Common use of Underwriting; Request by Initiating Holders Clause in Contracts

Underwriting; Request by Initiating Holders. If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to Section 3.2(a) and the Company shall include such information in the written notice referred to in Section 3.2(a). In such event, the right of any Holder to include such Holder's Registrable Securities in such registration shall be conditioned upon such Holder's participation in such underwriting and the inclusion of such Holder's Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Company as provided in Section 3.6(e)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holders and reasonably acceptable to the Company. Notwithstanding any other provision of Section 3.2, if the underwriter advises the Company and the Initiating Holders in writing that marketing factors require a limitation of the number of shares to be underwritten, then the Company shall so advise all Holders of Registrable Securities which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the underwriting shall be allocated among all Holders thereof, including the Initiating Holders, in such proportion (as nearly as practicable) among the Holders pro rata based on the amount of Registrable Securities owned by each Holder.

Underwriting; Request by Initiating Holders. If the Initiating Holders intend Holder intends to distribute the Registrable Securities covered by their its request by means of an underwriting, they it shall so advise the Company as a part of their its request made pursuant to Section 3.2(a) and the Company shall include such information in the written notice referred to in Section 3.2(a1.2(a)(i). In such event, the right of any Holder to include such Holder's Registrable Securities in such registration shall be conditioned upon such Holder's participation in such underwriting and the inclusion of such Holder's Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders Holder and such Holder) to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Company as provided in Section 3.6(e1.6(e)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holders Holder and reasonably acceptable to the Company. Notwithstanding any other provision of Section 3.2the foregoing, if the managing underwriter advises the Company and the Initiating Holders Holder in writing that marketing factors require a limitation of the number of shares to be underwrittenincluded in the registration, then the Company shall so advise all Holders of Registrable Securities which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the underwriting shall be allocated among all Holders thereof, including first to the Initiating HoldersHolder (and if more than one entity constitutes the Initiating Holder, then subject to the next sentence, the allocation shall be among such entities, in such proportion (as nearly as practicable) among them pro rata based on the amount of Registrable Securities held by each of them (calculated on an As-Converted Basis)), and second among all other Holders who sought to include Registrable Securities in the registration, in such proportion (as nearly as practicable) among such other Holders pro rata based on the amount of Registrable Securities owned by each of them (calculated on an As-Converted Basis). For any Holder which is a partnership or corporation, the partners, retired partners and stockholders of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single "Holder," and any pro rata reduction with respect to such "Holder" shall be based upon the aggregate amount of shares carrying registration rights owned by all entities and individuals included in such "Holder," as defined in this sentence. In connection with a registration under this Section 1.2, the Company may include securities to be sold for its own account, but not for the account of any other person other than a Holder on the terms described herein. If a registration under this Section 1.2 is to be effected through an underwriting, the right of the Company to include securities in such registration shall be conditioned upon the Company's participation in such underwriting and the inclusion of such securities in the underwriting (unless otherwise mutually agreed by the Initiating Holder and the Company) to the extent provided herein. Notwithstanding the foregoing, if the managing underwriter advises the Company and the Initiating Holder in writing that marketing factors require a limitation of the number of shares to be included in the registration, then all securities that the Company sought to be included in the registration shall be removed from the registration before any Registrable Securities are removed from the registration. Any securities excluded from an underwriting under this section shall be withdrawn from the registration.

