Common use of Subsequent Registration Statements Clause in Contracts

Subsequent Registration Statements. (1) If the Company shall pursuant to any Subsequent Sale require the Investor to purchase shares of Common Stock not previously registered and not covered by an effective Registration Statement filed with the SEC and which is not a Failed Registration Statement (as hereinafter defined) (an "Unregistered Sale"), then on or before the end of a 20 calendar day period immediately following each Closing Date relating to each such Subsequent Sale, the Company shall 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 be filed by the Company with the SEC as provided in this Agreement, the "Registration Statements" or each, a "Registration Statement") on Form S-3 if such form is then available to the Company and, 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 Subsequent Sale Shares purchased by the Investor and any Warrant Shares that have not been previously registered, in accordance with the intended method of distribution of such securities. The aggregate number of shares to be registered under each Subsequent Registration Statement shall be equal to two hundred percent (200%) of the number of Subsequent Sale Shares purchased by the Investor on the applicable Closing Date plus 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 Subsequent Registration Statement on Form S-3 if such form is then available

Subsequent Registration Statements. (1) If the Company shall shall, pursuant to any Subsequent Sale Sale, require the Investor to purchase shares of Common Stock not previously registered and not covered by an effective Registration Statement filed with the SEC and which is not a Failed Registration Statement (as hereinafter defined) (an "Unregistered SaleUNREGISTERED SALE"), then on or before the end of a 20 calendar day period immediately following each Closing Date relating to each such Subsequent Sale, the Company shall file with the SEC a registration statement (each a "Subsequent Registration StatementSUBSEQUENT REGISTRATION STATEMENT," and together with the First Registration Statement and any other registration statement covering Registrable Securities or otherwise required to be filed by the Company with the SEC as provided in this Agreement, the "Registration StatementsREGISTRATION STATEMENTS" or each, a "Registration StatementREGISTRATION STATEMENT") on Form S-3 if such form is then available to the Company and, 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 Subsequent Sale Shares purchased by the Investor and any Conversion Shares and Warrant Shares that have not been previously registered, in accordance with the intended method of distribution of such securities. The aggregate number of shares to be registered under each Subsequent Registration Statement shall be equal to two hundred percent (200%w) the number of Subsequent Sale Shares purchased by the Investor on the applicable Closing Date, plus (x) a number of Protective Warrant Shares equal to the number of Subsequent Sale Shares purchased by the Investor on the applicable Closing Date plus (y) any Conversion Shares not previously registered plus (z) 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 Subsequent Registration Statement on Form S-3 if such form is then availableavailable to the Company and, 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 shares of Common Stock to be purchased by the Investor and any Warrant Shares which have not previously been registered, in accordance with the intended method of distribution of such securities. The aggregate number of shares to be registered under such Registration Statement shall be determined by the Company.

Subsequent Registration Statements. (1) If the Company shall shall, pursuant to any Subsequent Sale Sale, require the Investor to purchase shares of Common Stock not previously registered and not covered by an effective Registration Statement filed with the SEC and which is not a Failed Registration Statement (as hereinafter defined) (an "Unregistered Sale"), then on or before the end of a 20 calendar day period immediately following each Closing Date relating to each such Subsequent Sale, the Company shall 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 be filed by the Company with the SEC as provided in this Agreement, the "Registration Statements" or each, a "Registration Statement") on Form S-3 if such form is then available to the Company and, 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 Subsequent Sale Shares purchased by the Investor and any Warrant Shares and Note Conversion Shares that have not been previously registered, in accordance with the intended method of distribution of such securities. The aggregate number of shares to be registered under each Subsequent Registration Statement shall be equal to two hundred percent (200%) of the number of Subsequent Sale Shares purchased by the Investor on the applicable Closing Date plus 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 Subsequent Registration Statement on Form S-3 if such form is then availableeach

