Common use of Underwriter’s Cutback Clause in Contracts

Underwriter’s Cutback. If the Piggy-Back Notice is with respect to a registration of securities in an Underwritten Offering, the Company shall so advise the Investor in the Piggy-Back Notice and the Investor shall (together with the Company) enter into an underwriting agreement in customary form with the managing underwriter or underwriters selected for the Underwritten Offering. Notwithstanding any other provision of this Section 4.3, if the managing underwriter or underwriters determine that the inclusion of some or all of the Registrable Securities and securities proposed to be included in the registration and the Underwritten Offering would adversely affect the successful marketing (including pricing) of the offering, then the Company shall include in such Registration Statement only such number of Registrable Securities and securities as such underwriters have advised the Company can be sold in such offering without such adverse effect, to be allocated in the following manner: (i) first, one hundred percent (100%) of the securities that the Company proposes to sell for its own account; (ii) second, the number of securities, if any, requested to be included in such offering by any stockholder pursuant to the Registration Rights Agreement; (iii) third, the number of securities requested to be included in such offering by any stockholder pursuant to the Defenders Agreement; (iv) fourth, the number of Registrable Securities requested to be included in such offering by the Investor; (v) only if all of the securities referred to in clauses (i) through (iv) have been included in such registration, any other securities eligible for inclusion in such registration.

Underwriter’s Cutback. If Notwithstanding the Piggy-Back Notice is with respect to foregoing, if a registration of securities in pursuant to this Section 4 involves an Underwritten Offering, the Company shall so advise the Investor Offering (as defined in the Piggy-Back Notice Section 4(h)(ii)) and the Investor shall (together with the Company) enter into an underwriting agreement in customary form with the managing underwriter or underwriters selected for of such proposed Underwritten Offering informs the Underwritten Offering. Notwithstanding Company in writing that, in its opinion, the number of securities which such Stockholders and any other provision of this Section 4.3Persons intend to include in such offering would be reasonably likely to adversely affect the price, if the managing underwriter timing or underwriters determine that the inclusion of some or all distribution of the Registrable Securities and securities offered in such offering, then the number of securities proposed to be included in the such registration and the Underwritten Offering would adversely affect the successful marketing (including pricing) of the offering, then the Company shall include in such Registration Statement only such number of Registrable Securities and securities as such underwriters have advised the Company can be sold in such offering without such adverse effect, to be allocated included in the following mannerorder: (i) first, one hundred percent (100%) % of the securities that proposed to be sold in such registration by the Company or any Person (other than a Stockholder) exercising a contractual right to demand Registration, as the case may be, proposes to sell for its own account; sell, and (ii) second, and only if all the number of securities, if any, requested securities referred to be included in such offering by any stockholder pursuant to the Registration Rights Agreement; clause (iiii) third, the number of securities requested to be included in such offering by any stockholder pursuant to the Defenders Agreement; (iv) fourthhave been included, the number of Registrable Securities that, in the opinion of such managing underwriter or underwriters, can be sold without having such adverse effect, with such number to be allocated pro rata among the Stockholders and any other holders of securities of the Company that have requested to be included participate in such offering registration based on the relative number of Registrable Securities then held by each such Stockholder (provided that any securities thereby allocated to a Stockholder that exceed such Stockholder’s request shall be reallocated among the Investor; remaining requesting Stockholders and any other holders of securities of the Company in like manner) and (viii) third, and only if all of the securities Registrable Securities referred to in clauses clause (i) through (ivii) have been included in such registrationRegistration, any other securities eligible for inclusion in such registration.

