INVESTOR RIGHTS AGREEMENT

This INVESTOR RIGHTS AGREEMENT (this “ Agreement ”) is made and entered into as of August 3, 2009 by and between Wabash National Corporation, a Delaware corporation (the “ Company ”), and Trailer Investments, LLC, a Delaware limited liability company (“ Trailer ”).  Capitalized terms used but not otherwise defined in this Agreement shall have the meanings ascribed to such terms in Article I .

WHEREAS, Trailer is party to that certain Securities Purchase Agreement, dated as of July 17, 2009, by and between the Company and Trailer (the “ Purchase Agreement ”); and

WHEREAS, as a condition to entering into the Purchase Agreement, Trailer and the Company have agreed to enter into this Agreement.

NOW, THEREFORE, in consideration of the mutual promises made herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

As used in this Agreement, the following terms shall have the following meanings:

“ Additional Shares ” has the meaning set forth in Section 2.1(b) .

“ Affiliate ” means (i) with respect to the Company, (A) any other Person (other than the Subsidiaries of the Company) which directly or indirectly through one or more intermediaries Controls, is Controlled by, or is under common Control with, such Person, (B) any Person that owns more than 5% of the outstanding stock of the Company, and (C) any officer, director or employee of the Company, its Subsidiaries or any Person described in subclause (A) or (B) above with a base salary in excess of $100,000 per year or with any individual related by blood, marriage or adoption to such officer, director or employee, and (ii) with respect to any Person other than the Company, any other Person which directly or indirectly through one or more intermediaries Controls, is Controlled by, or is under common Control with, such first Person.

“ Agreement ” has the meaning set forth in the preamble.

“ Allowed Delay ” has the meaning set forth in Section 2.2 .

“ Audit Committee ” has the meaning set forth in Section 4.6 .

“ Availability Date ” has the meaning set forth in Section 2.4(a)(ix) .

“ Blackout Period ” has the meaning set forth in Section 7.2 .

“ Blue Sky Application ” has the meaning set forth in Section 2.7(a) .

“ Board ” means the board of directors of the Company.

“ Board Observer ” has the meaning set forth in Section 4.6 .

“ Business Day ” means a day, other than a Saturday or Sunday, on which banks in New York, New York are open for the general transaction of business.

“ Certificate of Designation ” means the Series E Certificate of Designation, the Series F Certificate of Designation or the Series G Certificate of Designation, as applicable, and “ Certificates of Designation ” means each of the foregoing, collectively.

“ Change of Control ” has the meaning set forth in the Series E Certificate of Designation.

“ Closing Date ” means the date hereof.

“ Common Expiration Date ” means the date on which the Trailer Investors cease to hold, or cease to “beneficially own” (within the meaning of Rule 13d-3 under the Exchange Act) at least 10% of the issued and outstanding Common Stock of the Company.

“ Common Investors ” means, collectively, (a) the Trailer Investors, to the extent that the Trailer Investors then hold the Warrant and/or any Registrable Securities, and (b) the Investors who beneficially own a number of Registrable Securities (including, for this purpose, Registrable Securities issuable upon exercise of a Warrant then held by each such Investor) equal to or greater than one-third of the Registrable Securities that were issuable pursuant to the Warrant on the date hereof.

“ Common Stock ” means the Company’s common stock, par value $0.01 per share, and any securities into which such shares may hereinafter be reclassified.

“ Company Indemnified Person ” has the meaning set forth in Section 2.7(b) .

“ Company ” has the meaning set forth in the preamble.

“ Control ” (including the terms “Controlling,” “Controlled by” or “under common Control with”) means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.

“ Effectiveness Period ” has the meaning set forth in Section 2.4(a)(i) .

“ Election Period ” has the meaning set forth in Section 3.1(c) .

“ Event of Default ” has the meaning set forth in Section 7.1 .

“ Exchange Act ” means the United States Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.

“ Fair Market Value ” means, for the purposes of valuing the Common Stock, the average of the closing prices of the Common Stock on the New York Stock Exchange reporting system or on the principal stock exchange where Common Stock is traded (as reported in The Wall Street Journal ) for a period of five days consisting of (i) for the purposes of Section 3.1 , the date on which the Subsequent Financing Notice is delivered and the four consecutive trading days prior to such date, and (ii) for the purposes of Section 7.2 , (A) the date on which the Repurchase Request is delivered or (B) the date on which an Event of Default first occurs, as applicable, and the four consecutive trading days prior to such date; provided that, in each case, if the Common Stock is not traded on any exchange or over-the-counter market, then the Fair Market Value shall be jointly determined in good faith by the Board and the Majority Common Investors.

