Demand Registration. (a) In addition to the rights provided in Section 2.1, the Majority Holders shall have the right to request in writing that the Company register all or part of such Holders’ Registrable Securities that are not then registered by an effective Registration Statement (a “Request”) (which Request shall specify the amount of Registrable Securities intended to be disposed of by such Holders and the intended method of disposition thereof) by filing a Registration Statement with the SEC pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into a Form S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling shareholders (not underwriters) of all or such portion of the Registrable Securities (a “Demand Registration”); provided, however, that (A) if the Company is not eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election only if the Registrable Securities to be registered, in the aggregate, constitute 10% or more of the then-outstanding Registrable Securities that are not registered under an effective Registration Statement, and (B) if the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election; provided, that (i) there shall not be more than one such request during each of the Company’s fiscal quarterly periods and (ii) the Registrable Securities to be registered must include at least 1,000,000 Common Shares, or, in the aggregate, have an anticipated offering price, net of underwriting discounts and commissions, of more than $5,000,000, calculated in accordance with Rule 457(c) under the Securities Act on the business day preceding such Request. (b) As promptly as practicable, but no later than 10 days after receipt of a Request, the Company shall give written notice of such requested registration to all Holders of Registrable Securities and Pari Passu Holders of Pari Passu Securities. Subject to Section 2.2(c), the Company shall include in a Demand Registration (i) the Registrable Securities intended to be disposed of by the Initiating Holders and (ii) the Registrable Securities and Pari Passu Securities intended to be disposed of by any other Holder or Pari Passu Holder which shall have made a written request (which request shall specify the amount of Registrable Securities to be registered and the intended method of disposition thereof) to the Company for inclusion thereof in such registration within 20 days after the receipt of such written notice from the Company. The Company shall, as expeditiously as possible following a Request, use its best efforts to cause to be filed with the SEC a Demand Registration Statement providing for the registration under the Securities Act of the Registrable Securities and the Pari Passu Securities which the Company has been so requested to register by all such Holders and Pari Passu Holders, to the extent necessary to permit the disposition of such Registrable Securities so to be registered in accordance with the intended methods of disposition thereof specified in such Request or further requests if so requested. The Company shall use its best efforts to have such Demand Registration Statement declared effective by the SEC as soon as practicable thereafter and to keep such Demand Registration Statement continuously effective for the period specified in Section 4.1(b). The registration rights granted pursuant to the provisions of this Section 2.2 shall be in addition to the registration rights granted pursuant to the other provisions of this Section 2.
Appears in 3 contracts
Samples: Registration Rights Agreement, Services and Investment Agreement (Exco Resources Inc), Registration Rights Agreement (Exco Resources Inc)
Demand Registration. (ai) In addition to During the rights provided in Section 2.1Demand Registration Period, the Majority Holders of at least 200,000 Registrable Securities (adjusted for any stock split, stock dividend, reverse stock split or similar change in the Common Stock after the date of this Agreement) shall have the right option and right, exercisable by delivering a written notice to request in writing that the Company register all or part of such Holders’ Registrable Securities that are not then registered by an effective Registration Statement (a “RequestHolder Demand Notice”) (which Request shall specify ), to require the amount Company to, pursuant to the terms of Registrable Securities intended and subject to be disposed of by such Holders the limitations contained in this Agreement, prepare and file with the intended method of disposition thereof) by filing Commission a Registration Statement with the SEC pursuant to Rule 415 on Form S-1 (or any equivalent or successor form under the Securities Act on Form S-3 under the Securities Act Act) (or in to the event that the Company is ineligible to use such form, such other form as extent the Company is eligible to use under the Securities Act provided that such other form shall be converted into a Form S-3 promptly after or any equivalent or successor form or forms, on Form S-3 becomes available to or any comparable or successor form) registering the Company) covering resales by the Holders as selling shareholders (not underwriters) offering and sale of all or such portion of the at least 200,000 Registrable Securities (adjusted for any stock split, stock dividend, reverse stock split or similar change in the Common Stock after the date of this Agreement) on the terms and conditions specified in the Holder Demand Notice, which may include sales on a delayed or continuous basis pursuant to Rule 415 pursuant to a Shelf Registration Statement (a “Holder Demand Registration”); provided, however, that (A) if . The Holder Demand Notice must set forth the Company is not eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election only if the Registrable Securities to be registered, in the aggregate, constitute 10% or more number and type of the then-outstanding Registrable Securities that are not registered under an effective the Initiating Holders anticipate will be included in such Holder Demand Registration Statement, and (B) if the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election; provided, that (i) there shall not be more than one such request during each intended methods of the Company’s fiscal quarterly periods and disposition thereof.
(ii) Within five (5) Business Days of the Registrable Securities to be registered must include at least 1,000,000 Common Shares, or, in the aggregate, have an anticipated offering price, net of underwriting discounts and commissions, of more than $5,000,000, calculated in accordance with Rule 457(c) under the Securities Act on the business day preceding such Request.
(b) As promptly as practicable, but no later than 10 days after receipt of a Requestthe Demand Notice, the Company shall give written notice of such requested registration Demand Notice to all Holders (other than the Initiating Holders) and, within thirty (30) days thereof, shall, subject to the limitations of this Section 2(a), file a Registration Statement in accordance with the terms and conditions of the Demand Notice, which Registration Statement shall cover, in addition to the Registrable Securities set forth in the Demand Notice, all of the Registrable Securities that such Holders shall in writing request to be included in the Demand Registration (provided such request is given to the Company within ten (10) days of receipt of notice of the Demand Notice given by the Company pursuant to this Section 2(a)(ii) and includes such information regarding the requesting Holder as is required to be disclosed in connection with such Demand Registration pursuant to Regulation S-K promulgated under the Securities Act). The Company shall use commercially reasonable efforts to cause such Registration Statement to become and remain effective under the Securities Act until the earlier of (A) one hundred eighty (180) days (or one (1) year if a Shelf Registration Statement is requested) after the Effective Date or (B) the date on which all Registrable Securities covered by such Registration Statement have been sold or cease to be Registrable Securities (the “Demand Effectiveness Period”); provided, however, that such period shall be extended for a period of time equal to the period the Selling Stockholders refrain from selling any securities included in such Registration Statement at the request of an underwriter of the Company or the Company pursuant to this Agreement.
(iii) Subject to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect: (A) more than two (2) Demand Registrations during the Demand Registration Period, (B) more than one (1) Demand Registration in a calendar year, (C) a Demand Registration within one hundred eighty (180)) days of the closing of any Underwritten Offering, or (D) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of the Registrable Securities covered by such Demand Notice shall already have become effective under the Securities Act and remains effective under the Securities Act and is sufficient to permit offers and sales of such Registrable Securities on the terms and conditions specified in such Demand Notice in accordance with the intended timing and method or methods of distribution thereof specified in such Demand Notice.
(iv) Subject to Section 2(a)(i), a Selling Stockholder may withdraw all or any portion of its Registrable Securities included in a Demand Registration from such Demand Registration at any time prior to the effectiveness of the applicable Registration Statement. Upon delivery of a notice by a Selling Stockholder to the effect that the Selling Stockholder is withdrawing Registrable Securities such that the remaining Registrable Securities are below the Minimum Amount, the Company shall cease all efforts to secure effectiveness of the applicable Registration Statement.
(v) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration on such appropriate registration form of the Commission (x) as shall be selected by the Company and (y) as shall permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the Initiating Holders’ request for such registration; provided, however, that if the Company becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act if available to the Company. If at any time a Registration Statement is effective and Pari Passu Holders a Selling Stockholder provides written notice to the Company that it intends to effect an offering of Pari Passu Securities. Subject all or part of the Registrable Securities included on such Registration Statement, the Company will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(vi) Without limiting Section 2.2(c3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), the Company shall include (A) promptly prepare and file or cause to be prepared and filed (1) such additional forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents, as may be necessary or advisable to register or qualify the securities subject to such Demand Registration, including under the securities laws of such states as the Selling Stockholders shall reasonably request; provided, however, that no such registration or qualification shall be required in any jurisdiction where, as a Demand Registration result thereof, the Company would become subject to general service of process or to taxation or would be required to qualify to do business or register as a broker or dealer, and (i2) such forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents as may be necessary to apply for listing or to list the Registrable Securities intended subject to such Demand Registration on the Trading Market and (B) do any and all other acts and things that may be disposed of reasonably necessary or appropriate or reasonably requested by the Initiating Holders and (ii) Selling Stockholders to enable the Registrable Securities and Pari Passu Securities intended Selling Stockholders to be disposed of by any other Holder or Pari Passu Holder which shall have made consummate a written request (which request shall specify the amount of Registrable Securities to be registered and the intended method of disposition thereof) to the Company for inclusion thereof in such registration within 20 days after the receipt of such written notice from the Company. The Company shall, as expeditiously as possible following a Request, use its best efforts to cause to be filed with the SEC a Demand Registration Statement providing for the registration under the Securities Act of the Registrable Securities and the Pari Passu Securities which the Company has been so requested to register by all such Holders and Pari Passu Holders, to the extent necessary to permit the disposition public sale of such Registrable Securities so to be registered in accordance with the intended timing and method or methods of disposition thereof specified in such Request or further requests if so requested. The Company shall use its best efforts to have such Demand Registration Statement declared effective by the SEC as soon as practicable thereafter and to keep such Demand Registration Statement continuously effective for the period specified in Section 4.1(b). The registration rights granted pursuant to the provisions of this Section 2.2 shall be in addition to the registration rights granted pursuant to the other provisions of this Section 2distribution thereof.
Appears in 3 contracts
Samples: Registration Rights Agreement (Scientific Industries Inc), Registration Rights Agreement (Scientific Industries Inc), Registration Rights Agreement (Scientific Industries Inc)
Demand Registration. (a) In addition At any time following one hundred eighty (180) days following the consummation of the Initial Public Offering (or such earlier date as may be agreed by the managing underwriter in the Initial Public Offering), any Requesting Holder may give a written request to the rights provided in Section 2.1, Company to effect the Majority Holders shall have the right to request in writing that the Company register all or part of such Holders’ Registrable Securities that are not then registered by an effective Registration Statement (a “Request”) (which Request shall specify the amount of Registrable Securities intended to be disposed of by such Holders and the intended method of disposition thereof) by filing a Registration Statement with the SEC pursuant to Rule 415 under the Securities Act on Form S-3 registration under the Securities Act (other than pursuant to a registration statement on Form S-4 or in the event that the Company is ineligible to use such form, such other Form S-8 or any similar or successor form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into a Form S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling shareholders (not underwritersAct) of all or such any portion of the such Requesting Holder’s Registrable Securities (a “Demand Registration”); providedSecurities, however, that (A) if the Company is not eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election only if the Registrable Securities to be registered, in the aggregate, constitute 10% or more of the then-outstanding Registrable Securities that are not registered under an effective Registration Statement, and (B) if the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election; provided, that (i) there shall not be more than one such request during each of the Company’s fiscal quarterly periods and (ii) the Registrable Securities to be registered must include at least 1,000,000 Common Shares, or, in the aggregate, have an anticipated offering price, net of underwriting discounts and commissions, of more than $5,000,000, calculated in accordance with Rule 457(c) under the Securities Act on the business day preceding such Request.
(b) As promptly as practicable, but no later than 10 days after receipt of a Request, the Company shall give which written notice of such requested registration to all Holders of Registrable Securities and Pari Passu Holders of Pari Passu Securities. Subject to Section 2.2(c), the Company shall include in a Demand Registration (i) the Registrable Securities intended to be disposed of by the Initiating Holders and (ii) the Registrable Securities and Pari Passu Securities intended to be disposed of by any other Holder or Pari Passu Holder which shall have made a written request (which request shall specify the amount number of Registrable Securities to be registered and the intended method of disposition thereof) to . At any time the Company is eligible for inclusion thereof in use of an Automatic Shelf Registration Statement, such registration within 20 days after shall occur on such form. Upon the receipt of such written request, the Company shall promptly give notice from (via facsimile or electronic transmission) to the Companyother Stockholders of such requested registration (each such registration shall be referred to in this Exhibit B as a “Demand Registration”) at least ten (10) Business Days prior to the anticipated filing date of the Registration Statement relating to such Demand Registration. The Thereafter, the Company shallshall use its commercially reasonable efforts to effect, as expeditiously soon as possible following a Requestpracticable, use its best efforts to cause to be filed with the SEC a Demand Registration Statement providing for the registration under the Securities Act of:
(i) all Registrable Securities for which the Requesting Holder has requested registration under this Section 2.1;
(ii) all other Registrable Securities of the Registrable Securities same class or series as those requested to be registered by the Requesting Holder that the other Stockholders pursuant to Section 2.3 (such other Stockholders, together with the Requesting Holder, and any Stockholders participating in a Piggyback Registration pursuant to Section 2.3, the Pari Passu Securities which “Registering Holders”) has requested the Company has been so requested to register by request received by the Company within ten (10) Business Days after such other Stockholders receive the Company’s notice of the Demand Registration; and
(iii) any Company Securities to be offered or sold by the Company; all such Holders and Pari Passu Holders, to the extent necessary to permit the disposition of such Registrable Securities so to be registered (in accordance with the intended methods thereof as aforesaid) of disposition thereof specified the Registrable Securities so to be registered; provided, that, the Company shall not be obligated to effect (x) more than three (3) Demand Registrations (as defined below) for MacKay (together with any Person to whom any registration rights under this Exhibit B are assigned by MacKay pursuant to Section 2.13), (y) two (2) Demand Registrations for Alliance (together with any Person to whom any registration rights under this Exhibit B are assigned by Alliance pursuant to Section 2.13) and (z) one (1) Demand Registration for D.E. Shaw (together with any Person to whom any registration rights under this Exhibit B are assigned by D.E. Shaw pursuant to Section 2.13), in each case, other than Demand Registrations to be effected pursuant to a Registration Statement on Form S-3 (or any successor or similar form, including Form S-3) under the Securities Act (“Form S-3”) for which an unlimited number of Demand Registrations shall be permitted or (y) any such Demand Registration (1) within the Specified Period (or such shorter period as the Company may determine in its sole discretion) after the effective date of any other registration statement of the Company (other than a registration statement filed in connection with an employee benefit plan or business combination transaction or a registration statement on Form S-4 or Form S-8 or any similar or successor form thereto) or (2) in accordance with Section 2.1(f).
(b) Promptly after the expiration of the ten (10) Business Day period referred to in Section 2.1(a)(ii), the Company will notify all Registering Holders of the identities of the other Registering Holders and the number of Registrable Securities requested to be included in the Demand Registration by each of them. At any time prior to the effective date of the Registration Statement relating to such Demand Registration, the Requesting Holder may upon notice to the Company, revoke such request in whole or in part with respect to the number of Registrable Securities requested to be included in such Request Registration Statement, without liability to any of the other Registering Holders.
(c) The Company shall be liable for and pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Demand Registration becomes effective.
(d) A Demand Registration shall not be deemed to have occurred:
(i) unless the Registration Statement relating thereto (A) has become effective under the Securities Act and (B) has remained continuously effective for a period of at least (x) one hundred eighty (180) days (or further requests such shorter period in which all Registrable Securities of the Registering Holders included in such registration have actually been sold thereunder) or (y) with respect to a Shelf Registration, until the date set forth in Section 2.5(a)(ii); provided, that such Registration Statement shall not be considered a Demand Registration if, after such Registration Statement becomes effective, (1) such Registration Statement is interfered with by any stop order or other Order of the SEC or other Governmental Authority and (2) less than 75% of the Registrable Securities included in such Registration Statement have been sold thereunder; or
(ii) if the Maximum Offering Size is reduced in accordance with Section 2.1(e) such that less than 662/3% of the Registrable Securities of the Requesting Holder sought to be included in such registration are included.
(e) If a Demand Registration involves a Public Offering and the lead managing underwriter advises the Company and the Requesting Holder that, in its view, the number of Registrable Securities requested to be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of Registrable Securities that can be sold without having a material and adverse effect on such offering, including the price at which such Registrable Securities can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be registered by the Requesting Holder and all other Registering Holders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, to give first priority to the inclusion of the Registrable Securities of the Requesting Holder and, thereafter, pro rata among the remaining Registering Holders on the basis of the relative number of Registrable Securities so requestedrequested to be included in such registration by each such Registering Holder);
(ii) second, any securities proposed to be registered by the Company; and
(iii) third, any securities proposed to be registered for the account of any other Persons, with such priorities among them as the Company shall determine.
(f) Notwithstanding anything to the contrary contained in this Exhibit B, but subject to the limitations set forth in this Section 2.1(f), the Company shall be entitled to suspend its obligation to file (but not the preparation of) any Registration Statement in connection with any Demand Registration or Shelf Registration (including any Shelf Public Offering), file any amendment to such a Registration Statement, file or furnish any supplement or amendment to a prospectus included in such a Registration Statement, make any other filing with the SEC, cause such a Registration Statement or other filing with the SEC to become or remain effective or take any similar action (collectively, “Registration Actions”) upon (i) the issuance by the SEC of a stop order suspending the effectiveness of any such Registration Statement or the initiation of proceedings with respect to such a Registration Statement under Section 8(d) or 8(e) of the Securities Act, (ii) the Board’s determination, in its good faith judgment, that any such Registration Action should not be taken because it would reasonably be expected to materially interfere with or require the public disclosure of any material corporate development or plan, including any material financing, securities offering, acquisition, disposition, corporate reorganization or merger or other transaction involving the Company or any of its Subsidiaries or (iii) the Company possessing material non-public information the disclosure of which the Board determines, in its good faith judgment, would reasonably be expected to not be in the best interests of the Company. Upon the occurrence of any of the conditions described in clause (i), (ii) or (iii) above in connection with undertaking a Registration Action, the Company shall give prompt notice of such suspension (and whether such action is being taken pursuant to clause (i), (ii) or (iii) above) (a “Suspension Notice”) to the Requesting Holders. Upon the termination of such condition, the Company shall give prompt notice thereof to the Requesting Holders and shall promptly proceed with all Registration Actions that were suspended pursuant to this paragraph. The Company shall use its best efforts to have such Demand may only suspend Registration Statement declared effective by the SEC as soon as practicable thereafter and to keep such Demand Registration Statement continuously effective for the period specified in Section 4.1(b). The registration rights granted Actions pursuant to the provisions clause (ii) or (iii) of this Section 2.2 2.1(f) on one (1) occasion during any period of twelve (12) consecutive months for a reasonable time specified in the Suspension Notice, but not exceeding ninety (90) days (which period may not be extended or renewed) (each such occasion, a “Suspension Period”). Each Suspension Period shall be in addition deemed to begin on the date the relevant Suspension Notice is given to the registration rights granted Requesting Holders and shall be deemed to end on the earlier to occur of (x) the date on which the Company gives the Requesting Holders a notice that the Suspension Period has terminated and (y) the date on which the number of days during which a Suspension Period has been in effect exceeds the ninety (90) day period. If the filing of any Demand Registration or Shelf Registration is suspended pursuant to the other provisions of this Section 22.1(f), once the Suspension Period ends the Requesting Holder may request a new Demand Registration or a new Shelf Registration (neither such request shall be counted as an additional Demand Registration for purposes of subclause (x) in the proviso of Section 2.1(a)). Notwithstanding anything to the contrary in this Exhibit B, the Company shall not be in breach of, or have failed to comply with, any obligation under this Exhibit B where the Company acts or omits to take any action in order to comply with applicable Law, any interpretation of the staff of the SEC or any Order.
Appears in 3 contracts
Samples: Stockholders Agreement (Northwestern Mutual Life Insurance Co), Stockholders Agreement (Mackay Shields LLC), Stockholders Agreement (D. E. Shaw Galvanic Portfolios, L.L.C.)
Demand Registration. (a) In addition If, following the earlier of (i) the consummation of a merger, consolidation, tender offer, sale of assets or other disposition of the Company other than pursuant to the rights provided in Section 2.1Merger Agreement, and (ii) ninety (90) days after the Majority Holders shall have the right to request in writing that the Company register all or part of such Holders’ Registrable Securities that are not then registered by an effective Registration Statement (a “Request”) (which Request shall specify the amount of Registrable Securities intended to be disposed of by such Holders and the intended method of disposition thereof) by filing a Registration Statement with the SEC pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into a Form S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling shareholders (not underwriters) of all or such portion termination of the Registrable Securities (a “Demand Registration”); provided, however, that (A) if Merger Agreement or the Company is not eligible failure to register consummate the Registrable Securities on Form S-3 under transactions contemplated thereby regardless of the Securities Actreasons therefore, the Company shall be obligated requested by the Investor to register effect the Registrable Securities upon such election only if the Registrable Securities to be registered, in the aggregate, constitute 10% or more of the then-outstanding Registrable Securities that are not registered under an effective Registration Statement, and (B) if the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election; provided, that (i) there shall not be more than one such request during each of the Company’s fiscal quarterly periods and (ii) the Registrable Securities to be registered must include at least 1,000,000 Common Shares, or, in the aggregate, have an anticipated offering price, net of underwriting discounts and commissions, of more than $5,000,000, calculated in accordance with Rule 457(c) registration under the Securities Act on of Registrable Shares, then, upon the business day preceding such Request.
(b) As promptly as practicablewritten request, but no later than 10 days after receipt of a Request, delivered to the Company shall give written notice of such requested registration to all Holders of Registrable Securities and Pari Passu Holders of Pari Passu Securities. Subject to Section 2.2(c), the Company shall include in a Demand Registration (i) the Registrable Securities intended to be disposed of by the Initiating Holders and (ii) the Registrable Securities and Pari Passu Securities intended to be disposed of by any other Holder or Pari Passu Holder which shall have made a written request (which request shall specify the amount number of Registrable Securities Shares proposed to be registered and the intended method of disposition thereof) to the Company for inclusion thereof included in such registration within 20 days after registration), the receipt of such written notice from the Company. The Company shall, as expeditiously as possible following a Requestsubject to Section 2(c) below, promptly use its best efforts to cause to be filed with the SEC a Demand Registration Statement providing for the effect such registration under the Securities Act of the Registrable Securities and the Pari Passu Securities Shares which the Company has been so requested to register by all such Holders and Pari Passu Holders, register.
