Common use of Underwriter’s Cutback Clause in Contracts

Underwriter’s Cutback. Notwithstanding the foregoing, if a registration pursuant to Section 4 or Section 5 involves an Underwritten Offering (as defined in Section 5(h)(ii)) and the managing underwriter or underwriters of such proposed Underwritten Offering advises the Company that the total or kind of securities which such Holders and any other persons or entities intend to include in such offering would be reasonably likely to adversely affect the price, timing or distribution of the securities offered in such offering, then the number of securities proposed to be included in such registration shall be allocated among the Company, the Apollo Group, and all of the selling Management Holders proportionately, such that the number of securities that each such Person shall be entitled to sell in the Underwritten Offering (other than the initial Underwritten Offering) shall be included in the following order: (i) In the event of an exercise of any demand rights by the Apollo Group or any other Holder or Holders possessing such rights: (1) first, the Registrable Securities held by the Person exercising a demand right pursuant to Section 4 or pursuant to any other agreement in which the Company has granted demand rights, pro rata based upon the number of Registrable Securities proposed to be included by each such Person in connection with such registration; (2) second, the Registrable Securities held by the Persons requesting their Registrable Securities to be included in such registration pursuant to the terms of Section 5 or pursuant to any other agreement in which the Company has granted piggy-back registration rights, pro rata based upon the number of Registrable Securities proposed to be included by each such Person at the time of such registration; and (3) third, the securities to be issued and sold by the Company in such registration. (ii) In all other cases: (1) first, the securities to be issued and sold by the Company in such registration; and (2) second, the Registrable Securities held by the Persons requesting their Registrable Securities be included in such registration pursuant to the terms of this Section 5 or pursuant to any other agreement in which the Company has granted piggy-back registration rights, pro rata based upon the number of Registrable Securities proposed to be included by each such Person at the time of such registration. Notwithstanding anything to the contrary set forth in this Section 5(b), if the managing underwriter for the initial Underwritten Offering advises the Company that the inclusion of the number of shares of Common Stock proposed to be included in any registration by any particular Management Holder would interfere with the successful marketing (including pricing) of such shares to be offered thereby, then the number of such shares proposed to be included in such registration by such Management 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 Underwritten Offering and the number of such shares calculated pursuant to the foregoing.

Underwriter’s Cutback. Notwithstanding the foregoing, if a registration pursuant to this Section 4 or Section 5 7.1 involves an Underwritten Offering (as defined in Section 5(h)(ii)7.8) and the managing underwriter or underwriters of such proposed Underwritten Offering advises the Company that the total or kind of securities Securities which such Holders and any other persons or entities Persons intend to include in such offering would be reasonably likely to adversely affect the price, timing or distribution of the securities Securities offered in such offering, then the number of securities Securities proposed to be included in such registration shall be allocated among the Company, the Apollo Group, Company and all of the selling Management Apollo Group and Non-Apollo Group Holders proportionately, such that the number of securities Securities that each such Person shall be entitled to sell in the Underwritten Offering (other than the initial Underwritten Offering) shall be included in the following order: (ia) In the event of an exercise of any demand rights by the Apollo Group or any other Holder or Holders possessing such rights: (1i) first, the Registrable Securities held by the Person exercising a demand right pursuant to Section 4 or pursuant to any other agreement in which the Company has granted demand rights, pro rata based upon the number of Registrable Securities proposed to be included by each such Person in connection with such registration; (2) second, the Registrable Securities held by the Persons requesting their Registrable Securities to securities be included in such registration pursuant to the terms of Section 5 this Article VII or pursuant to any other agreement in which the Registration Rights Agreement dated as of November 24, 2003 between the Company has granted piggy-back registration rightsand the Apollo Group (the “Registration Rights Agreement”), pro rata based upon the number of Registrable Securities proposed to be included of each class or series owned by each such Person at the time of such registration; and (3ii) thirdsecond, the securities Securities to be issued and sold by the Company in such registration. (iib) In all the event of an exercise of any piggyback registration rights by the Apollo Group or any other casesHolder or Holders possessing such rights: (1i) first, the securities Securities to be issued and sold by the Company in such registration; and (2ii) second, the Registrable Securities held by the Persons requesting their Registrable Securities be included in such registration pursuant to the terms of this Section 5 Article VII or pursuant to any other agreement in which the Company has granted piggy-back registration rightsRegistration Rights Agreement, pro rata based upon the number of Registrable Securities proposed to be included of each class or series owned by each such Person at the time of such registration. Notwithstanding anything to the contrary set forth in this Section 5(b), if the managing underwriter for the initial Underwritten Offering advises the Company that the inclusion of the number of shares of Common Stock proposed to be included in any registration by any particular Management Holder would interfere with the successful marketing (including pricing) of such shares to be offered thereby, then the number of such shares proposed to be included in such registration by such Management 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 Underwritten Offering and the number of such shares calculated pursuant to the foregoing.