“ Filing Deadline ” has the meaning set forth in Section 2.1(a) .

“ Financial Performance Levels ” means any financial covenant (as such term is commonly understood with respect to credit agreements) as may be in force from time to time under the Senior Loan Agreement after the relevant test contained in such financial covenant has been modified by 5% in favor of the Company and its Subsidiaries.

“ GAAP ” means United States generally accepted accounting principles, consistently applied, as in effect from time to time.

“ Governance Committee ” has the meaning set forth in Section 4.1 .

“ Indebtedness ” means, without duplication, all obligations (including all obligations for principal, interest, premiums, penalties, fees, and breakage costs) of the Company and its Subsidiaries (i) in respect of indebtedness for money borrowed (whether current, short-term or long-term, secured or unsecured, and including all overdrafts and negative cash balances) and indebtedness evidenced by notes, debentures, bonds or other similar instruments for the payment of which the Company or any of its Subsidiaries is responsible or liable; (ii) issued or assumed as the deferred purchase price of property or services, all conditional sale obligations and all obligations under any title retention agreement (but excluding trade accounts payable and other accrued current liabilities arising in the ordinary course of business); (iii) under leases required to be capitalized in accordance with GAAP; (iv) secured by a Lien against any of its property or assets; (v) for bankers’ acceptances or similar credit transactions issued for the account of the Company or any of its Subsidiaries; (vi) under any currency or interest rate swap, hedge or similar protection device; (vii) under any letters of credit, performance bonds or surety obligations; (viii) under any capital debts, deferred maintenance capital expenditures, distributions payable or income taxes payable; and (ix) in respect of all obligations of other Persons of the type referred to in clauses (i) through (viii) the payment of which the Company or any of its Subsidiaries is responsible or liable, directly or indirectly, as obligor, guarantor, surety or otherwise, including guarantees of such obligations.

“ Indemnified Liabilities ” has the meaning set forth in Section 8.1 .

“ Initial Registration Statement ” has the meaning set forth in Section 2.1(a) .

“ Investor ” or “ Investors ” means, as applicable, Trailer and/or any of its Permitted Transferees.

“ Investor Directors ” has the meaning set forth in Section 4.1 .

“ Investor Director Seats ” has the meaning set forth in Section 4.1 .

“ Investor Indemnified Person ” has the meaning set forth in Section 2.7(a) .

“ Leverage Ratio ” has the meaning set forth in Section 5.1(a)(v) .

“ Lien ” means any mortgage, pledge, lien, deed of trust, conditional sale or other title retention agreement, charge or other security interest or encumbrance securing obligations for the payment of money.

“ Majority Common Investors ” means the Common Investors from time to time holding at least a majority, in the aggregate, of the Registrable Securities then outstanding and the rights to acquire Registrable Securities.

“ Majority Preferred Investors ” means the Investors from time to time holding at least a majority of the Preferred Stock then outstanding.

“ Majority Trailer Investors ” means the Trailer Investors from time to time holding (i) at least a majority of the Preferred Stock then held by all Trailer Investors or (ii) at least a majority, in the aggregate, of the Registrable Securities then held by all Trailer Investors and the rights to acquire Registrable Securities then held by all Trailer Investors.

“ NYSE Limitation ” means the maximum number of securities of the Company that could be issued by the Company to the Trailer Investors without triggering a requirement to obtain the approval of the Company’s shareholders of such issuance pursuant to Section 312.03 of the New York Stock Exchange Listed Company Manual, as in effect on the date of issuance of such shares of Common Stock.

“ Outside Date ” has the meaning set forth in Section 7.2 .

“ Permitted Transferee ” means (i) with respect to the Preferred Stock, any Person who acquires all or any portion of the Preferred Stock from Trailer (or any other Permitted Transferee) after the Closing Date, and (ii) with respect to the Warrant or the Warrant Shares, any Person who acquires all or any portion of the Warrant or the Registrable Securities from Trailer (or any other Permitted Transferee) following the Closing Date.  Any such transferee shall become bound by the terms of this Agreement as an additional Preferred Investor, Investor and/or Common Investor, as applicable, by executing and delivering to the Company a joinder agreement in form and substance reasonably acceptable to the Company and such transferee.  The Company shall be furnished with at least three Business Days’ prior written notice of the name and address of such transferee and the Securities being Transferred, the representation by the transferee that such Transfer is being made in accordance with the applicable requirements of this Agreement and with all laws applicable thereto.  Following the execution and delivery of such joinder agreement by the Company and such transferee, such transferee shall constitute one of the Preferred Investors, Investors and/or Common Investors, as applicable, referred to in this Agreement and shall have all of the rights and obligations of a Preferred Investor, Investor and/or Common Investor, as applicable, hereunder.

