Common use of Subsequent Registration Statements Clause in Contracts

Subsequent Registration Statements. (a) Not later than ninety (90) days prior to each anniversary of the Merger Closing Date, the Company shall give written notice to each Holder (each, a "Company Notice") of its intention to file a Registration Statement with the SEC on or about such anniversary date covering the registration of the Registrable Securities held by the Holders (each, a "Subsequent Registration ------------------------ Statement"). --------- (b) Within forty-five (45) days following receipt of a Company Notice, each Holder electing to participate in such registration shall deliver written notice to the Company (each, a "Holder Notice") of his intention to have all or a specified number of the Registrable Securities held by such Holder registered under the Subsequent Registration Statement that is the subject of the Company Notice. (c) The Company shall use its reasonable best efforts to prepare and file with the SEC each Subsequent Registration Statement (on or about the anniversary date identified in the respective Company Notice) that registers the Registrable Securities specified in the Holder Notice. (d) The Company shall use its reasonable best efforts to cause the SEC to declare each Subsequent Registration Statement effective pursuant to Rule 415 as promptly as practicable following its filing. (e) The Company shall keep each Subsequent Registration Statement effective at all times until the earlier of (i) such time as all of the Registrable Securities registered thereunder have been disposed of in accordance with the intended methods of disposition set forth in the respective Subsequent Registration Statement declared effective by the SEC, and (ii) such date that is six (6) months after the effective date of such Subsequent Registration Statement (the period ending on such time or date in clauses (i) and (ii) of this Section 3.2(e), the "Subsequent Registration Statement Effectiveness -------------------------------------------------- Period"). ------ (f) The Company's obligations to file Registration Statements and any amendments or supplements thereto under this Section 3.2 shall terminate following the termination of the Subsequent Registration Statement Effectiveness Period applicable to the Subsequent Registration Statement filed on or about the fifth anniversary of this Agreement.

Subsequent Registration Statements. (a1) Not later than ninety If the Company elects to exercise its right with respect to any Subsequent Sale for which the Sale Shares (90or, in the case of a Subsequent Note Sale, the applicable Note Conversion Shares), on the applicable Closing Date, have not been previously registered and are not covered by an effective Registration Statement filed with the SEC which is not a Failed Registration Statement (as hereinafter defined) days prior (an "Unregistered ------------ Sale"), then on or before the end of a 20 calendar day ---- period immediately following each Closing Date relating to each anniversary of the Merger Closing Datesuch Subsequent Sale, the Company shall give written notice file with the SEC a registration statement (each a "Subsequent Registration Statement," and together with --------------------------------- the First Registration Statement and any other registration statement covering Registrable Securities or otherwise required to each Holder (be filed by the Company with the SEC as provided in this Agreement, the "Registration ------------ Statements" or each, a "Company NoticeRegistration Statement") of its intention to file a Registration Statement with the SEC on or about Form ---------- ---------------------- S-3 if such anniversary date covering the registration of the Registrable Securities held by the Holders (each, a "Subsequent Registration ------------------------ Statement"). --------- (b) Within forty-five (45) days following receipt of a Company Notice, each Holder electing to participate in such registration shall deliver written notice form is then available to the Company (eachand, a "Holder Notice") of his intention to have all or a specified number if not, on such form promulgated by the SEC for which the Company qualifies, that counsel for the Company shall deem appropriate and which form shall be available for the sale of the Registrable Securities held Sale Shares purchased by such Holder registered under the Investor or the Note Conversion Shares into which the applicable Subsequent Registration Statement Convertible Note may be converted and any Commitment Shares and Warrant Shares that is the subject of the Company Notice. (c) The Company shall use its reasonable best efforts to prepare and file with the SEC each Subsequent Registration Statement (on or about the anniversary date identified in the respective Company Notice) that registers the Registrable Securities specified in the Holder Notice. (d) The Company shall use its reasonable best efforts to cause the SEC to declare each Subsequent Registration Statement effective pursuant to Rule 415 as promptly as practicable following its filing. (e) The Company shall keep each Subsequent Registration Statement effective at all times until the earlier of (i) such time as all of the Registrable Securities registered thereunder have not been disposed of previously registered, in accordance with the intended methods method of disposition set forth in the respective distribution of such securities. The aggregate number of shares to be registered under each Subsequent Registration Statement declared effective shall be equal to (w) with respect to a Subsequent Share Sale, the number of Sale Shares purchased by the SECInvestor on the applicable Closing Date or, with respect to a Subsequent Note Sale, the number of Note Conversion Shares into which the applicable Subsequent Convertible Note may be converted assuming a conversion price of $0.75, plus (x) a number of Protective Warrant Shares equal to the number of Sale Shares purchased by the Investor