(b) Anything contained in Section 2(a) to the extent necessary contrary notwithstanding, the Company shall not be obligated to permit effect pursuant to Section 2(a) any registration under the disposition of such Registrable Securities so to be registered Act except in accordance with the intended methods of disposition thereof specified in such Request or further requests if so requested. The following provisions:
(i) the Company shall not be obligated to use its best efforts to have file and cause to become effective (A) more than two registration statements initiated pursuant to Section 2(a), or (B) any registration statement during any period in which any other registration statement (other than on Form S-4 or Form S-8 promulgated under the Securities Act or any successor forms thereto) pursuant to which Primary Shares are to be or were sold has been filed and not withdrawn or has been declared effective within the prior 90 days;
(ii) the Company may delay the filing or effectiveness of any registration statement for a period of up to 90 days after the date of a request for registration pursuant to Section 2(a) if at the time of such Demand request (A) the Company is engaged, or has bona fide plans to file within 60 days of the time of such request, a registration statement in respect of a firm commitment underwritten public offering of Primary Shares in which the holders of Restricted Shares may include Registrable Shares pursuant to Section 3 or (B) a Material Transaction exists at such time, provided that the company may only so delay the filing or effectiveness of a particular Registration Statement once pursuant to clause (A) above and once pursuant to this clause (B) in any 18-month period; and
(iii) with respect to any registration pursuant to Section 2(a), the Company may include in such registration any Primary Shares or Other Shares; PROVIDED, HOWEVER, that if the managing underwriter advises the Company that the inclusion of all Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration would interfere with the successful marketing (including pricing) of all such securities, then the number of Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration shall be included in the following order:
(A) first, the Registrable Shares held by the Investor requesting that its Registrable Shares be included in such registration pursuant to Section 2(a);
(B) second, the Primary Shares; and
(C) third, the Other Shares. A requested registration under this Section 2 may be rescinded prior to such registration being declared effective by the SEC Commission by written notice to the Company from the Investor; PROVIDED, HOWEVER, that such rescinded registration shall not count as soon as practicable thereafter and to keep such Demand Registration Statement continuously effective for the period specified in Section 4.1(b). The a registration rights granted statement initiated pursuant to the provisions of this Section 2.2 2 for purposes of clause (i) above if the Company shall have been reimbursed for all out-of-pocket expenses incurred by the Company in connection with such rescinded registration and provided further that no request to register Registrable Securities may be in addition to the registration rights granted made pursuant to the other provisions of this Section 22(a) for a period of 180 days from the date of such recession.
Appears in 3 contracts
Samples: Registration Rights Agreement (Nortek Inc), Registration Rights Agreement (Ply Gem Industries Inc), Registration Rights Agreement (Nortek Inc)
Demand Registration. (a) In addition to If the rights provided in Section 2.1Company shall receive a written request by the CSH Shareholders (any such requesting Person, the Majority Holders shall have the right to request in writing a "Selling Shareholder") that the Company register effect the registration under the Securities Act of all or part a portion of such Holders’ Selling Shareholder's Registrable Securities that are not then registered by an effective Registration Statement (a “Request”) (which Request shall specify the amount of Registrable Securities intended to be disposed of by such Holders Securities, and specifying the intended method of disposition thereof) by filing a Registration Statement with the SEC pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into a Form S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling shareholders (not underwriters) of all or such portion of the Registrable Securities (a “Demand Registration”); provided, however, that (A) if the Company is not eligible to register the Registrable Securities on Form S-3 under the Securities Act, then the Company shall be obligated to register the Registrable Securities upon such election only if the Registrable Securities to be registered, in the aggregate, constitute 10% or more of the then-outstanding Registrable Securities that are not registered under an effective Registration Statement, and (B) if the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election; provided, that (i) there shall not be more than one such request during each of the Company’s fiscal quarterly periods and (ii) the Registrable Securities to be registered must include at least 1,000,000 Common Shares, or, in the aggregate, have an anticipated offering price, net of underwriting discounts and commissions, of more than $5,000,000, calculated in accordance with Rule 457(c) under the Securities Act on the business day preceding such Request.
(b) As promptly as practicable, but no later than 10 days after receipt of a Request, the Company shall give written notice of such requested registration to all Holders of Registrable Securities and Pari Passu Holders of Pari Passu Securities. Subject to Section 2.2(c), the Company shall include in (a "Demand Registration (i) the Registrable Securities intended to be disposed of by the Initiating Holders and (ii) the Registrable Securities and Pari Passu Securities intended to be disposed of by any other Holder or Pari Passu Holder which shall have made a written request (which request shall specify the amount of Registrable Securities to be registered and the intended method of disposition thereofRegistration") to the Company for inclusion thereof in such registration within 20 days after Xxxxxxxxxxx Shareholders, the receipt of such written notice from Xxxxx Shareholders and the Company. The Company shallXxxxxxxx Shareholders, as expeditiously as possible following a Request, and thereupon will use its best efforts to cause to be filed with the SEC a Demand Registration Statement providing for effect, as expeditiously as possible, the registration under the Securities Act of of:
(i) the Registrable Securities and the Pari Passu Securities which the Company has been so requested to register by the Selling Shareholders, then held by the Selling Shareholders; and
(ii) all other Registrable Securities of the same type as that to which the request by the Selling Shareholders relates which any Xxxxxxxxxxx Shareholder, any Xxxxx Shareholder or any Servidio Shareholder (all such Shareholders, together with the Selling Shareholders, the "Holders") has requested the Company to register by written request received by the Company within 10 days (one of which shall be a Business Day) after the receipt by such Holders and Pari Passu Holdersof such written notice given by the Company, all to the extent necessary to permit the disposition of such Registrable Securities so to be registered (in accordance with the intended methods thereof as aforesaid) of disposition thereof specified the Registrable Securities so to be registered; provided that, subject to Section 5.01(d) hereof, the Company shall not be obligated to effect more than five Demand Registrations for the CSH Shareholders; and provided further that the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Common Stock requested to be included in such Request Demand Registration, in the reasonable opinion of CSH exercised in good faith, equals or further requests if so requestedexceeds $7,500,000. In no event will the Company be required to effect more than one Demand Registration within any four-month period.
(b) Promptly after the expiration of the 10-day period referred to in Section 5.01(a)(ii) hereof, the Company will notify all the Holders to be included in the Demand Registration of the other Holders and the number of Registrable Securities requested to be included therein. The Selling Shareholders requesting a registration under Section 5.01(a) may, at any time prior to the effective date of the registration statement relating to such registration, revoke such request, without liability to any of the other Holders, by providing a written notice to the Company revoking such request, in which case such request, so revoked, shall use its best efforts be considered a Demand Registration unless such revocation arose out of the fault of the Company or unless the participating Shareholders reimburse the Company for all costs incurred by the Company in connection with such registration, in which case such request shall not be considered a Demand Registration.
(c) The Company will pay all Registration Expenses in connection with any Demand Registration.
(d) A registration requested pursuant to this Section 5.01 shall not be deemed to have been effected unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) all of the Registrable Securities registered thereunder have been sold; provided that if, within 180 days after it has become effective, the offering of Registrable Securities pursuant to such registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court such registration will be deemed not to have been effected.
(e) If a Demand Registration involves an Underwritten Public Offering and the managing underwriter shall advise the Company and the Selling Shareholders that, in its view, (i) the number of shares of Registrable Securities requested to be included in such registration (including any securities which the Company proposes to be included which are not Registrable Securities) or (ii) the inclusion of some or all of the shares of Registrable Securities owned by the Holders, in any such case, exceeds the largest number of shares which can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the "Maximum Offering Size"), the Company will include in such registration, in the priority listed below, up to the Maximum Offering Size:
(A) first, all Registrable Securities requested to be registered by the parties requesting such Demand Registration Statement declared effective and all Registrable Securities requested to be included in such registration by any other Holder (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Holders on the basis of the relative number of Registrable Securities so requested to be included in such registration); and
(B) second, any securities proposed to be registered by the SEC as soon as practicable thereafter Company.
(f) Upon written notice to each Selling Shareholder, the Company may postpone effecting a registration pursuant to this Section 5.01 on one occasion during any period of six consecutive months for a reasonable time specified in the notice but not exceeding 90 days (which period may not be extended or renewed), if (1) an investment banking firm of recognized national standing shall advise the Company and to keep the Selling Shareholders in writing that effecting the registration would materially and adversely affect an offering of securities of such Demand Registration Statement continuously effective for Company the preparation of which had then been commenced or (2) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, would not be in the best interests of the Company.
(g) After the Company has effected one Demand Registration by the CSH Shareholders pursuant to this Section 4.1(b)5.01 of Common Stock, the Xxxxxxxxxxx Shareholders, upon request of the Xxxxxxxxxxx Shareholders owning a majority of the Shares acquired by the Xxxxxxxxxxx Shareholders on the Closing Date may request that the Company register Common Stock which are Registrable Securities then owned by such Xxxxxxxxxxx Shareholders. In no event will the Company be required to effect more than two such Demand Registrations by the Xxxxxxxxxxx Shareholders. The registration rights granted pursuant to the provisions of this Section 2.2 shall be in addition to the registration rights granted pursuant to the other provisions of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any such Demand Registration by the Xxxxxxxxxxx Shareholders.
(h) If any registration requested pursuant to this Section 25.01 which is proposed by the Company to be effected by the filing of a registration statement on form S-3 (or any successor or similar short-form registration statement) shall be in connection with an Underwritten Public Offering, and if the managing underwriter shall advise the Company in writing that, in its opinion, the use of another form of registration statement is of material importance to the success of such proposed offering, then such registration shall be effected on such other form.
Appears in 3 contracts
Samples: Investors Agreement (Ipc Information Systems Inc), Investors Agreement (Cable Systems Holding LLC), Stockholders Agreement (Cable Systems Holding LLC)
Demand Registration. (ai) In addition to the rights provided in Section 2.1, the Majority Holders At any time any Holder that holds any Registrable Securities shall have the right option and right, exercisable by delivering a written notice to request in writing that the Company register all or part of such Holders’ Registrable Securities that are not then registered by an effective Registration Statement (a “RequestDemand Notice”) (which Request shall specify ), to require the amount Company to, pursuant to the terms of and subject to the limitations contained in this Agreement, prepare and file with the Commission a Registration Statement registering the offering and sale of the number and type of Registrable Securities intended to be disposed of by such Holders on the terms and conditions specified in the intended method of disposition thereof) by filing Demand Notice, which may include sales on a Registration Statement with the SEC delayed or continuous basis pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible pursuant to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into a Form S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling shareholders (not underwriters) of all or such portion of the Registrable Securities Shelf Registration Statement (a “Demand Registration”); provided, however, that (A) if . The Demand Notice must set forth the Company is not eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election only if the Registrable Securities to be registered, in the aggregate, constitute 10% or more number of the then-outstanding Registrable Securities that are not registered under an effective the Initiating Holder intends to include in such Demand Registration Statementand the intended methods of disposition thereof. Notwithstanding anything to the contrary herein, and (B) if in no event shall the Company is eligible be required to register the effectuate a Demand Registration for Registrable Securities having an aggregate value of less than $30.0 million based on Form S-3 under the Securities Act, the Company shall be obligated to register the VWAP of such Registrable Securities upon such election; provided, that (i) there shall not be more than one such request during each as of the Company’s fiscal quarterly periods and date of the Demand Notice (the “Minimum Amount”).
(ii) Within five Business Days of the Registrable Securities to be registered must include at least 1,000,000 Common Shares, or, in the aggregate, have an anticipated offering price, net of underwriting discounts and commissions, of more than $5,000,000, calculated in accordance with Rule 457(c) under the Securities Act on the business day preceding such Request.
(b) As promptly as practicable, but no later than 10 days after receipt of a Requestthe Demand Notice, the Company shall give written notice of such requested registration Demand Notice to all Holders and, within thirty days thereof (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case, within ninety days thereof), shall, subject to the limitations of this Section 2(a), file a Registration Statement in accordance with the terms and conditions of the Demand Notice, which Registration Statement shall cover all of the Registrable Securities that the Holders shall in writing request (such request to be given to the Company within ten days of receipt of notice of the Demand Notice given by the Company pursuant to this Section 2(a)(ii)) to be included in the Demand Registration. The Company shall use reasonable best efforts to cause such Registration Statement to become and remain effective under the Securities Act until the earlier of (A) 180 days (or two years if a Shelf Registration Statement is requested) after the Effective Date or (B) the date on which all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”); provided, however, that such period shall be extended for a period of time equal to the period the Holders refrain from selling any securities included in such Registration Statement at the request of an underwriter of the Company or the Company pursuant to this Agreement.
(iii) Subject to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect (A) a Demand Registration within 90 days of the closing of any Underwritten Offering, (B) (i) through December 31, 2016, more than a total of three Demand Registrations and (ii) on or after January 1, 2017, more than a total of one Demand Registration per calendar year for which NGP Holdings (or any transferee thereof in accordance with Section 8(e)) is the Initiating Holder, (C) (i) through December 31, 2016, more than a total of three Demand Registrations and (ii) on or after January 1, 2017, more than a total of one Demand Registration per calendar year for which Rice Holdings (or any transferee thereof in accordance with Section 8(e)) is the Initiating Holder, (D) more than one Demand Registration for which Alpha Holdings (or any transferee thereof in accordance with Section 8(e)) is the Initiating Holder, (E) more than one Demand Registration for which Xxxxxx X. Xxxx III (or any transferee thereof in accordance with Section 8(e)) is the Initiating Holder, and (F) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of the Registrable Securities held by the Holders providing such Demand Notice shall have become effective under the Securities Act and remains effective under the Securities Act and is sufficient to permit offers and sales of the number and type of Registrable Securities on the terms and Pari Passu Holders conditions specified in the Demand Notice in accordance with the intended timing and method or methods of Pari Passu Securitiesdistribution thereof specified in the Demand Notice. No Demand Registration shall be deemed to have occurred for purposes of this Section 2(a)(iii) if the Registration Statement relating thereto does not become effective or is not maintained effective for the period required pursuant to Section 2(a)(ii), in which case the Initiating Holder shall be entitled to an additional Demand Registration in lieu thereof.
(iv) An Initiating Holder and any other Holder that has requested its Registrable Securities be included in a Demand Registration may withdraw all or any portion of its Registrable Securities included in a Demand Registration from such Demand Registration at any time prior to the effectiveness of the applicable Registration Statement. Upon delivery of a notice by the Initiating Holder to the effect that the Initiating Holder is withdrawing all or an amount such that the remaining amount is below the Minimum Amount of its Registrable Securities to be included in a Demand Registration, the Company shall cease all efforts to secure effectiveness of the applicable Registration Statement. Such registration shall be deemed a Demand Registration unless (i) the Initiating Holder shall have paid or reimbursed the Company for its pro rata share of all reasonable and documented out-of-pocket fees and expenses incurred by the Company in connection with the withdrawn registration of such Registrable Securities (based on the number of securities the Initiating Holder sought to register, as compared to the total number of securities included in such Demand Registration) or (ii) the withdrawal is made (A) following the occurrence of a Material Adverse Change or (B) because the Registration would require disclosure of material information that the Company has a bona fide business purpose for preserving as confidential.
(v) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration on such appropriate registration form of the Commission (x) as shall be selected by the Company and (y) as shall permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the applicable Holders’ requests for such registration; provided that if the Company becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to the Company). If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Company that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, the Company will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(vi) Without limiting Section 2.2(c3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), the Company shall include (A) promptly prepare and file or cause to be prepared and filed (1) such additional forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents, as may be necessary or advisable to register or qualify the securities subject to such Demand Registration, including under the securities laws of such states as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a Demand Registration result thereof, the Company would become subject to general service of process or to taxation or qualification to do business in such jurisdiction solely as a result of registration and (i2) such forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents as may be necessary to apply for listing or to list the Registrable Securities intended subject to such Demand Registration on the Trading Market and (B) do any and all other acts and things that may be disposed of reasonably necessary or appropriate or reasonably requested by the Initiating Holders and (ii) to enable the Registrable Securities and Pari Passu Securities intended Holders to be disposed of by any other Holder or Pari Passu Holder which shall have made consummate a written request (which request shall specify the amount of Registrable Securities to be registered and the intended method of disposition thereof) to the Company for inclusion thereof in such registration within 20 days after the receipt of such written notice from the Company. The Company shall, as expeditiously as possible following a Request, use its best efforts to cause to be filed with the SEC a Demand Registration Statement providing for the registration under the Securities Act of the Registrable Securities and the Pari Passu Securities which the Company has been so requested to register by all such Holders and Pari Passu Holders, to the extent necessary to permit the disposition public sale of such Registrable Securities so to be registered in accordance with the intended timing and method or methods of disposition thereof specified in distribution thereof.
(ix) In the event a Holder transfers Registrable Securities included on a Registration Statement and such Request or further requests if so requested. The Registrable Securities remain Registrable Securities following such transfer, at the request of such Holder, the Company shall use its best efforts to have amend or supplement such Demand Registration Statement declared as may be necessary in order to enable such transferee to offer and sell such Registrable Securities pursuant to such Registration Statement; provided that in no event shall the Company be required to file a post-effective amendment to the Registration Statement unless (A) such Registration Statement includes only Registrable Securities held by the SEC as soon as practicable thereafter and to keep Holder, Affiliates of the Holder or transferees of the Holder or (B) the Company has received written consent therefor from whom Registrable Securities have been registered on (but not yet sold under) such Demand Registration Statement continuously effective for Statement, other than the period specified in Section 4.1(b). The registration rights granted pursuant to Holder, Affiliates of the provisions Holder or transferees of this Section 2.2 shall be in addition to the registration rights granted pursuant to the other provisions of this Section 2Holder.
Appears in 3 contracts
Samples: Registration Rights Agreement (Rice Energy Inc.), Registration Rights Agreement (Rice Energy Inc.), Registration Rights Agreement (Alpha Natural Resources, Inc.)
Demand Registration. (a) In addition At any time, one or more Stockholders (each a “Requesting Stockholder”) shall be entitled to make a written request of the rights provided in Section 2.1, the Majority Holders shall have the right to request in writing that the Company register all or part of such Holders’ Registrable Securities that are not then registered by an effective Registration Statement Corporation (a “RequestDemand”) (which Request shall specify for registration under the Securities Act of an amount of Registrable Securities intended to be disposed of by such Holders and the intended method of disposition thereof) by filing a Registration Statement with the SEC pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or that, in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted aggregate taking into a Form S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling shareholders (not underwriters) of account all or such portion of the Requesting Stockholders, equals or is greater than the Registrable Amount (based on the number of Registrable Securities outstanding on the date such Demand is made) (a “Demand Registration”); provided) and thereupon the Corporation will, howeversubject to the terms of this Agreement, that (A) if use its commercially reasonable efforts to effect the Company is not eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election only if the Registrable Securities to be registered, in the aggregate, constitute 10% or more of the then-outstanding Registrable Securities that are not registered under an effective Registration Statement, and (B) if the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election; provided, that (i) there shall not be more than one such request during each of the Company’s fiscal quarterly periods and (ii) the Registrable Securities to be registered must include at least 1,000,000 Common Shares, or, in the aggregate, have an anticipated offering price, net of underwriting discounts and commissions, of more than $5,000,000, calculated in accordance with Rule 457(c) registration as promptly as practicable under the Securities Act on the business day preceding such Request.of:
(b) As promptly as practicable, but no later than 10 days after receipt of a Request, the Company shall give written notice of such requested registration to all Holders of Registrable Securities and Pari Passu Holders of Pari Passu Securities. Subject to Section 2.2(c), the Company shall include in a Demand Registration (i) the Registrable Securities intended to be disposed of by the Initiating Holders and (ii) the Registrable Securities and Pari Passu Securities intended to be disposed of by any other Holder or Pari Passu Holder which shall have made a written request (which request shall specify the amount of Registrable Securities to be registered and the intended method of disposition thereof) to the Company for inclusion thereof in such registration within 20 days after the receipt of such written notice from the Company. The Company shall, as expeditiously as possible following a Request, use its best efforts to cause to be filed with the SEC a Demand Registration Statement providing for the registration under the Securities Act of the Registrable Securities and the Pari Passu Securities which the Company Corporation has been so requested to register by the Requesting Stockholders for disposition in accordance with the intended method of disposition stated in such Demand;
(ii) all such Holders and Pari Passu Holdersother Registrable Securities which the Corporation has been requested to register pursuant to Section 5.1(b); and
(iii) all equity securities of the Corporation which the Corporation may elect to register in connection with any offering of Registrable Securities pursuant to this Section 5.1, but subject to Section 5.1(h); all to the extent necessary to permit the disposition of such Registrable Securities so to be registered (in accordance with the intended methods thereof) of the Registrable Securities and the additional Common Shares, if any, to be so registered.
(b) Each Demand shall specify: (i) the aggregate number of Registrable Securities requested to be registered in such Demand Registration, (ii) the intended method of disposition thereof specified in connection with such Demand Registration, to the extent then known and (iii) the identity of the Requesting Stockholder (or Requesting Stockholders). Within five (5) business days after receipt of a Demand, the Corporation shall give written notice of such Demand to all other Stockholders. Subject to Section 5.1(h), the Corporation shall include in the Demand Registration covered by such Demand all Registrable Securities with respect to which the Corporation has received a written request for inclusion therein within ten (10) days after the Corporation’s notice required by this Section 5.1(b) has been given. Such written request shall comply with the requirements of a Demand as set forth in this Section 5.1(b).
(c) Each of the Stockholders shall be entitled to an unlimited number of Demand Registrations.
(d) Demand Registrations shall be on (i) Form S-1 or any similar long-form registration, (ii) Form S-3 or any similar short form registration, if such short form registration is then available to the Corporation, or (iii) Form S-3ASR if the Corporation is, at the time a Demand is made, a Well-Known Seasoned Issuer, in each case, reasonably acceptable to the Requesting Stockholders holding a majority of the Registrable Securities included in the applicable Demand Registration.