Underwriting; Request by Initiating Holders. If the Initiating Holders intend Holder intends to distribute the Registrable Securities covered by their its request by means of an underwriting, they it shall so advise the Company as a part of their its request made pursuant to Section 3.2(a) and the Company shall include such information in the written notice referred to in Section 3.2(a1.2(a)(i). In such event, the right of any Holder to include such Holder's Registrable Securities in such registration shall be conditioned upon such Holder's participation in such underwriting and the inclusion of such Holder's Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders Holder and such Holder) to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Company as provided in Section 3.6(e1.5(e)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holders Holder and reasonably acceptable to the Company. Notwithstanding any other provision of Section 3.2the foregoing, if the managing underwriter advises the Company and the Initiating Holders Holder in writing that marketing factors require a limitation of the number of shares to be underwrittenincluded in the registration, then the Company shall so advise all Holders of Registrable Securities which would otherwise be underwritten pursuant heretoincluded in the registration, and the number of shares of Registrable Securities that may be included in the underwriting shall be allocated among all Holders thereof, including who sought to include Registrable Securities in the Initiating Holdersregistration, in such proportion (as nearly as practicable) among the such Holders pro rata based on the amount of Registrable Securities owned by each of them (calculated on an As-Converted Basis). For any Holder which is a partnership or corporation, the partners, retired partners and stockholders of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single "Holder," and any pro rata reduction with respect to such "Holder" shall be based upon the aggregate amount of shares carrying registration rights owned by all entities and individuals included in such "Holder," as defined in this sentence. In connection with a registration under this Section 1.2, the Company may include securities to be sold for its own account, or the account of other persons; provided, however, that if a registration under this Section 1.2 is to be effected through an underwriting, the right of the Company and such other persons to include securities in such registration shall be conditioned upon the Company's and such other persons' participation in such underwriting and the inclusion of such securities in the underwriting (unless otherwise mutually agreed by the Initiating Holder and the Company, in the case of securities to be registered for the account of the Company, or by the Initiating Holder and each such other person, in the case of securities to be registered for the account of such other persons) to the extent provided herein. Notwithstanding the foregoing, if the managing underwriter advises the Company, such other persons and the Initiating Holder in writing that marketing factors require a limitation of the number of shares to be included in the registration, then (i) all securities that the Company sought to be included in the registration shall be removed from the registration before any Registrable Securities are removed from the registration, (ii) all securities of any such other person that do not have registration rights pursuant to (A) the Series A Investor Rights Agreement, (B) a subscription agreement entered into with the Company in connection with the June 1999 Placement or (C) pursuant to the Wedbush Warrant shall be removed from the registration before any Registrable Securities are removed from the registration and (iii) to the extent that any such other person holds securities that have registration rights pursuant to the Series A Placement ("Series A Placement Securities"), the June 1999 Placement ("June 1999 Placement Securities") or the Wedbush Warrant ("Wedbush Warrant Securities", and with the Series A Placement Securities and June 1999 Placement Securities, "Other Registrable Securities"), then notwithstanding anything in this Section 1.2(b) to the contrary, the number of shares of Registrable Securities and Other Registrable Securities that may be included in the underwriting shall be allocated among the Holders and such other persons who sought to include their respective securities in the registration, in such proportion (as nearly as practicable) among such Holders and such other persons pro rata based on the amount of Registrable Securities and Other Registrable Securities owned by each of them (calculated on an As-Converted Basis); provided, that notwithstanding anything in the foregoing to the contrary, the rights of the Holders of Registrable Securities to have such Registrable Securities included in any such registration shall be subordinate to the rights of the holders of Series A Placement Securities and of "Warrants" and "Warrant Securities," as such terms are defined as of the date hereof in the Wedbush Warrant. Any securities excluded from an underwriting under this section shall be withdrawn from the registration.