Underwriter’s Cutback. Notwithstanding the foregoing, if a registration pursuant to Section 4 or this Section 5 involves an Underwritten Offering (as defined in Section 5(h)(ii)) and the managing underwriter or underwriters of such proposed Underwritten Offering advises advise the Company in good faith that the total or kind of securities which such Holders and any other persons or entities intend to include in such offering would be reasonably likely to adversely affect the price, timing or distribution of the securities offered in such offeringoffering in any material respect, then the number of securities proposed to be included in such registration shall be allocated among the Company, the Apollo Group, Company and all of the selling Apollo Group and Management Holders proportionatelyHolders, such that the number of securities that each such Person shall be entitled to sell in the Underwritten Offering (other than the initial Underwritten Offering) shall be included in the following order: (i) In the event of an exercise of any demand rights registration right pursuant to Section 4 by the Apollo Group or any other Holder or Holders possessing such rights: (1) first, the Registrable Securities securities held by the Person Person(s) exercising a demand right such registration rights pursuant to Section 4 or pursuant to any other agreement in which the Company has granted containing demand registration rights, pro rata based upon the number of Registrable Securities proposed requested to be included registered by each such Person in connection with such registration; (2) second, the Registrable Securities securities held by the Persons requesting their Registrable Securities Apollo Group and the Management Holders requested to be included in such registration pursuant to the terms of this Section 5 or pursuant to any other agreement in which the Company has granted piggy-back registration rights5, pro rata based upon the number of Registrable Securities proposed requested to be included registered by each such Person at the time of in connection with such registration; and; (3) third, the securities to be issued and sold by the Company in such registration; and (4) fourth, the securities held by any other Persons requested to be included in such registration pursuant to the terms of this Section 5 or pursuant to any other agreement containing piggyback registration rights, pro rata based upon the number of Registrable Securities requested to be registered by each such Person in connection with such registration. (ii) In all other cases: (1) first, the securities to be issued and sold by the Company in such registration; and; (2) second, the Registrable Securities securities held by the Persons requesting their Registrable Securities Apollo Holder and the Management Holders requested to be included in such registration pursuant to the terms of this Section 5 or pursuant to any other agreement in which the Company has granted piggy-back containing piggyback registration rights, pro rata based upon the number of Registrable Securities proposed requested to be included registered by each such Person at the time of in connection with such registration. Notwithstanding anything to ; and (3) third, the contrary set forth in this Section 5(b), if the managing underwriter for the initial Underwritten Offering advises the Company that the inclusion of the number of shares of Common Stock proposed to be included in any registration securities held by any particular Management Holder would interfere with the successful marketing (including pricing) of such shares to be offered thereby, then the number of such shares proposed to all other Persons requesting their securities be included in such registration by such Management Holder shall be reduced pursuant to the lower terms of this Section 5 or pursuant to any other agreement containing piggyback registration rights, pro rata based upon the number of Registrable Securities requested to be registered by each such shares Person in connection with such registration. In the event that the managing underwriter advises that or underwriters of such Holder may sell in the proposed Underwritten Offering and the number determine that participation in such Underwritten Offering by a particular Stockholder or group of Stockholders would be likely to adversely affect such shares calculated pursuant to the foregoingUnderwritten Offering, such Stockholder or Stockholders shall not participate in such Underwritten Offering.

