelf registration statement. Upon the written request of the Demand Party, the Company will file and seek the effectiveness of a post-effective amendment to an existing shelf registration statement or a prospectus supplement in order to register up to the number of the Demand Party’s Registrable Securities previously taken down shares off of such shelf by the Demand Party and not yet “reloaded” onto such shelf registration statement. In connection with the exercise by the Demand Party of a demand right pursuant to this Section 2.2(f), where the contemplated plan of distribution includes a customary “road show” or other substantial marketing effort by the Company and the underwriters Shelf Registration; provided that (a “Marketed Underwritten Shelf Offering”), the Demand Party shall also deliver the applicable demand request to any Non-Sponsor Holders of Registrable Securities included on the applicable shelf registration statement and, i) subject to the limitations set forth in Section 2.2(e)2(a)(ii)(4) and Section 2(a)(ii)(5) hereof, the Equity Holders shall have the right to make no more than four (4) Takedown Demands and/or Demand Party Registrations in any twelve (12) month period, (ii) shall permit each have the right to make an unlimited number of Takedown Demands and/or Demand Registrations, but only one in any calendar quarter, (iii) the Company shall not be obligated to effect a Marketed Underwritten Takedown Offering unless the shares requested to be sold in such Non-Sponsor offering have an aggregate market value (based on the most recent closing price of the Common Stock at the time of the demand) of at least $10,000,000 (net of expected underwriting discounts and commissions); and (iv) the Company will provide (x) in connection with any Overnight Underwritten Takedown Offering at least two (2) business days’ notice to any Eligible Holder (other than the Initiating Equity Holder) that is a Shelf Participant and that is a member of the Snow Xxxxxx Group or the TOBI Group or other Equity Holder or is a director or executive officer of the Company, and (y) in connection with any Marketed Underwritten Takedown Offering, at least five (5) business days’ notice to include all or any Eligible Holder (other than the Initiating Equity Holder) that is a portion Shelf Participant. If any Shelf Participants entitled to receive a notice pursuant to clause (iv) of its Registrable Securities the preceding sentence request inclusion of their Eligible Shares (by notice to the Company, which notice must be received by the Company no later than (A) in the case of an Overnight Underwritten Takedown Offering, the business day following the date notice is given to such participant or (B) in the case of a Marketed Underwritten Shelf Takedown Offering, three (3) calendar days following the date notice is given to such participant) the Company shall include such shares in the Underwritten Takedown Offering so long as such participants agree to be bound by the applicable provisions of this Section 2; provided that (1) the Initiating Equity Holder shall maintain the right to select the underwriter(s) or managing underwriter(s) for such offering and (2) if such Non-Sponsor Holder notifies managing underwriter(s) determines that marketing factors require a limitation on the Demand Party number of shares to be underwritten, the managing underwriter(s) may limit the number of shares proposed to be included in such offering such that the number of Eligible Shares to be included shall be determined in the manner set forth in Section 2(c). The Shelf Participants participating in such offering and the Company within two days after delivery shall enter into an underwriting agreement in customary form with the underwriter or underwriters of such offering. Any Shelf Participant who has requested inclusion in such Underwritten Takedown Offering as provided above (including the Initiating Equity Holder) may elect to withdraw therefrom at any time prior to the consummation of the demand request takedown by written notice to the Company, the managing underwriter(s) and the Initiating Equity Holder; provided that, if the Company’s counsel or underwriters’ counsel reasonably determines that such Non-Sponsor withdrawal would require a recirculation of the prospectus, then no Eligible Holder of its election shall have the right to participate (which election shall specify withdraw unless the number of Registrable Securities intended Initiating Equity Holder has elected to be disposed of by such Non-Sponsor Holder). For the avoidance of doubt, any proposed offer and sale of Registrable Securities to one or more purchasers or underwriters by means of a block trade, bought deal or direct sale shall not be deemed to be a Marketed Underwritten Shelf Offeringwithdraw.

