Common use of Underwritten Public Offerings Clause in Contracts

Underwritten Public Offerings. (a) Following the expiration of the Lock-Up Period and for so long as CPPIB retains the right to designate at least one Director pursuant to Section 2 of this Agreement, the Holders shall have the right to require the Company to conduct one (1) underwritten public offering of all or a portion of the Holders’ Registrable Securities in accordance with this Section 4 (an “Underwritten Offering”); provided, however, that in no event shall the Company be required to conduct an Underwritten Offering for less than a minimum of $10 million of Registrable Securities, in the aggregate (determined by multiplying the number of Registrable Securities held by the Holders requesting the Underwritten Offering (the “Requesting Holders”) by the average of the closing price on the NYSE for the Common Stock for the ten trading days preceding the date of such notice). In addition, if at any time and for so long as the Holders beneficially own (as determined in accordance with Rule 13d-3 under the Exchange Act, but excluding for this purpose any attribution of ownership of securities held by persons who are not affiliates of CPPIB)), in the aggregate, over 15.0% of the issued and outstanding shares of Common Stock of the Company, the Holders shall be entitled to require the Company to conduct one (1) additional Underwritten Offering pursuant to the terms of this Agreement; provided, however, that the Company shall not be required to effect more than two (2) Underwritten Offerings pursuant to this Section 4; and provided, further, that the Company shall not be required to effect more than one (1) Underwritten Offering in any twelve (12) month period. (b) Upon the request of the Requesting Holders (which request shall specify the Registrable Securities intended to be included in such Underwritten Offering), the Company will use its reasonable best efforts to effect such Underwritten Offering in accordance with the procedures set forth in Section 11 below; provided, however, that the Company shall have the right to defer such Underwritten Offering in accordance with Section 12 below. (c) In addition, the Requesting Holders shall give notice to the Company of the managing underwriters for such proposed Underwritten Offering, such managing underwriters to be subject to the approval of the Company, not to be unreasonably withheld. (d) If an Underwritten Offering pursuant to this Section 4 is commenced, but not completed for any reason (other than as a result of the Requesting Holders’ (i) determination not to complete the Underwritten Offering, (ii) failure to provide all necessary information regarding the Requesting Holders to the Company or the underwriters or (iii) failure to satisfy any of the covenants or conditions contained in the underwriting agreement relating to such Underwritten Offering), such Underwritten Offering will not count as one of the Underwritten Offerings that the Company is obligated to effect pursuant to this Section 4.