Underwriter’s Cutback. If the Piggy-Back Notice is with respect to a registration of securities in an Underwritten Offering, the The Company shall so advise the Investor in the Piggy-Back Notice and the Investor shall (together with the Company) enter into an underwriting agreement in customary form with use its best efforts to cause the managing underwriter or underwriters selected of a proposed Underwritten Offering to permit the Registrable Securities requested to be included in the Registration for such offering under Section 4(a) (the Underwritten Offering"Piggyback Securities") to be included on the same terms and conditions as any similar securities included therein. Notwithstanding any other provision of this the foregoing, but subject to Section 4.35 hereof, if the managing underwriter or underwriters determine that the inclusion of some or all of the Registrable Securities and securities proposed to be included in the registration and the Underwritten Offering would adversely affect the successful marketing (including pricing) of the offering, then the Company shall include in such Registration Statement only such number of Registrable Securities and securities as such underwriters have advised the Company can be sold participating in such offering without such adverse effect, to be allocated in the following manner: (i) first, one hundred percent (100%) advises each of the securities Holders in writing (with a copy to the Company) that the Company proposes to sell for its own account; (ii) second, the number of securities, if any, requested to be included in such offering by any stockholder pursuant to the Registration Rights Agreement; (iii) third, the number total amount of securities requested to be included in such Piggyback Registration exceeds the amount which can be sold in (or during the time of) such offering without delaying or jeopardizing the success of the offering (including the price per share of the securities to be sold), then, after including all shares proposed to be sold by any stockholder pursuant the Company in a Company-initiated registration, the amount of securities to be offered for the Defenders Agreement; (iv) fourth, account of the Holders shall be reduced pro rata with all other holders participating in such offering on the basis of the number of shares to be registered by all stockholders participating in such offering; provided, however that, subject to Section 5 hereof, the managing underwriter or underwriters may not limit the Registrable Securities requested or other securities to be included in such offering by the Investor; (v) only if all Registration to less than 25% of the securities referred included therein. Notwithstanding the foregoing, the Company shall have the right to in clauses (i) through (iv) have been included in withdraw or delay the Registration Statement at any time; provided, however, that written notice of such registration, any other securities eligible for inclusion in such registrationwithdrawal or delay shall be given to the Holders thereunder.

Underwriter’s Cutback. If Notwithstanding the Piggy-Back Notice is with respect to foregoing, if a registration of securities in pursuant to this Section 4 involves an Underwritten Offering, the Company shall so advise the Investor Offering (as defined in the Piggy-Back Notice Section 4(h)(ii)) and the Investor shall (together with the Company) enter into an underwriting agreement in customary form with the managing underwriter or underwriters selected for of such proposed Underwritten Offering informs the Underwritten Offering. Notwithstanding Company in writing that, in its opinion, the number of securities which such Stockholders and any other provision of this Section 4.3Persons intend to include in such offering would be reasonably likely to adversely affect the price, if the managing underwriter timing or underwriters determine that the inclusion of some or all distribution of the Registrable Securities and securities offered in such offering, then the number of securities proposed to be included in the such registration and the Underwritten Offering would adversely affect the successful marketing (including pricing) of the offering, then the Company shall include in such Registration Statement only such number of Registrable Securities and securities as such underwriters have advised the Company can be sold in such offering without such adverse effect, to be allocated included in the following manner: order: (i) first, one hundred percent (100%) % of the securities that proposed to be sold in such registration by the Company or any Person (other than a Stockholder) exercising a contractual right to demand Registration, as the case may be, proposes to sell for its own account; sell, and (ii) second, and only if all the number of securities, if any, requested securities referred to be included in such offering by any stockholder pursuant to the Registration Rights Agreement; clause (iiii) third, the number of securities requested to be included in such offering by any stockholder pursuant to the Defenders Agreement; (iv) fourthhave been included, the number of Registrable Securities that, in the opinion of such managing underwriter or underwriters, can be sold without having such adverse effect, with such number to be allocated pro rata among the Stockholders and any other holders of securities of the Company that have requested to be included participate in such offering registration based on the relative number of Registrable Securities then held by each such Stockholder (provided that any securities thereby allocated to a Stockholder that exceed such Stockholder’s request shall be reallocated among the Investor; remaining requesting Stockholders and any other holders of securities of the Company in like manner) and (viii) third, and only if all of the securities Registrable Securities referred to in clauses clause (i) through (ivii) have been included in such registrationRegistration, any other securities eligible for inclusion in such registration.