“ Person ” means any individual, corporation, partnership, limited liability company, trust, business trust, association, joint stock company, joint venture, sole proprietorship, unincorporated organization, governmental authority or other form of entity not specifically listed in this definition.

“ Preferred Expiration Date ” means the date on which the Trailer Investors cease to hold at least a majority of the Preferred Stock then outstanding.

“ Preferred Investors ” means, collectively, the Investors from time to time holding the shares of Preferred Stock then outstanding.

“ Preferred Stock ” means, collectively, the Series E Preferred, the Series F Preferred and the Series G Preferred, if any.

“ Pro Rata Portion ” has the meaning set forth in Section 3.1(d) .

“ Prospectus ” means the prospectus included in a Registration Statement, as amended or supplemented by any prospectus supplement, with respect to the terms of the offering of any portion of the Registrable Securities covered by such Registration Statement and by all other amendments and supplements to such prospectus, including post-effective amendments and all material incorporated by reference in such prospectus.

“ Purchase Agreement ” has the meaning set forth in the recitals to this Agreement.

“ Put Purchase Price ” has the meaning set forth in Section 7.2(b) .

“ Put Shares ” has the meaning set forth in Section 7.2(b) .

“ Register ,” “ registered ” and “ registration ” refer to a registration made by preparing and filing a Registration Statement or similar document in compliance with the Securities Act, and the declaration or ordering of effectiveness of such Registration Statement or document.

“ Registrable Securities ” means, collectively, (i) the Warrant Shares and (ii) any other securities issued or issuable with respect to or in exchange for Registrable Securities; provided that a security shall cease to be a Registrable Security upon (A) sale pursuant to a Registration Statement or Rule 144 under the Securities Act, or (B) such security becoming eligible for sale by the Investor pursuant to Rule 144(b)(i)(1).

“ Registration Statement ” means any registration statement of the Company filed under the Securities Act that covers the resale of any of the Registrable Securities pursuant to the provisions of this Agreement (including the Initial Registration Statement, the New Registration Statement, if any, and any Remainder Registration Statements), amendments and supplements to such registration statement, including post-effective amendments, all exhibits and all material incorporated by reference in such registration statement.

“ Repurchase Request ” has the meaning set forth in Section 7.2(b) .

“ Restricted Payment ” means: (i) any dividend, other distribution, repurchase or redemption, direct or indirect, on account of any shares of any class of stock of the Company or any of its Subsidiaries now or hereafter outstanding; (ii) any payment or prepayment of principal of, premium, if any, or interest on, or any redemption, conversion, exchange, retirement, defeasance, sinking fund or similar payment, purchase or other acquisition for value, direct or indirect, of any shares of any class of stock of the Company or any of its Subsidiaries now or hereafter outstanding; (iii) any payment made to retire, or to obtain the surrender of, any outstanding warrants, options or other rights to acquire shares of any class of stock of the Company or any of its Subsidiaries now or hereafter outstanding; and (iv) any payment by the Company or any of its Subsidiaries or of any management, consulting or any fees to any Affiliate of the Company, whether pursuant to a management agreement or otherwise, excluding customary compensation of employees of the Company and its Subsidiaries.

“ Rule 415 ” means Rule 415 promulgated by the SEC pursuant to the Securities Act, as such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the SEC having substantially the same effect as such Rule.

“ SEC ” means the United States Securities and Exchange Commission.

“ SEC Filings ” means, collectively, all reports, schedules, forms, statements and other documents required to be filed by the Company under the Securities Act or the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the prior two-year period.

“ SEC Guidance ” means (i) any publicly-available written or oral guidance, comments, requirements or requests of the SEC staff and (ii) the Securities Act.

“ Securities ” means, collectively, (i) the shares of Preferred Stock issued pursuant to the Purchase Agreement, (ii) the Warrant issued pursuant to the Purchase Agreement, and (iii) the Warrant Shares issued upon exercise of the Warrant.