Shelf Takedowns. Subject to the expiration or waiver of any applicable lockup pursuant to Section 2.4(d), upon the written request of the Demand Party at any time and from time to time, the Company will shall facilitate in the manner described in this Agreement a “takedown” promptly of the Demand Party’s Registrable Securities off of an effective shelf registration statement. Upon the written request of the Demand Party, the Company will shall file and seek the effectiveness of a post-effective amendment to an existing shelf registration statement or a prospectus supplement in order to register up to the number of the Demand Party’s Registrable Securities previously taken down off of such shelf by the Demand Party and not yet “reloaded” onto such shelf registration statement. In connection with the exercise by the Demand Party of a demand right pursuant to this Section 2.2(f), where the contemplated plan of distribution includes a customary “road show” or other substantial marketing effort by the Company and the underwriters (a “Marketed Underwritten Shelf Offering”), the Demand Party shall also deliver the applicable demand request to any Non-Sponsor Holders of Registrable Securities included on the applicable shelf registration statement and, subject to the limitations in Section 2.2(e), the Demand Party Sponsor Holders shall permit each such Non-Sponsor Holder to include all or a portion of its Registrable Securities in the Marketed Underwritten Shelf Offering if such Non-Sponsor Holder notifies the Demand Party and the Company within two days after delivery of the demand request to such Non-Non- Sponsor Holder of its election to participate (which election shall specify the number of Registrable Securities intended to be disposed of by such Non-Sponsor Holder). For the avoidance of doubt, any proposed offer and sale of Registrable Securities to one or more purchasers or underwriters by means of a block trade, bought deal or direct sale shall not be deemed to be a Marketed Underwritten Shelf Offering. Notwithstanding the foregoing, the Company shall not be obligated to facilitate a “takedown” under this Section 2.2(f) if, in the good faith judgment of the Board, the Company is in possession of material non-public information the disclosure of which would be materially adverse to the Company and would not otherwise be required under Law, in which case the filing of the applicable prospectus or prospectus supplement may be delayed until the earlier of the second Business Day after such conditions shall have ceased to exist and the 60th day after receipt by the Company of the written request from a Demand Party to effect the takedown under this Section 2.2(f); provided that the number of any such delays or any delay pursuant to Section 2.2(a)(z) or 2.2(h) shall not exceed two in any twelve (12) month period.

Shelf Takedowns. Subject to the expiration or waiver provisions of any applicable lockup pursuant to Section 2.4(d)2(c) hereof, upon the written request of the Demand Party CD&R Stockholders shall be entitled, at any time and from time to timetime when a Shelf Registration Statement is effective, the Company will facilitate in the manner described in this Agreement to sell such Registrable Securities held by them as are then registered pursuant to a Shelf Registration Statement (each, a “takedown” promptly of the Demand Party’s Registrable Securities off of an effective shelf registration statementShelf Takedown”). Upon the written request of the Demand Party, the Company will file and seek the effectiveness of a post-effective amendment to an existing shelf registration statement or a prospectus supplement in order to register up to the The number of Shelf Takedowns that the Demand Party’s Registrable Securities previously taken down off of such shelf by the Demand Party and not yet “reloaded” onto such shelf registration statement. In connection with the exercise by the Demand Party of a demand right CD&R Stockholders may effect pursuant to this Section 2.2(f2(b) shall not be limited, provided that the number of Underwritten Offerings that may be effected hereunder shall be limited to a total of three (3) (less any Demand Requests made pursuant to Section 2(e)), with only two (2) such Underwritten Offerings where the contemplated plan of distribution includes contemplates a customary “road show” (including an “electronic road show”) or other substantial marketing effort by the Company and the underwriters (any such Underwritten Offering, a “Marketed Underwritten Shelf Offering”). Any such Shelf Takedown may be made in the United States by and pursuant to any method or combination of methods legally available to the CD&R Stockholders (including an underwritten offering, a direct sale to purchasers, a sale to or through brokers, dealers or agents, a sale over the Demand Party internet, Block Sales, derivative transactions with third parties, sales in connection with short sales and other hedging transactions). The Company shall also deliver comply with the applicable demand request provisions of the Securities Act with respect to any Non-Sponsor Holders the disposition of all Registrable Securities included on covered by the applicable shelf registration statement and, subject to Shelf Registration Statement in accordance with the limitations intended methods of disposition by the CD&R Stockholders participating in Section 2.2(e), the Demand Party shall permit each such Non-Sponsor Holder to include all or a portion of its Shelf Takedown. The CD&R Stockholders selling any Registrable Securities in the Marketed Underwritten pursuant to a Shelf Offering if such Non-Sponsor Holder notifies the Demand Party and Takedown shall give the Company within two days after delivery prompt written notice of the demand request to consummation of each Shelf Takedown (whether or not such Non-Sponsor Holder of its election to participate (which election shall specify the number of Registrable Securities intended to be disposed of by such Non-Sponsor HolderShelf Takedown constitutes an Underwritten Offering). For the avoidance of doubt, any proposed offer and sale of Registrable Securities to one or more purchasers or underwriters by means of a block trade, bought deal or direct sale shall not be deemed to be a Marketed Underwritten Shelf Offering.