Underwriter’s Cutback. If Notwithstanding the Piggy-Back Notice is with respect to foregoing, if a registration pursuant to Section 2 or this Section 3 involves an Underwritten Offering and the managing underwriter(s) of such proposed Underwritten Offering advises the Corporation or the Apollo Stockholders that the total or kind of securities in an Underwritten Offering, that the Company shall so advise the Investor in the Piggy-Back Notice Apollo Stockholders and the Investor shall (together with the Company) enter into an underwriting agreement in customary form with the managing underwriter or underwriters selected for the Underwritten Offering. Notwithstanding any other provision of this Section 4.3Persons intend to include in such offering (or Underwritten Shelf Take-Down, if the managing underwriter as applicable), or underwriters determine that the inclusion of some or all certain holders of the Registrable Securities and in such offering, would be reasonably likely to adversely affect the price, timing or distribution of the securities offered in such offering (or Underwritten Shelf Take-Down, as applicable), then the number of securities proposed to be included in such registration (or Underwritten Shelf Take-Down, as applicable) shall be allocated among the registration Corporation and the Underwritten Offering would adversely affect the successful marketing (including pricing) selling Apollo Stockholders and other applicable holders of the offeringRegistrable Securities, then the Company shall include in such Registration Statement only such number of Registrable Securities and securities as such underwriters have advised the Company can be sold in such offering without such adverse effect, to be allocated in the following manner: (i) first, one hundred percent (100%) of the securities that the Company proposes to sell for its own account; (ii) second, the number of securities, if any, requested to be included in such offering by any stockholder pursuant to the Registration Rights Agreement; (iii) third, the number of securities requested that each such Person shall be entitled to sell in the Underwritten Offering (or Underwritten Shelf Take-Down, as applicable) shall be included in such offering the following order: (i) In the case of an exercise of any registration rights by the Apollo Stockholders or any stockholder pursuant to the Defenders Agreement; (iv) fourth, the number other holder of Registrable Securities requested to be included in possessing such offering by the Investor; (v) only if all of the securities referred to in clauses (i) through (iv) have been included in such registration, any other securities eligible for inclusion in such registration.rights:

Underwriter’s Cutback. If (a) In the Piggy-Back Notice is with respect to case of a registration of securities in an Underwritten Offering, the Company shall so advise the Investor in the Piggy-Back Notice and the Investor shall (together with the Company) enter into an underwriting agreement in customary form with the managing underwriter or underwriters selected for the Underwritten Offering. Notwithstanding any other provision of this Section 4.3Registration, if the managing underwriter or underwriters determine of any Underwritten Offering shall inform the Company by letter of its belief that the inclusion number of some or all of the Registrable Securities and securities proposed Shares requested to be included in such registration pursuant to Section 5.03, when added to the number of other securities to be offered in such registration and by the Underwritten Offering Company, would adversely affect the successful marketing (including pricing) of the such offering, then the Company shall include in such Registration Statement only such registration, to the extent of the total number of Registrable Securities and securities as such underwriters have advised which the Company is so advised can be sold in (or during the time of) such offering without so adversely affecting such adverse effectoffering (the “Section 5.04(a) Sale Number”), to be allocated securities in the following manner: priority: (i) firstFirst, one hundred percent (100%) of the all Company Common Stock or securities convertible into, or exchangeable or exercisable for, Company Common Stock that the Company proposes to sell register for its own account; ; (ii) secondSecond, to the extent that the number of securitiessecurities to be included in the registration pursuant to Section 5.04(a)(i) is less than the Section 5.04(a) Sale Number, any shares of Company Common Stock required to be included pursuant to an Existing Registration Rights Agreement; and (iii) Third, to the extent that the number of securities to be included in the registration pursuant to Sections 5.04(a)(i) and (ii) is less than the Section 5.04(a) Sale Number, the Registrable Shares requested to be included by holders exercising piggyback rights pursuant to Section 5.03; the securities requested to be included pursuant to this Section 5.04(a)(iii) shall be included on a pro rata basis based on the number of Registrable Shares subject to registration rights