on the applicable Closing Date plus (y) with respect to any prior Convertible Notes and any previous Subsequent Share Sales, any Commitment Shares not previously registered plus (iiz) any Warrant Shares not previously registered; (2) Prior to any Subsequent Sale which is not an Unregistered Sale, the Company shall file with the SEC a Registration Statement on Form S-3 if such date form is then available to the Company and, if not, on such form promulgated by the SEC for which the Company qualifies, that is six (6) months after counsel for the effective date Company shall deem appropriate and which form shall be available for the sale of the Sale Shares to be purchased by the Investor or the Note Conversion Shares into which the applicable Subsequent Convertible Note may be converted assuming a conversion price of $0.75 and any Warrant Shares and Commitment Shares which have not previously been registered, in accordance with the intended method of distribution of such Subsequent securities. The aggregate number of shares to be registered under such Registration Statement (shall be determined by the period ending on such time or date in clauses (i) and (ii) of this Section 3.2(e), the "Subsequent Registration Statement Effectiveness -------------------------------------------------- Period"). ------ (f) The Company's obligations to file Registration Statements and any amendments or supplements thereto under this Section 3.2 shall terminate following the termination of the Subsequent Registration Statement Effectiveness Period applicable to the Subsequent Registration Statement filed on or about the fifth anniversary of this Agreement.

Subsequent Registration Statements. (ai) Not later than ninety In any underwriting agreement relating to the Company Offering, the Company will require that if the Lock-Up Release Underwriter agrees to an early release of any lock-up imposed in connection with the Company Registration Statement (90"Lock-Up Release"), which Lock-Up Release shall apply to all such lock-ups, each other underwriter involved in the Company Offering must also release any such lock-up. (ii) days prior to each anniversary of Following the Merger Closing Lock-Up Termination Date, the Company shall give provide written notice of the occurrence of such Lock-Up Termination Date to each Holder all Stockholders. Each member of the Investcorp Group shall have ten (each, a "10) days from receipt of such notice to request the Company Notice") of its intention to file a registration statement under Section 9.1 or 9.3 of the Stockholders' Agreement (the "Investcorp Registration Statement"), which registration statement may include some or all of the shares held by any such Investcorp Group member. Upon receiving a request pursuant to this Section 2.5(f)(ii), the Company shall promptly notify the Carmel Stockholders and The JAB Trust in writing that it has received a request to file the Investcorp Registration Statement. Each Carmel Stockholder and The JAB Trust shall have 10 days following receipt of such notice from the Company to inform the Company whether such Stockholder wishes to include its shares in the Investcorp Registration Statement. Each Carmel Stockholder shall have the right to include any of its remaining shares (whether registered or unregistered) in the Investcorp Registration Statement, and The JAB Trust shall have the right to include any of its shares in the Investcorp Registration Statement. The Company shall not be delayed in filing the Investcorp Registration Statement by the application of the last sentence of Section 9.1(c) of the Stockholders' Agreement with respect to the SEC on or about such anniversary date covering Company Registration Statement. (iii) If the registration of Common Stock made in the Registrable Securities held Investcorp Registration Statement involves an underwritten public offering (the "Investcorp Offering"), the Investcorp Group shall be entitled to select the sole or the lead managing underwriter, as the case may be, of such offering (the "Investcorp Underwriter"); provided, however, that if (A) the Carmel Stockholders do not sell all of their shares pursuant to the Company Registration Statement, and (B) the shares offered in the Company Offering were priced by the Holders Underwriter (eachnet of underwriting discounts and commissions) below the Price, then (i) three joint book running underwriters shall participate in the Investcorp Offering, (ii) one of which shall be selected by the Carmel Stockholders, and two of which shall be selected by the Investcorp Group (the three joint book running underwriters shall be referred to herein as the "Investcorp Underwriter"), and (iii) agreements among the underwriters with regard to price and reduction in the number of shares included in the Investcorp Offering shall be made in the manner specified in Section 2.5(d). If the Investcorp Underwriter advises the Company in writing (with a copy to each Stockholder registering shares for resale in the Investcorp Registration Statement) that, in its good faith opinion, the number of shares of Common Stock requested to be included in the Investcorp Registration Statement would materially adversely affect (as defined in Section 2.5(d)) the marketing of the shares to be sold in such offering (such writing to state the approximate number of shares which may be included in such offering without such effect), the Company shall include in such registration: first, a number of shares of Common Stock owned by the Investcorp Group equal to the number of shares of Common Stock sold by the Carmel Stockholders pursuant to the Company Registration Statement; and second, shares allocated pro rata between the remaining collective number of shares proposed to be included by members of the Investcorp Group and the collective number of shares proposed to be included by the Carmel Stockholders and The JAB Trust. If requested in writing by the Investcorp Underwriter, each Stockholder agrees not to sell publicly any shares of Registrable