(e) The Corporation shall not be obligated to (i) maintain the effectiveness of a registration statement under the Securities Act, filed pursuant to a Demand Registration, for a period longer than 90 days or (ii) effect any Demand Registration (A) within six (6) months of the effective date of a registration statement with respect to a “firm commitment” Underwritten Offering in which all Piggyback Sellers were given “piggyback” rights pursuant to Section 5.2 (subject to Section 5.1(f)) and at least 50% of the number of Registrable Securities requested by such Piggyback Sellers to be included in such Request Demand Registration were included, (B) within four (4) months of the effective date of a registration statement with respect to any other Demand Registration or further requests if so requested. The Company (C) if, in the Corporation’s reasonable judgment, it is not feasible for the Corporation to proceed with the Demand Registration because of the unavailability of audited or other required financial statements, provided that the Corporation shall use its best commercially reasonable efforts to have obtain such financial statements as promptly as practicable. In addition, the Corporation shall be entitled to postpone (upon written notice to all Stockholders) the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice in any period of twelve (12) consecutive months and in no event for more than an aggregate of one-hundred twenty (120) days in any three-hundred sixty-five (365) consecutive day period) if the Board determines in its reasonable judgment that the filing or effectiveness of the registration statement relating to such Demand Registration Statement declared effective would cause the disclosure of material, non-public information that the Corporation has a bona fide business purpose for preserving as confidential.
(f) The Corporation shall not include any securities other than Registrable Securities in a Demand Registration, except for any Common Shares held by any Other Professional Holder, any securities held by any stockholders who acquire Common Shares after the SEC as soon as practicable thereafter date hereof and to keep whom the Corporation gives pari passu rights, or with the written consent of Stockholders participating in such Demand Registration Statement continuously effective that hold a majority of the Registrable Securities included in such Demand Registration. If, in connection with a Demand Registration, the lead bookrunning underwriters (or, if such Demand Registration is not an Underwritten Offering, a nationally recognized independent investment bank selected by the Corporation and reasonably acceptable to Stockholders holding a majority of the Registrable Securities included in such Demand Registration, and whose fees and expenses shall be borne solely by the Corporation) advise the Corporation, in writing, that, in their reasonable opinion, the inclusion of all of the securities, including securities of the Corporation that are not Registrable Securities, sought to be registered in connection with such Demand Registration would adversely affect the marketability of the Registrable Securities sought to be sold pursuant thereto, then the Corporation shall include in such registration statement only such securities as the Corporation is reasonably advised by such underwriters or investment bank can be sold without such adverse effect as follows and in the following order of priority: (i) first, up to the number of Common Shares requested to be included in such Demand Registration by any Stockholders and any Other Professional Holders, which, in the opinion of the underwriter or investment bank can be sold without adversely affecting the marketability of the offering, pro rata among such Persons based upon the number of Common Shares deemed to be owned by such Persons and their respective Group; (ii) second, securities the Corporation proposes to sell; and (iii) third, all other equity securities of the Corporation duly requested to be included in such registration statement, pro rata on the basis of the amount of such other securities requested to be included or such other method determined by the Corporation.
(g) Any time that a Demand Registration involves an Underwritten Offering, the Corporation shall (i) select the investment banker or investment bankers and managers that will serve as lead and co-managing underwriters with respect to the offering of such Registrable Securities, and (ii) enter into an underwriting agreement that is reasonably acceptable to the Stockholders holding a majority of the Registrable Securities requested to be included in the Demand Registration and the Corporation, with such agreement containing representations, warranties, indemnities and agreements customarily included (but not inconsistent with the covenants and agreements of the Corporation contained herein) by an issuer of common stock in underwriting agreements with respect to offerings of common stock for the period specified in Section 4.1(b). The registration rights granted pursuant to the provisions of account of, or on behalf of, such issuers.
(h) In connection with any Underwritten Offering under this Section 2.2 5.1, the Corporation shall not be required to include the Registrable Securities of a Stockholder in addition to the registration rights granted pursuant to Underwritten Offering unless such Stockholder accepts the other provisions terms of this Section 2the underwriting as agreed upon between the Corporation and the underwriters selected by the Corporation, in accordance with the terms hereof.
Appears in 3 contracts
Samples: Stockholders Agreement (Apollo Global Management, Inc.), Stockholders Agreement (Harris Joshua), Stockholders Agreement (LDB 2014 LLC)
Demand Registration. (a) In addition to If the rights provided Company shall receive at any time after the Restriction Termination Date a request from two (2) or more Shareholders that are either Bank Shareholders or PE Shareholders, or both (in Section 2.1either case, the Majority Holders shall have the right to request in writing “Initial Requesting Shareholders”) that the Company register all or part of such Holders’ Registrable Securities that are not then registered by an effective Registration Statement (a “Request”) (which Request shall specify the amount of Registrable Securities intended to be disposed of by such Holders and the intended method of disposition thereof) by filing a Registration Statement with the SEC pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into a Form S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling shareholders (not underwriters) of all or such portion of the Registrable Securities (a “Demand Registration”); provided, however, that (A) if the Company is not eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election only if the Registrable Securities to be registered, in the aggregate, constitute 10% or more of the then-outstanding Registrable Securities that are not registered under an effective Registration Statement, and (B) if the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election; provided, that (i) there shall not be more than one such request during each of the Company’s fiscal quarterly periods and (ii) the Registrable Securities to be registered must include at least 1,000,000 Common Shares, or, in the aggregate, have an anticipated offering price, net of underwriting discounts and commissions, of more than $5,000,000, calculated in accordance with Rule 457(c) under the Securities Act on the business day preceding such Request.
(b) As promptly as practicable, but no later than 10 days after receipt of a Request, the Company shall give written notice of such requested registration to all Holders of Registrable Securities and Pari Passu Holders of Pari Passu Securities. Subject to Section 2.2(c), the Company shall include in a Demand Registration (i) the Registrable Securities intended to be disposed of by the Initiating Holders and (ii) the Registrable Securities and Pari Passu Securities intended to be disposed of by any other Holder or Pari Passu Holder which shall have made a written request (which request shall specify the amount of Registrable Securities to be registered and the intended method of disposition thereof) to the Company for inclusion thereof in such registration within 20 days after the receipt of such written notice from the Company. The Company shall, as expeditiously as possible following a Request, use its best efforts to cause to be filed with the SEC a Demand Registration Statement providing for effect the registration under the Securities Act of all or any portion of such Initial Requesting Shareholders’ Registrable Securities, and specifying the intended method of disposition thereof, then the Company shall give notice (a “Demand Notice”) of such requested registration (each such request shall be referred to herein as a “Demand Registration”) to the other Shareholders, which notice shall be given not later than ten (10) Business Days following receipt by the Company of the Demand Notice. Such other Shareholders may, upon notice received by the Company no later than five Business Days after the date of the notice of a Demand Registration, request that the Company also effect the registration under the Securities Act of all or any portion of such other Shareholders’ Registrable Securities (such other requesting Shareholders, together with the Initial Requesting Shareholders, shall be referred to herein as the “Requesting Shareholders”). Thereafter, subject to the restrictions set forth in Section 2.04 and Section 3.01(f), the Pari Passu Company shall use commercially reasonable efforts to effect the registration under the Securities Act of all Registrable Securities for which the Company has been so Requesting Shareholders have requested to register by all such Holders and Pari Passu Holders, registration under this Section 3.01 to the extent necessary to permit the disposition of such the Registrable Securities so to be registered (in accordance with the intended methods thereof as aforesaid); provided that the Company shall be permitted to effect the registration under the Securities Act of disposition thereof specified any securities other than Registrable Securities (including for the benefit of any other Persons not party to this Agreement) as part of any Demand Registration; provided further that the Company shall not be obligated to effect a Demand Registration (i) unless the aggregate gross proceeds (before the deduction of any discounts or commissions) expected to be received from the sale of the Registrable Securities requested to be included in such Request Demand Registration equals or further requests exceeds $100,000,000 (the “Proceeds Threshold”), provided the Proceeds Threshold shall only apply through the fourth anniversary of the IPO Closing Date, and (ii) until after the Restriction Termination Date.
(b) If any Registrable Securities for which the Requesting Shareholders have requested registration under Section 3.01(a) are excluded from such Demand Registration in accordance with the restrictions set forth in Section 3.01(f), then such Requesting Shareholders may either (i) request that the Company grant a written waiver to permit such Requesting Shareholders to Transfer such excluded Registrable Securities by any means available, subject to compliance with the Securities Act and any other applicable securities or “blue sky” laws or (ii) request that the Company effect a second Demand Registration under the Securities Act to permit the disposition of such excluded Registrable Securities in a Public Offering. Thereafter, subject to the restrictions set forth in Section 2.04 and, in the case of clause (ii) of the preceding sentence, Section 3.01(f), the Company shall either (A) in its sole discretion, grant the waiver request of the Requesting Shareholders, or (B) use commercially reasonable efforts to effect the registration under the Securities Act of all Registrable Securities for which the Requesting Shareholders have requested registration under Section 3.01(b)(ii) to the extent necessary to permit the disposition of the Registrable Securities so to be registered. If any Registrable Securities for which the Requesting Shareholders have requested registration under Section 3.01(b)(ii) are excluded from such second Demand Registration in accordance with the restrictions set forth in Section 3.01(f), then such Requesting Shareholders may, subject to the restrictions set forth in Section 2.04, Transfer such excluded Registrable Securities by any means available, subject to compliance with the Securities Act and any other applicable securities or “blue sky” laws. In no event shall the Company be required to effect (A) more than one Demand Registration within each successive 12-month period beginning on the Restriction Termination Date or any anniversary thereof except as provided in Section 3.01(b)(ii), (B) a Demand Registration within a period of 90 days after the effective date of any other registration statement relating to any Demand Registration or (C) any Demand Registration if, at the time of such request, four or more Demand Registrations (excluding (x) any Demand Registrations pursuant to Section 3.01(b)(ii) or 3.02(a)(ii)(B)(2), and (y) any Demand Registrations effected (in the Company’s sole discretion) other than the one Demand Registration required pursuant to this Section 3.01(b) within each successive 12-month period beginning on the Restriction Termination Date or any anniversary thereof) have previously been effected. Notwithstanding the foregoing limit of four Demand Registrations, if, subsequent to the fourth anniversary of the IPO Closing Date, (A) any PE Shareholder owns Common Shares equal to 100% of the number of such PE Shareholder’s Initial Ownership Common Shares and (B) the Company’s board of directors includes a member nominated by such PE Shareholder, then such PE Shareholder shall be entitled to one additional Demand Registration otherwise in accordance with the terms of Section 3.01 (provided that the Demand Notice required by Section 3.01(a) need only be sent by the Company to any other PE Shareholder that satisfies the same demand requirements as the requesting PE Shareholder), which shall not be taken into account for purposes of determining whether the limit of four Demand Registrations have been effected. In addition, if, as of the fourth anniversary of the IPO Closing Date, any Shareholder owns more than 5% of the Company’s issued and outstanding Common Shares, then such Shareholder shall be entitled to one additional Demand Registration otherwise in accordance with the terms of Section 3.01 (provided that the Demand Notice required by Section 3.01(a) need only be sent by the Company to any other Shareholder that satisfies the same demand requirements as the requesting Shareholder), which shall not be taken into account for purposes of determining whether the limit of four Demand Registrations have been effected.
(c) At any time prior to the effective date of the registration statement relating to a Demand Registration request pursuant to Section 3.01(a) or Section 3.01(b)(ii), a Shareholder may withdraw from the related registration by providing written notice to the Company. If sufficient Registrable Securities are so withdrawn such that the number of Registrable Securities to be included in such Demand Registration do not meet the applicable threshold(s) required for such Demand Registration pursuant to Section 3.01(a), the Company may cease all efforts to effect such Demand Registration upon such withdrawal and, upon the Company ceasing all efforts to effect registration, such Demand Registration shall be deemed revoked. Notwithstanding clause (e) below, a request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company, (ii) at the time of such withdrawal, the Shareholders shall have learned of a material adverse change in the condition, business, or prospects of the Company from the condition, business or prospects of the Company at the time of the related registration request and have promptly withdrawn the request after learning of such information, or (iii) the Requesting Shareholders reimburse the Company for all Registration Expenses (other than the expenses set forth under clause (v) of the definition thereof) incurred prior to the receipt of such revocation, pro rata among such Requesting Shareholders on the basis of the number of Registrable Securities of each such Requesting Shareholder that were to be included in the revoked Demand Registration. Notwithstanding the foregoing, if so requested. a requested registration does not meet the Proceeds Threshold, such requested registration shall not be deemed a Demand Registration or a withdrawn registration and shall not be taken into account for purposes of determining the number of Demand Registrations that have been effected.
(d) The Company shall use its best efforts to have be liable for and pay all Registration Expenses in connection with any Demand Registration that is effected or, in the case of any Demand Registration that is not effected, where (i) the failure of such Demand Registration Statement declared to be effected arose out of the fault of the Company or (ii) the Requesting Shareholders do not elect to pay Registration Expenses in accordance with clause (iii) of the last sentence of Section 3.01(c). For the avoidance of doubt, the Requesting Shareholders shall be liable for and pay all Registration Expenses (other than the expenses set forth under clause (v) of the definition thereof) in any other circumstance in connection with any Demand Registration, and, in all circumstances in connection with any Demand Registration, shall be liable for and pay all fees and out-of-pocket expenses of the Requesting Shareholders (or the agents who manage their accounts), including, but not limited to, fees and disbursements of counsel for the Requesting Shareholders and any underwriting fees, discounts and commissions attributable to the sale of Registrable Securities.
(e) A Demand Registration shall not be deemed to have occurred unless the registration statement relating thereto (A) has become effective under the Securities Act and (B) has remained effective for a period of at least 30 days (or such shorter period in which all Registrable Securities of the Requesting Shareholders included in such registration have actually been sold thereunder).
(f) If a Demand Registration involves a Public Offering and the managing underwriter advises the Company and the Requesting Shareholders that, in its view, the number of shares of Registrable Securities requested to be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be included in such registration by all Requesting Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis of the relative number of Registrable Securities held by each such Shareholder); and
(ii) second, any securities proposed to be registered by the SEC Company (including for the benefit of any other Persons not party to this Agreement, with such priorities among them as soon as practicable thereafter the Company shall determine in its sole discretion).
(g) Upon notice to the Requesting Shareholders, the Company may postpone effecting a registration pursuant to this Section 3.01 on two occasions during any period of twelve consecutive months for a time period specified in the notice but not exceeding 120 days in the aggregate in any period of twelve consecutive months (which period may not be extended or renewed), if (i) the Company determines that effecting the registration could materially and to keep such Demand Registration Statement continuously effective for adversely affect an offering of securities of the Company or (ii) the Company is in possession of material non-public information the disclosure of which during the period specified in Section 4.1(b). The registration rights granted pursuant to such notice the provisions of this Section 2.2 shall Company reasonably believes would not be in addition to the registration rights granted pursuant to best interests of the other provisions of this Section 2Company.
Appears in 3 contracts
Samples: Registration Rights Agreement, Registration Rights Agreement (Markit Ltd.), Registration Rights Agreement (Markit Ltd.)
Demand Registration. (a) In addition to At any time following the rights provided in Section 2.1Closing, the Majority Initiating Holders shall have the right to may request in writing that the Company register shall file a Registration Statement with respect to the registration and resale of all or part of such Holders’ the Registrable Securities that are not then registered Shares held by an effective Registration Statement (a “Request”) (which Request shall specify the amount of Registrable Securities intended to be disposed of by such Holders and the intended method of disposition thereof) by filing a Registration Statement with the SEC pursuant to Rule 415 under the Securities Act them, including without limitation on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into a Form S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling shareholders (not underwriters) of all or such portion of the Registrable Securities S-1/F-1 (a “Demand Registration”); provided, however, that . As soon as practicable and in any event within ten (A10) if the Company is not eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election only if the Registrable Securities to be registered, in the aggregate, constitute 10% or more of the then-outstanding Registrable Securities that are not registered under an effective Registration Statement, and (B) if the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election; provided, that (i) there shall not be more than one such request during each of the Company’s fiscal quarterly periods and (ii) the Registrable Securities to be registered must include at least 1,000,000 Common Shares, or, in the aggregate, have an anticipated offering price, net of underwriting discounts and commissions, of more than $5,000,000, calculated in accordance with Rule 457(c) under the Securities Act on the business day preceding such Request.
(b) As promptly as practicable, but no later than 10 days after receipt of a Requestany such request, the Company shall give written notice of such requested registration request to all the other Holders of Registrable Securities and Pari Passu Holders of Pari Passu Securities. Subject to Section 2.2(c), the Company shall include in a such registration all Registrable Shares held by all such Holders who wish to participate in such Demand Registration (i) the Registrable Securities intended to be disposed of by the Initiating Holders and (ii) the Registrable Securities and Pari Passu Securities intended to be disposed of by any other Holder or Pari Passu Holder which shall have made a written request (which request shall specify the amount of Registrable Securities to be registered and the intended method of disposition thereof) to provide the Company with written requests for inclusion thereof in such registration therein within 20 seven (7) days after the receipt of such written notice from the Company’s notice. The Company shallThereupon, as expeditiously as possible following a Request, use its best efforts to cause to be filed with the SEC a Demand Registration Statement providing for the registration under the Securities Act of the Registrable Securities and the Pari Passu Securities which the Company has been so requested to register by all such Holders and Pari Passu Holders, to the extent necessary to permit the disposition of such Registrable Securities so to be registered in accordance with the intended methods of disposition thereof specified in such Request or further requests if so requested. The Company shall use its best efforts to effect the registration of all Registrable Shares as to which it has received requests for registration for as promptly as reasonably practicable; provided, however, that: (i) the Company shall not be required to effect any registration under this Section 2.3 (A) during the period that is thirty (30) days before the Company’s good faith estimate of the date of filing of a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective and (B) within a period of ninety (90) days following the effective date of a previous registration filed by the Company covering a firm commitment underwritten public offering in which the holders of Registrable Shares shall have been entitled to join pursuant to Section 2.2 and in which there shall have been effectively registered all Registrable Shares as to which registration shall have been requested; and (ii) the registration shall cover the public sale of Registrable Shares with an aggregate public offering price reasonably expected to be at least the lesser of (a) US$35,000,000 and (b) all remaining Registrable Securities (other than the Sale Limited Securities) owned by the requesting Holder. The Initiating Holders may elect to withdraw from any offering pursuant to this Section 2.3 by giving written notice to the Company and the underwriter(s) of their request to withdraw prior to the effectiveness of the Registration Statement filed by the SEC with respect to such Demand Registration. If the Initiating Holders withdraw from a proposed offering relating to a Demand Registration and the Company did not elect to delay or postpone such offering pursuant to Section 2.6, then either the Initiating Holders shall reimburse the Company for the costs associated with the withdrawn Demand Registration (in which case such registration shall not count as a Demand Registration provided for in this Section 2.3) or such withdrawn registration shall count as a Demand Registration provided for in this Section 2.3. Notwithstanding any other provision of this Section 2.3, if the managing underwriter advises the Holders in writing that marketing factors require a limitation on the dollar amount or the number of shares to be underwritten, then the number of shares to be included in such underwritten public offering shall be reduced to a number deemed satisfactory by such managing underwriter; provided, that the shares to be excluded shall be determined in the following order of priority: (i) shares held by shareholders other than the Holders, (ii) shares which the Company may wish to register for its own account, and thereafter, to the extent necessary, (iii) shares held by the Holders (other than Catalyst or the EDNCU Holder if Catalyst or the EDNCU Holder was the Initiating Holder) pro rata to the respective number of Registrable Shares requested by such Holders to be included in the registration and thereafter, to the extent necessary, (iv) if Catalyst or the EDNCU Holder was the Initiating Holder, shares held by Catalyst and the EDNCU Holder pro rata to the respective number of Registrable Shares requested to be included in such registration or Shelf Takedown by such Holders; provided, however, that (i) in any event all Registrable Shares must be included in such registration prior to any other shares of the Company, and (ii) if Holders other than Catalyst and the EDNCU Holder were the Initiating Holders, Catalyst or the EDNCU Holder, by written notice to the Company during the seven-day notice period set forth above, shall be entitled to be treated as the Initiating Holder instead, subject to the limitations on the number of their respective demand registrations set forth below. The Company may not cause any other registration of securities for sale for its own account (other than a registration effected solely to implement an employee benefit plan) to be initiated after a registration requested pursuant to Section 2.3 and to become effective less than ninety (90) days after the effective date of any registration requested pursuant to Section 2.3. The Company shall not be required to effect more than two (2) registrations under this Section 2.3 for Initiating Holders (other than the EDNCU Holder and Catalyst), the Company shall not be required to effect more than two (2) registrations under this Section 2.3 for which the EDNCU Holder is the Initiating Holder and the Company shall not be required to effect more than two (2) registrations under this Section 2.3 for which Catalyst is the Initiating Holder. A registration will not count as a requested registration under this Section unless and until the Registration Statement relating to such registration has been declared effective by the SEC as soon as practicable thereafter and to keep such Demand Registration Statement continuously effective for the period specified in Section 4.1(b). The registration rights granted pursuant to the provisions of this Section 2.2 shall be in addition to the registration rights granted pursuant to the other provisions of this Section 2Commission.
Appears in 3 contracts
Samples: Shareholders' Agreement (Leibovitch Yoav), Registration Rights Agreement (Endurance Acquisition Corp.), Shareholders' Agreement (Endurance Acquisition Corp.)
Demand Registration. At any time after the earlier of one hundred and eighty (a180) In addition days following the completion of a Public Sale or five (5) years after the Effective Time, upon the written request by Stockholders owning or holding, alone or with their Affiliates, more than fifty percent (50%) of the issued and outstanding Preferred Stock (including for purposes of this calculation any issued and outstanding shares of Common Stock issued upon conversion of shares of Preferred Stock), which such Stockholders shall, in all events, include Mitsui and Kirin, respectively, so long as Mitsui or Kirin, as applicable, owns at least fifty percent (50%) of the number of shares of Preferred Stock (including for purposes of this calculation any issued and outstanding shares of Common Stock issued upon conversion of shares of Preferred Stock) owned by them, respectively, as of the Effective Time (subject to proportionate adjustment in the rights provided in Section 2.1case of any stock split, the Majority Holders shall have the right reverse stock split, recapitalization, reclassification stock dividend or other distribution with respect to request in writing such shares), requesting that the Company register effect a public offering under the Securities Act of all or part of such Holders’ the Registrable Securities that are not then registered by an effective Registration Statement (a “Request”) (which Request shall specify the amount of Registrable Securities intended to be disposed of held by such Holders Stockholders and specifying the intended method or methods of disposition thereof) by filing a Registration Statement with the SEC pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use of such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into a Form S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling shareholders (not underwriters) of all or such portion of the Registrable Securities (a “Demand Registration”); provided, however, that (A) if the Company is not eligible to register the Registrable Securities on Form S-3 under the Securities ActSecurities, the Company shall be obligated to register the Registrable Securities upon such election only if the Registrable Securities to be registered, in the aggregate, constitute 10% or more of the then-outstanding Registrable Securities that are not registered under an effective Registration Statement, and (B) if the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election; provided, that (i) there shall not be more than one such request during each of the Company’s fiscal quarterly periods and (ii) the Registrable Securities to be registered must include at least 1,000,000 Common Shares, or, in the aggregate, have an anticipated offering price, net of underwriting discounts and commissions, of more than $5,000,000, calculated in accordance with Rule 457(c) under the Securities Act on the business day preceding such Request.