owned by each holder requesting inclusion in relation to the number of Registrable Shares then owned by all holders requesting inclusion. (b) In the case of a Stockholder Registration, if any, the managing underwriter of any Underwritten Offering shall inform the Company by letter of its belief that the number of shares of Company Common Stock and Registrable Shares requested to be included in such registration would materially adversely affect such offering, then the Company shall include in such registration, to the extent of the total number of securities which the Company is so advised can be sold in (or during the time of) such offering without so materially adversely affecting such offering (the “Section 5.04(b) Sale Number”), securities in the following priority: Table of Contents (i) First, the Registrable Shares requested to be included by any stockholder the Persons exercising demand rights in connection with such Stockholder Registration; (ii) Second, to the extent that the number of securities to be included in the registration pursuant to Section 5.04(b)(i) is less than the Section 5.04(b) Sale Number, any shares of Company Common Stock required to be included pursuant to an Existing Registration Rights Agreement; and (iii) thirdThird, to the extent that the number of securities to be included in the registration pursuant to Sections 5.04(b)(i) and (ii) is less than the Section 5.04(b) Sale Number, the Registrable Shares requested to be included by holders exercising piggyback rights pursuant to Section 5.03; the securities requested to be included in such offering by any stockholder pursuant to the Defenders Agreement; (ivthis Section 5.04(b)(iii) fourth, shall be included on a pro rata basis based on the number of Registrable Securities requested Shares subject to be included in such offering registration rights owned by the Investor; (v) only if all of the securities referred to in clauses (i) through (iv) have been included in such registration, any other securities eligible for each holder requesting inclusion in such registrationrelation to the number of Registrable Shares then owned by all holders requesting inclusion.

Underwriter’s Cutback. If the Piggy-Back Notice is with respect to a registration of securities in an Underwritten Offering, the Company shall so advise the Investor in the Piggy-Back Notice and the Investor shall (together with the Company) enter into an underwriting agreement in customary form with the managing underwriter or underwriters selected for advises the Underwritten Offering. Notwithstanding any other provision of this Section 4.3, if the managing underwriter or underwriters determine Company that the inclusion of some or all of the Registrable Securities and securities such Shares proposed to be included in the registration and the Underwritten Offering such Demand Registration would adversely affect interfere with the successful marketing (including pricing) of the offeringCommon Stock to be offered thereby, then the Company shall include number of Shares proposed to be included in such Registration Statement only registration shall be allocated among the Company and all Selling Shareholders of the Company proportionately, such that the number of Registrable Securities and securities as Shares that each such underwriters have advised Person shall be entitled to sell in the Company can Public Offering shall be sold in such offering without such adverse effect, to be allocated included in the following manner: order: (i) first, one hundred percent (100%) the Shares held by the Persons requesting their Shares be included in such registration pursuant to the terms of this Section 3 or pursuant to the securities that Investor Rights Agreement, pro rata based upon the Company proposes to sell for its own accountnumber of Shares owned by each such Person at the time of such registration; and (ii) second, the Shares to be issued and sold by the Company in such registration. Notwithstanding anything to the contrary set forth in this Section 3(e), if the managing underwriter for an initial Underwritten Offering advises the Company that the inclusion of all Shares proposed to be included in any registration by any particular holder would interfere with the successful marketing (including pricing) of the Common Stock to be offered thereby, then the number of securities, if any, requested Shares proposed to be included in such offering registration by any stockholder such holder shall be reduced to the lower of the number of Shares that the managing underwriter advises that such holder may sell in the initial Underwritten Offering and the number of Shares calculated pursuant to the Registration Rights Agreement; (iii) third, the number of securities requested to be included in such offering by any stockholder pursuant to the Defenders Agreement; (iv) fourth, the number of Registrable Securities requested to be included in such offering by the Investor; (v) only if all of the securities referred to in clauses (i) through (iv) have been included in such registration, any other securities eligible for inclusion in such registrationforegoing.