“ Securities Act ” means the United States Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

“ Senior Loan Agreement ” means the Company’s Second Amended and Restated Loan and Security Agreement, dated as of March 6, 2007, as amended by the Credit Agreement Amendment, dated as of July 17, 2009 (as amended, modified or otherwise restated from time to time) (the “ Existing Loan Agreement ”), and any agreement relating to a refinancing, replacement or substitution of the loans under the Existing Loan Agreement or any subsequent Senior Loan Agreement.

“ Senior Loan Documents ” means the “Loan Documents” as defined in the Existing Loan Agreement and any other equivalent or similar term used in any subsequent Senior Loan Agreement.

“ Series E Certificate of Designation ” means the Certificate of Designation of Rights, Preferences, Privileges and Restrictions of Series E Preferred, in the form attached as Exhibit D to the Purchase Agreement.

“ Series E Preferred ” means Series E Redeemable Preferred Stock of the Company, par value $0.01 per share, having the rights, preferences, privileges and restrictions set forth in the Series E Certificate of Designation, together with any securities into which such shares may be reclassified.

“ Series F Certificate of Designation ” means the Certificate of Designation of Rights, Preferences, Privileges and Restrictions of Series F Preferred, in the form attached as Exhibit E to the Purchase Agreement.

“ Series F Preferred ” means Series F Redeemable Preferred Stock of the Company, par value $0.01 per share, having the rights, preferences, privileges and restrictions set forth in the Series E Certificate of Designation, together with any securities into which such shares may be reclassified.

“ Series G Certificate of Designation ” means the Certificate of Designation of Rights, Preferences, Privileges and Restrictions of Series G Preferred, in the form attached as Exhibit F to the Purchase Agreement.

“ Series G Preferred ” means the Series G Redeemable Preferred Stock, par value $0.01 per share, having the rights, preferences, privileges and restrictions set forth in the Series G Certificate of Designation, together with any securities into which such shares may be reclassified.

“ Specified Event of Default ” means any Event of Default described in Section 7.1(a) , Section 7.1(b) , Section 7.1(c) , Section 7.1(d) , Section 7.1(e) ( provided that, in the case of any Event of Default arising out of Section 5.1 or Article VI , such Event of Default arose out of any intentional or willful action or omission taken or suffered by the Company or any of its Subsidiaries) or Section 7.1(f) ( provided that, in the case of any Event of Default arising out of Section 5.2 , such Event of Default arose out of any intentional or willful action or omission taken or suffered by the Company or any of its Subsidiaries).

“ Sub Board ” has the meaning set forth in Section 4.7 .

“ Subsequent Financing ” means any private issuance of debt or equity securities or other private financing transaction that, in each case, is consummated by the Company (or any of its Subsidiaries, as applicable) following the Closing Date; provided that any issuance of debt securities pursuant to the Senior Loan Agreement shall not constitute a Subsequent Financing under this Agreement.

“ Subsequent Financing Notice ” has the meaning set forth in Section 3.1(b) .

“ Subsidiary ,” when used with respect to any Person, means any other Person of which (i) in the case of a corporation, at least (A) a majority of the equity and (B) a majority of the voting interests are owned or Controlled, directly or indirectly, by such first Person, by any one or more of its Subsidiaries, or by such first Person and one or more of its Subsidiaries or (ii) in the case of any Person other than a corporation, such first Person, one or more of its Subsidiaries, or such first Person and one or more of its Subsidiaries (A) owns a majority of the equity interests thereof and (B) has the power to elect or direct the election of a majority of the members of the governing body thereof.

“ Total Value ” means, at any particular time and with respect to any Investor, an amount equal to (i) the aggregate Fair Market Value of any Warrant Shares held by such Investor at such time, plus (ii) the aggregate Fair Market Value of any Warrant Shares issuable to such Investor upon exercise of the Warrant by such Investor at such time, plus (iii) the aggregate liquidation value (plus accumulated, accrued and unpaid dividends) of the Preferred Shares held by such Investor at such time.

“ Trailer ” has the meaning set forth in the preamble.

“ Trailer Investors ” means (i) Trailer and (ii) any other Person that is a Permitted Transferee of Trailer that is an Affiliate of Trailer (including for this purpose only any investor (and its Affiliates) in any investment fund managed by Lincolnshire Management, Inc.).