Stock or any other shares of Capital Stock (other than shares of Registrable Stock or other shares of Capital Stock being registered in the Investcorp Offering), without the consent of such Investcorp Underwriter, for a period of not more than 90 days following the effective date of the Investcorp Registration Statement. (iv) If following receipt of notice from the Company concerning the Lock-Up Termination Date the Investcorp Group does not request that the Company file the Investcorp Registration Statement pursuant to Section 2.6(f)(ii) within such ten day period, each Carmel Stockholder will have ten (10) days to request the Company to file a registration statement under Section 9.1 or 9.3 of the Stockholders' Agreement (the "Subsequent Carmel Registration ------------------------ Statement"). --------- (b) Within forty-five (45) days following receipt of a Company Notice, each Holder electing Only the Carmel Stockholders shall be entitled to participate in the Carmel Registration Statement, and each Carmel Stockholder shall have the right to include any of its remaining shares (whether registered or unregistered) in the Carmel Registration Statement. If the registration of Common Stock made in the Carmel Registration Statement involves an underwritten public offering (the "Carmel Offering"), the Carmel Stockholders shall be entitled to select the sole or the lead managing underwriter, as the case may be, of such registration offering (the "Carmel Underwriter"). If requested in writing by the Carmel Underwriter, the Company and each Stockholder (other than each Carmel Stockholder participating in such offering) agree not to sell publicly any shares of Registrable Stock or any other shares of Capital Stock without the consent of such underwriter for a period of not more than 90 days following the effective date of the Carmel Registration Statement. The Company shall deliver written notice not be delayed in filing the Carmel Registration Statement by the application of the last sentence of Section 9.1(c) of the Stockholders' Agreement with respect to the Company (each, a "Holder Notice") of his intention to have all or a specified number of the Registrable Securities held by such Holder registered under the Subsequent Registration Statement that is the subject of the Company Noticeor otherwise. (cv) The Stockholders agree that a "Company Default" shall have occurred if, at any time prior to the Carmel Stockholders withdrawing all of its shares from the Company Registration Statement, the Company (i) does not file the Company Registration Statement by the Registration Date (a "Filing Default"); (ii) does not use its reasonable best efforts to prepare and file with have the SEC each Subsequent Company Registration Statement (on or about the anniversary date identified in the respective Company Notice) that registers the Registrable Securities specified in the Holder Notice. (d) The Company shall use its reasonable best efforts to cause the SEC to declare each Subsequent Registration Statement declared effective pursuant to Rule 415 as promptly as practicable following or cooperate in Marketing Activities reasonably requested by the Carmel Stockholders (a "Best Efforts Default"); or (iii) has withdrawn all of its filing. shares from the Company Registration Statement and the shares offered for sale thereunder are priced by the Underwriter at more than the Price (ea "Benchmark Withdrawal Default"). Upon the occurrence of a Company Default, notwithstanding anything herein to the contrary, each Carmel Stockholder may during the Default Notice Period (as defined in Section 2.5(f)(vi) request that the Company file a registration statement under Section 9.1 or 9.3 of the Stockholders' Agreement (the "Default Registration Statement"), which registration statement may include some or all of the shares held by any such Carmel Stockholder. The Company must file any Default Registration Statement within two Business Days of receiving such a request from any Carmel Stockholder. If the Company fails to timely file a Default Registration Statement, or fails to cause the Default Registration Statement to be declared effective within 150 days of the date such Default Registration Statement was filed, it shall pay the Carmel Stockholders damages calculated in the same manner provided in Section 9.1(d)(viii) of the Stockholders' Agreement. The Company and each Stockholder (other than each Carmel Stockholder) shall have no right to include any shares (whether registered or unregistered) in the Default Registration Statement. The Company shall keep be bound by the final sentence of Section 9.1(c) following the filing of the Default Registration Statement. Additionally, the Company and each Subsequent Stockholder (other than each Carmel Stockholder participating in such offering) agree not to issue or sell (publicly or privately) any shares of Registrable Stock or any other shares of Capital Stock for 180 days following the effectiveness of the Default Registration Statement effective at all times until the or such earlier of (i) such time as all of the Registrable Securities shares registered thereunder under the Default Registration Statement have been disposed of in accordance with the intended methods of disposition set forth in the respective Subsequent Registration Statement declared effective by the SEC, and (ii) such date that is six (6) months after the effective date of such Subsequent Registration Statement (the period ending on such time or date in clauses (i) and (ii) of this Section 3.2(e), the "Subsequent Registration Statement Effectiveness -------------------------------------------------- Period"). ------ (f) The Company's obligations to file Registration Statements and any amendments or supplements thereto under this Section 3.2 shall terminate following the termination of the Subsequent Registration Statement Effectiveness Period applicable to the Subsequent Registration Statement filed on or about the fifth anniversary of this Agreementsold.