Underwriter’s Cutback. If the Piggy-Back Notice is with respect to a registration of securities in an Underwritten Offering, the Company shall so advise the Investor Except in the Piggy-Back Notice and the Investor case of a Piggyback Registration which is also triggered by a Demand Registration (which shall (together with the Company) enter into an underwriting agreement in customary form with the managing underwriter or underwriters selected for the Underwritten Offering. Notwithstanding any other provision of this be governed by Section 4.33(e)), if the managing underwriter or underwriters determine advises the Company that the inclusion of some or all of the Registrable Securities and securities Shares proposed to be included in the registration and the Underwritten Offering a Piggyback Registration would adversely affect interfere with the successful marketing (including pricing) of the offeringCommon Stock to be offered thereby, then the Company shall include number of Shares proposed to be included in such Registration Statement only registration shall be allocated among the Company and all Selling Shareholders of the Company proportionately, such that the number of Registrable Securities and securities as Shares that each such underwriters have advised Person shall be entitled to sell in the Company can Public Offering shall be sold in such offering without such adverse effect, to be allocated included in the following manner: order: (i) first, one hundred percent (100%) of the securities that Shares to be issued and sold by the Company proposes to sell for its own account; in such registration; (ii) second, the Registrable Shares held by BHI and the Management Holders requesting their Registrable Shares be included in such registration pursuant to the terms of this Section 4, pro rata based upon the number of securitiesRegistrable Shares owned by each such Person at the time of such registration. Notwithstanding anything to the contrary set forth in this Section 4(b), if any, requested the managing underwriter for an Underwritten Offering advises the Company that the inclusion of all Shares proposed to be included in such offering registration by any stockholder pursuant particular Management Holder would interfere with the successful marketing (including pricing) of the Common Stock to the Registration Rights Agreement; (iii) thirdbe offered thereby, then the number of securities requested Shares proposed to be included in such offering registration by any stockholder such Management Holder shall be reduced to the lower of the number of Shares that the managing underwriter advises that such Management Holder may sell in the Underwritten Offering and the number of Shares calculated pursuant to the Defenders Agreement; (iv) fourth, the number of Registrable Securities requested to be included in such offering by the Investor; (v) only if all of the securities referred to in clauses (i) through (iv) have been included in such registration, any other securities eligible for inclusion in such registrationforegoing.

Underwriter’s Cutback. If the Piggy-Back Notice is with respect to a registration of securities in an Underwritten Offering, the Company shall so advise the Investor in the Piggy-Back Notice and the Investor shall (together with the Company) enter into an underwriting agreement in customary form with the managing underwriter or underwriters selected for the Underwritten Offering. Notwithstanding any other provision of an offering made pursuant to this Section 4.3, if 2 advises the managing underwriter or underwriters determine Company that the inclusion of some or all of the Registrable Securities and securities such Eligible Shares proposed to be included in the registration and the Underwritten Offering such Registration Statement would adversely affect interfere with the successful marketing (including pricing) of the offeringCommon Stock to be offered thereby, then the Company shall include number of Shares proposed to be included in such Demand Registration Statement only shall be allocated among the Company and all Selling Investors of the Company proportionately, such that the number of Registrable Securities and securities as such underwriters have advised Shares that each Selling Investor shall be entitled to sell in the Company can offering shall be sold in such offering without such adverse effect, to be allocated included in the following manner: order: (i) first, one hundred percent (100%) the Eligible Shares held by the Holders requesting their Eligible Shares be included in such registration pursuant to the terms of this Agreement and Shares held by any other Person who has rights to participate in such offering pursuant to a registration rights agreement or arrangement with the securities that Company, pro rata based upon the Company proposes to sell for its own accountnumber of Shares owned by each such Person at the time of such registration; and (ii) second, the Shares to be sold by the Company. Notwithstanding anything to the contrary set forth in this Section 2, if the managing underwriter for the offering advises the Company that the inclusion of the number of securitiesEligible Shares proposed to be included in any Registration Statement by any Holder serving as a director, if anyofficer or key employee of the Company would interfere with the successful marketing (including pricing) of the Common Stock to be offered thereby, requested then the number of Shares proposed to be included in such Demand Registration by such Holder shall be reduced to the lower of the number of such Shares that the managing underwriter advises that such Holder may sell in the offering by any stockholder and the number of such Shares calculated pursuant to the Registration Rights Agreement; (iii) third, the number of securities requested to be included in such offering by any stockholder pursuant to the Defenders Agreement; (iv) fourth, the number of Registrable Securities requested to be included in such offering by the Investor; (v) only if all of the securities referred to in clauses (i) through (iv) have been included in such registration, any other securities eligible for inclusion in such registrationforegoing.