“ Transaction Documents ” means this Agreement, the Certificates of Designation, the Warrant, the Purchase Agreement and all other documents delivered or required to be delivered by any party hereto pursuant to the Purchase Agreement.

“ Transfer ” means any transfer, sale, assignment, pledge, conveyance, loan, hypothecation or other encumbrance or disposition of the Warrant, the Warrant Shares and/or the Preferred Stock.

“ Transfer Agent ” has the meaning set forth in Section 2.4(b) .

“ Warrant ” means, collectively, (i) the Warrant to purchase shares of Common Stock issued to Trailer pursuant to the Purchase Agreement on the date hereof, the form of which is attached to the Purchase Agreement as Exhibit A thereto, and (ii) any warrants issued in replacement or exchange, or in connection with a Transfer, thereof.

“ Warrant Shares ” means the shares of Common Stock issuable upon the exercise of the Warrant.

Section 2.1            Mandatory Registration .

(a)           Promptly, but no later than thirty days after, the Closing Date (the “ Filing Deadline ”), the Company shall prepare and file with the SEC one Registration Statement on Form S-3 (or, if Form S-3 is not then available to the Company, then on (i) Form S-1 or (ii) such other form of registration statement as is then available to effect a registration for resale of the Registrable Securities, subject, in the case of clause (ii) above, to the Majority Common Investors’ prior written consent), covering the resale of the Registrable Securities in an amount at least equal to the Warrant Shares (the “ Initial Registration Statement ”).  The Initial Registration Statement also shall cover, to the extent allowable under the Securities Act and the rules promulgated thereunder (including Rule 416), such indeterminate number of additional shares of Common Stock resulting from stock splits, stock dividends, similar transactions or other adjustments provided for in the Warrant with respect to the Registrable Securities.  The Initial Registration Statement shall not include any shares of Common Stock or other securities for the account of any other holder without the prior written consent of the Majority Common Investors.  Each Registration Statement (and each amendment or supplement thereto, and each request for acceleration of effectiveness thereof) shall be provided in accordance with Section 2.4(a)(iii) to the Common Investors and their counsel prior to its filing or other submission.

(b)           At such time as additional shares of Common Stock (“ Additional Shares ”) become issuable upon the exercise of the Warrant (whether due to an adjustment under the Warrant or otherwise), the Company shall prepare and file with the SEC one or more Registration Statements on Form S-3 or amend any Registration Statement filed pursuant to Section 2.1(a) , if such Registration Statement has not previously been declared effective (or, if Form S-3 is not then available to the Company, then on (i) Form S-1 or (ii) such other form of registration statement as is then available to effect a registration for resale of such Additional Shares, subject, in the case of clause (ii) above, to the Majority Common Investors’ prior written consent) covering the resale of the Additional Shares, but only to the extent the Additional Shares are not at the time covered by an effective Registration Statement.  Such Registration Statement also shall cover, to the extent allowable under the Securities Act and the rules promulgated thereunder (including Rule 416), such indeterminate number of additional shares of Common Stock resulting from stock splits, stock dividends or similar transactions with respect to the Additional Shares.  Such Registration Statement shall not include any shares of Common Stock or other securities for the account of any other holder without the prior written consent of the Majority Common Investors.

(c)           Notwithstanding the registration obligations set forth in this Section 2.1 , in the event that the SEC informs the Company that all of the Registrable Securities may not, as a result of the application of Rule 415 or any other applicable securities law, rule or regulation, be registered for resale as a secondary offering on a single registration statement, the Company agrees to (i) promptly inform each of the Common Investors thereof, and (ii) use all best efforts to promptly file amendments to the Initial Registration Statement as required by the Commission and/or (iii) promptly withdraw the Initial Registration Statement and promptly file a new registration statement (a “ New Registration Statement ”), in either case, covering the maximum number of Registrable Securities permitted to be registered by the SEC, on Form S-3 or such other form available to register for resale the Registrable Securities as a secondary offering; provided , however , that prior to filing such amendment or New Registration Statement, the Company shall be obligated to use all reasonable best efforts to advocate with the SEC for the registration of all of the Registrable Securities in accordance with the SEC Guidance, including the Manual of Publicly Available Telephone Interpretations D.29.  In the event that the Company amends the Initial Registration Statement or files a New Registration Statement, as the case may be, under clauses (ii) or (iii) above, the Company will use all reasonable best efforts to file with the SEC, as promptly as allowed by the SEC or the SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on Form S-3 or such other form available to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or the New Registration Statement (the “ Remainder Registration Statements ”).