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) If the Parties shall cooperate to allow each Stockholder to participate, including providing written notice to all Parties of any such Underwritten Offering (including an Underwritten Offering of shares registered for resale under a then effective registration statement) ten (10) days prior to the commencement of any marketing efforts with respect to such Underwritten Offering and, if necessary, delaying the Underwritten Offering to permit the registration of the sale of shares by such other Stockholders, (b) the holders of a majority of shares of Registrable Stock to be sold in such offering shall be entitled to select the sole or the lead managing underwriter, 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 Underwritten Offering, and (ii) one of which shall be selected by such 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, (c) if the Lead Underwriter advises the Company shall pursuant in writing (with a copy to any Subsequent Sale require each Stockholder registering shares for resale in the Investor to purchase Underwritten Offering) that, in the good faith opinion of the underwriters, the number of shares of Common Stock not previously registered and not covered by an effective Registration Statement filed with requested to be included in the SEC and which is not a Failed Registration Statement Underwritten Offering would materially adversely affect (as hereinafter defineddefined in Section 2.5(d) of this Third Amendment) the marketing of the shares to be sold in such offering (an "Unregistered Sale"such writing to state the approximate number of shares which may be included in such offering without such effect), then on or before the end of a 20 calendar day period immediately following each Closing Date relating to each such Subsequent Sale, the Company shall file with include in such registration: shares allocated pro rata between the SEC 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 Registration 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 2.5(f)(ii) shall prevent any member of the Investcorp Group from (each a "Subsequent Registration Statement" and together with 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 First Registration Statement and registration for sale of any of its shares on any date after December 1, 2002. (iii) Notwithstanding any other registration statement covering Registrable Securities or otherwise required to be filed by provision of the Company with the SEC as provided in this Stockholders' Agreement, the "Registration Statements" or eachfor any public offering commenced prior to December 1, a "Registration Statement"2002, (a) on Form S-3 if such form is then available to the Company and, if not, on such form promulgated by the SEC for which the Company qualifies, that counsel for the Company shall deem appropriate 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 which form (b) none of the Parties shall be available for the sale of the Subsequent Sale Shares purchased by the Investor and required to enter into any Warrant Shares that have not been previously registered, in accordance lock-up agreement with the intended method of distribution of respect to such securitiesoffering." 3. The aggregate number prohibition on filing registration statements in the last sentence of shares Section 9.1(c) shall only apply following underwritten offerings commenced after December 1, 2002 pursuant to be registered under each Subsequent Registration Statement Section 9.1 and shall be equal not prohibit the filing of any registration statement to two hundred percent (200%) of the number of Subsequent Sale Shares purchased by the Investor permit any Stockholder to participate in such underwritten offering. Except for registration statements on the applicable Closing Date plus Form S-4, S-8 or any Warrant Shares not previously registered; (2) Prior to any Subsequent Sale which is not an Unregistered Salesuccessor thereto, the Company will not file a regist▇▇▇▇▇▇ ▇tatement (other than the Make-Whole Registration Statement or any registration statement requested by a member of the Carmel Group) prior to December 2, 2002. 4. Except for the specific changes set forth in this Fourth Amendment, the remainder of the Stockholders' Agreement, including without limitation the Third Amendment, shall file 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 SEC a Subsequent Registration Statement on Form S-3 same effect as if such form is then availablethe signatures thereto and hereto were upon the same instrument.

Subsequent Registration Statements. (1) If the Company shall shall, pursuant to any Subsequent Sale Sale, require the Investor to purchase shares of Common Stock not previously registered and not covered by an effective Registration Statement filed with the SEC and which is not a Failed Registration Statement (as hereinafter defined) (an "Unregistered Sale"), then on or before the end of a 20 10 calendar day period immediately following each Closing Date relating to each such Subsequent Sale, the Company shall 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 be filed by the Company with the SEC as provided in this Agreement, the "Registration Statements" or each, a "Registration Statement") on Form S-3 if such form is then available to the Company and, 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 Subsequent Sale Shares purchased by the Investor and any Warrant Shares that have not been previously registered, in accordance with the intended method of distribution of such securities. The aggregate number of shares to be registered under each Subsequent Registration Statement shall be equal to two hundred percent (200%) of the number of Subsequent Sale Shares purchased by the Investor on the applicable Closing Date plus 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 Subsequent Registration Statement on Form S-3 if such form is then available