Underwriter’s Cutback. If the Piggy-Back Notice is with respect to a registration of securities in pursuant to Section 4.1 or 4.2 involves an Underwritten Offering, the Company shall so advise the Investor in the Piggy-Back Notice underwritten Public Offering and the Investor shall (together with the Company) enter into an underwriting agreement in customary form with the managing underwriter or underwriters selected for the Underwritten Offering. Notwithstanding any other provision of this Section 4.3, if the managing underwriter or underwriters determine that the inclusion of some or all of the Registrable Securities and securities proposed to be included in the registration and the Underwritten Offering would adversely affect the successful marketing (including pricing) of the offering, then advises the Company shall include that, in such Registration Statement only such number of Registrable Securities and securities as such underwriters have advised the Company can be sold in such offering without such adverse effect, to be allocated in the following manner: (i) first, one hundred percent (100%) of the securities that the Company proposes to sell for its own account; (ii) secondview, the number of securitiesshares of Common Stock that the Company and the Holders intend to include in such registration exceeds the largest number that can be sold without having an adverse effect on such offering, if anyincluding without limitation the price at which such shares can be sold, the Company will include in such registration, in the following priority, up to such largest number, unless the managing underwriter shall determine that marketing factors require a different allocation: (1) first, so many shares of the Common Stock proposed to be registered by the Company; (2) second, any Registrable Common Stock requested to be included in such offering registration by any stockholder pursuant the Holders, allocated among the Holders, if necessary, pro rata on the basis of their relative number of shares of Registrable Common Stock so requested to the Registration Rights Agreementbe included; and (iii3) third, the number of securities any Registrable Common Stock requested to be included in such offering registration by any stockholder shareholders of the Company other than Holders, allocated, if necessary, pro rata on the basis of their relative number of shares so requested to be included. Notwithstanding the foregoing, if a registration pursuant to Section 4.1 or 4.2 involves an underwritten Public Offering and the Defenders Agreement; (iv) fourthmanaging underwriter advises the Company that, in its view, the number inclusion of shares of Common Stock by management of the Company will have an adverse effect on such offering, including without limitation the price at which such shares can be sold in such registration, the Company will not be required to include in such registration any Registrable Securities Common Stock requested to be included in such offering by the Investor; (v) only if all of Management Holders to the securities referred to in clauses (i) through (iv) extent such inclusion would have been included in such registration, any other securities eligible for inclusion in such registrationan adverse effect.

Underwriter’s Cutback. If the Piggy-Back Notice is with respect to a registration of securities in an Underwritten Offering, the Company shall so advise the Investor in the Piggy-Back Notice and the Investor shall (together with the Company) enter into an underwriting agreement in customary form with the managing underwriter or underwriters selected for advises the Underwritten Offering. Notwithstanding any other provision of this Section 4.3, if the managing underwriter or underwriters determine Company that the inclusion of some or all of the Registrable Securities and securities such Shares proposed to be included in the registration and the Underwritten Offering such Piggyback Registration would adversely affect interfere with the successful marketing (including pricing) of the offeringCommon Stock to be offered thereby, then the Company shall include number of Shares proposed to be included in such Registration Statement only registration shall be allocated among the Company and all Selling Shareholders of the Company proportionately, such that the number of Registrable Securities and securities as Shares that each such underwriters have advised Person shall be entitled to sell in the Company can Public Offering shall be sold in such offering without such adverse effect, to be allocated included in the following manner: order: (i) first, one hundred percent (100%) of the securities that Shares to be issued and sold by the Company proposes to sell for its own accountin such registration; and (ii) second, the Shares held by the Persons requesting their Shares be included in such registration pursuant to the terms of this Section 4 and pursuant to the Investor Rights Agreement, pro rata based upon the number of securitiesShares owned by each such Person at the time of such registration. Notwithstanding anything to the contrary set forth in this Section 4(b), if anythe managing underwriter for an initial Underwritten Offering advises the Company that the inclusion of all Shares proposed to be included in any registration by any particular holder would interfere with the successful marketing (including pricing) of the Common Stock to be offered thereby, requested then the number of Shares proposed to be included in such offering registration by any stockholder such holder shall be reduced to the lower of the number of Shares that the managing underwriter advises that such holder may sell in the initial Underwritten Offering and the number of Shares calculated pursuant to the Registration Rights Agreement; (iii) third, the number of securities requested to be included in such offering by any stockholder pursuant to the Defenders Agreement; (iv) fourth, the number of Registrable Securities requested to be included in such offering by the Investor; (v) only if all of the securities referred to in clauses (i) through (iv) have been included in such registration, any other securities eligible for inclusion in such registrationforegoing.