(b) As will promptly as practicable, but no later than 10 days after receipt of a Request, the Company shall give written notice of such requested registration to all Holders of Registrable Stockholders and will use its best efforts to effect the registration under the Securities and Pari Passu Holders of Pari Passu Securities. Subject to Section 2.2(c)Act, the Company shall include in a Demand Registration as expeditiously as is reasonable, of:
(i) the Registrable Securities intended to be disposed of by the Initiating Holders and (ii) the Registrable Securities and Pari Passu Securities intended to be disposed of by any other Holder or Pari Passu Holder which shall have made a written request (which request shall specify the amount of Registrable Securities to be registered and the intended method of disposition thereof) to the Company for inclusion thereof in such registration within 20 days after the receipt of such written notice from the Company. The Company shall, as expeditiously as possible following a Request, use its best efforts to cause to be filed with the SEC a Demand Registration Statement providing for the registration under the Securities Act of the Registrable Securities and the Pari Passu Securities which that the Company has been so requested to register by such Stockholders, for disposition in accordance with the intended method of disposition stated in such request; and
(ii) all other Registrable Securities that the Company has been requested to register by other Stockholders by written request delivered to the Company within 30 days after the receipt of such Holders and Pari Passu Holders, written notice delivered by the Company; all to the extent necessary required to permit the disposition of such Registrable Securities so to be registered (in accordance with the intended methods thereof as aforesaid) of disposition thereof specified in such Request or further requests if the Registrable Securities so requestedto be registered. The Anything herein to the contrary notwithstanding, the Company shall use its best efforts not be obligated to have such Demand Registration Statement declared effective by the SEC as soon as practicable thereafter and to keep such Demand Registration Statement continuously effective for the period specified in Section 4.1(b). The registration rights granted consummate more than two (2) registrations pursuant to the provisions of this Section 2.2 shall 2(a); provided, that in each case at least eighty percent (80%) of the Registrable Securities requested to be in addition registered are registered and sold to the public. In connection with any underwritten offering with respect to which Stockholders shall have requested registration rights granted pursuant to the other provisions of this Section 22(a), the Company shall have the right to select the lead managing underwriter (being an underwriting firm of national standing) with respect to such offering, such underwriter to be reasonably acceptable to the Stockholders requesting the registration. Should the Stockholders requesting the registration so elect, they may select an underwriting firm of national standing which is reasonably acceptable to the Company to act as co-lead manager of such offering.
Appears in 3 contracts
Samples: Registration Rights Agreement (Thorne Healthtech, Inc.), Registration Rights Agreement (Thorne Healthtech, Inc.), Registration Rights Agreement (Thorne Healthtech, Inc.)
Demand Registration. (a) In addition to the rights provided registration obligations of the Company set forth in Section 2.12.2 herein, the following provisions shall apply:
(a) Subject to Section 2.3(i), upon the written request of the Majority Holders shall have the right to request in writing Holders, requesting that the Company register effect the registration under the Securities Act of all or part of such Designated Holders’ Registrable Securities that are not then registered by an effective Registration Statement (a “Request”) (which Request shall specify the amount of Registrable Securities intended to be disposed of by such Holders and specifying the intended method of disposition thereof) by filing a Registration Statement with thereof (the SEC pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into a Form S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling shareholders (not underwriters) of all or such portion of the Registrable Securities (a “Demand RegistrationNotice”); provided, however, that (A) if the Company is not eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election only if the Registrable Securities to be registered, in the aggregate, constitute 10% or more of the then-outstanding Registrable Securities that are not registered under an effective Registration Statement, and (B) if the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election; provided, that (i) there shall not be more than one such request during each of the Company’s fiscal quarterly periods and (ii) the Registrable Securities to be registered must include at least 1,000,000 Common Shares, or, in the aggregate, have an anticipated offering price, net of underwriting discounts and commissions, of more than $5,000,000, calculated in accordance with Rule 457(c) under the Securities Act on the business day preceding such Request.
(b) As will promptly as practicable, but no later than 10 days after receipt of a Request, the Company shall give written notice of such requested registration to all Holders Designated Holders, and thereupon the Company will use its reasonable best efforts to file with the SEC as soon as reasonably practicable following the Demand Notice (but in no event later than the date that is 90 days after the Demand Notice) a Registration Statement. The Company shall use its reasonable best efforts to cause such Registration Statement to be declared effective by the SEC within 90 days after the initial filing of Registrable Securities and Pari Passu Holders of Pari Passu Securitiesthe Registration Statement. Subject to Section 2.2(c), the The Company shall include in a Demand such Registration Statement:
(i) the Registrable Securities intended to be disposed of by the Initiating Holders and (ii) the Registrable Securities and Pari Passu Securities intended to be disposed of by any other Holder or Pari Passu Holder which shall have made a written request (which request shall specify the amount of Registrable Securities to be registered and the intended method of disposition thereof) to the Company for inclusion thereof in such registration within 20 days after the receipt of such written notice from the Company. The Company shall, as expeditiously as possible following a Request, use its best efforts to cause to be filed with the SEC a Demand Registration Statement providing for the registration under the Securities Act of the Registrable Securities and the Pari Passu Securities which the Company has been so requested to be registered by such Designated Holders for disposition in accordance with the intended method of disposition stated in such request;
(ii) all other Registrable Securities the holders of which shall have made a written request to the Company for registration thereof within 30 days after the giving of such written notice by the Company (which request shall specify the intended method of disposition of such Registrable Securities); and
(iii) all shares of Common Stock which the Company or Persons entitled to exercise “piggy-back” registration rights pursuant to contractual commitments of the Company may elect to register by in connection with the offering of Registrable Securities pursuant to this Section 2.3; all such Holders and Pari Passu Holders, to the extent necessary requisite to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities and the additional shares of Common Stock, if any, so to be registered; provided, that, the provisions of this Section 2.3 shall not require the Company to effect more than two registrations of Registrable Securities.
(b) Notwithstanding anything to the contrary contained in this Agreement, the Company shall not be required to effect a registration pursuant to this Section 2.3 within 180 days following the effective date of a registration statement filed by the Company in accordance with Sections 2.2, 2.3 or 2.4 for the account of another Designated Holder of Registrable Securities if the Designated Holders were afforded the opportunity to include the Registrable Securities in such registration.
(c) The registrations under this Section 2.3 shall be on an appropriate Registration Statement that permits the disposition of such Registrable Securities so to be registered in accordance with the intended methods of disposition thereof distribution specified by the Majority Holders in such Request or further requests if so requestedtheir request for registration. The Company agrees to include in any such Registration Statement all information which Designated Holders of Registrable Securities being registered shall use its best efforts reasonably request to effect the registration.
(d) A registration requested pursuant to this Section 2.3 shall not be deemed to have such Demand been effected (i) unless a Registration Statement declared with respect thereto has become effective; provided, that a Registration Statement which does not become effective after the Company has filed a Registration Statement with respect thereto solely by reason of the refusal to proceed of the Majority Holders (other than a refusal to proceed based upon the advice of counsel relating to a matter with respect to the Company) or because of a breach of this Agreement by any Designated Holder shall be deemed to have been effected by the SEC as soon as practicable thereafter and Company at the request of the Majority Holders unless the Designated Holders electing to keep have Registrable Securities registered pursuant to such Demand Registration Statement continuously effective shall have elected to pay all fees and expenses otherwise payable by the Company in connection with such registration pursuant to Section 2.8, (ii) if, after it has become effective, such registration is withdrawn by the Company (other than at the request of the Majority Holders) or interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court for any reason prior to the expiration of a 180 day period following such Registration Statement’s effectiveness, or (iii) if the conditions to closing specified in Section 4.1(b). The any purchase agreement or underwriting agreement entered into in connection with such registration rights granted are not satisfied, other than due solely to some act or omission by the Designated Holders electing to have Registrable Securities registered pursuant to the provisions of this Section 2.2 shall be in addition to the registration rights granted pursuant to the other provisions of this Section 2such Registration Statement.
Appears in 3 contracts
Samples: Registration Rights Agreement (Miscor Group, Ltd.), Registration Rights Agreement (Tontine Capital Partners L P), Registration Rights Agreement (Miscor Group, Ltd.)
Demand Registration. (a) In addition If at any time following completion of the Initial Public Offering, subject to the rights provided in Section 2.1terms of any “lock-up” agreement entered into with one or more underwriters (unless waived by such underwriter(s)), the Majority Holders Company shall have receive a request (each such request shall be referred to herein as a “Demand Registration”) from a Shareholder or group of Shareholders (the right requesting Shareholder(s) shall be referred to request in writing herein as the “Requesting Shareholder”), holding at least thirty percent (30%) of the Registrable Securities then outstanding, that the Company register all or part of such Holders’ Registrable Securities that are not then registered by an effective Registration Statement (a “Request”) (which Request shall specify effect the amount of Registrable Securities intended to be disposed of by such Holders and the intended method of disposition thereof) by filing a Registration Statement with the SEC pursuant to Rule 415 under the Securities Act on Form S-3 registration under the Securities Act (or in i) for the event that first Public Offering of the Company is ineligible to use such formafter the completion of the Initial Public Offering (the “Follow-On Offering”), such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into a Form S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling shareholders at least twenty percent (not underwriters20%) of all or such portion of the Requesting Shareholder’s Registrable Securities then outstanding (a “Demand Registration”); provided, however, that (A) or any lesser percentage if the Company is not eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election only if the Registrable Securities to be registered, in the aggregate, constitute 10% or more of the then-outstanding Registrable Securities that are not registered under an effective Registration Statement, and (B) if the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election; provided, that (i) there shall not be more than one such request during each of the Company’s fiscal quarterly periods and (ii) the Registrable Securities to be registered must include at least 1,000,000 Common Shares, or, in the aggregate, have an anticipated aggregate offering price, net of underwriting discounts and commissions, of more than would exceed $5,000,000, calculated in accordance with Rule 457(c) under the Securities Act on the business day preceding such Request.
(b) As promptly as practicable, but no later than 10 days after receipt of a Request, the Company shall give written notice of such requested registration to all Holders of Registrable Securities and Pari Passu Holders of Pari Passu Securities. Subject to Section 2.2(c10,000,000), the Company shall include in a Demand Registration (i) the Registrable Securities intended to be disposed of by the Initiating Holders and or (ii) after the completion of the Follow-On Offering, all or any portion of the Requesting Shareholder’s Registrable Securities and Pari Passu Securities intended to be disposed of by any other Holder or Pari Passu Holder which shall have made a written request (which request shall specify the amount of Registrable Securities to be registered and and, in each case, specifying the intended method of disposition thereof, then the Company shall as promptly as practicable following the date of receipt by the Company of such request give notice of such Demand Registration at least fifteen (10) days after receipt of such Demand Registration to the Company for inclusion thereof other Shareholders, if any, and thereupon shall (i) as soon as practicable, and in such registration any event within 20 forty five (45) days after the receipt of such written notice from date the Company. The Company shallDemand Registration is given by the Requesting Shareholder, file a registration statement under the Securities Act, and (ii) use its commercially reasonable efforts to effect, as expeditiously as possible following a Requestpossible, use its best efforts and in any event within one hundred twenty (120) days after the date the Demand Registration is given by the Requesting Shareholder, the effectiveness of the registration statement, in each case covering:
(i) subject to cause the restrictions set forth in Sections 2.01(e), all Registrable Securities for which the Requesting Shareholder has requested registration under this Section 2.01, and
(ii) subject to the restrictions set forth in Sections 2.01(e), all other Registrable Securities of the same class as those requested to be filed registered by the Requesting Shareholder that any other Shareholders (all such Shareholders, together with the SEC a Demand Registration Statement providing for Requesting Shareholder, the registration under “Registering Shareholders”), if any, have requested the Securities Act Company to register pursuant to this Section 2.01, by request received by the Company within seven Business Days after such Shareholders receive the Company’s notice of the Registrable Securities and the Pari Passu Securities which the Company has been so requested to register by Demand Registration, all such Holders and Pari Passu Holders, to the extent necessary to permit the disposition of such Registrable Securities so to be registered (in accordance with the intended methods thereof as aforesaid) of disposition thereof specified the Registrable Securities so to be registered, provided that, the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Registrable Securities requested to be included in such Request Demand Registration equals or further requests if exceeds $10,000,000. In no event shall the Company be required to effect more than two (2) Demand Registrations pursuant to this Section 2.01.
(b) Promptly after the expiration of the seven-Business Day period referred to in Section 2.01(a)(ii), the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Shareholder may revoke such request, without liability, by providing a notice to the Company revoking such request. Notwithstanding clause (d) below, a request, so requested. revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request) or (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) of such revoked request.
(c) The Company shall use its best efforts be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A Demand Registration shall not be deemed to have occurred unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registering Shareholders included in such registration have actually been sold thereunder), provided that a Demand Registration Statement declared effective shall not be deemed to have occurred if, after such registration statement becomes effective, such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court.
(e) If the Requesting Shareholder intends to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as soon as practicable thereafter and to keep such Demand Registration Statement continuously effective for the period specified in Section 4.1(b). The registration rights granted part of their request pursuant to section 2.01, and the provisions of this Section 2.2 Company shall be include such information in addition to the registration rights granted pursuant their notice to the other provisions Shareholders. If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder that, in its view, the number of shares of Registrable Securities requested to be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be included in such registration by all Registering Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis of the relative number of Registrable Securities held by each such Shareholder, or in such other proportion as shall mutually be agreed to by all such Registering Shareholders); and
(ii) second, any securities proposed to be registered by the Company (including for the benefit of any other Persons not party to this Agreement).
(f) The Company may postpone effecting a registration pursuant to this Section 22.01 on two occasions during any period of twelve consecutive months for a reasonable time specified in the notice but not exceeding 90 days in the aggregate in any period of twelve consecutive months (which period may not be extended or renewed), if the Company furnishes to the Requesting Shareholder a certificate signed by the Company’s chief executive officer stating that (i) effecting the registration would materially and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company or (ii) effecting the registration would require the premature disclosure of material information that the Company has a bona fide business purpose to preserve as confidential. In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.01 during the period that is thirty (30) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration (other than a registration on Form S-8 or any successor or similar forms), provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective.
Appears in 3 contracts
Samples: Registration Rights Agreement, Registration Rights Agreement (Sol-Gel Technologies Ltd.), Registration Rights Agreement (Sol-Gel Technologies Ltd.)
Demand Registration. (i) At any time on or after the two-year period for which the Shelf Registration referred to in paragraph (a) In addition to the rights provided in of this Section 2.13 is terminated, the Majority Holders shall have the right to request in writing that the Company register all or part of such Holders’ Registrable Securities that are not then registered by an effective Registration Statement (a “Request”) (which Request shall specify the amount any holder of Registrable Securities intended to be disposed holding Registrable Securities which represent at least 50% of by such Holders and the intended method of disposition thereof) by filing a Registration Statement with the SEC pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into a Form S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling shareholders (not underwriters) aggregate of all or such portion of the Registrable Securities (assuming conversion of all of the Notes held by such holders of Registrable Securities) may give written notice to the Company (x) of their intention to transfer all or part of the Registrable Securities held by them or obtained by conversion of Notes held by them and (y) requesting the registration of said Registrable Securities (a “"Demand Registration”"); provided, howeverand thereupon, that the Company shall on no more than one occasion, as expeditiously as possible, (A) if the Company is not eligible provide written notice to register the all holders of Registrable Securities on Form S-3 who have not so requested registration, and allow such holders the opportunity to participate in such registration, and (B) use its best efforts to effect the registration of all such Registrable Securities under the Securities Act, such Registration Statement to become effective not later than three months from the Company date of such request under this paragraph (c)(i). Such Registration Statement shall be obligated remain effective until the first to register occur of (A) the sale of all of the Registrable Securities upon registered under such election only if Registration Statement or (B) the date one year following the date such Registration Statement was declared effective by the SEC.
(ii) If, at any time prior to the effectiveness of the Registration Statement referred to in Section 3(a)(i), the holders of Registrable Securities holding in the aggregate a majority of the Registrable Securities subject to be registered, in the aggregate, constitute 10% or more of the then-outstanding Registrable Securities that are not registered under an effective Registration Statement, and (B) if the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Actsuch registration, the Company shall be obligated promptly withdraw such Registration Statement prior to register its effectiveness. Any holders of Registrable Securities holding Registrable Securities which represent at least 50% of the aggregate of all of the Registrable Securities (assuming conversion of all of the Notes held by such holders of Registrable Securities) shall have the opportunity to again request registration pursuant to Section 3(a)(i) upon such election; provided, that (i) there shall not be more than one such request during each reimbursement to the Company of all of the Company’s fiscal quarterly periods and (ii) 's out-of-pocket expenses incurred in connection with the Registrable Securities to be registered must include at least 1,000,000 Common Sharespreparation of such withdrawn Registration Statement, orand, in the aggregate, have an anticipated offering price, net of underwriting discounts and commissions, of more than $5,000,000, calculated in accordance with Rule 457(c) under the Securities Act on the business day preceding upon such Request.
(b) As promptly as practicable, but no later than 10 days after receipt of a Requestreimbursement, the Company shall give written notice of comply with any such requested registration to all Holders of Registrable Securities and Pari Passu Holders of Pari Passu Securities. Subject to Section 2.2(c), the Company shall include in a Demand Registration (i) the Registrable Securities intended to be disposed of by the Initiating Holders and (ii) the Registrable Securities and Pari Passu Securities intended to be disposed of by any other Holder or Pari Passu Holder which shall have made a written request (which request shall specify the amount of Registrable Securities to be registered and the intended method of disposition thereof) to the Company for inclusion thereof in such registration within 20 days after the receipt of such written notice from the Company. The Company shall, as expeditiously as possible following a Request, use its best efforts to cause to be filed with the SEC a Demand Registration Statement providing for the registration under the Securities Act of the Registrable Securities and the Pari Passu Securities which the Company has been so requested to register by all such Holders and Pari Passu Holders, to the extent necessary to permit the disposition of such Registrable Securities so to be registered in accordance with the intended methods of disposition thereof specified in such Request or further requests if so requested. The Company shall use its best efforts to have such Demand Registration Statement declared effective by the SEC as soon as practicable thereafter and to keep such Demand Registration Statement continuously effective for the period specified in Section 4.1(b3(a)(i). The registration rights granted pursuant to the provisions of this Section 2.2 shall be in addition to the registration rights granted pursuant to the other provisions of this Section 2.
Appears in 3 contracts
Samples: Registration Rights Agreement (Regent Assisted Living Inc), Registration Rights Agreement (LTC Equity Holding Co Inc), Registration Rights Agreement (LTC Healthcare Inc)
Demand Registration. (a) In addition to the rights provided in Section 2.1, the Majority Holders shall have the right to request in writing that the Company register all or part Following receipt of such Holders’ Registrable Securities that are not then registered by an effective Registration Statement (a “Request”) (which Request shall specify the amount of Registrable Securities intended to be disposed of by such Holders and the intended method of disposition thereof) by filing a Registration Statement with the SEC pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into a Form S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling shareholders (not underwriters) of all or such portion of the Registrable Securities (a “Demand Registration”); provided, however, that (A) if the Company is not eligible to register the Registrable Securities on Form S-3 under the Securities ActNotice, the Company shall be obligated (subject to register the Registrable Securities upon such election only if the Registrable Securities to be registered, any rights set forth in the aggregate, constitute 10% or more of the then-outstanding Registrable Securities that are not registered under an effective Registration Statement, and (B) if the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election; provided, that Existing Stockholders’ Agreement):
(i) there shall not be more than one such request during each of the Company’s fiscal quarterly periods and (ii) the Registrable Securities to be registered must include at least 1,000,000 Common Shares, or, in the aggregate, have an anticipated offering price, net of underwriting discounts and commissions, of more than $5,000,000, calculated in accordance with Rule 457(c) under the Securities Act on the business day preceding such Request.
(b) As promptly as practicable, but no later than 10 days after receipt of a Request, the Company shall give written notice of such requested request for registration to all Holders of Registrable Securities and Pari Passu Holders within ten (10) days after receipt of Pari Passu Securities. Subject to Section 2.2(c), the Company shall include in a Demand Registration (i) the Registrable Securities intended to be disposed of by the Initiating Holders and Notice;
(ii) cause to be filed, as soon as practicable, but in any event within, for the filing of a Shelf Registration Statement, thirty (30) days of the date of delivery of the Demand Notice, a Registration Statement covering such Registrable Securities that the Company has been so requested to register by the Requesting Holders and Pari Passu Securities intended to be disposed of by any other Holder or Pari Passu Holder which shall have made a written request (which request shall specify the amount Holders of Registrable Securities to be registered and the intended method of disposition thereof) who make a request to the Company for inclusion thereof in such registration Company, within 20 fifteen (15) days after of the receipt mailing of such written notice from the Company. The Company shall’s notice referred to in Section 1.2(b)(i) hereof, as expeditiously as possible following a Requestthat their Registrable Securities also be registered, use its best efforts to cause to be filed with the SEC a Demand Registration Statement providing for the registration under the Securities Act of the such Registrable Securities and the Pari Passu Securities which the Company has been so requested to register by all such Holders and Pari Passu Holders, to the extent necessary to permit the disposition of such Registrable Securities so to be registered in accordance with the intended methods method of disposition thereof distribution specified in such Request or further requests if so requested. The Company shall Demand Notice;
(iii) use its best commercially reasonable efforts to have such Demand Registration Statement declared effective by the SEC as soon as practicable thereafter and thereafter, but in no event later than thirty (30) days or, if a Registration Statement is reviewed by the staff of the SEC, the Company shall use its commercially reasonable efforts to keep have such Registration Statement declared effected not later than sixty (60) days following the date of initial filing thereof with the SEC; and
(iv) if the Company shall have previously effected a Demand Registration Statement continuously effective for the period specified in Section 4.1(b). The registration rights granted pursuant to the provisions of this Section 2.2 1.2, the Company shall not be in addition required to the effect any registration rights granted pursuant to Section 1.2 until a period of one hundred eighty (180) days shall have elapsed from the other provisions effective date of this Section 2such previous registration statement.
