proposed to be included therein by any other stockholder of Issuer.
Participation by Grantee in any Incidental Registration shall not affect the
obligation of Issuer to effect Demand Registrations under this Section 4.1.
Issuer may withdraw any registration under the Securities Act that gives rise
to an Incidental Registration without the consent of Grantee.
(c) In connection with any Registration pursuant to this Section 4.1, (i)
Issuer and Grantee shall provide each other and any underwriter of the offering
with customary representations, warranties, covenants, indemnification and
contribution obligations in connection with such Registration, and (ii) Issuer
shall use reasonable best efforts to cause any Option Shares included in such
Registration to be approved for listing on the NYSE or any other nationally
recognized exchange or trading system upon which Issuer's securities are then
listed, subject to official notice of issuance, which notice shall be given by
Issuer upon issuance. Grantee will provide all information reasonably requested
by Issuer for inclusion in any registration statement to be filed hereunder.
The costs and expenses incurred by Issuer in connection with any Registration
pursuant to this Section 4.1 (including any fees related to qualifications
under Blue Sky Laws and SEC filing fees) (the "Registration Expenses") shall be
borne by Issuer, excluding legal fees of Grantee's counsel and underwriting
discounts or commissions with respect to Option Shares to be sold by Grantee
included in a Registration.
4.2 Transfers of Option Shares. The Option Shares may not be sold, assigned,
transferred, or otherwise disposed of except (i) in an underwritten public
offering as provided in Section 4.1 or (ii) to any purchaser of transferee who
would not, to the knowledge of the Grantee after reasonable inquiry,
immediately following such sale, assignment, transfer or disposal beneficially
own more than 3% of the then-outstanding voting power of the Issuer; provided,
however, that Grantee shall be permitted to sell any Option Shares if such sale
is made pursuant to a tender or exchange offer that has been approved or
recommended by a majority of the members of the Board of Directors of Issuer
(which majority shall include a majority of directors who were directors as of
the date hereof).
REPURCHASE RIGHTS; SUBSTITUTE OPTIONS
5.1 Repurchase Rights.
(a) Subject to Section 6.1, at any time on or after the Exercise Date and
prior to the Expiration Date, Grantee shall have the right (the "Repurchase
Right") to require Issuer to repurchase from Grantee (i) the Option or any part
thereof as Grantee shall designate at a price (the "Option Repurchase Price")
equal to the amount, subject to reduction at the sole discretion of Grantee
pursuant to clause (iii) of Section 6.1(a), by which (A) the Market/Offer Price
(as defined below) exceeds (B) the Exercise Price, multiplied by the number of
Option Shares as to which the Option is to be repurchased and (ii) such number
of Option Shares as Grantee shall designate at a price (the "Option Share
Repurchase Price") equal to the Market/Offer Price multiplied by the number of
Option Shares so designated. The term "Market/Offer Price" shall mean the
highest of (i) the highest price per share of Issuer Common Stock offered or
paid in any Acquisition Proposal, or (ii) the highest closing price for shares
of Issuer Common Stock during the six-month period immediately preceding the
date Grantee gives the Repurchase Notice (as hereinafter defined). In
determining the Market/Offer Price, the value of consideration other than cash
shall be determined by a nationally recognized investment banking firm selected
by Grantee and reasonably acceptable to Issuer, which determination, absent
manifest error, shall be conclusive for all purposes of this Agreement.
(b) Grantee shall exercise its Repurchase Right by delivering to Issuer
written notice (a "Repurchase Notice") stating that Grantee elects to require
Issuer to repurchase all or a portion of the Option and/or the Option Shares as
specified therein. The closing of the Repurchase Right (the "Repurchase
Closing") shall take place in the United States at the place, time and date
specified in the Repurchase Notice, which date shall not be less than two
Business Days nor more than ten Business Days from the date on which the
Repurchase Notice is delivered. At the Repurchase Closing, subject to the
receipt of a writing evidencing the surrender of the Option and/or certificates
representing Option Shares, as the case may be, Issuer shall deliver to Grantee