Underwriter’s Cutback. Notwithstanding the foregoing, if a registration pursuant to this Section 4 or Section 5 involves an Underwritten Offering (as defined in Section 5(h)(ii4(h)) and the managing underwriter or underwriters of such proposed Underwritten Offering advises the Company that the total or kind of securities which such Holders and any other persons or entities intend to include in such offering would be reasonably likely to adversely affect the price, timing or distribution of the securities offered in such offering, then the number of securities proposed to be included in such registration shall be allocated among the Company, the Apollo Group, Company and all of the selling Management Apollo Group and Non-Apollo Group Holders proportionately, such that the number of securities that each such Person shall be entitled to sell in the Underwritten Offering (other than the initial Underwritten Offering) shall be included in the following order: (i) In the event of an exercise of any demand rights by the Apollo Group or any other Holder or Holders possessing such rights: (1) first, the Registrable Securities held by the Person exercising a demand right pursuant to Section 4 or pursuant to any other agreement in which the Company has granted demand rights, pro rata based upon the number of Registrable Securities proposed to be included by each such Person in connection with such registration; (2) second, the Registrable Securities securities held by the Persons requesting their Registrable Securities to securities be included in such registration pursuant to the terms of this Section 5 4 or pursuant to any other agreement in which the Registration Rights Agreement of even date between the Company has granted piggy-back registration rightsand the Apollo Group, pro rata based upon the number of Registrable Securities proposed to be included securities of each class or series owned by each such Person at the time of such registration; and (32) thirdsecond, the securities to be issued and sold by the Company in such registration. (ii) In all the event of an exercise of any piggyback registration rights by the Apollo Group or any other casesHolder or Holders possessing such rights: (1) first, the securities to be issued and sold by the Company in such registration; and (2) second, the Registrable Securities securities held by the Persons requesting their Registrable Securities securities be included in such registration pursuant to the terms of this Section 5 4 or pursuant to any other agreement in which the Registration Rights Agreement of even date between the Company has granted piggy-back registration rightsand the Apollo Group, pro rata based upon the number of Registrable Securities proposed to be included securities of each class or series owned by each such Person at the time of such registration. Notwithstanding anything to the contrary set forth in this Section 5(b4(b), if the managing underwriter for the an initial Underwritten Offering advises the Company that the inclusion of the number of all shares of Common Stock or Preferred Stock proposed to be included in any registration by any particular Management Non-Apollo Group Holder would interfere with the successful marketing (including pricing) of such shares to be offered thereby, then the number of such shares proposed to be included in such registration by such Management Non-Apollo Group Holder shall be reduced to the lower of the number of such shares that the managing underwriter advises that such Holder holder may sell in the initial Underwritten Offering and the number of such shares calculated pursuant to the foregoing.

Underwriter’s Cutback. Notwithstanding the foregoing, if a registration pursuant to Section 4 or this Section 5 involves an Underwritten Offering (as defined in Section 5(h)(ii)) and the managing underwriter or underwriters of such proposed Underwritten Offering advises the Company that the total or kind of securities which such Holders and any other persons or entities intend to include in such offering would be reasonably likely to adversely affect the price, timing or distribution of the securities offered in such offering, then the number of securities proposed to be included in such registration shall be allocated among the Company, the Apollo Group, and all of the selling Management Holders proportionately, such that the number of securities that each such Person shall be entitled to sell in the Underwritten Offering (other than the initial Underwritten Offering) shall be included in the following order: (i) In the event of an exercise of any demand rights by the Apollo Group or any other Holder or Holders possessing such rights: (1) first, the Registrable Securities held by the Person exercising a demand right pursuant to Section 4 or pursuant to any other agreement in which the Company has granted demand rights, pro rata based upon the number of Registrable Securities proposed to be included owned by each such Person in connection with such registration; (2) second, the Registrable Securities held by the Persons requesting their Registrable Securities to be included in such registration pursuant to the terms of this Section 5 or pursuant to any other agreement in which the Company has granted piggy-back piggyback registration rights, pro rata based upon the number of Registrable Securities proposed to be included owned by each such Person at the time of such registration; and (3) third, the securities to be issued and sold by the Company in such registration. (ii) In all other cases: (1) first, the securities to be issued and sold by the Company in such registration; and (2) second, the Registrable Securities held by the Persons requesting their Registrable Securities be included in such registration pursuant to the terms of this Section 5 or pursuant to any other agreement in which the Company has granted piggy-back piggyback registration rights, pro rata based upon the number of Registrable Securities proposed to be included owned by each such Person at the time of such registration. Notwithstanding anything to the contrary set forth in this Section 5(b), if the managing underwriter for the initial Underwritten Offering advises the Company that the inclusion of the number of shares of Common Stock proposed to be included in any registration by any particular Management Holder would interfere with the successful marketing (including pricing) of such shares to be offered thereby, then the number of such shares proposed to be included in such registration by such Management Holder shall be reduced to the lower of the number of such shares that the managing underwriter advises that such Holder holder may sell in the Underwritten Offering and the number of such shares calculated pursuant to the foregoing.