Appears in 3 contracts
Samples: Registration Rights Agreement (AEON Biopharma, Inc.), Registration Rights Agreement (AEON Biopharma, Inc.), Registration Rights Agreement (AEON Biopharma, Inc.)
Demand Registration. (a) In addition Demand Registration Other Than on Form F-3 or Form S-3.
(i) Subject to the rights provided in Section 2.1terms of this Agreement, at any time or from time to time following the Majority Holders shall have date that is six (6) months after the right to closing of a Qualified IPO, any Holder(s) of at least 50% of the then outstanding Class A Registrable Securities (the “Class A Initiating Holder”) may request in writing that the Company register all or part effect a Registration on the stock exchange for the Qualified IPO. Upon receipt of such Holders’ a request, the Company shall (x) promptly give written notice of the proposed Registration to all the other Holders and (y) as soon as practicable, use its reasonable best efforts to cause the Registrable Securities specified in the request, together with any Registrable Securities of any Holder who requests in writing to join such Registration within fifteen (15) days after the Company’s delivery of written notice, to be Registered and/or qualified for sale and distribution in such jurisdiction as the Class A Initiating Holder may request. The Company shall be obligated to effect no more than two (2) Registrations pursuant to this Section 2.1(a)(i) that are have been declared and ordered effective, provided that if the sale of all of the Registrable Securities sought to be included pursuant to this Section 2.1(a)(i) is not consummated for any reason other than due to the action or inaction of the Class A Initiating Holder in such Registration, such Registration shall not be deemed to constitute one of the Registration rights granted pursuant to this Section 2.1(a)(i). The Company shall not be obligated to take any action to effect any Registration pursuant to this Section 2.1(a)(i) unless the aggregate proceeds from the offering that is the subject of the Registration exceeds US$10,000,000.
(ii) Subject to the terms of this Agreement, at any time or from time to time following the date that is six (6) months after the closing of a Qualified IPO, any Holder(s) of at least 30% of the then registered by an effective Registration Statement outstanding Series A Registrable Securities (a the “RequestSeries A Initiating Holder”) may request in writing that the Company effect a Registration on the stock exchange for the Qualified IPO. Upon receipt of such a request, the Company shall (which Request shall specify x) promptly give written notice of the amount of proposed Registration to all the other Holders and (y) as soon as practicable, use its reasonable best efforts to cause the Registrable Securities intended specified in the request, together with any Registrable Securities of any Holder who requests in writing to join such Registration within fifteen (15) days after the Company’s delivery of written notice, to be disposed Registered and/or qualified for sale and distribution in such jurisdiction as the Series A Initiating Holder may request. The Company shall be obligated to effect no more than two (2) Registrations pursuant to this Section 2.1(a)(ii) that have been declared and ordered effective, provided that if the sale of by all of the Registrable Securities sought to be included pursuant to this Section 2.1(a)(ii) is not consummated for any reason other than due to the action or inaction of the Series A Initiating Holder including the Registrable Securities in such Registration, such Registration shall not be deemed to constitute one of the Registration rights granted pursuant to this Section 2.1(a)(ii).
(iii) Subject to the terms of this Agreement, at any time or from time to time following the date that is six (6) months after the closing of a Qualified IPO, any Holder(s) of at least 30% of the then outstanding Series B Registrable Securities (the “Series B Initiating Holder”) may request in writing that the Company effect a Registration on the stock exchange for the Qualified IPO. Upon receipt of such a request, the Company shall (x) promptly give written notice of the proposed Registration to all the other Holders and (y) as soon as practicable, use its reasonable best efforts to cause the intended method Registrable Securities specified in the request, together with any Registrable Securities of disposition thereofany Holder who requests in writing to join such Registration within fifteen (15) by filing days after the Company’s delivery of written notice, to be Registered and/or qualified for sale and distribution in such jurisdiction as the Series B Initiating Holder may request. The Company shall be obligated to effect no more than two (2) Registrations pursuant to this Section 2.1(a)(iii) that have been declared and ordered effective, provided that if the sale of all of the Registrable Securities sought to be included pursuant to this Section 2.1(a)(iii) is not consummated for any reason other than due to the action or inaction of the Series B Initiating Holder including the Registrable Securities in such Registration, such Registration shall not be deemed to constitute one of the Registration rights granted pursuant to this Section 2.1(a)(iii).
(iv) Subject to the terms of this Agreement, at any time or from time to time following the date that is six (6) months after the closing of a Qualified IPO, any Holder(s) of at least 30% of the then outstanding Series C Registrable Securities (the “Series C Initiating Holder”) may request in writing that the Company effect a Registration on the stock exchange for the Qualified IPO. Upon receipt of such a request, the Company shall (x) promptly give written notice of the proposed Registration to all the other Holders and (y) as soon as practicable, use its reasonable best efforts to cause the Registrable Securities specified in the request, together with any Registrable Securities of any Holder who requests in writing to join such Registration within fifteen (15) days after the Company’s delivery of written notice, to be Registered and/or qualified for sale and distribution in such jurisdiction as the Series C Initiating Holder may request. The Company shall be obligated to effect no more than two (2) Registrations pursuant to this Section 2.1(a)(iv) that have been declared and ordered effective, provided that if the sale of all of the Registrable Securities sought to be included pursuant to this Section 2.1(a)(iv) is not consummated for any reason other than due to the action or inaction of the Series C Initiating Holder including the Registrable Securities in such Registration, such Registration shall not be deemed to constitute one of the Registration rights granted pursuant to this Section 2.1(a)(iv).
(v) Subject to the terms of this Agreement, at any time or from time to time following the date that is six (6) months after the closing of a Qualified IPO, any Holder(s) of at least 50% of the then outstanding Series D Registrable Securities (the “Series D Initiating Holder”) may request in writing that the Company effect a Registration on the stock exchange for the Qualified IPO. Upon receipt of such a request, the Company shall (x) promptly give written notice of the proposed Registration to all the other Holders and (y) as soon as practicable, use its reasonable best efforts to cause the Registrable Securities specified in the request, together with any Registrable Securities of any Holder who requests in writing to join such Registration within fifteen (15) days after the Company’s delivery of written notice, to be Registered and/or qualified for sale and distribution in such jurisdiction as the Series D Initiating Holder may request. The Company shall be obligated to effect no more than two (2) Registrations pursuant to this Section 2.1(a)(v) that have been declared and ordered effective, provided that if the sale of all of the Registrable Securities sought to be included pursuant to this Section 2.1(a)(v) is not consummated for any reason other than due to the action or inaction of the Series D Initiating Holder including the Registrable Securities in such Registration, such Registration shall not be deemed to constitute one of the Registration rights granted pursuant to this Section 2.1(a)(v). The Company shall not be obligated to take any action to effect any Registration pursuant to this Section 2.1(a)(v) unless the aggregate proceeds from the offering that is the subject of the Registration exceeds US$10,000,000.
(vi) Subject to the terms of this Agreement, at any time or from time to time following the date that is six (6) months after the closing of a Qualified IPO, any Holder(s) of at least 30% of the then outstanding Series E Registrable Securities (the “Series E Initiating Holder”) may request in writing that the Company effect a Registration on the stock exchange for the Qualified IPO. Upon receipt of such a request, the Company shall (x) promptly give written notice of the proposed Registration to all the other Holders and (y) as soon as practicable, use its reasonable best efforts to cause the Registrable Securities specified in the request, together with any Registrable Securities of any Holder who requests in writing to join such Registration within fifteen (15) days after the Company’s delivery of written notice, to be Registered and/or qualified for sale and distribution in such jurisdiction as the Series E Initiating Holder may request. The Company shall be obligated to effect no more than two (2) Registrations pursuant to this Section 2.1(a)(vi) that have been declared and ordered effective, provided that if the sale of all of the Registrable Securities sought to be included pursuant to this Section 2.1(a)(vi) is not consummated for any reason other than due to the action or inaction of the Series E Initiating Holder in such Registration, such Registration shall not be deemed to constitute one of the Registration rights granted pursuant to this Section 2.1(a)(vi).
(b) Registration on Form F-3 or Form S-3. Subject to the terms of this Agreement, if the Company qualifies for registration on Form F-3 or Form S-3 (or any comparable form for Registration in a jurisdiction other than the U.S.), any Holder may request the Company to file, in any jurisdiction in which the Company has had a registered underwritten public offering, a Registration Statement with on Form F-3 or Form S-3 (or any comparable form for Registration in a jurisdiction other than the SEC U.S.), including without limitation any registration statement filed under the Securities Act providing for the registration of, and the sale on a continuous or a delayed basis by the Holders of, all of the Registrable Securities pursuant to Rule 415 under the Securities Act on Form S-3 under and/or any similar rule that may be adopted by the Securities Act (or in the event that Commission. Upon receipt of such a request, the Company is ineligible shall (i) promptly give written notice of the proposed Registration to all the other Holders and (ii) as soon as practicable, use such form, such other form as the Company is eligible its reasonable best efforts to use under the Securities Act provided that such other form shall be converted into a Form S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling shareholders (not underwriters) of all or such portion of cause the Registrable Securities (a “Demand Registration”); providedspecified in the request, however, that (A) if the Company is not eligible to register the together with any Registrable Securities on Form S-3 under of any Holder who requests in writing to join such Registration within fifteen (15) days after the Securities ActCompany’s delivery of written notice, to be Registered and qualified for sale and distribution in such jurisdiction. The Company’s obligation to effect Registrations pursuant to this Section 2.1(b) is unlimited. The Company shall not be obligated to take any action to effect any Registration pursuant to this Section 2.1(b) unless the aggregate proceeds from the offering that is the subject of the Registration exceeds US$5,000,000. The Company shall be obligated to register the Registrable Securities upon such election only if the Registrable Securities to be registered, in the aggregate, constitute 10% or more of the then-outstanding Registrable Securities that are not registered under an effective Registration Statement, and (B) if the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election; provided, that (i) there shall not be effect no more than one two (2) such request during each of the Company’s fiscal quarterly periods and (ii) the Registrable Securities to be registered must include at least 1,000,000 Common Shares, or, in the aggregate, have an anticipated offering price, net of underwriting discounts and commissions, of more than $5,000,000, calculated in accordance with Rule 457(c) under the Securities Act on the business day preceding such Request.
(b) As promptly as practicable, but no later than 10 days after receipt of a Request, the Company shall give written notice of such requested registration to all Holders of Registrable Securities and Pari Passu Holders of Pari Passu Securities. Subject to Section 2.2(c), the Company shall include in a Demand Registration (i) the Registrable Securities intended to be disposed of by the Initiating Holders and (ii) the Registrable Securities and Pari Passu Securities intended to be disposed of by any other Holder or Pari Passu Holder which shall have made a written request (which request shall specify the amount of Registrable Securities to be registered and the intended method of disposition thereof) to the Company for inclusion thereof in such registration within 20 days after the receipt of such written notice from the Company. The Company shall, as expeditiously as possible following a Request, use its best efforts to cause to be filed with the SEC a Demand Registration Statement providing for the registration under the Securities Act of the Registrable Securities and the Pari Passu Securities which the Company has been so requested to register by all such Holders and Pari Passu Holders, to the extent necessary to permit the disposition of such Registrable Securities so to be registered in accordance with the intended methods of disposition thereof specified in such Request or further requests if so requested. The Company shall use its best efforts to have such Demand Registration Statement declared effective by the SEC as soon as practicable thereafter and to keep such Demand Registration Statement continuously effective for the period specified in Section 4.1(b). The registration rights granted Registrations pursuant to the provisions of this Section 2.2 shall be 2.1(b) in addition to the registration rights granted pursuant to the other provisions of this Section 2any twelve (12) month period.
Appears in 3 contracts
Samples: Investors’ Rights Agreement (eHi Car Services LTD), Investors’ Rights Agreement (eHi Car Services LTD), Investors’ Rights Agreement (eHi Car Services LTD)
Demand Registration. (a) In addition At any time and from time to time on or after the rights provided in Section 2.1date that is not less than 180 days after the Effective Date, upon the Majority Holders shall have the right to written request in writing that the Company register all or part of such Holders’ Registrable Securities that are not then registered by an effective Registration Statement (a “Request”) (which Request shall specify the amount of Registrable Securities intended to be disposed of by such Holders and the intended method of disposition thereof) by filing a Registration Statement with the SEC pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into a Form S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling shareholders (not underwriters) of all or such portion of the Registrable Securities (a “Demand RegistrationNotice”); provided, however, ) of the Required Investors requesting that (A) if the Company is not eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election only if the Registrable Securities to be registered, in the aggregate, constitute 10% or more of the then-outstanding Registrable Securities that are not registered under an effective Registration Statement, and (B) if the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election; provided, that (i) there shall not be more than one such request during each of the Company’s fiscal quarterly periods and (ii) the Registrable Securities to be registered must include at least 1,000,000 Common Shares, or, in the aggregate, have an anticipated offering price, net of underwriting discounts and commissions, of more than $5,000,000, calculated in accordance with Rule 457(c) under the Securities Act on the business day preceding such Request.
(b) As promptly as practicable, but no later than 10 days after receipt of a Request, the Company shall give written notice of such requested registration to all Holders of Registrable Securities and Pari Passu Holders of Pari Passu Securities. Subject to Section 2.2(c), the Company shall include in a Demand Registration (i) the Registrable Securities intended to be disposed of by the Initiating Holders and (ii) the Registrable Securities and Pari Passu Securities intended to be disposed of by any other Holder or Pari Passu Holder which shall have made a written request (which request shall specify the amount of Registrable Securities to be registered and the intended method of disposition thereof) to the Company for inclusion thereof in such registration within 20 days after the receipt of such written notice from the Company. The Company shall, as expeditiously as possible following a Request, use its best efforts to cause to be filed with the SEC a Demand Registration Statement providing for effect the registration under the Securities Act of all or a portion of the Registrable Securities of such Investors (“Requesting Investors”), the Company shall promptly give notice of such requested registration (each such request shall be referred to herein as a “Demand Registration”) at least 10 Business Days prior to the anticipated filing date of the Registration Statement relating to such Demand Registration to the other Investors and to the Pari Passu holders of Other Registrable Securities and thereupon shall use its commercially reasonable efforts to effect, as expeditiously as possible, the registration under the Securities Act of (i) all Registrable Securities for which the Requesting Investors have requested registration under this Section 2(a), (ii) subject to the restrictions of Sections 2(e) and 3(d), all other Registrable Securities that any other Investors (all such Investors, the “Registering Investors”) request the Company has been so requested to register pursuant to Section 3(a) by request received by the Company within 5 Business Days after the Company gives notice of the Demand Registration, and (iii) subject to the restrictions of Sections 2(e) and 3(d), all Other Registrable Securities that any holders of Other Registrable Securities (all such Holders and Pari Passu holders, the “Other Registering Holders”) request the Company to register pursuant to Section 3(a) by request received by the Company within 5 Business Days after the Company gives notice of the Demand Registration, all to the extent necessary to permit the disposition of such Registrable Securities so to be registered (in accordance with the intended methods method of disposition thereof specified in such Request or further requests if as aforesaid) of the Registrable Securities to be so requested. The registered, provided that, the Company shall use its best efforts not be obligated to have effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Registrable Securities requested to be included in such Demand Registration by the Requesting Investors equals or exceeds $15,000,000. Each such Demand Notice will specify the number of Registrable Securities proposed to be offered for sale in aggregate and by each Requesting Investor and will also specify the intended method of distribution thereof.
(b) If a Demand Registration involves an Underwritten Offering the Required Investors shall select the lead Underwriter and any additional Underwriters in connection with such offering.
(c) Notwithstanding the foregoing provisions of this Section 2, the Investors may not request a Demand Offering during a period commencing upon the filing (or earlier, but not more than 30 days prior to such filing upon notice by the Company to the Investors that it so intends to file) of a Registration Statement for Common Stock by the Company (for its own account or for any other security holder) and ending (i) 90 days after such Registration Statement is declared effective by the SEC as soon as practicable thereafter and (or automatically becomes effective), (ii) upon the withdrawal of such Registration Statement or (iii) 30 days after such notice if no such Registration Statement has been filed within such 30-day period, whichever occurs first; provided that the foregoing limitation shall not apply if the Investors were not given reasonable opportunity, in violation of Section 3, to keep such include their Registrable Securities in the Demand Registration Statement. In no event shall the Company be required to effect more than one Demand Registration hereunder within any six-month period.
(d) The Requesting Investors are permitted to rescind a Demand Registration at any time. So long as the Investors theretofore participating in such rescinded Demand Registration reimburse the Company for all expenses (including reasonable fees and disbursements of counsel) incurred by the Company in connection with such rescinded Demand Registration, a rescinded Demand Registration will not count as a Demand Registration for purposes of determining when future Demand Registrations can be requested by the Required Investors pursuant to this Section 2 and any Registration Statement continuously effective related to such rescinded Demand Registration shall not affect when another Demand Registration may be requested by the Required Investors pursuant to the terms of this Agreement.
(e) If a Demand Registration involves an Underwritten Offering and any of the lead Underwriters advises the Company that, in its view, the total number or dollar amount of Registrable Securities and Other Registrable Securities requested to be included in the registration exceeds the number or dollar amount of securities that can be sold without having an adverse effect on such offering, including the price at which such securities can be sold (the “Maximum Offering Size”), the Company will include the securities in the registration, in the following order of priority, up to the Maximum Offering Size: (i) first, all Registrable Securities requested to be registered by the Registering Investors allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Registering Investors on the basis of the relative number of Registrable Securities so requested to be included in such registration by each Registering Investor; (ii) second, all Other Registrable Securities requested to be included in such registration by any Other Registering Holder, pro rata among such Other Registering Holders on the basis of the relative number of Other Registrable Securities so requested to be included in such registration by each Other Registering Holder; and (iii) third, any securities proposed to be registered by the Company or for the account of any other third party. All persons whose securities are included in the Demand Registration must sell their securities on the same terms and conditions as apply to the securities being sold by Requesting Investors.
(f) Upon notice to the Requesting Investors, the Company may postpone effecting a registration pursuant to this Section 2 on up to two occasions during any period of 12 consecutive months for a reasonable time specified in the notice but not exceeding 90 days in the aggregate, if the Company is in possession of material non-public information the disclosure of which during the period specified in Section 4.1(b). The registration rights granted such notice the Company reasonably believes would not be in the best interests of the Company.
(g) A Demand Offering and related Registration Statement will not count as a Demand Offering for purposes of determining when future Demand Offerings can be requested by the Required Investors pursuant to the provisions of this Section 2.2 shall be 2 if (i) the Registration Statement relating to such Demand Offering does not become effective within 90 calendar days after the date such Registration Statement is filed with the SEC (other than by reason of any Required Investor having refused to proceed or a misrepresentation or an omission by any Required Investor) or (ii) the conditions to closing specified in addition to any underwriting agreement or purchase agreement entered into in connection with such Demand Offering are not satisfied as a result of a default or breach thereunder by the registration rights granted pursuant to the other provisions of this Section 2Company.
Appears in 3 contracts
Samples: Registration Rights Agreement (Kadmon Holdings, Inc.), Exchange Agreement (Kadmon Holdings, LLC), Registration Rights Agreement (Kadmon Holdings, LLC)
Demand Registration. (a) In addition Subject to the rights provided provisions of Section 5.2(d) and Section 5.2(e), if at any time after the earlier of four years after the Initial Closing (as defined in Section 2.1the Series E Stock Purchase Agreement) or 180 days after the date the Company first consummates a Public Offering on Form S-1 or Form SB-2, or any successor forms, the Majority Holders Company shall have receive a written request therefor from the right to request in writing that the Company register all record holder or part holders of such Holders’ Registrable Securities that are not then registered by an effective Registration Statement (a “Request”) (which Request shall specify the amount aggregate of Registrable Securities intended to be disposed of by such Holders and the intended method of disposition thereof) by filing a Registration Statement with the SEC pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into a Form S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling shareholders (not underwriters) of all or such portion more than 33% of the Registrable Securities (the “Initiating Holders”), the Company shall prepare and file a “Demand Registration”registration statement under the Securities Act covering such number of Registrable Securities as are the subject of such request, provided that such Registrable Securities have an anticipated net aggregate offering price in excess of five million dollars ($5,000,000), and shall use its best efforts to cause such registration statement to become effective. Upon the receipt of a registration request meeting the requirements of this Section 5.2(a), the Company shall promptly give written notice to all other record holders of Registrable Securities that such registration is to be effected. The Company shall include in such registration statement such additional Registrable Securities as such other record holders request within thirty (30) days after the date of the Company’s written notice to them. If (i) the holders of a majority of the Registrable Securities for which registration has been requested pursuant to this Section 5.2(a) and the holders of a majority of the shares of Registrable Securities held by the Initiating Holders determine for any reason not to proceed with the registration at any time before the related registration statement has been declared effective by the Commission, (ii) such registration statement, if theretofore filed with the Commission, is withdrawn and (iii) the holders of the Registrable Securities subject to such registration statement agree to bear their own Registration Expenses incurred in connection therewith and to reimburse the Company for the Registration Expenses incurred by it in such connection or if such registration statement, if theretofore filed with the Commission, is withdrawn at the initiative of the Company, then the holders of the Registrable Securities shall not be deemed to have exercised one of their two demand registration rights pursuant to this Section 5.2(a); provided, however, that (A) if the holders of Registrable Securities requesting registration shall not be required to reimburse the Company is not eligible to register for the Registrable Securities on Form S-3 under Registration Expenses incurred by it in connection with a registration withdrawn at the Securities Actrequest of such holders, and the Company shall not be obligated deemed to register have prepared, filed or caused to be effective the Registrable Securities upon such election only registration within the meaning of Section 5.2(c), if the holders requesting withdrawal of the registration do so in good faith because of material adverse information regarding the Company of which they became aware after requesting registration.