Shelf Takedowns. Subject to the expiration or waiver of any applicable lockup pursuant to Section 2.4(d), upon the written request of the Demand Party at any time and from time to time, the Company will facilitate in the manner described in this Agreement a “takedown” promptly of the Demand Party’s Registrable Securities off of an effective shelf registration statement. Upon the written request of the Demand Party, the Company will file and seek the effectiveness of a post-effective amendment to an existing shelf registration statement or a prospectus supplement in order to register up to the number of the Demand Party’s Registrable Securities previously taken down off of such shelf by the Demand Party and not yet “reloaded” onto such shelf registration statement. In connection with the exercise by the Demand Party of a demand right pursuant to this Section 2.2(f), where the contemplated plan of distribution includes a customary “road show” or other substantial marketing effort by the Company and the underwriters (a “Marketed Underwritten Shelf Offering”), the Demand Party shall also deliver the applicable demand request to any Non-Sponsor Holders of Registrable Securities included on the applicable shelf registration statement and, subject to the limitations in Section 2.2(e), the Demand Party shall permit each such Non-Sponsor Holder to include all or a portion of its Registrable Securities in the Marketed Underwritten Shelf Offering if such Non-Sponsor Holder notifies the Demand Party and the Company within two days after delivery of the demand request to such Non-Sponsor Holder of its election to participate (which election shall specify the number of Registrable Securities intended to be disposed of by such Non-Sponsor Holder). For the avoidance of doubt, any proposed offer and sale of Registrable Securities to one or more purchasers or underwriters by means of a block trade, bought deal or direct sale shall not be deemed to be a Marketed Underwritten Shelf Offering.

Shelf Takedowns. Subject to At any time when a Shelf Registration statement is effective and its use has not been suspended by the expiration or waiver of any applicable lockup Company pursuant to Section 2.4(d2(c), upon the written request demand (a “Takedown Demand”) by any member of the Demand Party Snow Xxxxxx Group or the TOBI Group that is a Shelf Participant holding Registrable Shares at any such time and from time to time(the “Initiating Equity Holder”), the Company will facilitate in the manner described in this Agreement a “takedown” promptly of the Demand Party’s Registrable Securities off of an effective shelf registration statement. Upon the written request of the Demand Party, the Company will file and seek the effectiveness of a post-effective amendment to an existing shelf registration statement or a prospectus supplement in order to register up to the number of the Demand Party’s Registrable Securities previously taken down shares off of such shelf by the Demand Party and not yet “reloaded” onto such shelf registration statement. In connection with the exercise by the Demand Party of a demand right pursuant to this Section 2.2(f), where the contemplated plan of distribution includes a customary “road show” or other substantial marketing effort by the Company and the underwriters Shelf Registration; provided that (a “Marketed Underwritten Shelf Offering”), the Demand Party shall also deliver the applicable demand request to any Non-Sponsor Holders of Registrable Securities included on the applicable shelf registration statement and, i) subject to the limitations set forth in Section 2.2(e)2(a)(ii)(4) hereof, Snow Xxxxxx shall have the right to make no more than four (4) Takedown Demands and/or Demand Registrations in any twelve (12) month period, (ii) subject to the limitations set forth in Section 2(a)(ii)(5) hereof, the TOBI Group shall have the right to make no more than one (1) Takedown Demand Party or Demand Registration; (iii) the Company shall permit each not be obligated to effect a Marketed Underwritten Takedown Offering unless the shares requested to be sold in such Non-Sponsor offering have an aggregate market value (based on the most recent closing price of the Common Stock at the time of the demand) of at least $10,000,000 (net of expected underwriting discounts and commissions); and (iv) the Company will provide (x) in connection with any Overnight Underwritten Takedown Offering at least two (2) business days’ notice to any Equity Holder (other than the Initiating Equity Holder) that is a Shelf Participant and that is a member of the Snow Xxxxxx Group or the TOBI Group or is a director or executive officer of the Company, and (y) in connection with any Marketed Underwritten Takedown Offering, at least five (5) business days’ notice to include all or any Eligible Holder (other than the Initiating Equity Holder) that is a portion Shelf Participant. If any Shelf Participants entitled to receive a notice pursuant to clause (iii) of its Registrable Securities the preceding sentence request inclusion of their Eligible Shares (by notice to the Company, which notice must be received by the Company no later than (A) in the case of an Overnight Underwritten Takedown Offering, the