Section 2.2            Allowed Delay. For not more than twenty consecutive days or for a total of not more than forty-five days in any twelve-month period, the Company may delay the disclosure of material non-public information concerning the Company by suspending the use of any Prospectus included in any registration contemplated by Section 2.1 , containing such information, the disclosure of which at the time is not, in the good faith opinion of the Board, in the best interests of the Company (an “ Allowed Delay ”); provided that the Company shall promptly (a) notify the Common Investors in writing of the existence of (but in no event, without the prior written consent of an Investor, shall the Company disclose to such Investor any of the facts or circumstances regarding) material non-public information giving rise to an Allowed Delay, (b) advise the Common Investors in writing to cease all sales under a Registration Statement until the end of the Allowed Delay and (c) use all reasonable best efforts to terminate an Allowed Delay as promptly as practicable.

Section 2.3            Expenses. The Company will pay all expenses associated with the registration contemplated by Section 2.1 , including filing and printing fees, the Company’s counsel and accounting fees and expenses, costs associated with clearing the Registrable Securities for sale under applicable state securities laws, listing fees, reasonable fees and expenses of one counsel to the Common Investors, underwriters’ fees and expenses, and the Common Investors’ reasonable out-of-pocket expenses in connection with the registration, but excluding discounts, commissions, selling brokers, dealer managers or similar securities industry professionals with respect to the Registrable Securities being sold.

Section 2.4            Company Obligations .

(a)           The Company will use all reasonable best efforts to effect the registration of the Registrable Securities in accordance with the terms hereof, and pursuant thereto the Company will, as expeditiously as possible (but subject to the limitations set forth set forth in Section 2.2 ):

(i)           use all reasonable best efforts to cause such Registration Statement to become effective and to remain continuously effective for a period that will terminate upon the earlier of (A) the date on which all Registrable Securities covered by such Registration Statement have been sold, and (B) the date on which all Registrable Securities covered by such Registration Statement may be sold pursuant to Rule 144(b)(i)(1) (the “ Effectiveness Period ”), and advise the Common Investors in writing when the Effectiveness Period has expired;

(ii)          prepare and file with the SEC such amendments and post-effective amendments to each Registration Statement and the Prospectus as may be necessary to keep such Registration Statement continuously effective, supplemented and amended for the Effectiveness Period and to comply with the provisions of the Securities Act and the Exchange Act with respect to the distribution of all of the Registrable Securities covered thereby;

(iii)         provide copies to and permit counsel designated by the Common Investors to review each Registration Statement and all amendments and supplements thereto no fewer than five Business Days prior to their filing with the SEC and not file any document to which such counsel reasonably objects;

(iv)        furnish to the Common Investors and their legal counsel (A) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company (but not later than three Business Days after the filing date, receipt date or sending date, as the case may be) one copy of each Registration Statement and any amendment thereto, each preliminary prospectus, free-writing prospectus and Prospectus and each amendment or supplement thereto, and each letter written by or on behalf of the Company to the SEC or the staff of the SEC, and each item of correspondence from the SEC or the staff of the SEC, in each case, relating to such Registration Statement (other than any portion thereof which contains information for which the Company has sought confidential treatment), and (B) such number of copies of a Prospectus, including a preliminary prospectus, any free-writing prospectus and all amendments and supplements thereto and such other documents as each Common Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Common Investor that are covered by each Registration Statement;

(v)         use all reasonable best efforts to (A) prevent the issuance of any stop order or other suspension of effectiveness and, (B) if such order is issued, obtain the withdrawal of any such order at the earliest possible moment;

(vi)        prior to any public offering of Registrable Securities, use all reasonable best efforts to register or qualify or cooperate with the Common Investors and their counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions requested by the Common Investors and do any and all other acts or things necessary or advisable to enable the distribution in such jurisdictions of the Registrable Securities covered by each Registration Statement; provided , however , that the Company shall not be required in connection therewith or as a condition thereto to (A) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 2.4(a)(vi) , (B) subject itself to general taxation in any jurisdiction where it would not otherwise be so subject but for this Section 2.4(a)(vi) , or (C) file a general consent to service of process in any such jurisdiction;

(vii)       use all reasonable best efforts to cause all Registrable Securities covered by each Registration Statement to be listed on each securities exchange, interdealer quotation system or other market on which similar securities issued by the Company are then listed;