(b) At the request of the holders of a majority of the Registrable Securities to be registered, in the aggregate, constitute 10% or more method of the then-outstanding disposition of all Registrable Securities that are not registered included in a registration under Section 5.2(a) shall be an effective Registration Statement, and (B) if underwritten offering. The managing underwriter of any such offering shall be selected by the Company is eligible to register holders of a majority of the Registrable Securities on Form S-3 under for which registration has been requested and shall be reasonably acceptable to the Company. If in the good faith judgment of the managing underwriter of the Public Offering, the inclusion of all of the Registrable Securities Actthe registration of which has been requested would interfere with their successful marketing, the number of Registrable Securities to be included in the offering shall be reduced, pro rata, among the requesting holders thereof in proportion to the number of Registrable Securities included in their respective requests for registration. Neither the Company nor any holder of securities (other than Registrable Securities) of the Company shall have the right to include any securities in a registration statement to be obligated filed as part of a demand registration pursuant to register this Section 5.2(a) or Section 5.4 unless (i) such securities are of the same class as the Registrable Securities upon such election; providedto be included in the registration (or another class of securities to be sold by the Company for its own account), that (i) there shall not be more than one such request during each of the Company’s fiscal quarterly periods and (ii) the holders of a majority of the Registrable Securities to be registered must include at least 1,000,000 Common Sharesconsent to such inclusion in writing, or(iii) if such registration is an underwritten offering, the Company and such other holders agree in writing to sell their securities on the same terms and conditions as apply to the Registrable Securities being sold pursuant to the request for registration and (iv) the inclusion of such securities will not, in the aggregatejudgment of any managing underwriter of the Offering, have an anticipated offering price, net interfere with the successful marketing of underwriting discounts and commissions, of more than $5,000,000, calculated in accordance with Rule 457(c) under the Securities Act on the business day preceding such RequestRegistrable Securities.
(bc) As promptly The Company shall be obligated to prepare, file and cause to be effective only two registration statements pursuant to Section 5.2(a).
(d) Notwithstanding the foregoing, the Company may delay initiating the preparation and filing of any registration statement requested pursuant to Section 5.2(a) for a period not to exceed one hundred twenty (120) days if (i) in the good faith judgment of the Company’s Board of Directors effecting the registration would substantially interfere with any material transaction being considered at the time of receipt of the request from the Initiating Holders or (ii) a request for registration is received during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of, and ending on a date one hundred eighty (180) days following the effective date of, a Company-initiated registration as practicableto which holders of Registrable Securities may include Registrable Securities pursuant to Section 5.3 below, but no later provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective and provided further that such right under subsection (i) to delay a request shall be exercised by the Company not more than 10 once in any 12-month period.
(e) Notwithstanding anything to the contrary contained herein, and without limitation as to the rights of the Company to include in a demand registration securities for sale for its own account as provided in Section 5.2(a), at any time within thirty (30) days after receipt receiving a demand for registration, the Company may elect to effect an underwritten primary registration in lieu of a Requestthe requested registration. If the Company so elects, the Company shall give prompt written notice of such requested registration to all Holders holders of Registrable Securities of its intention to effect such a registration and Pari Passu Holders of Pari Passu Securitiesshall afford such holders the rights contained in Section 5.3 with respect to “piggyback” registrations. Subject to Section 2.2(c)In such event, the Company demand for registration shall include in a Demand Registration (i) the Registrable Securities intended to be disposed of by the Initiating Holders and (ii) the Registrable Securities and Pari Passu Securities intended to be disposed of by any other Holder or Pari Passu Holder which shall have made a written request (which request shall specify the amount of Registrable Securities to be registered and the intended method of disposition thereof) to the Company for inclusion thereof in such registration within 20 days after the receipt of such written notice from the Company. The Company shall, as expeditiously as possible following a Request, use its best efforts to cause to be filed with the SEC a Demand Registration Statement providing for the registration under the Securities Act of the Registrable Securities and the Pari Passu Securities which the Company has been so requested to register by all such Holders and Pari Passu Holders, to the extent necessary to permit the disposition of such Registrable Securities so to be registered in accordance with the intended methods of disposition thereof specified in such Request or further requests if so requested. The Company shall use its best efforts deemed to have such Demand Registration Statement declared effective by been withdrawn without reducing the SEC as soon as practicable thereafter and to keep such Demand Registration Statement continuously effective for the period specified in number of demand registrations remaining available under Section 4.1(b5.2(c). The registration rights granted pursuant to the provisions of this Section 2.2 shall be in addition to the registration rights granted pursuant to the other provisions of this Section 2.
Appears in 3 contracts
Samples: Investors’ Rights Agreement (Salient Surgical Technologies, Inc.), Investors’ Rights Agreement (Salient Surgical Technologies, Inc.), Investors’ Rights Agreement (Salient Surgical Technologies, Inc.)
Demand Registration. (a) In addition to If the rights provided in Section 2.1Company shall receive a written request from the DLJMB Stockholders (such requesting person, the Majority Holders shall have the right to request in writing “Requesting Stockholder”) that the Company register all or part of such Holders’ Registrable Securities that are not then registered by an effective Registration Statement (a “Request”) (which Request shall specify the amount of Registrable Securities intended to be disposed of by such Holders and the intended method of disposition thereof) by filing a Registration Statement with the SEC pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into a Form S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling shareholders (not underwriters) of all or such portion of the Registrable Securities (a “Demand Registration”); provided, however, that (A) if the Company is not eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election only if the Registrable Securities to be registered, in the aggregate, constitute 10% or more of the then-outstanding Registrable Securities that are not registered under an effective Registration Statement, and (B) if the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election; provided, that (i) there shall not be more than one such request during each of the Company’s fiscal quarterly periods and (ii) the Registrable Securities to be registered must include at least 1,000,000 Common Shares, or, in the aggregate, have an anticipated offering price, net of underwriting discounts and commissions, of more than $5,000,000, calculated in accordance with Rule 457(c) under the Securities Act on the business day preceding such Request.
(b) As promptly as practicable, but no later than 10 days after receipt of a Request, the Company shall give written notice of such requested registration to all Holders of Registrable Securities and Pari Passu Holders of Pari Passu Securities. Subject to Section 2.2(c), the Company shall include in a Demand Registration (i) the Registrable Securities intended to be disposed of by the Initiating Holders and (ii) the Registrable Securities and Pari Passu Securities intended to be disposed of by any other Holder or Pari Passu Holder which shall have made a written request (which request shall specify the amount of Registrable Securities to be registered and the intended method of disposition thereof) to the Company for inclusion thereof in such registration within 20 days after the receipt of such written notice from the Company. The Company shall, as expeditiously as possible following a Request, use its best efforts to cause to be filed with the SEC a Demand Registration Statement providing for effect the registration under the Securities Act of all or any portion of such Requesting Stockholder’s Registrable Securities, and specifying the intended method of disposition thereof, then the Company shall promptly give notice of such requested registration (each such request shall be referred to herein as a “Demand Registration”) at least fifteen (15) Business Days prior to the anticipated filing date of the registration statement relating to such Demand Registration to the other Stockholders and thereupon shall use its best efforts to effect, as expeditiously as possible, the registration under the Securities Act of:
(i) all Registrable Securities and the Pari Passu Securities for which the Requesting Stockholders have requested registration under this Section 1.01, and
(ii) subject to the restrictions set forth in Sections 1.01(e) and 1.02, all other Registrable Securities of the same class as those requested to be registered by the Requesting Stockholders that any Stockholders with rights to request registration under Section 1.02 (all such Stockholders, together with the Requesting Stockholders, the “Registering Stockholders”) have requested the Company has been so requested to register by request received by the Company within ten (10) Business Days after such Stockholders receive the Company’s notice of the Demand Registration, all such Holders and Pari Passu Holders, to the extent necessary to permit the disposition of such Registrable Securities so to be registered (in accordance with the intended methods thereof as aforesaid) of disposition thereof specified the Registrable Securities so to be registered; provided that, subject to Section 1.01(d) hereof, the Company shall not be obligated to effect (x) more than six Demand Registrations, (y) more than one Demand Registration during any four-month period, or (z) any Demand Registration unless the aggregate gross proceeds expected to be received from the sale of the Registrable Securities requested to be included by all Registering Stockholders in such Request or further requests if so requestedDemand Registration are at least $20 million in any Demand Registration other than the Initial Public Offering.
(b) Promptly after the expiration of the ten (10) Business Day period referred to in Section 1.01(a)(ii) hereof, the Company will notify all Registering Stockholders of the identities of the other Registering Stockholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Stockholders may revoke such request, without liability to any of the other Registering Stockholders, by providing a notice to the Company revoking such request.
(c) The Company shall use its best efforts to have be liable for and pay all Registration Expenses in connection with each Demand Registration, regardless of whether such Demand Registration Statement declared is effected.
(d) A Demand Registration shall not be deemed to have occurred:
(i) unless the registration statement relating thereto (A) has become effective under the Securities Act and (B) has remained effective for a period of at least 120 days (or such shorter period in which all Registrable Securities of the Registering Stockholders included in such registration have actually been sold thereunder), provided that such registration statement shall not be considered a Demand Registration if, after such registration statement becomes effective, (1) such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court and (2) less than 75% of the Registrable Securities included in such registration statement have been sold thereunder; or
(ii) if the Maximum Offering Size (as defined below) is reduced in accordance with Section 1.01(e) such that less than 50% of the Registrable Securities of the Requesting Stockholders sought to be included in such registration are included.
(e) If a Demand Registration involves a Public Offering and the managing underwriter advises the Company and the Requesting Stockholders that, in its view, the number of Company Securities that the Registering Stockholders and the Company propose to include in such registration exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be registered by the SEC as soon as practicable thereafter and to keep such Demand Registration Statement continuously effective Registering Stockholders (allocated, if necessary for the period specified offering not to exceed the Maximum Offering Size, pro rata among such Members on the basis of the relative number of Registrable Securities so requested to be included in Section 4.1(bsuch registration by each). The registration rights granted pursuant ; and
(ii) second, all Registrable Securities proposed to be registered by the provisions of this Section 2.2 shall be in addition to the registration rights granted pursuant to the other provisions of this Section 2Company.
Appears in 3 contracts
Samples: Registration Rights Agreement (STR Holdings LLC), Registration Rights Agreement (STR Holdings LLC), Registration Rights Agreement (STR Holdings (New) LLC)
Demand Registration. (a) In addition to At any time from the rights provided in Section 2.1earlier of (i) six (6) months following the completion of an IPO or (ii) the third (3rd) anniversary of the date of this Agreement, if the Majority Holders representing at least a majority of the Registrable Shares then outstanding (the “Initiating Holders”) shall have the right to request state in writing that such Holders desire to sell Registrable Shares in the public securities markets and request the Company register all or part of such Holders’ Registrable Securities that are not then registered by an effective Registration Statement (a “Request”) (which Request shall specify to effect the amount registration of Registrable Securities intended to be disposed of by such Holders and the intended method of disposition thereof) by filing a Registration Statement with the SEC pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into a Form S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling shareholders (not underwriters) of all or such portion of the Registrable Securities (a “Demand Registration”); provided, however, that (A) if the Company is not eligible to register the Registrable Securities on Form S-3 Shares under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election only if the Registrable Securities to be registered, in the aggregate, constitute 10% or more of the then-outstanding Registrable Securities that are not registered under an effective Registration Statement, and (B) if the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election; provided, that (i) there shall not be more than one such request during each of the Company’s fiscal quarterly periods and (ii) the Registrable Securities to be registered must include at least 1,000,000 Common Shares, or, in the aggregate, have an anticipated offering price, net of underwriting discounts and commissions, of more than $5,000,000, calculated in accordance with Rule 457(c) under the Securities Act on the business day preceding such Request.
(b) As promptly as practicable, but no later than 10 days after receipt of a Request, the Company shall give written notice of such requested registration to all Holders of Registrable Securities and Pari Passu Holders of Pari Passu Securities. Subject to Section 2.2(c), the Company shall include in a Demand Registration (i) the Registrable Securities intended to be disposed of by the Initiating Holders and (ii) the Registrable Securities and Pari Passu Securities intended to be disposed of by any other Holder or Pari Passu Holder which shall have made a written request (which request shall specify the amount of Registrable Securities to be registered and the intended method of disposition thereof) to the Company for inclusion thereof in such registration within 20 days after the receipt of such written notice from the Company. The Company shall, as expeditiously as possible following a Request, use its best efforts to cause to be filed with the SEC a Demand Registration Statement providing for effect the registration under the Securities Act of the Registrable Securities and the Pari Passu Securities Shares which the Company has been so requested to register by all such Holders and Pari Passu the Holders. For the avoidance of doubt, the Company shall not be required to register the sale or re-sale of any True-Up Shares or Conversion True-Up Shares in an IPO.
(b) Notwithstanding anything contained in this Section 2 to the extent necessary contrary, the Company shall not be obligated to permit effect any registration under the disposition of such Registrable Securities so to be registered Act except in accordance with the intended methods of disposition thereof specified in such Request or further requests if so requested. following provisions:
(i) The Company shall not be obligated to use its best efforts to have such Demand Registration Statement file and cause to become effective (A) more than two (2) long-form registration statements initiated pursuant to Section 2(a) (other than those on form S-3 as set forth in Section 4) at the Company’s expense; (B) more than two (2) long-form registration statements initiated pursuant to Section 2(a) at the Holders’ expense; (C) any demand registration statement pursuant to Section 2(a) with an anticipated aggregate offering price of less than $10,000,000; nor (D) any registration statement during any period in which any other registration statement (other than on Form S-8 promulgated under the Securities Act or any successor form thereto) pursuant to which Primary Shares are to be or were sold has been filed and not withdrawn or has been declared effective within the prior one hundred eighty (180) days.
(ii) The Company may delay the filing or effectiveness of any registration statement for a period of up to ninety (90) days after the date of a request for registration pursuant to this Section 2 if at the time of such request the Company furnishes to the Holders requesting such registration statement pursuant to this Section 2, a certificate signed by the SEC as soon as practicable thereafter and Chief Executive Officer of the Company stating that (i) the Company is engaged, or has fixed plans to keep engage within thirty (30) days of the time of such Demand Registration Statement continuously effective for request, in a firm commitment underwritten public offering of Primary Shares in which the period specified in Section 4.1(b). The registration rights granted holders of Registrable Shares may include Registrable Shares pursuant to Section 3 or (ii) the provisions Board has reasonably determined in its good faith judgment that it would be seriously detrimental to the Company and its stockholders for such registration statement to be filed, provided, however, that the Company may only delay the filing or effectiveness of a registration statement pursuant to this Section 2.2 shall be in addition to 2(b) for a total of one hundred and twenty (120) days after the date of a request for registration rights granted pursuant to the other provisions of this Section 2.
(iii) With respect to any registration pursuant to this Section 2, the Company shall give notice of such registration to all Holders that are not Initiating Holders and the holders of all Other Shares that are entitled to registration rights and the Company may include in such registration any Primary Shares or Other Shares and shall include all Registrable Shares that Holders that are not Initiating Holders request to be registered within 20 days of the mailing of the foregoing notice by the Company; provided, however, that if the managing underwriter advises the Company that the inclusion of all Registrable Shares, Primary Shares and/or Other Shares proposed to be included in such registration would interfere with the successful marketing (including pricing) of the Registrable Shares proposed to be included in such registration, then the number of Registrable Shares, Primary Shares and/or Other Shares proposed to be included in such registration shall be included in the following order:
(A) first, all the Registrable Shares that are issued or issuable upon conversion of the Series B Preferred Stock and any True-Up Shares (collectively, “Series B Registrable Shares”), subject to the last sentence of Section 2(a), requested to be included in such registration (or, if necessary, such Series B Registrable Shares pro rata among the Holders thereof based upon the number of Series B Registrable Shares requested to be registered by each such Holder);
(B) second, all the Registrable Shares that are not Series B Registrable shares (“Non-Series B Registrable Shares”) requested to be included in such registration (or, if necessary, such Non-Series B Registrable Shares pro rata among the Holders thereof based upon the number of Non-Series B Registrable Shares requested to be registered by each such Holder);
(C) third, the Primary Shares; and
(D) fourth, the Other Shares that are entitled to registration rights requested to be included in such registration (or, if necessary, such Other Shares pro rata among the holders thereof based upon the number of Other Shares requested to be registered by each such holder).
(iv) If the Initiating Holders so elect, the offering of such Registrable Shares pursuant to such registration shall be in the form of an underwritten offering. The Initiating Holders shall, at their option, select one or more nationally prominent firms of investment bankers reasonably acceptable to the Company to act as the lead managing underwriter or underwriters in connection with such offering. In such event, the right of any Person to include such Person’s Registrable Shares or Other Shares in such registration shall be conditioned upon such Person’s participation in such underwriting. All Holders proposing to distribute their securities through such underwriting shall (together with the Company) enter into an underwriting agreement in customary form with the underwriter(s) selected for such underwriting.
Appears in 3 contracts
Samples: Registration Rights Agreement (Aspen Aerogels Inc), Registration Rights Agreement (Aspen Aerogels Inc), Registration Rights Agreement (Aspen Aerogels Inc)
Demand Registration. (a) In addition to Any Holder(s) of Registrable Securities (the rights provided in Section 2.1, the Majority Holders “Initiating Holder”) shall have the right to request in writing that the Company register file a Registration Statement, on behalf of itself or, in the case of any member of the Shareholder Group, on behalf of any other member of the Shareholder Group, with the SEC on the appropriate registration form for all or part of such Holders’ the Registrable Securities that are not then registered held by an effective Registration Statement (such Initiating Holder, by delivering a “Request”) (which Request shall specify written request thereof to the amount Company specifying the number of shares of Registrable Securities intended such Initiating Holder wishes to be disposed of by such Holders and the intended method of disposition thereof) by filing a Registration Statement with the SEC pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into a Form S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling shareholders (not underwriters) of all or such portion of the Registrable Securities register (a “Demand Registration”); provided, however, that the anticipated aggregate number of Company Ordinary Shares subject to such Demand Registration exceeds 2% of the total issued and outstanding Company Shares. The Company shall (Ai) within five (5) Business Days of the receipt of a Demand Registration, give written notice of such Demand Registration to all Holders of Registrable Securities, (ii) use its reasonable best efforts to prepare and file the Registration Statement as expeditiously as possible but in any event within 45 days of such request, and (iii) use reasonable best efforts to cause the Registration Statement to become effective in respect of each Demand Registration in accordance with the intended method of distribution set forth in the written request delivered by the Initiating Holder; provided, however, that the Company shall not be required to cause such Registration Statement to become effective prior to the Listing Date. The Company shall include in such Registration all Registrable Securities with respect to which the Company receives, within the five (5) Business Days immediately following the receipt by the Holder(s) of such notice from the Company, a request for inclusion in the Registration from the Holder(s) thereof. Each such request from a Holder of Registrable Securities for inclusion in the Registration shall also specify the aggregate amount of Registrable Securities proposed to be Registered. The Initiating Holder may request that the Registration Statement be on any appropriate form, including Form F-4 in the case of an Exchange Offer or a Shelf Registration Statement, and the Company shall effect the Registration on the form so requested.
(b) The Holder(s) may collectively make a total of six (6) Demand Registration requests pursuant to Section 2.01(a) (including any exercise of rights to Demand Registration transferred pursuant to Section 3.08); provided that the Holder(s) may not make more than two (2) Demand Registration requests in any 365-day period.
(c) The Company shall be deemed to have effected a Registration for purposes of this Section 2.01 if the Registration Statement is declared effective by the SEC or becomes effective upon filing with the SEC and remains effective until the earlier of (i) the date when all Registrable Securities thereunder have been Sold and (ii) 60 days from the effective date of the Registration Statement (or from the date the applicable Prospectus is filed with the SEC if the Company is satisfying a request for a Demand Registration by filing a Prospectus under an effective Shelf Registration Statement) (the “Registration Period”). No Registration shall be deemed to have been effective if the conditions to closing specified in the underwriting agreement or dealer manager agreement, if any, entered into in connection with such Registration are not eligible satisfied by reason of a wrongful act, misrepresentation or breach of such applicable underwriting agreement or dealer manager agreement by the Company. If during the Registration Period, such Registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other Governmental Entity or the need to register update or supplement the Registration Statement, the Registration Period shall be extended on a day-for-day basis for any period in which the Holders are unable to complete an offering as a result of such stop order, injunction or other order or requirement of the SEC or other Governmental Entity.
(d) With respect to any Registration Statement, whether filed or to be filed pursuant to this Agreement, if the Company shall reasonably determine, upon the advice of legal counsel, that maintaining the effectiveness of such Registration Statement or filing an amendment or supplement thereto (or, if no Registration Statement has yet been filed, filing such a Registration Statement) would require the public disclosure of material nonpublic information concerning any transaction or negotiations involving the Company or any of its consolidated Subsidiaries that would materially interfere with such transaction or negotiations (a “Disadvantageous Condition”), the Company may, for the shortest period reasonably practicable, and in any event for not more than 60 consecutive calendar days (a “Blackout Period”), notify the Holders whose offers and Sales of Registrable Securities are covered (or to be covered) by such Registration Statement (a “Blackout Notice”) that such Registration Statement is unavailable for use (or will not be filed as requested). Upon the receipt of any such Blackout Notice, the Holders shall forthwith discontinue use of the Prospectus contained in any effective Registration Statement; provided, that, if at the time of receipt of such Blackout Notice any Holder shall have Sold its Registrable Securities (or have signed a firm commitment underwriting agreement with respect to the purchase of such shares) and the Disadvantageous Condition is not of a nature that would require a post-effective amendment to the Registration Statement, then the Company shall use its commercially reasonable efforts to take such action as to eliminate any restriction imposed by federal securities laws on Form S-3 under the Securities Acttimely delivery of such Registrable Securities. When any Disadvantageous Condition as to which a Blackout Notice has been previously delivered shall cease to exist, the Company shall as promptly as reasonably practicable notify the Holders and take such actions in respect of such Registration Statement as are otherwise required by this Agreement. The effectiveness period for any Demand Registration for which the Company has given notice of a Blackout Period shall be obligated to register increased by the Registrable Securities upon length of time of such election only if Blackout Period. In connection with the Registrable Securities to be registeredCompany’s Registration obligation under this Section 2.01 and Section 2.03, Section 2.04 and Section 2.05, the Company shall not impose, in any 365-day period, Blackout Periods more than twice, and any such Blackout Periods may not last, in the aggregate, constitute 10% or more in excess of the then90 calendar days during such 365-outstanding Registrable Securities that are not registered under an effective Registration Statement, and (B) if day period. If the Company is eligible declares a Blackout Period with respect to register the Registrable Securities on Form S-3 under the Securities Acta Demand Registration for a Registration Statement that has not yet been declared effective, the Company shall be obligated to register the Registrable Securities upon such election; provided, that (i) there shall not the Holders may by notice to the Company withdraw the related Demand Registration request without such Demand Registration request counting against the number of Demand Registration requests permitted to be more than one such request during each of the Company’s fiscal quarterly periods made under Section 2.01(b) and (ii) the Holders shall not be responsible for any of the Company’s related Registration Expenses.