business day following the date notice is given to such participant or (B) in the case of a Marketed Underwritten Shelf Takedown Offering, three (3) calendar days following the date notice is given to such participant) the Company shall include such shares in the Underwritten Takedown Offering so long as such participants agree to be bound by the applicable provisions of this Section 2; provided that (1) the Initiating Equity Holder shall maintain the right to select the underwriter(s) or managing underwriter(s) for such offering and (2) if such Non-Sponsor Holder notifies managing underwriter(s) determines that marketing factors require a limitation on the Demand Party number of shares to be underwritten, the managing underwriter(s) may limit the number of shares proposed to be included in such offering such that the number of Eligible Shares to be included shall be determined in the manner set forth in Section 2(c). The Shelf Participants participating in such offering and the Company within two days after delivery shall enter into an underwriting agreement in customary form with the underwriter or underwriters of such offering. Any Shelf Participant who has requested inclusion in such Underwritten Takedown Offering as provided above (including the Initiating Equity Holder) may elect to withdraw therefrom at any time prior to the consummation of the demand request takedown by written notice to the Company, the managing underwriter(s) and the Initiating Equity Holder; provided that, if the Company’s counsel or underwriters’ counsel reasonably determines that such Non-Sponsor withdrawal would require a recirculation of the prospectus, then no Eligible Holder of its election shall have the right to participate (which election shall specify withdraw unless the number of Registrable Securities intended Initiating Equity Holder has elected to be disposed of by such Non-Sponsor Holder). For the avoidance of doubt, any proposed offer and sale of Registrable Securities to one or more purchasers or underwriters by means of a block trade, bought deal or direct sale shall not be deemed to be a Marketed Underwritten Shelf Offeringwithdraw.

Shelf Takedowns. Subject In connection with any shelf takedown that is demanded by any Shareholder or as to which piggyback rights otherwise apply, the Company will: (a) cooperate with the selling Shareholders shares and the sole underwriter or managing underwriter of an underwritten offering shares, if any, to facilitate the timely preparation and delivery of certificates representing the shares to be sold and not bearing any restrictive legends; and enable such shares to be in such denominations (consistent with the provisions of the governing documents thereof) and registered in such names as the selling Shareholders or the sole underwriter or managing underwriter of an underwritten offering of shares, if any, may reasonably request at least two Business Days prior to any sale of such shares; (b) furnish to each Shareholder and to each underwriter, if any, participating in the relevant offering, without charge, as many copies of the applicable prospectus, including each preliminary prospectus, and any amendment or supplement thereto and such other documents as such Shareholder or underwriter may reasonably request in order to facilitate the public sale or other disposition of the shares; the Company hereby consents to the expiration use of the prospectus, including each preliminary prospectus, by each such Shareholder and underwriter in connection with the offering and sale of the shares covered by the prospectus or waiver the preliminary prospectus; (c) (i) use all reasonable efforts to register or qualify the shares being offered and sold, no later than the time of pricing of the applicable offering, under all applicable state securities or “blue sky” laws of such jurisdictions as each underwriter, if any, or any Shareholder holding shares covered by a registration statement, shall reasonably request; (ii) use all reasonable efforts to keep each such registration or qualification effective during the distribution of the registered shares; and (iii) do any and all other acts and things which may be reasonably necessary or advisable to enable each such underwriter, if any, and Shareholder to consummate the disposition in each such jurisdiction of such shares owned by such Shareholder; provided, however, that the Company shall not be obligated to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to consent to be subject to general service of process (other than service of process in connection with such registration or qualification or any sale of shares in connection therewith) in any such jurisdiction; (d) cause all shares being sold to be qualified for inclusion in or listed on any securities exchange on which shares issued by the Company are then so qualified or listed if so requested by the Shareholders, or if so requested by the underwriter or underwriters of an underwritten offering of shares, if any; (e) cooperate and assist in any filings required to be made with FINRA and in the performance of any applicable lockup due diligence investigation by any underwriter in an underwritten offering; (f) use all reasonable efforts to