Underwriter’s Cutback. Notwithstanding the foregoing, if a registration pursuant to Section 4 or this Section 5 involves an Underwritten Offering (as defined in Section 5(h)(ii)) and the managing underwriter or underwriters of such proposed Underwritten Offering advises advise the Company that the total or kind of securities which such Holders and any other persons or entities intend to include in such offering would be reasonably likely to adversely affect the price, timing or distribution of the securities offered in such offering, then the number of securities proposed to be included in such registration shall be allocated among the Company, the Apollo Group, Company and all of the selling Apollo Group, XX Xxxxxx and Management Holders proportionatelyHolders, such that the number of securities that each such Person shall be entitled to sell in the Underwritten Offering (other than the initial Underwritten Offering) shall be included in the following order: (i) In the event of an exercise of any demand rights Registration Right by the Apollo Group or the XX Xxxxxx or any other Holder or Holders possessing such rights: (1) first, the Registrable Securities securities held by the Person Person(s) exercising a demand right such registration rights pursuant to Section 4 or pursuant to any other agreement in which the Company has granted containing demand rights, pro rata based upon the number of Registrable Securities proposed to be included by each such Person in connection with such registration; (2) second, the Registrable Securities held by the Persons requesting their Registrable Securities to be included in such registration pursuant to the terms of Section 5 or pursuant to any other agreement in which the Company has granted piggy-back registration rights, pro rata based upon the number of Registrable Securities proposed requested to be included registered by each such Person at the time of in connection with such registration; and, provided, however, that in the case of an exercise by the Apollo Group of an Apollo Registration Request prior to (or in) a Qualified Public Offering, both the XX Xxxxxx and the Apollo Group shall be deemed to be a person exercising such registration rights; (2) second, the securities held by the Apollo Group, the XX Xxxxxx and the Management Holders requested to be included in such registration pursuant to the terms of this Section 5, pro rata based upon the number of Registrable Securities requested to be registered by each such Person in connection with such registration; (3) third, the securities to be issued and sold by the Company in such registration; and (4) fourth, the securities held by any other Persons requested to be included in such registration pursuant to the terms of this Section 5 or pursuant to any other agreement containing piggyback registration rights, pro rata based upon the number of Registrable Securities requested to be registered by each such Person in connection with such registration. (ii) In all other cases: (1) first, the securities to be issued and sold by the Company in such registration; and; (2) second, the Registrable Securities securities held by the Persons requesting their Registrable Securities Apollo Holder, the XX Xxxxxx and the Management Holders requested to be included in such registration pursuant to the terms of this Section 5 or pursuant to any other agreement in which the Company has granted piggy-back containing piggyback registration rights, pro rata based upon the number of Registrable Securities proposed requested to be included registered by each such Person at in connection with such registration; and (3) third, the time securities held by all other Persons requesting their securities be included in such registration pursuant to the terms of this Section 5 or pursuant to any other agreement containing piggyback registration rights, pro rata based upon the number of Registrable Securities requested to be registered by each such Person in connection with such registration. Notwithstanding anything In the event that the managing underwriter or underwriters of such proposed Underwritten Offering determine that participation in such Underwritten Offering by a particular Stockholder or group of Stockholders would be likely to adversely affect such Underwritten Offering, such Stockholder or Stockholders shall not participate in such Underwritten Offering, provided that the Apollo Group shall use reasonable efforts to ensure that the XX Xxxxxx is treated no less favorably than the Apollo Group in connection therewith so as to give effect to the contrary set forth pro rata principles reflected above in this Section 5(b), if the managing underwriter for the initial Underwritten Offering advises the Company that the inclusion of the number of shares of Common Stock proposed to be included in any registration by any particular Management Holder would interfere with the successful marketing (including pricing) of such shares to be offered thereby, then the number of such shares proposed to be included in such registration by such Management 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 Underwritten Offering and the number of such shares calculated pursuant to the foregoing.