(e) If the Initiating Holder so indicates at the time of its request pursuant to Section 2.01(a), such offering of Registrable Securities shall be in the form of an Underwritten Offering or an Exchange Offer, and the Company shall include such information in the written notice to the Holders required under Section 2.01(a). In the event that the Initiating Holder intends to Sell the Registrable Securities by means of an Underwritten Offering or Exchange Offer, the right of any Holder to include Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such Underwritten Offering or Exchange Offer and the inclusion of such Holder’s Registrable Securities in the Underwritten Offering or the Exchange Offer to the extent provided herein. The Holders of a majority of the outstanding Registrable Securities being included in any Underwritten Offering or Exchange Offer shall select the underwriter(s) in the case of an Underwritten Offering or the dealer manager(s) in the case of an Exchange Offer; provided that such underwriter(s) or dealer manager(s) are reasonably acceptable to the Company.
(f) If the managing underwriter or underwriters of a proposed Underwritten Offering of Registrable Securities included in a Registration pursuant to this Section 2.01 inform(s) in writing the Holders participating in such Registration, with a copy of such writing provided to the Company, that, in its or their opinion, the number of securities requested to be included in such Registration exceeds the number that can be Sold in such offering without being likely to have a significant adverse effect on the price, timing or distribution of the securities offered or the market for the securities offered, the number of Registrable Securities to be registered must include at least 1,000,000 Common Sharesincluded in such Registration shall be reduced to the maximum number recommended by the managing underwriter or underwriter and allocated pro rata among the Holders, orincluding the Initiating Holder, in proportion to the aggregatenumber of Registrable Securities each Holder has requested to be included in such Registration; provided, have an anticipated offering pricethat the Initiating Holder may notify the Company in writing that the Registration Statement shall be abandoned or withdrawn, net of underwriting discounts and commissions, of more than $5,000,000, calculated in accordance with Rule 457(c) under the Securities Act on the business day preceding such Request.
(b) As promptly as practicable, but no later than 10 days after receipt of a Request, which event the Company shall give written notice of abandon or withdraw such Registration Statement. In the event the Initiating Holder notifies the Company that such Registration Statement shall be abandoned or withdrawn, such Holder shall not be deemed to have requested registration to all Holders of Registrable Securities and Pari Passu Holders of Pari Passu Securities. Subject a Demand Registration pursuant to Section 2.2(c2.01(a), and the Company shall include in not be deemed to have effected a Demand Registration (i) the Registrable Securities intended pursuant to be disposed of by the Initiating Holders and (ii) the Registrable Securities and Pari Passu Securities intended to be disposed of by any other Holder or Pari Passu Holder which shall have made a written request (which request shall specify Section 2.01(b). If the amount of Registrable Securities to be registered underwritten has not been limited in accordance with the first sentence of this Section 2.01(f), the Company and the intended method holders of disposition thereofCompany Shares or, if the Registrable Securities include securities other than Company Shares, the holders of securities of the same class of those securities included in the Registrable Securities, in each case, other than the Holders (“Other Holders”), may include such securities for their own account or for the account of Other Holders in such Registration if the underwriter(s) so agree and to the Company for inclusion thereof extent that, in such registration within 20 days after the receipt opinion of such written notice from underwriter(s), the Company. The Company shall, as expeditiously as possible following a Request, use its best efforts to cause to be filed with inclusion of such additional amount will not adversely affect the SEC a Demand Registration Statement providing for the registration under the Securities Act offering of the Registrable Securities and the Pari Passu Securities which the Company has been so requested to register by all such Holders and Pari Passu Holders, to the extent necessary to permit the disposition of such Registrable Securities so to be registered in accordance with the intended methods of disposition thereof specified included in such Request or further requests if so requested. The Company shall use its best efforts to have such Demand Registration Statement declared effective by the SEC as soon as practicable thereafter and to keep such Demand Registration Statement continuously effective for the period specified in Section 4.1(b). The registration rights granted pursuant to the provisions of this Section 2.2 shall be in addition to the registration rights granted pursuant to the other provisions of this Section 2Registration.
Appears in 2 contracts
Samples: Registration Rights Agreement (Terex Corp), Stock and Asset Purchase Agreement (Terex Corp)
Demand Registration. (ai) In addition to At any time after the rights provided in Section 2.1expiration of the Lock-Up Period and no sooner than 180 days after the date hereof, the Majority Holders each of CSL, GS and BHGE (each, a “Demand Holder”) shall have the right option and right, exercisable by delivering a written notice to request in writing that the Company register all or part of such Holders’ Registrable Securities that are not then registered by an effective Registration Statement (a “RequestDemand Notice”) (which Request shall specify ), to require the amount Company to, pursuant to the terms of and subject to the limitations contained in this Agreement, prepare and file with the Commission a Registration Statement registering the offering and sale of the number and type of Registrable Securities intended to be disposed of by such Holders on the terms and conditions specified in the intended method of disposition thereof) by filing Demand Notice, which may include sales on a Registration Statement with the SEC delayed or continuous basis pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible pursuant to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into a Form S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling shareholders (not underwriters) of all or such portion of the Registrable Securities Shelf Registration Statement (a “Demand Registration”); provided, however, provided that (A) if the Company is not eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall not be obligated to register file a Registration Statement with respect to a Requested Underwritten Offering pursuant to this Section 2(a) unless (x) the Registrable Securities upon such election only if anticipated aggregate offering price of the Registrable Securities to be registered, sold in the aggregate, constitute 10% or more of the then-outstanding Registrable Securities that are not registered under an effective Registration Statement, and (B) if the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election; provided, that (i) there shall not be more than one such request during each of the Company’s fiscal quarterly periods and (ii) the Registrable Securities to be registered must include at least 1,000,000 Common Shares, or, in the aggregate, have an anticipated offering priceoffering, net of underwriting discounts and commissions, is reasonably expected to exceed $50 million or (y) the Registrable Securities to be sold by such Demand Holder in such offering represent all of more the remaining Registrable Securities held by such Demand Holder. The Demand Notice must set forth the number of Registrable Securities that the Initiating Holder intends to include in such Demand Registration and the intended methods of disposition thereof. BHGE shall be entitled to no less than $5,000,000three Demand Registrations, calculated in accordance with Rule 457(c) under the Securities Act on the business day preceding such Requestand CSL and GS each shall be entitled to no less than two Demand Registrations.
(bii) As promptly as practicableWithin five Business Days (or if the Registration Statement will be a Shelf Registration Statement, but no later than 10 days within two Business Days) after the receipt of a Requestthe Demand Notice, the Company shall give written notice of such requested registration Demand Notice to all Holders and, within 30 days after receipt of the Demand Notice (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case, within 90 days thereof), shall, subject to the limitations of this Section 2(a), file a Registration Statement in accordance with the terms and conditions of the Demand Notice, which Registration Statement shall cover all of the Registrable Securities that the Holders shall in writing request to be included in the Demand Registration (such request to be given to the Company within three Business Days (or if the Registration Statement will be a Shelf Registration Statement, within one Business Day) after receipt of notice of the Demand Notice given by the Company pursuant to this Section 2(a)(ii)). The Company shall use reasonable best efforts to cause such Registration Statement to become and remain effective under the Securities Act until the earlier of (A) 180 days (or two years if a Shelf Registration Statement is requested) after the Effective Date or (B) the date on which all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”); provided, however, that such period shall be extended for a period of time equal to the period the Holders refrain from selling any securities included in such Registration Statement at the request of an underwriter of the Company or the Company pursuant to this Agreement.
(iii) Subject to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect (A) (1) with respect to BHGE, more than a total of three Demand Registrations within any 365 day period and (2) with respect to each of CSL and GS, more than a total of two Demand Registrations within any 365 day period, and (B) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of the Registrable Securities held by the Initiating Holder shall have become and remains effective under the Securities Act and is sufficient to permit offers and sales of the number and type of Registrable Securities on the terms and Pari Passu Holders conditions specified in the Demand Notice in accordance with the intended timing and method or methods of Pari Passu Securitiesdistribution thereof specified in the Demand Notice. No Demand Registration shall be deemed to have occurred for purposes of this Section 2(a)(iii) if the Registration Statement relating thereto does not become effective or is not maintained effective for its entire Effectiveness Period, in which case the Initiating Holder shall be entitled to an additional Demand Registration in lieu thereof.
(iv) A Holder may withdraw all or any portion of its Registrable Securities included in a Demand Registration from such Demand Registration at any time prior to the effectiveness of the applicable Registration Statement.
(v) The Company may include in any such Demand Registration other Company Securities for sale for its own account or for the account of any other Person, subject to Section 2(a)(vi) and Section 2(d)(iii).
(vi) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration on such appropriate registration form of the Commission (A) as shall be selected by the Company and (B) as shall permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the Demand Notice; provided that if the Company becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to the Company). If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Company that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, the Company will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(vii) Without limiting Section 2.2(c3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), the Company shall include (A) promptly prepare and file or cause to be prepared and filed (1) such additional forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents, as may be necessary or advisable to register or qualify the securities subject to such Demand Registration, including under the securities laws of such jurisdictions as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a Demand Registration result thereof, the Company would become subject to general service of process or to taxation or qualification to do business in such jurisdiction solely as a result of registration and (i2) such forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents as may be necessary to apply for listing or to list the Registrable Securities intended subject to such Demand Registration on the Trading Market and (B) do any and all other acts and things that may be disposed of reasonably necessary or appropriate or reasonably requested by the Initiating Holders and (ii) to enable the Registrable Securities and Pari Passu Securities intended Holders to be disposed of by any other Holder or Pari Passu Holder which shall have made consummate a written request (which request shall specify the amount of Registrable Securities to be registered and the intended method of disposition thereof) to the Company for inclusion thereof in such registration within 20 days after the receipt of such written notice from the Company. The Company shall, as expeditiously as possible following a Request, use its best efforts to cause to be filed with the SEC a Demand Registration Statement providing for the registration under the Securities Act of the Registrable Securities and the Pari Passu Securities which the Company has been so requested to register by all such Holders and Pari Passu Holders, to the extent necessary to permit the disposition public sale of such Registrable Securities so to be registered in accordance with the intended timing and method or methods of disposition thereof specified in distribution thereof.
(viii) In the event a Holder transfers Registrable Securities included on a Registration Statement and such Request or further requests if so requested. The Registrable Securities remain Registrable Securities following such transfer, at the request of such Holder, the Company shall use its best efforts to have amend or supplement such Demand Registration Statement declared as may be necessary in order to enable such transferee to offer and sell such Registrable Securities pursuant to such Registration Statement; provided that in no event shall the Company be required to file a post-effective amendment to the Registration Statement unless (A) such Registration Statement includes only Registrable Securities held by the SEC as soon as practicable thereafter and to keep Holder, Affiliates of the Holder or transferees of the Holder or (B) the Company has received written consent therefor from a Person for whom Registrable Securities have been registered on (but not yet sold under) such Demand Registration Statement continuously effective for Statement, other than the period specified in Section 4.1(b). The registration rights granted pursuant to Holder, Affiliates of the provisions Holder or transferees of this Section 2.2 shall be in addition to the registration rights granted pursuant to the other provisions of this Section 2Holder.
Appears in 2 contracts
Samples: Registration Rights Agreement, Registration Rights Agreement (BJ Services, Inc.)
Demand Registration. (a) In addition to If at any time the rights provided in Section 2.1, Purchaser shall request the Majority Holders shall have the right to request Company in writing that the Company (each, a "Demand"), to register all or part of such Holders’ Registrable Securities that are not then registered by an effective Registration Statement (a “Request”) (which Request shall specify the amount of Registrable Securities intended to be disposed of by such Holders and the intended method of disposition thereof) by filing a Registration Statement with the SEC pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into a Form S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling shareholders (not underwriters) specified number of all or such portion of the Registrable Securities (a “Demand Registration”); provided, however, that (A) if the Company is not eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election only if the including Registrable Securities to be registered, in the aggregate, constitute 10% or more of the then-outstanding Registrable Securities that are not registered under an effective Registration Statement, and (B) if the Company is eligible used to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election; provided, that (i) there shall not be more than one such request during each of the Company’s fiscal quarterly periods and (ii) the Registrable Securities to be registered must include at least 1,000,000 Common Shares, or, in the aggregate, have an anticipated offering price, net of underwriting discounts and commissions, of more than $5,000,000, calculated in accordance with Rule 457(c) under the Securities Act on the business day preceding such Request.
(b) As promptly as practicable, but no later than 10 days after receipt of settle a Request, the Company shall give written notice of such requested registration to all Holders of Registrable Securities and Pari Passu Holders of Pari Passu Securities. Subject to Section 2.2(cDerivative Security), the Company shall include in a Demand Registration (i) the Registrable Securities intended to be disposed of by the Initiating Holders and (ii) the Registrable Securities and Pari Passu Securities intended to be disposed of by any other Holder or Pari Passu Holder which shall have made a written request (which request shall specify the amount of Registrable Securities to be registered and the intended method of disposition thereof) to the Company for inclusion thereof in such registration within 20 days after the receipt of such written notice from the Company. The Company shall, as expeditiously as possible following a Request, use its best efforts to cause to be filed with the SEC a Demand Registration Statement providing for effect the registration under the Securities Act of the Registrable Securities and the Pari Passu Securities which the Company has been so requested to register by all such Holders and Pari Passu Holders, to the extent necessary as soon as reasonably practicable so as to permit the disposition sale thereof, and in connection therewith shall prepare and file a Registration Statement with the SEC under the Securities Act to effect such registration; provided, that each such request shall (i) specify the number of shares of Registrable Securities intended to be offered and sold, (ii) describe the nature or method of the proposed offer and sale thereof, and (iii) contain the undertaking of the Purchaser to provide all such information and materials and take all such action as may be required in order to permit the Company to comply with all applicable requirements of the SEC and to obtain any desired acceleration of the effective date of such Registrable Securities Registration Statement. Except as provided in the following sentence, the Company agrees not to grant to any other person registration rights pursuant to which such person would have the right to register shares of Common Stock on a Registration Statement filed by the Company pursuant to the exercise of the Purchaser's rights under this Agreement. The Purchaser agrees that the Company may grant to the "Holders" (as that term is defined in each of the Registration Rights Agreement between the Company and Bell Xxxantic Corporation, dated February 2, 2000 (xxx "Xxxx Xxxxxxxx Xxxeement") and the Registration Rights Agreement between the Company and Cable and Wireless plc, dated February 2, 2000 (the "C&W Agreement")) the right to register shares of Common Stock on a Registration Statement filed by the Company pursuant to the exercise of the Purchaser's rights under this Section 2.01 of this Agreement, provided, that, so to be registered long as this Agreement or any successor agreement remains in full force and effect (a) such registrations are effected in accordance with the intended methods terms of disposition thereof specified Section 2.2(b) of the Bell Xxxantic Agreement or Section 2.2(b) of the C&W Agreement, as the case may be, and (b) neither Section 2.2(b) of the Bell Xxxantic Agreement nor Section 2.2(b) of the C&W Agreement is modified or amended in such Request or further requests if so requested. The Company shall use its best efforts to have such Demand Registration Statement declared effective by the SEC as soon as practicable thereafter and to keep such Demand Registration Statement continuously effective for the period specified in Section 4.1(b). The registration rights granted pursuant a manner that is adverse to the provisions Purchaser without the prior written consent of this Section 2.2 shall be in addition to the registration rights granted pursuant to the other provisions of this Section 2Purchaser.
Appears in 2 contracts
Samples: Registration Rights Agreement (NTL Delaware Inc), Registration Rights Agreement (NTL Inc/De/)
Demand Registration. (a) In addition Subject to the rights provided in Section 2.1terms and conditions of this Agreement, on or after the earlier of (i) the first anniversary of the Closing Date or (ii) the registration of shares of Common Stock (other than Broker Shares) held by the Founders or any shareholder holding at least 5% of the Company's then outstanding Common Stock (calculated as though all shares of Preferred Stock are converted into Common Stock), the Majority Holders Purchasers or their Permitted Transferees holding in the aggregate at least 40% of the outstanding Registrable Securities may make two (2) written request to the Company for registration under the Securities Act of the sale of Registrable Securities held by such Registering Purchasers (the "Demand Registration"); provided that (i) BellSouth shall be one of the Purchasers making such request and (ii) the Company shall not be obligated to effect more than one (1) Demand Registration pursuant to this Agreement within any 12-month period. Promptly following receipt of any request for a Demand Registration under this Section 8.2.1(a), the Company shall immediately notify any holders of Registrable Securities from whom a request for a Demand Registration has not been received and shall include in such Demand Registration such Registrable Securities as such holders may specify in writing within 10 Business Days after receipt of such notice. The Company shall use its reasonable best efforts to cause such registration statement to become effective as soon as possible and remain effective for the period ending on the earlier of (i) 90 days from the date of effectiveness of said registration statement and (ii) the sale of all of Registrable Securities held by such Registering Purchasers.
(b) The Company shall have the right to request include its securities sold on its behalf or on behalf of any other stockholder in any registration initiated as a Demand Registration; provided that: (i) such securities are of the same class as the Registrable Securities included in such registration; (ii) if any of the Registrable Securities covered by such registration are sold in an underwritten offering, the Company or such other stockholder agrees in writing to sell its securities on the same terms and conditions as apply to the Registrable Securities being sold; and (iii) if any of the Registrable Securities covered by such registration are to be sold in an underwritten offering and the managing underwriter of such underwritten offering reasonably determines in good faith and advises the parties that the inclusion in such underwritten offering of all the securities proposed to be included in such offering would materially and adversely affect the success of the underwritten offering, then the Company shall include in such registration (but only to the extent of the number of securities that the Company is so advised can reasonably be sold in such offering), FIRST all Registrable Securities duly requested to be registered in such Demand Registration, SECOND any securities the Company is required to register all or part pursuant to the Registration Rights Agreement, THIRD any other securities held by Persons who received contractual registration rights with respect thereto prior to the date of this Agreement, FOURTH any securities that the Company wishes to register for its own account and FIFTH any securities held by Persons who received contractual registration rights with respect thereto after the date of this Agreement; in each case, determined on a pro rata basis if there is more than one holder of such Holders’ Registrable Securities or securities, as the case may be. Whenever a registration requested pursuant to this Section is for an underwritten offering, only securities which are to be distributed by the underwriters may be included in the registration.
(c) The Company shall have the right to select the managing underwriter to administer the Demand Registration if such Demand Registration is an underwritten offering, subject to the approval of BellSouth, which approval shall not be unreasonably withheld or delayed. The Registering Purchasers and the Company shall enter into an underwriting agreement in such customary form as shall have been negotiated and agreed to by the Company with the underwriter or underwriters selected for such underwriting, provided that are (x) the Registering Purchasers shall have the right to negotiate the economic terms of the offering and (y) such underwriting agreement shall be approved by the Registering Purchasers, such approval not then registered to be unreasonably withheld or delayed.
(d) Notwithstanding anything to the contrary in this Agreement, the Company will be entitled to postpone the filing of a registration statement required to be filed by an effective it pursuant to this Agreement for ninety (90) days, if (i) at any time prior to the filing of such registration statement a majority of the Board of Directors of the Company determines, in its good faith business judgment, that such registration and offering is reasonably likely to materially interfere with or otherwise have a material adverse effect on any financing, acquisition, corporate reorganization or other material transaction or development involving the Company or any of its subsidiaries and (ii) the Company gives the Registering Purchasers written notice of such postponement, provided that such postponements may not in any 365-day period occur more than once, and, provided further, that in the event of any such withdrawal or termination of effectiveness, such registration shall not act as a registration effected for purposes of Section 8.2.1(a). Any such notice need not specify the reasons for such suspension if a majority of the Board of Directors of the Company determines, in its good faith business judgment, that doing so would interfere with or adversely affect such transaction or development or would result in the disclosure of material non-public information. In the event of such postponement, the Company will file such registration statement as soon as practicable after it determines, in its good faith business judgment, that such registration and offering will not interfere with the matters described in the first sentence of this Section 8.2.1(d), but in no event more than ninety (90) days after that date that such registration statement would otherwise have been filed, provided that the Registering Purchasers shall have the right to withdraw their request for Demand Registration by giving written notice to the Company within ninety (90) days of receipt of the notice of postponement, and in the event of such withdrawal, the request so withdrawn shall be deemed to have not been made.
(e) Each Registration Statement (in respect of a “Request”) (which Request shall specify Demand Registration will be for the amount offering and sale of such Registrable Securities intended on such basis as the Registering Purchasers reasonably request; provided, however, that, except as expressly set forth herein, the Company shall not be required to be disposed of by register such Holders and the intended method of disposition thereof) by filing Registrable Securities on a Registration Statement with the SEC continuous or delayed basis pursuant to Rule 415 under the Securities Act Act.
(f) The Company shall promptly prepare and file with the Commission such amendments to the registration statements as may be necessary to keep such registration statements effective in accordance with this Section 8.2.1.