Subsequent Registration Statements. (i) For each registration of Common Stock pursuant to Section 9.1 or 9.3 of the Stockholders' Agreement that involves an underwritten public offering and that closes after December 1, 2002, (an "Underwritten Offering"), (a) Not later than ninety the Parties shall cooperate to allow each Stockholder to participate, including providing written notice to all Parties of any such Underwritten Offering (90including an Underwritten Offering of shares registered for resale under a then effective registration statement) ten (10) days prior to each anniversary the commencement of any marketing efforts with respect to such Underwritten Offering and, if necessary, delaying the Merger Closing Date, the Company shall give written notice Underwritten Offering to each Holder (each, a "Company Notice") of its intention to file a Registration Statement with the SEC on or about such anniversary date covering permit the registration of the Registrable Securities held sale of shares by the Holders (eachsuch other Stockholders, a "Subsequent Registration ------------------------ Statement"). --------- (b) Within forty-five (45) days following receipt the holders of a Company Noticemajority of shares of Registrable Stock to be sold in such offering shall be entitled to select the sole or the lead managing underwriter, each Holder electing as the case may be, of such offering (the "Lead Underwriter"); provided, however, that if the other Stockholders participating in the Underwritten Offering own at least 20% of the shares of Registrable Stock to be sold in such offering, then (i) two or, at the Company's option, three joint book running underwriters shall participate in such registration shall deliver written notice to the Company (each, a "Holder Notice") of his intention to have all or a specified number of the Registrable Securities held by such Holder registered under the Subsequent Registration Statement that is the subject of the Company Notice. (c) The Company shall use its reasonable best efforts to prepare and file with the SEC each Subsequent Registration Statement (on or about the anniversary date identified in the respective Company Notice) that registers the Registrable Securities specified in the Holder Notice. (d) The Company shall use its reasonable best efforts to cause the SEC to declare each Subsequent Registration Statement effective pursuant to Rule 415 as promptly as practicable following its filing. (e) The Company shall keep each Subsequent Registration Statement effective at all times until the earlier of (i) such time as all of the Registrable Securities registered thereunder have been disposed of in accordance with the intended methods of disposition set forth in the respective Subsequent Registration Statement declared effective by the SECUnderwritten Offering, and (ii) one of which shall be selected by such date that is six other Stockholders, and the remaining one or two, as the case may be, of which, including the Lead Underwriter, shall be selected by the majority Stockholders, (6c) months after if the Lead Underwriter advises the Company in writing (with a copy to each Stockholder registering shares for resale in the Underwritten Offering) that, in the good faith opinion of the underwriters, the number of shares of Common Stock requested to be included in the Underwritten Offering would materially adversely affect (as defined in Section 2.5(d) of this Third Amendment) the marketing of the shares to be sold in such offering (such writing to state the approximate number of shares which may be included in such offering without such effect), the Company shall include in such registration: shares allocated pro rata between the collective number of shares proposed to be included by members of the Investcorp Group and the collective number of shares proposed to be included by the Carmel Stockholders and The JAB Trust, and (d) if requested in writing by the Lead Underwriter, each Stockholder agrees to enter into a customary agreement not to sell any shares of Registrable Stock or any other shares of Capital Stock (other than shares of Registrable Stock or other shares of Capital Stock being registered in the Underwritten Offering), without the consent of such Lead Underwriter, for a period of not more than 90 days following the effective date of such Subsequent Registration Statement (the period ending on such time or date in clauses (i) and Statement. (ii) Each member of the Investcorp Group agrees that until December 1, 2002, it will not (a) request the registration of the sale of any of its shares pursuant to Section 9 of the Stockholders' Agreement or otherwise, or (b) sell publicly or privately any shares of its Registrable Stock (other than shares already registered for resale under registration statement number 333-77008, as to which no restrictions shall apply); provided however for purpose of clarification, nothing in this Section 3.2(e2.5(f)(ii) shall prevent any member of the Investcorp Group from (x) participating in any public offering or other sale that closes after December 1, 2002 (including an offering that was commenced prior to December 1, 2002 that does not close by such date), or (y) requesting the registration