Underwriter’s Cutback. If (a) In the Piggy-Back Notice is with respect to case of a registration of securities in an Underwritten Offering, the Company shall so advise the Investor in the Piggy-Back Notice and the Investor shall (together with the Company) enter into an underwriting agreement in customary form with the managing underwriter or underwriters selected for the Underwritten Offering. Notwithstanding any other provision of this Section 4.3Registration, if the managing underwriter or underwriters determine of any Underwritten Offering shall inform the Company by letter of its belief that the inclusion number of some or all of the Registrable Securities and securities proposed Shares requested to be included in such registration pursuant to Section 5.03, when added to the number of other securities to be offered in such registration and by the Underwritten Offering Company, would adversely affect the successful marketing (including pricing) of the such offering, then the Company shall include in such Registration Statement only such registration, to the extent of the total number of Registrable Securities and securities as such underwriters have advised which the Company is so advised can be sold in (or during the time of) such offering without so adversely affecting such adverse effectoffering (the “Section 5.04(a) Sale Number”), to be allocated securities in the following manner: priority: (i) firstFirst, one hundred percent (100%) of the all Company Common Stock or securities convertible into, or exchangeable or exercisable for, Company Common Stock that the Company proposes to sell register for its own account; ; (ii) secondSecond, to the extent that the number of securitiessecurities to be included in the registration pursuant to Section 5.04(a)(i) is less than the Section 5.04(a) Sale Number, any shares of Company Common Stock required to be included pursuant to the Existing Registration Rights Agreement; and (iii) Third, to the extent that the number of securities to be included in the registration pursuant to Sections 5.04(a)(i) and (ii) is less than the Section 5.04(a) Sale Number, the Registrable Shares requested to be included by holders exercising piggyback rights pursuant to Section 5.03; the securities requested to be included pursuant to this Section 5.04(a)(iii) shall be included on a pro rata basis based on the number of Registrable Shares subject to registration rights owned by each holder requesting inclusion in relation to the number of Registrable Shares then owned by all holders requesting inclusion. (b) In the case of a Stockholder Registration, if any, the managing underwriter of any Underwritten Offering shall inform the Company by letter of its belief that the number of shares of Company Common Stock and Registrable Shares requested to be included in such registration would materially adversely affect such offering, then the Company shall include in such registration, to the extent of the total number of securities which the Company is so advised can be sold in (or during the time of) such offering without so materially adversely affecting such offering (the “Section 5.04(b) Sale Number”), securities in the following priority: (i) First, the Registrable Shares requested to be included by the Persons exercising demand rights in connection with such Stockholder Registration; (ii) Second, to the extent that the number of securities to be included in the registration pursuant to Section 5.04(b)(i) is less than the Section 5.04(b) Sale Number, any stockholder shares of Company Common Stock required to be included pursuant to the Existing Registration Rights Agreement; and (iii) thirdThird, to the extent that the number of securities to be included in the registration pursuant to Sections 5.04(b)(i) and (ii) is less than the Section 5.04(b) Sale Number, the Registrable Shares requested to be included by holders exercising piggyback rights pursuant to Section 5.03; the securities requested to be included in such offering by any stockholder pursuant to the Defenders Agreement; (ivthis Section 5.04(b)(iii) fourth, shall be included on a pro rata basis based on the number of Registrable Securities requested Shares subject to be included in such offering registration rights owned by the Investor; (v) only if all of the securities referred to in clauses (i) through (iv) have been included in such registration, any other securities eligible for each holder requesting inclusion in such registrationrelation to the number of Registrable Shares then owned by all holders requesting inclusion.