facilitate the distribution and sale of any shares to be offered pursuant to Section 2.4(dthis Agreement, including without limitation by making road show presentations, holding meetings with and making calls to potential investors and taking such other actions as shall be requested by the Shareholders or the lead managing underwriter of an underwritten offering; (g) [intentionally omitted]; (h) enter into customary agreements (including, in the case of an underwritten offering, one or more underwriting agreements in customary form, and including provisions with respect to indemnification and contribution in customary form and consistent with the provisions relating to indemnification and contribution contained herein) and take all other customary and appropriate actions in order to expedite or facilitate the disposition of such shares and in connection therewith: 1. make such representations and warranties to the selling Shareholders and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in similar underwritten offerings; 2. obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the lead managing underwriter, if any) addressed to the underwriters, if any (and if so requested, to each selling Shareholder), upon covering the written request matters customarily covered in opinions requested in sales of securities or underwritten offerings and such other matters as may be reasonably requested by such Shareholders and underwriters; 3. obtain “cold comfort” letters and updates thereof from the Company’s independent certified public accountants addressed to the underwriters, if any (and if so requested, to each selling Shareholder), which letters shall be customary in form and shall cover matters of the Demand Party at type customarily covered in “cold comfort” letters to underwriters in connection with primary underwritten offerings; 4. to the extent requested and customary for the relevant transaction, enter into a securities sales agreement with the Shareholders providing for, among other things, the appointment of such representative as agent for the selling Shareholders for the purpose of soliciting purchases of shares, which agreement shall be customary in form, substance and scope and shall contain customary representations, warranties and covenants; and 5. deliver such documents and certificates as the sole underwriter or managing underwriter, if any, any time selling Shareholder, or their respective counsel, shall reasonably request to evidence the continued validity of the representations and from time warranties made in accordance with Section 4.3(h)(1) above and to timeevidence compliance with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company; (i) if required by the Company’s transfer agent for the shares (the “Transfer Agent”) and/or The Depository Trust Company (“DTC”), the Company will use reasonable efforts to cause opinions of counsel to be delivered to and maintained with the Transfer Agent and/or DTC, together with any other agreements, authorizations, certificates and directions required by the Transfer Agent and/or DTC which authorize and direct the Transfer Agent to transfer shares without any restrictive legend and which allow DTC to accept such shares for settlement; and (j) use all reasonable efforts to facilitate in the manner described in this Agreement a “takedown” promptly settlement of the Demand Party’s Registrable Securities off of an effective shelf registration statement. Upon the written request of the Demand Party, the Company will file and seek the effectiveness of a post-effective amendment shares to an existing shelf registration statement or a prospectus supplement in order to register up to the number of the Demand Party’s Registrable Securities previously taken down off of such shelf by the Demand Party and not yet “reloaded” onto such shelf registration statement. In connection with the exercise by the Demand Party of a demand right be sold pursuant to this Section 2.2(f)Agreement, where including through the contemplated plan facilities of distribution includes a customary “road show” DTC. The above shall be done at such times as customarily occur in similar registered offerings or other substantial marketing effort by the Company and the underwriters (a “Marketed Underwritten Shelf Offering”), the Demand Party shall also deliver the applicable demand request to any Non-Sponsor Holders of Registrable Securities included on the applicable shelf registration statement and, subject to the limitations in Section 2.2(e), the Demand Party shall permit each such Non-Sponsor Holder to include all or a portion of its Registrable Securities in the Marketed Underwritten Shelf Offering if such Non-Sponsor Holder notifies the Demand Party and the Company within two days after delivery of the demand request to such Non-Sponsor Holder of its election to participate (which election shall specify the number of Registrable Securities intended to be disposed of by such Non-Sponsor Holder). For the avoidance of doubt, any proposed offer and sale of Registrable Securities to one or more purchasers or underwriters by means of a block trade, bought deal or direct sale shall not be deemed to be a Marketed Underwritten Shelf Offeringtakedowns.