for sale of any of its shares on any date after December 1, 2002. (iii) Notwithstanding any other provision of the Stockholders' Agreement, for any public offering commenced prior to December 1, 2002, (a) the Company shall comply with its obligations in Section 9.4(k) except that it shall not be obligated to participate in a road-show other than to make its senior officers available for telephone conferences on two business days, and (b) none of the Parties shall be required to enter into any lock-up agreement with respect to such offering."Subsequent 3. The prohibition on filing registration statements in the last sentence of Section 9.1(c) shall only apply following underwritten offerings commenced after December 1, 2002 pursuant to Section 9.1 and shall not prohibit the filing of any registration statement to permit any Stockholder to participate in such underwritten offering. Except for registration statements on Form S-4, S-8 or any successor thereto, the Company will not file a registxxxxxx xtatement (other than the Make-Whole Registration Statement Effectiveness -------------------------------------------------- Period"). ------ (f) The Company's obligations to file Registration Statements and or any amendments or supplements thereto under this Section 3.2 shall terminate following the termination registration statement requested by a member of the Subsequent Registration Statement Effectiveness Period applicable Carmel Group) prior to December 2, 2002. 4. Except for the Subsequent Registration Statement filed on or about specific changes set forth in this Fourth Amendment, the fifth anniversary remainder of the Stockholders' Agreement, including without limitation the Third Amendment, shall remain unchanged and in full force and effect. In the event of any inconsistency between this Fourth Amendment and the Stockholders' Agreement, this Fourth Amendment shall control. 5. This Fourth Amendment may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.

Subsequent Registration Statements. (a) Not later than ninety (90) days prior to each anniversary of the Merger Closing Date, the Company shall give written notice to each Holder (each, a "Company Notice") of its intention to file a Registration Statement with the SEC on or about such anniversary date covering the registration of the Registrable Securities held by the Holders (each, a "Subsequent Registration ------------------------ Statement"). --------- (b) Within forty-five (45) days following receipt of a Company Notice, each Holder electing to participate in such registration shall deliver written notice to the Company (each, a "Holder Notice") of his intention to have all or a specified number of the Registrable Securities held by such Holder registered under the Subsequent Registration Statement that is the subject of the Company Notice. (c) The Company shall use its reasonable best efforts to prepare and file with the SEC each Subsequent Registration Statement (on or about the anniversary date identified in the respective Company Notice) that registers the Registrable Securities specified in the Holder Notice. (d) The Company shall use its reasonable best efforts to cause the SEC to declare each Subsequent Registration Statement effective pursuant to Rule 415 as promptly as practicable following its filing. (e) The Company shall keep each Subsequent Registration Statement effective at all times until Until the earlier of (i) such time as all three years following the Effective Date of the Registrable Securities registered thereunder have been disposed of in accordance with the intended methods of disposition set forth in the respective Subsequent Initial Shelf Registration Statement declared effective by the SEC, and (ii) such date that is six (6) months after for so long as any Registrable Securities requested by the effective date of such Subsequent Requesting Group to be included in the Initial Shelf Registration Statement (the period ending "Requested Securities") constitute Registrable Securities (the "Registration Expiration Date"), the Company shall use its commercially reasonably efforts to (A) maintain its eligibility to register the Requested Securities on such time or date in clauses Form S-3 and (B) if the Company is unable to maintain its eligibility to register the Requested Securities on Form S-3, maintain its ability to meet the eligibility requirements to register the Requested Securities on Form S-1. (b) After the Initial Shelf Expiration Date and until the Registration Expiration Date, if there is not an effective Registration Statement which includes the Requested Securities that is currently outstanding, the Company shall: (i) if the Company is eligible to register the Requested Securities on Form S-3, promptly file a Shelf Registration Statement on Form S-3 and use its commercially reasonable efforts to cause such Registration Statement to be declared effective, (ii) if the Company is not eligible to register the Requested Securities on Form S-3, if the Company is a Smaller Reporting Company eligible to incorporate by reference pursuant to Item 12(b) of this Section 3.2(e)Form S-1, the "Subsequent promptly file a Registration Statement Effectiveness -------------------------------------------------- Period"). ------on