Underwriter’s Cutback. Notwithstanding the foregoing, if a registration pursuant to Section 4 or this Section 5 involves an Underwritten Offering (as defined in Section 5(h)(ii)) and the managing underwriter or underwriters of such proposed Underwritten Offering advises advise the Company that the total or kind of securities which such Holders and any other persons or entities intend to include in such offering would be reasonably likely to adversely affect the price, timing or distribution of the securities offered in such offering, then the number of securities proposed to be included in such registration shall be allocated among the Company, the Apollo Group, Company and all of the selling Apollo Group and Management Holders proportionatelyHolders, such that the number of securities that each such Person shall be entitled to sell in the Underwritten Offering (other than the initial Underwritten Offering) shall be included in the following order: (i) In the event of an exercise of any demand registration rights by the Apollo Group or any other Holder or Holders possessing such rights: (1) first, the Registrable Securities securities held by the Person Person(s) exercising a such demand right registration rights pursuant to Section 4 or pursuant to any other agreement in which the Company has granted containing demand registration rights, pro rata based upon the number of Registrable Securities proposed requested to be included registered by each such Person in connection with such registration; (2) second, the Registrable Securities securities held by the Persons requesting their Registrable Securities Apollo Group and the Management Holders requested to be included in such registration pursuant to the terms of this Section 5 or pursuant to any other agreement in which the Company has granted piggy-back registration rights5, pro rata based upon the number of Registrable Securities proposed requested to be included registered by each such Person at the time of in connection with such registration; and; (3) third, the securities to be issued and sold by the Company in such registration; and (4) fourth, the securities held by any other Persons requested to be included in such registration pursuant to the terms of this Section 5 or pursuant to any other agreement containing piggyback registration rights, pro rata based upon the number of Registrable Securities requested to be registered by each such Person in connection with such registration. (ii) In all other cases: (1) first, the securities to be issued and sold by the Company in such registration; and; (2) second, the Registrable Securities securities held by the Persons requesting their Registrable Securities Apollo Holder and the Management Holders requested to be included in such registration pursuant to the terms of this Section 5 or pursuant to any other agreement in which the Company has granted piggy-back containing piggyback registration rights, pro rata based upon the number of Registrable Securities proposed requested to be included registered by each such Person at the time of in connection with such registration. Notwithstanding anything to ; and (3) third, the contrary set forth in this Section 5(b), if the managing underwriter for the initial Underwritten Offering advises the Company that the inclusion of the number of shares of Common Stock proposed to be included in any registration securities held by any particular Management Holder would interfere with the successful marketing (including pricing) of such shares to be offered thereby, then the number of such shares proposed to all other Persons requesting their securities be included in such registration by such Management Holder shall be reduced pursuant to the lower terms of this Section 5 or pursuant to any other agreement containing piggyback registration rights, pro rata based upon the number of Registrable Securities requested to be registered by each such shares Person in connection with such registration. In the event that the managing underwriter advises or underwriters of such proposed Underwritten Offering determine that participation in such Underwritten Offering by a particular Holder or group of Holders would be likely to adversely affect such Underwritten Offering, such Holder may sell or Holders shall not participate in the such Underwritten Offering and the number of such shares calculated pursuant to the foregoingOffering.