Shelf Takedowns. Subject to At any time when a Shelf Registration Statement is effective and its use has not been otherwise suspended by the expiration or waiver Company in accordance with the terms of any applicable lockup pursuant to Section 2.4(d)2.3, so long as such Shelf Registration Statement has been filed on Form S-3, upon the a written request demand (a “Takedown Demand”) by any Holder or Holders holding not less than 50% of the Demand Party at any time and from time to timeRegistrable Securities (the “Initiating Holder”), the Company will facilitate in the manner described in this Agreement a “takedown” promptly of the Demand Party’s Registrable Securities off of an effective shelf registration statement. Upon such Shelf Registration Statement (a “take down offering”) and the written request Company shall pay all Registration Expenses in connection therewith; provided that the estimated market value of the Demand Party, Registrable Securities proposed to be sold by the Initiating Holder is at least $1,000,000; and in any such event the Company will file and seek provide (x) in connection with any non-marketed underwritten takedown offering (other than a Block Trade), at least two (2) Business Days’ notice of such Takedown Demand to each Holder (other than the effectiveness of a post-effective amendment to an existing shelf registration statement or a prospectus supplement Initiating Holder), (y) in order to register up connection with any Block Trade initiated prior to the number three (3) year anniversary of the Demand Party’s Registrable Securities previously taken down off date hereof, notice of such shelf by Takedown Demand to each Holder (other than the Initiating Holder) no later than noon Eastern time on the Business Day prior to the requested Takedown Demand Party and not yet “reloaded” onto (z) in connection with any marketed underwritten takedown offering, at least five (5) Business Days’ notice of such shelf registration statementTakedown Demand to each Holder (other than the Initiating Holder). In connection with (x) any non-marketed underwritten takedown offering initiated prior to the exercise by three (3) year anniversary of the Demand Party date of this Agreement and (y) any marketed underwritten takedown offering, if any Holders entitled to receive a demand right notice pursuant to this Section 2.2(f)the preceding sentence request inclusion of their Registrable Securities (by notice to the Company, where the contemplated plan of distribution includes a customary “road show” or other substantial marketing effort which notice must be received by the Company and no later than (A) in the underwriters case of a non-marketed underwritten takedown offering (other than a “Marketed Underwritten Shelf Offering”Block Trade), the Demand Party shall also deliver Business Day following the applicable demand request date notice is given to any Non-Sponsor Holders such participant, (B) in the case of Registrable Securities included a Block Trade, by 10:00 p.m. Eastern time on the applicable shelf registration statement anddate notice is given to such participant and (C) in the case of a marketed underwritten takedown offering, subject three (3) Business Days following the date notice is given to the limitations in Section 2.2(esuch participant), the Demand Party Initiating Holder and the other Holders that request inclusion of their Registrable Securities shall permit each such Non-Sponsor Holder be entitled to include all or a portion of its sell their Registrable Securities in such offering. Each Holder agrees that such Holder shall treat as confidential the Marketed Underwritten Shelf Offering if receipt of the notice of a Takedown Demand and shall not disclose or use the information contained in such Non-Sponsor Holder notifies notice without the Demand Party and prior written consent of the Company within two days after delivery until such time as the information contained therein is or becomes available to the public generally, other than as a result of disclosure by the Holder in breach of the demand request to such Non-Sponsor Holder terms of its election to participate (which election shall specify the number of Registrable Securities intended to be disposed of by such Non-Sponsor Holder). For the avoidance of doubt, any proposed offer and sale of Registrable Securities to one or more purchasers or underwriters by means of a block trade, bought deal or direct sale shall not be deemed to be a Marketed Underwritten Shelf Offeringthis Agreement.