Form S-1 and use its commercially reasonable efforts to cause such Registration Statement to be declared effective or (fiii) The if the Company is not a Smaller Reporting Company eligible to incorporate by reference pursuant to Item 12(b) of Form S-1, promptly file a Registration Statement on Form S-1 and use its commercially reasonable efforts to cause such Registration Statement to be declared effective and for so long as any of the Requested Securities covered by such Registration Statement on Form S-1 constitute Registrable Securities, file any supplements to the Registration Statement or post-effective amendments required to be filed by applicable law in order to incorporate into such Registration Statement any Current Reports on Form 8-K necessary or required to be filed by applicable law, any Quarterly Reports on Form 10-Q or any Annual Reports on Form 10-K filed by the Company with the Commission, or any other information necessary so that (x) such Registration Statement shall not include any untrue statement of material fact or omit to state any material fact necessary in order to make the statements therein not misleading, and (y) the Company complies with its obligations under Item 512(a)(1) of Regulation S-K; provided, however, that these obligations remain subject to the Company's rights under Section 5 and the Holders' obligations to file Registration Statements and any amendments or supplements thereto under this Section 3.2 shall terminate following the termination of the Subsequent Registration Statement Effectiveness Period applicable to the Subsequent Registration Statement filed on or about the fifth anniversary of this Agreement4.

Subsequent Registration Statements. (a) Not later than ninety (90) days prior to each anniversary of the Merger Closing Date, the Company shall give written notice to each Holder (each, a "Company Notice") of its intention to file a Registration Statement with the SEC on or about such anniversary date covering the registration of the Registrable Securities held by the Holders (each, a "Subsequent Registration ------------------------ Statement"). --------- (b) Within forty-five (45) days following receipt of a Company Notice, each Holder electing to participate in such registration shall deliver written notice to the Company (each, a "Holder Notice") of his intention to have all or a specified number of the Registrable Securities held by such Holder registered under the Subsequent Registration Statement that is the subject of the Company Notice. (c) The Company shall use its reasonable best efforts to prepare and file with the SEC each Subsequent Registration Statement (on or about the anniversary date identified in the respective Company Notice) that registers the Registrable Securities specified in the Holder Notice. (d) The Company shall use its reasonable best efforts to cause the SEC to declare each Subsequent Registration Statement effective pursuant to Rule 415 as promptly as practicable following its filing. (e) The Company shall keep each Subsequent Registration Statement effective at all times until Until the earlier of (i) such time as all three years following the Effective Date of the Registrable Securities registered thereunder have been disposed of in accordance with the intended methods of disposition set forth in the respective Subsequent Initial Shelf Registration Statement declared effective by the SEC, and (ii) such date that is six (6) months after for so long as any Registrable Securities requested by the effective date of such Subsequent Requesting Group to be included in the Initial Shelf Registration Statement (the period ending “Requested Securities”) constitute Registrable Securities (the “Registration Expiration Date”), the Company shall use its commercially reasonably efforts to (A) maintain its eligibility to register the Requested Securities on such time or date in clauses Form S-3 and (B) if the Company is unable to maintain its eligibility to register the Requested Securities on Form S-3, maintain its ability to meet the eligibility requirements to register the Requested Securities on Form S-1. (b) After the Initial Shelf Expiration Date and until the Registration Expiration Date, if there is not an effective Registration Statement which includes the Requested Securities that is currently outstanding, the Company shall: (i) if the Company is eligible to register the Requested Securities on Form S-3, promptly file a Shelf Registration Statement on Form S-3 and use its commercially reasonable efforts to cause such Registration Statement to be declared effective, (ii) if the Company is not eligible to register the Requested Securities on Form S-3, if the Company is a Smaller Reporting Company eligible to incorporate by reference pursuant to Item 12(b) of this Section 3.2(e)Form S-1, the "Subsequent promptly file a Registration Statement Effectiveness -------------------------------------------------- Period"). ------ on Form S-1 and use its commercially reasonable efforts to cause such Registration Statement to be declared effective or (fiii) The Company's obligations if the Company is not a Smaller Reporting Company eligible to incorporate by reference pursuant to