Underwriting; Request by Initiating Holders. If the Initiating Holders intend Holder intends to distribute the Registrable Securities covered by their its request by means of an underwriting, they it shall so advise the Company as a part of their its request made pursuant to Section 3.2(a) and the Company shall include such information in the written notice referred to in Section 3.2(a1.2(a)(i). In such event, the right of any Holder to include such Holder's Registrable Securities in such registration shall be conditioned upon such Holder's participation in such underwriting and the inclusion of such Holder's Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders Holder and such Holder) to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Company as provided in Section 3.6(e1.5(e)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holders Holder and reasonably acceptable to the Company. Notwithstanding any other provision of Section 3.2the foregoing, if the managing underwriter advises the Company and the Initiating Holders Holder in writing that marketing factors require a limitation of the number of shares to be underwrittenincluded in the registration, then the Company shall so advise all Holders of Registrable Securities which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the underwriting shall be allocated among all Holders thereof, including who sought to include Registrable Securities in the Initiating Holdersregistration, in such proportion (as nearly as practicable) among the such Holders pro rata PRO RATA based on the amount of Registrable Securities owned by each of them (calculated on an As-Converted Basis). For any Holder which is a partnership or corporation, the partners, retired partners and stockholders of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single "Holder," and any pro rata reduction with respect to such "Holder" shall be based upon the aggregate amount of shares carrying registration rights owned by all entities and individuals included in such "Holder," as defined in this sentence. In connection with a registration under this Section 1.2, the Company may include securities to be sold for its own account, or the account of other persons; provided, however, that if a registration under this Section 1.2 is to be effected through an underwriting, the right of the Company and such other persons to include securities in such registration shall be conditioned upon the Company's and such other persons' participation in such underwriting and the inclusion of such securities in the underwriting (unless otherwise mutually agreed by the Initiating Holder and the Company, in the case of securities to be registered for the account of the Company, or by the Initiating Holder and each such other person, in the case of securities to be registered for the account of such other persons) to the extent provided herein. Notwithstanding the foregoing, if the managing underwriter advises the Company, such other persons and the Initiating Holder in writing that marketing factors require a limitation of the number of shares to be included in the registration, then (i) all securities that the Company sought to be included in the registration shall be removed from the registration before any Registrable Securities are removed from the registration, (ii) all securities of any such other person that do not have registration rights pursuant to a Subscription Agreement entered into with the Company in connection with the Company's private placement of 1,505,003 shares of Common Stock completed in June, 1999 (the "Private Placement") or pursuant to the Company's Warrant No. W-1 dated May 8, 1996 (the "Warrant") shall be removed from the registration before any Registrable Securities are removed from the registration and (iii) to the extent that any such other person holds securities that have registration rights pursuant to the Private Placement ("Private Placement Securities") or the Warrant ("Warrant Securities", and with the Private Placement Securities, "Other Registrable Securities"), then notwithstanding anything in this Section 1.2(b) to the contrary, the number of shares of Registrable Securities and Other Registrable Securities that may be included in the underwriting shall be allocated among the Holders and such other persons who sought to include their respective securities in the registration, in such proportion (as nearly as practicable) among such Holders and such other persons PRO RATA based on the amount of Registrable Securities and Other Registrable Securities owned by each of them (calculated on an As-Converted Basis); provided, that notwithstanding anything in the foregoing to the contrary, the rights of the Holders of Registrable Securities to have such Registrable Securities included in any such registration shall be subordinate to the rights of the holders of "Warrants" and "Warrant Securities," as such terms are defined as of the date hereof in the Company's Warrant No. W-1 dated May 8, 1996 issued to Wedbush Xxxxxx Securities, Inc. Any securities excluded from an underwriting under this section shall be withdrawn from the registration.

Underwriting; Request by Initiating Holders. If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to Section 3.2(a) and the Company shall include such information in the written notice referred to in Section 3.2(a). In such event, the right of any Holder to include such Holder's ’s Registrable Securities in such registration shall be conditioned upon such Holder's ’s participation in such underwriting and the inclusion of such Holder's ’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Company as provided in Section 3.6(e)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holders and reasonably acceptable to the Company. Notwithstanding any other provision of Section 3.2, if the underwriter advises the Company and the Initiating Holders in writing that marketing factors require a limitation of the number of shares to be underwritten, then the Company shall so advise all Holders of Registrable Securities which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the underwriting shall be allocated among all Holders thereof, including the Initiating Holders, in such proportion (as nearly as practicable) among the Holders pro rata based on the amount of Registrable Securities owned by each Holder; provided, however, that the number of shares of the Holders’ Registrable Securities to be included in such underwriting shall not be reduced until all other securities requested to be included in such underwriting have been excluded entirely.

Underwriting; Request by Initiating Holders. If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to Section 3.2(a2.2(a) and the Company shall include such information in the written notice referred to in Section 3.2(a2.2(a). In such event, the right of any Holder to include such Holder's Registrable Securities in such registration shall be conditioned upon such Holder's participation in such underwriting and the inclusion of such Holder's Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Company as provided in Section 3.6(e2.4(e)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holders and reasonably acceptable to the Company. Notwithstanding any other provision of Section 3.22.2, if the underwriter advises the Company and the Initiating Holders in writing that marketing factors require a limitation of the number of shares to be underwritten, then the Company shall so advise all Holders of Registrable Securities which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the underwriting shall be allocated among all Holders thereof, including the Initiating Holders, in such proportion (as nearly as practicable) among the Holders pro rata based on the amount of Registrable Securities owned by each Holder.