Shelf Takedowns. Subject to At any time when a Shelf Registration statement is effective and its use has not been suspended by the expiration or waiver of any applicable lockup Company pursuant to Section 2.4(d2(c), upon the written request demand (a “Takedown Demand”) by any member of the Demand Party Snow Pxxxxx Group or the TOBI Group that is a Shelf Participant holding Registrable Shares at any such time and from time to time(the “Initiating Equity Holder”), the Company will facilitate in the manner described in this Agreement a “takedown” promptly of the Demand Party’s Registrable Securities off of an effective shelf registration statement. Upon the written request of the Demand Party, the Company will file and seek the effectiveness of a post-effective amendment to an existing shelf registration statement or a prospectus supplement in order to register up to the number of the Demand Party’s Registrable Securities previously taken down shares off of such shelf by the Demand Party and not yet “reloaded” onto such shelf registration statement. In connection with the exercise by the Demand Party of a demand right pursuant to this Section 2.2(f), where the contemplated plan of distribution includes a customary “road show” or other substantial marketing effort by the Company and the underwriters Shelf Registration; provided that (a “Marketed Underwritten Shelf Offering”), the Demand Party shall also deliver the applicable demand request to any Non-Sponsor Holders of Registrable Securities included on the applicable shelf registration statement and, i) subject to the limitations set forth in Section 2.2(e)2(a)(ii)(4) hereof, Snow Pxxxxx shall have the right to make no more than four (4) Takedown Demands and/or Demand Registrations in any twelve (12) month period, (ii) subject to the limitations set forth in Section 2(a)(ii)(5) hereof, the TOBI Group shall have the right to make no more than one (1) Takedown Demand Party or Demand Registration; (iii) the Company shall permit each not be obligated to effect a Marketed Underwritten Takedown Offering unless the shares requested to be sold in such Non-Sponsor offering have an aggregate market value (based on the most recent closing price of the Common Stock at the time of the demand) of at least $10,000,000 (net of expected underwriting discounts and commissions); and (iv) the Company will provide (x) in connection with any Overnight Underwritten Takedown Offering at least two (2) business days’ notice to any Equity Holder (other than the Initiating Equity Holder) that is a Shelf Participant and that is a member of the Snow Pxxxxx Group or the TOBI Group or is a director or executive officer of the Company, and (y) in connection with any Marketed Underwritten Takedown Offering, at least five (5) business days’ notice to include all or any Eligible Holder (other than the Initiating Equity Holder) that is a portion Shelf Participant. If any Shelf Participants entitled to receive a notice pursuant to clause (iii) of its Registrable Securities the preceding sentence request inclusion of their Eligible Shares (by notice to the Company, which notice must be received by the Company no later than (A) in the case of an Overnight Underwritten Takedown Offering, the business day following the date notice is given to such participant or (B) in the case of a Marketed Underwritten Shelf Takedown Offering, three (3) calendar days following the date notice is given to such participant) the Company shall include such shares in the Underwritten Takedown Offering so long as such participants agree to be bound by the applicable provisions of this Section 2; provided that (1) the Initiating Equity Holder shall maintain the right to select the underwriter(s) or managing underwriter(s) for such offering and (2) if such Non-Sponsor Holder notifies managing underwriter(s) determines that marketing factors require a limitation on the Demand Party number of shares to be underwritten, the managing underwriter(s) may limit the number of shares proposed to be included in such offering such that the number of Eligible Shares to be included shall be determined in the manner set forth in Section 2(c). The Shelf Participants participating in such offering and the Company within two days after delivery shall enter into an underwriting agreement in customary form with the underwriter or underwriters of such offering. Any Shelf Participant who has requested inclusion in such Underwritten Takedown Offering as provided above (including the Initiating Equity Holder) may elect to withdraw therefrom at any time prior to the consummation of the demand request takedown by written notice to the Company, the managing underwriter(s) and the Initiating Equity Holder; provided that, if the Company’s counsel or underwriters’ counsel reasonably determines that such Non-Sponsor withdrawal would require a recirculation of the prospectus, then no Eligible Holder of its election shall have the right to participate (which election shall specify withdraw unless the number of Registrable Securities intended Initiating Equity Holder has elected to be disposed of by such Non-Sponsor Holder). For the avoidance of doubt, any proposed offer and sale of Registrable Securities to one or more purchasers or underwriters by means of a block trade, bought deal or direct sale shall not be deemed to be a Marketed Underwritten Shelf Offeringwithdraw.