(viii)      promptly notify the Common Investors, at any time when a Prospectus relating to Registrable Securities is required to be delivered under the Securities Act (including during any period when the Company is in compliance with Rule 172), upon discovery that, or upon the happening of any event as a result of which, the Prospectus included in any Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing, and at the request of any Common Investor, promptly prepare, file with the SEC pursuant to Rule 172 and furnish to such Common Investor a supplement to or an amendment of such Prospectus as may be necessary so that such Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing;

(ix)         otherwise use all reasonable best efforts to comply with all applicable rules and regulations of the SEC under the Securities Act and the Exchange Act, including Rule 172, notify the Common Investors promptly if the Company no longer satisfies the conditions of Rule 172 and take such other actions as may be reasonably necessary to facilitate the registration of the Registrable Securities hereunder; and make available to its security holders, as soon as reasonably practicable, but not later than the Availability Date (as defined below), an earnings statement covering a period of at least twelve months, beginning after the effective date of each Registration Statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act, including Rule 158 promulgated thereunder (for the purpose of this Section 2.4(a)(ix) , “ Availability Date ” means the 45th day following the end of the fourth fiscal quarter that includes the effective date of such Registration Statement, except that, if such fourth fiscal quarter is the last quarter of the Company’s fiscal year, “ Availability Date ” means the 90th day after the end of such fourth fiscal quarter); and

(x)          use all reasonable best efforts to take all other steps necessary or reasonably required to effect the registration of the Registrable Securities covered by each Registration Statement contemplated hereby.

(b)           Upon the earlier of (i) Rule 144(b)(i) or (b)(iv) becoming available the Company, (ii) any sale pursuant to Rule 144 (assuming the transferor is not an Affiliate of the Company) or (iii) such time as a legend is no longer required under applicable requirements of the Securities Act (including controlling judicial interpretations and pronouncements issued by the SEC), the Company shall (A) deliver to the transfer agent for the Common Stock (the “ Transfer Agent ”) irrevocable instructions that the Transfer Agent shall reissue a certificate representing shares of Common Stock without legends upon receipt by such Transfer Agent of the legended certificates for such shares, together with either (1) a customary representation by each Common Investor that Rule 144(b)(i), Rule 144(b)(iv) or Rule 144 applies to the shares of Common Stock represented thereby or (2) in connection with any sale of Common Stock by the Common Investors pursuant to the registration contemplated by this Agreement, and (B) cause its counsel to deliver to the Transfer Agent one or more blanket opinions to the effect that the removal of such legends in such circumstances may be effected under the Securities Act.  From and after the earlier of such dates, upon the Majority Common Investors’ written request, the Company shall promptly cause certificates evidencing the Majority Common Investors’ Securities to be replaced with certificates which do not bear such restrictive legends, and Warrant Shares subsequently issued upon due exercise of the Warrant shall not bear such restrictive legends provided the provisions of clause (i) above are satisfied with respect to such Warrant Shares.  When the Company is required to cause unlegended certificates to replace previously issued legended certificates, if unlegended certificates are not delivered to the Common Investor within three Business Days of submission by such Common Investors of legended certificate(s) to the Transfer Agent as provided above (or to the Company, in the case of the Warrant), then the Company shall be liable to the Common Investors for liquidated damages in an amount equal to 2.0% of the aggregate purchase price of the Securities evidenced by such certificate(s) for each thirty-day period (or portion thereof) beyond such three Business Day period that the unlegended certificates have not been so delivered.

(c)           With a view to making available to the Common Investors the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may at any time permit the Common Investors to sell shares of Common Stock to the public without registration, the Company covenants and agrees to:  (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) six months after such date as all of the Registrable Securities may be resold pursuant to Rule 144(b)(i)(1) or any other rule of similar effect or (B) such date as all of the Registrable Securities shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act; and (iii) furnish to each Common Investor upon request, as long as such Common Investor owns any Registrable Securities, (A) a written statement by the Company that it has complied with the reporting requirements of the Exchange Act, (B) a copy of the Company’s most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably requested in order to avail such Common Investor of any rule or regulation of the SEC that permits the selling of any such Registrable Securities without registration.

Section 2.5            Due Diligence Review; Information .

(a)           Upon reasonable prior notice, the Company shall make available, during normal business hours, for inspection and review by the Common Investors and the representatives of and advisors to the Common Investors, all financial and other records, all SEC Filings and other filings with the SEC, and all other corporate documents and properties