Item 12(b) of Form S-1, promptly file a Registration Statements Statement on Form S-1 and use its commercially reasonable efforts to cause such Registration Statement to be declared effective and for so long as any amendments or supplements thereto under this Section 3.2 shall terminate following the termination of the Subsequent Requested Securities covered by such Registration Statement Effectiveness Period applicable on Form S-1 constitute Registrable Securities, file any supplements to the Subsequent Registration Statement or post-effective amendments required to be filed by applicable law in order to incorporate into such Registration Statement any Current Reports on Form 8-K necessary or about required to be filed by applicable law, any Quarterly Reports on Form 10-Q or any Annual Reports on Form 10-K filed by the fifth anniversary Company with the Commission, or any other information necessary so that (x) such Registration Statement shall not include any untrue statement of this Agreementmaterial fact or omit to state any material fact necessary in order to make the statements therein not misleading, and (y) the Company complies with its obligations under Item 512(a)(1) of Regulation S-K; provided, however, that these obligations remain subject to the Company’s rights under Section 5 and the Holders’ obligations under Section 4 and Section 11.

Subsequent Registration Statements. (a) Not later than ninety (90) days prior to each anniversary If any of the Merger Closing DateLocked Shares cannot be sold without restriction pursuant to Rule 144 at the end of the applicable lockup period relating to such Locked Shares, as determined in good faith by any Holder and communicated to the Company by the Unitholders’ Representative, the Company shall give written notice to each Holder file, within 30 days of the expiration of the applicable lockup period (eachor, a "Company Notice") if later, within 30 days of its intention to file the communication from the Unitholders’ Representative), a Registration Statement with on Form S-1 or, if the SEC Company is eligible to use a Registration Statement on or about such anniversary date Form S-3, a Registration Statement on Form S-3, in each case, covering the registration resale of the Registrable Securities held applicable Locked Shares on a delayed or continuous basis as permitted by the Holders (eachRule 415, a "Subsequent Registration ------------------------ Statement"). --------- (b) Within forty-five (45) days following receipt of a Company Notice, each Holder electing to participate in such registration shall deliver written notice to the Company (each, a "Holder Notice") of his intention to have all or a specified number if Rule 415 is not available for offers and sales of the Registrable Securities held applicable Locked Shares, by such Holder registered under other means of distribution of such Locked Shares as the Subsequent Registration Statement that is the subject of the Company Notice. (c) The Company shall use its reasonable best efforts to prepare and file with the SEC each Subsequent Registration Statement (on or about the anniversary date identified in the respective Company Notice) that registers the Registrable Securities specified in the Holder Notice. (d) Unitholders’ Representative may reasonably specify. The Company shall use its reasonable best efforts to cause the SEC to declare each Subsequent any Registration Statement effective filed pursuant to Rule 415 this subsection 2.1.2 to become effective as promptly soon as practicable following its after such filing. (e) The Company shall keep each Subsequent Registration Statement effective at all times until , but in no event later than the earlier of (i) the 90th calendar day following the filing of such time as all of the Registrable Securities registered thereunder have been disposed of in accordance with the intended methods of disposition set forth in the respective Subsequent Registration Statement declared effective by if the SECCommission notifies the Company that it will “review” the Registration Statement, and (ii) the 5th business day after the date the Company is notified (orally or in writing, whichever is earlier) by the Commission that such date that is six (6) months Registration Statement will not be “reviewed,” or will not be subject to further review. If any Unlocked Shares are issued pursuant to the Merger Agreement after the effective date of such Subsequent Registration Statement (the period ending on such time or date in clauses (i) and (ii) of this Section 3.2(e), the "Subsequent Registration Statement Effectiveness -------------------------------------------------- Period"). ------ (f) The Company's obligations to file Registration Statements and any amendments or supplements thereto under this Section 3.2 shall terminate following the termination of the Subsequent Registration Statement Effectiveness Period applicable to the Subsequent Registration Statement filed on or about pursuant to subsection 2.1.1 and are not included therein, at the fifth anniversary request of the Unitholders’ Representative, any subsequent Registration Statement filed pursuant to this Agreementsubsection 2.1.2 shall include such additional Unlocked Shares.