(g) Notwithstanding anything to the contrary in this Agreement, if at any time after the filing of a registration statement, before or after it is declared effective by the Commission, a majority of the Board of Directors of the Company determines, in its good faith business judgment, that such registration and the offering of Registrable Securities covered by such registration statement is reasonably likely to materially interfere with or otherwise have a materially adverse effect on Form S-3 under any financing, acquisition, corporate reorganization or other material transaction or development involving the Company or any of its affiliates or require the Company to disclose matters that otherwise would not be required to be disclosed at such time, then the Company may require that no distribution of any Registrable Securities Act be initiated or continued, as the case may be (a "Blackout Period"), by giving written notice to the Registering Purchasers. Any such notice need not specify the reasons for such suspension if a majority of the Board of Directors of the Company determines, in its good faith business judgment, that doing so would interfere with or in adversely affect such transaction or development. In the event that such notice is given, then until a majority of the Board of Directors of the Company is ineligible to use such formhas determined, such other form as the Company is eligible to use under the Securities Act provided in its good faith business judgment, that such other form shall be converted into a Form S-3 promptly after Form S-3 becomes available registration and distribution would no longer materially interfere with the matters described in the preceding sentence and has given written notice thereof to the Company) covering resales by the Holders as selling shareholders (not underwriters) of all or such portion of the Registrable Securities (a “Demand Registration”); provided, however, that (A) if the Company is not eligible to register the Registrable Securities on Form S-3 under the Securities ActRegistering Purchasers, the Company shall Company's obligations under this Article VIII will be obligated to register the Registrable Securities upon such election only if the Registrable Securities to be registeredsuspended, in the aggregate, constitute 10% or more of the then-outstanding Registrable Securities that are not registered under an effective Registration Statement, and (B) if the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election; provided, that (i) there such suspension shall not be more than one such request during each exceed the first to occur of (x) the filing of the Company’s fiscal quarterly periods 's next filing with the Commission and (iiy) the Registrable Securities to be registered must include at least 1,000,000 Common Shares, or, in the aggregate, have an anticipated offering price, net of underwriting discounts and commissions, of more than $5,000,000, calculated in accordance with Rule 457(cninety (90) under the Securities Act on the business day preceding such Request.
(b) As promptly as practicable, but no later than 10 days after receipt of a Request, the Company shall give written notice of such requested registration to all Holders of Registrable Securities and Pari Passu Holders of Pari Passu Securities. Subject to Section 2.2(c), the Company shall include in a Demand Registration (i) the Registrable Securities intended to be disposed of by the Initiating Holders and (ii) the Registrable Securities and Pari Passu Securities intended to be disposed of by any other Holder or Pari Passu Holder which shall have made a written request (which request shall specify the amount of Registrable Securities to be registered and the intended method of disposition thereof) to the Company for inclusion thereof in such registration within 20 days after the receipt of such written notice from the Company. The Company shall, as expeditiously as possible following a Request, use its best efforts to cause to be filed with the SEC a Demand Registration Statement providing for the registration under the Securities Act of the Registrable Securities and the Pari Passu Securities which the Company has been so requested to register by all such Holders and Pari Passu Holders, to the extent necessary to permit the disposition of such Registrable Securities so to be registered in accordance with the intended methods of disposition thereof specified in such Request or further requests if so requesteddays. The Company shall use its best efforts extend the period of time the Company is required to maintain effective any registration statement required pursuant to Section 8.2.1 by a length of time equal to the aggregate length of the Blackout Periods. In the event of any suspension of a registration pursuant to this Section 8.2.1(g), the Registering Purchasers shall be entitled to withdraw from such registration upon written notice to the Company, and in the event of such withdrawal, the request so withdrawn shall be deemed to have such Demand Registration Statement declared effective by the SEC as soon as practicable thereafter and to keep such Demand Registration Statement continuously effective for the period specified in Section 4.1(b). The registration rights granted pursuant to the provisions of this Section 2.2 shall be in addition to the registration rights granted pursuant to the other provisions of this Section 2not been made.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Starmedia Network Inc), Securities Purchase Agreement (Starmedia Network Inc)
Demand Registration. (a) In addition to At any time following the rights provided in Section 2.1closing of the IPO14 [and until the anniversary thereafter], the Majority Initiating Holders shall have the right to may request in writing that the Company register all or part of such Holders’ the Registrable Securities that are not then registered by an effective Registration Statement (a “Request”) (which Request shall specify the amount of Registrable Securities intended to be disposed of by such Holders and the intended method of disposition thereof) by filing a Registration Statement with the SEC pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form Shares shall be converted into a Form S-3 promptly after Form S-3 becomes available to registered for trading on the securities exchange on which the Company's stock is traded. Within twenty (20) covering resales by the Holders as selling shareholders (not underwriters) of all or such portion of the Registrable Securities (a “Demand Registration”); provided, however, that (A) if the Company is not eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election only if the Registrable Securities to be registered, in the aggregate, constitute 10% or more of the then-outstanding Registrable Securities that are not registered under an effective Registration Statement, and (B) if the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election; provided, that (i) there shall not be more than one such request during each of the Company’s fiscal quarterly periods and (ii) the Registrable Securities to be registered must include at least 1,000,000 Common Shares, or, in the aggregate, have an anticipated offering price, net of underwriting discounts and commissions, of more than $5,000,000, calculated in accordance with Rule 457(c) under the Securities Act on the business day preceding such Request.
(b) As promptly as practicable, but no later than 10 days after receipt of a Requestany such request, the Company shall give written notice of such requested registration request to all the other Holders of Registrable Securities and Pari Passu Holders of Pari Passu Securities. Subject to Section 2.2(c), the Company shall include in a Demand Registration (i) the such registration all Registrable Securities intended Shares held by all such Holders who wish to be disposed of by the Initiating Holders participate in such demand registration and (ii) the Registrable Securities and Pari Passu Securities intended to be disposed of by any other Holder or Pari Passu Holder which shall have made a written request (which request shall specify the amount of Registrable Securities to be registered and the intended method of disposition thereof) to provide the Company with written requests for inclusion thereof in such registration therein within 20 fifteen (15) days after the receipt of the Company's notice. Thereupon, the Company shall effect the registration of all Registrable Shares as to which it has received requests for registration for trading on the securities exchange specified in the request for registration; provided, however, that the Company shall not be required to effect any registration under this Section 2.3 within a period of one hundred and eighty (180) days following the effective date of a previous registration. Notwithstanding any other provision of this Section 3, if the managing underwriter advises the Holders in writing that marketing factors require a limitation of the number of shares to be underwritten, then there shall be excluded from such written notice from registration and underwriting to the extent necessary to satisfy such limitation, first shares held by shareholders other than the Holders, then shares which the Company may wish to register for its own account, and thereafter, to the extent necessary, shares held by the Holders (pro rata to the respective number of Registrable Shares required by the Holders to be included in the registration); provided, however, that in any event all Registrable Shares must be included in such registration prior to any other shares of the Company. The Company shall, as expeditiously as possible following a Request, use shall not register securities for sale for its best efforts own account in any registration requested pursuant to cause this Section 2.3 unless permitted to be filed with do so by the SEC a Demand Registration Statement providing for the registration under the Securities Act written consent of Holders who hold at least seventy-five percent 75%) of the Registrable Securities and the Pari Passu Securities Shares as to which the Company registration has been so requested to register by all such Holders and Pari Passu Holders, to the extent necessary to permit the disposition of such Registrable Securities so to be registered in accordance with the intended methods of disposition thereof specified in such Request or further requests if so requested. The Company shall use may not cause any other registration of securities for sale for its best efforts own account (other than (i) a registration effected solely to have such Demand Registration Statement declared effective by the SEC as soon as practicable thereafter implement an employee, director and consultant benefit plan, (ii) a registration on Form S-4 or a foreign equivalent thereof, or (iii) a registration relating solely to a Rule 145 transaction) to be initiated after a registration requested pursuant to Section 2.3 and to keep become effective less than one hundred twenty (120) days after the effective date of any registration requested pursuant to Section 2.3. [The Company shall not be required to effect more than two (2) registrations under this Section 2.3.] The aggregate net proceeds from the sale of any such Demand Registration Statement continuously effective Registrable Shares may not be less than [ Unites States dollars (US$ ,)] (net of any underwriters' discounts, commissions or expenses). Such registration will count for this purpose only if (i) all Registrable Shares requested to be registered are registered and (ii) such registration is closed, or withdrawn at the period specified in Section 4.1(brequest of the Initiating Holders (other than as a result of a material adverse change to the Company). The Company shall not be required to effect a registration rights granted pursuant to the provisions of this Section 2.2 2.3 if the Company shall be in addition furnish to the Holders requesting a registration rights granted statement pursuant to the other provisions of this Section 2.Section
Appears in 2 contracts
Samples: Investors' Rights Agreement, Investors' Rights Agreement
Demand Registration. (a) In addition If at any time during the Eligible Period the Stockholder requests in writing (the "Stockholder Demand") that the Company file a registration statement on Form S-3 (or any successor form to Form S-3, or, if Form S-3 is not then available, on Form S-1 or any other available form) for a public offering of shares of the rights provided in Section 2.1Registrable Shares, the Majority Holders anticipated aggregate offering price of which, net of standard underwriting fees and discounts, is at least five million dollars ($5,000,000), the Company shall, subject to Section 4.1 hereof, file such Registration Statement with the SEC within forty-five (45) days after its receipt of such request. The Company shall have use commercially reasonable efforts to cause such Registration Statement to be declared effective as soon thereafter as practicable and keep such registration statement effective until the right to request Stockholder notifies the Company in writing that the Company register all is no longer required to keep such Registration Statement effective. In no event, however, shall the Company be required to (i) effect more than four (4) registrations pursuant to this section or (ii) keep one or more registration statements filed pursuant to this section effective for more than an aggregate of one hundred twenty (120) days. In the event the registration is proposed to be part of a firm commitment underwritten public offering, the substantive provisions of Section 2.3 hereof shall be applicable to each such Holders’ Registrable Securities that are not then registered by an effective Registration Statement (a “Request”) (which Request shall specify registration initiated under this Section 2.1 and the amount piggyback registration rights of Registrable Securities intended to be disposed of by such Holders and Automaker Holders (to the intended method extent provided for in the Existing Registration Rights Agreement and the Automaker Registration Rights Agreement) shall be applicable, subject to Section 2.3 below, to a registration effected pursuant to this Section 2.1.
(b) Notwithstanding the foregoing, the Company shall not be obligated to take any action pursuant to subparagraph (a):
(i) if the Company, within ten (10) days of disposition thereof) by the receipt of the Stockholder Demand, gives notice of its bona fide intention to effect the filing of a Registration Statement registration statement with the SEC pursuant within forty-five (45) days of receipt of such demand (other than a registration relating primarily to the sale of securities to participants in a Company stock plan of employee benefit plan, a transaction covered by Rule 415 145 under the Securities 1933 Act or the resale of securities issued in such a transaction, a registration in which the only stock being registered is Common Stock issuable upon conversion or exchange of debt securities which are also being registered, any registration on Form S-3 under any form which does not include substantially the Securities Act (or same information as would be required to be included in a registration statement covering the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into a Form S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling shareholders (not underwriters) of all or such portion sale of the Registrable Securities (Shares, or a “Demand Registration”); registration initiated under Section 2.1 or 2.2 of Automaker Registration Rights Agreement) provided, however, that (A) if such registration statement is not filed by the Company is not eligible to register within 45 days of receipt of such Stockholder Demand and declared effective by the Registrable Securities on Form S-3 under Commission with 120 days after the Securities ActCompany's receipt of such Stockholder Demand, the Company shall be obligated to register the cause such Registrable Securities upon such election only if the Registrable Securities to be registered, in the aggregate, constitute 10% or more Shares of the then-outstanding Registrable Securities that are not registered under an effective Registration Statement, and (B) if the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election; provided, that (i) there shall not be more than one such request during each of the Company’s fiscal quarterly periods and (ii) the Registrable Securities to be registered must include at least 1,000,000 Common Shares, or, in the aggregate, have an anticipated offering price, net of underwriting discounts and commissions, of more than $5,000,000, calculated in accordance with Rule 457(c) under the Securities Act on the business day preceding such Request.
(b) As promptly as practicable, but no later than 10 days after receipt of a Request, the Company shall give written notice of such requested registration to all Holders of Registrable Securities and Pari Passu Holders of Pari Passu Securities. Subject to Section 2.2(c), the Company shall include in a Demand Registration (i) the Registrable Securities intended to be disposed of by the Initiating Holders and (ii) the Registrable Securities and Pari Passu Securities intended to be disposed of by any other Holder or Pari Passu Holder which shall have made a written request (which request shall specify the amount of Registrable Securities to be registered and the intended method of disposition thereof) to the Company for inclusion thereof in such registration within 20 days after the receipt of such written notice from the Company. The Company shall, as expeditiously as possible following a Request, use its best efforts to cause to be filed with the SEC a Demand Registration Statement providing for the registration under the Securities Act of the Registrable Securities and the Pari Passu Securities which the Company has been so requested to register by all such Holders and Pari Passu Holders, to the extent necessary to permit the disposition of such Registrable Securities so Stockholder to be registered in accordance with the intended methods of disposition thereof specified in such Request or further requests if so requested. The Company shall use its best efforts to have such Demand Registration Statement declared effective by the SEC as soon as practicable thereafter and to keep such Demand Registration Statement continuously effective for the period specified in Section 4.1(b). The registration rights granted pursuant to the provisions of this Section 2.2 shall be 2.1 provided that the Company is actively employing in addition good faith all reasonable efforts to cause such registration statement to become effective;
(ii) during the period starting with the Company's date of filing of, and ending on the date ninety (90) days immediately following, the effective date of any registration statement pertaining to securities of the Company, which registration was either filed as a result of the exercise by Stockholder of its rights granted pursuant to the other provisions of this Section 22.1 hereof or was subject to Section 2.2 hereof.
Appears in 2 contracts
Samples: Investor Rights Agreement (New Commerce One Holding Inc), Investor Rights Agreement (Commerce One Inc)
Demand Registration. (a) In addition At any time and from time to time on or after the rights provided in Section 2.1date on which the Company has publicly announced that it has entered into a letter of intent or made a comparable announcement with respect to a Business Combination, the Majority Holders shall have Subscriber or its transferee(s) holding a majority-in-interest of the right to request in writing that Registrable Securities may make a written demand for registration under the Company register Securities Act of all or part of such Holders’ Registrable Securities that are not then registered by an effective Registration Statement (a “Request”) (which Request shall specify the amount of Registrable Securities intended to be disposed of by such Holders and the intended method of disposition thereof) by filing a Registration Statement with the SEC pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into a Form S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling shareholders (not underwriters) of all or such portion of the their Registrable Securities (a “Demand Registration”); provided, however, that (A) if . Any demand for a Demand Registration shall specify the Company is not eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election only if the Registrable Securities to be registered, in the aggregate, constitute 10% or more of the then-outstanding Registrable Securities that are not registered under an effective Registration Statement, and (B) if the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election; provided, that (i) there shall not be more than one such request during each of the Company’s fiscal quarterly periods and (ii) the Registrable Securities to be registered must include at least 1,000,000 Common Shares, or, in the aggregate, have an anticipated offering price, net of underwriting discounts and commissions, of more than $5,000,000, calculated in accordance with Rule 457(c) under the Securities Act on the business day preceding such Request.
(b) As promptly as practicable, but no later than 10 days after receipt of a Request, the Company shall give written notice of such requested registration to all Holders number of Registrable Securities proposed to be sold and Pari Passu Holders the intended method(s) of Pari Passu Securitiesdistribution thereof. Subject The Company will notify all holders of Registrable Securities of the demand, and each holder of Registrable Securities who wishes to Section 2.2(c), include all or a portion of such holder’s Registrable Securities in the Company shall include in a Demand Registration (i) the Registrable Securities intended to be disposed of by the Initiating Holders and (ii) the Registrable Securities and Pari Passu Securities intended to be disposed of by any other Holder or Pari Passu Holder which shall have made a written request (which request shall specify the amount each such holder including shares of Registrable Securities to be registered and the intended method of disposition thereofin such registration, a “Demanding Holder”) to shall so notify the Company for inclusion thereof in such registration within 20 fifteen (15) days after the receipt by the holder of such written the notice from the Company. Upon any such request, the Demanding Holders shall be entitled to have their Registrable Securities included in the Demand Registration. The Company shall, as expeditiously as possible following and in any event within sixty (60) days after receipt of a Requestrequest for a Demand, prepare and file with the SEC a Registration Statement on any form for which the Company then qualifies or which counsel for the Company shall deem appropriate and which form shall be available for the sale of all Registrable Securities to be registered thereunder in accordance with the intended method(s) of distribution thereof, and shall use its best efforts to cause to be filed with the SEC a Demand such Registration Statement providing for to become effective as promptly as practicable, but in no event prior to the registration under the Securities Act consummation of the Registrable Securities and the Pari Passu Securities which the Company has been so requested to register by all such Holders and Pari Passu Holders, to the extent necessary to permit the disposition of such Registrable Securities so to be registered in accordance with the intended methods of disposition thereof specified in such Request or further requests if so requestedBusiness Combination. The Company shall use its best efforts not be obligated to have such effect more than two Demand Registration Statement declared effective by the SEC as soon as practicable thereafter and to keep such Demand Registration Statement continuously effective for the period specified Registrations in Section 4.1(b). The registration rights granted pursuant to the provisions respect of this Section 2.2 shall be in addition to the registration rights granted pursuant to the other provisions of this Section 2Registrable Securities.
Appears in 2 contracts
Samples: Subscription Agreement (Energy Infrastructure Acquisition Corp.), Subscription Agreement (Energy Infrastructure Acquisition Corp.)
Demand Registration. (ai) In addition to If the rights provided in Section 2.1Company shall receive at any time after the end of the Effectiveness Period for the Shelf Registration, a written request from the Majority Holders shall have Investors of at least thirty-three percent (33%) of the right to request in writing Demand Securities then outstanding that the Company register all or part of such Holders’ Registrable Securities that are not then registered by an effective Registration Statement (file a “Request”) (which Request shall specify the amount of Registrable Securities intended to be disposed of by such Holders and the intended method of disposition thereof) by filing a Registration Statement with the SEC pursuant to Rule 415 registration statement under the Securities Act on Form S-3 under covering the registration of the Demand Securities Act (or in the event that pursuant to this Section 2(b), then the Company is ineligible to use such formshall, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into a Form S-3 promptly after Form S-3 becomes available to the Companywithin ten (10) covering resales by the Holders as selling shareholders (not underwriters) of all or such portion business days of the Registrable Securities (a “Demand Registration”); provided, however, that (A) if the Company is not eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election only if the Registrable Securities to be registered, in the aggregate, constitute 10% or more of the then-outstanding Registrable Securities that are not registered under an effective Registration Statement, and (B) if the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election; provided, that (i) there shall not be more than one such request during each of the Company’s fiscal quarterly periods and (ii) the Registrable Securities to be registered must include at least 1,000,000 Common Shares, or, in the aggregate, have an anticipated offering price, net of underwriting discounts and commissions, of more than $5,000,000, calculated in accordance with Rule 457(c) under the Securities Act on the business day preceding such Request.
(b) As promptly as practicable, but no later than 10 days after receipt of a Requestsuch written request, the Company shall give written notice of such requested registration request ("Request Notice") to all Holders of Registrable Securities Investors, and Pari Passu Holders of Pari Passu Securities. Subject to Section 2.2(c), the Company shall include in a Demand Registration file within thirty (i30) the Registrable Securities intended to be disposed of by the Initiating Holders days and (ii) the Registrable Securities and Pari Passu Securities intended to be disposed of by any other Holder or Pari Passu Holder which shall have made a written request (which request shall specify the amount of Registrable Securities to be registered and the intended method of disposition thereof) to the Company for inclusion thereof in such registration within 20 days after the receipt of such written notice from the Company. The Company shall, as expeditiously as possible following a Request, use its best efforts to cause such Registration Statement to become effective within an additional thirty (30) days, the Registration Statement covering all Demand Securities which Investors request to be filed with registered and included in such registration by written notice given such Investors to the SEC a Demand Registration Statement providing for Company within twenty (20) days after receipt of the registration under the Securities Act of Request Notice; provided that the Registrable Securities requested by all Investors to be registered pursuant to such request must be at least thirty-three percent (33%) of all Demand Securities then outstanding; provided further, that in the event the proposed offering described in the Request Notice is an Underwritten Offering, then additional Holdover Securities (other than Warrants and Series A Preferred) held by Investors may be included in the registration described in the Request Notice, subject to compliance with subsection (ii) below.
(ii) If the Investors initiating the registration request under this Section 2(b) ("Initiating Investors") intend to distribute the Demand Securities covered by their request by means of an Underwritten Offering, then they shall so advise the Company as a part of their request made pursuant to this Section 2(b) and the Pari Passu Company shall include such information in the Request Notice referred to in subsection (i) of this Section 2(b). In such event, the right of any Investor to include his Demand Securities which and, if applicable, Holdover Securities in such registration shall be conditioned upon such Investor's participation in such Underwritten Offering and the Company has been so requested to register inclusion of such Investor's Demand Securities in the Underwritten Offering (unless otherwise mutually agreed by all a majority in interest of the Initiating Investors and such Holders and Pari Passu Holders, Investor) to the extent necessary provided herein. All Investors proposing to permit the disposition of distribute their securities through such Registrable Securities so to be registered Underwritten Offering shall enter into an underwriting agreement in accordance customary form with the intended methods of disposition thereof specified in managing underwriter or underwriters selected for such Request or further requests if so requested. The Company shall use its best efforts to have such Demand Registration Statement declared effective Underwritten Offering by the SEC as soon as practicable thereafter and to keep such Demand Registration Statement continuously effective for the period specified in Section 4.1(b)Company. The registration rights granted pursuant to the provisions Notwithstanding any other provision of this Section 2.2 2(b), if the underwriter(s) advise(s) the Company in writing that marketing factors require a limitation of the number of securities to be underwritten then the Company shall so advise all Investors owning Demand Securities and, if applicable, Holdover Securities, which would otherwise be registered and underwritten pursuant hereto, and the number of Demand Securities and, if applicable, Holdover Securities, that may be included in the Underwritten Offering shall be in addition reduced as required by the underwriter(s) and allocated among the Investors owning Demand Securities and, if applicable, Holdover Securities, on a pro rata basis according to the number of Demand Securities and, if applicable, Holdover Securities, then outstanding held by each Investor requesting registration rights granted pursuant to (including the other provisions of this Section 2Initiating Investors).
Appears in 2 contracts
Samples: Registration Rights Agreement (Avnet Inc), Registration Rights Agreement (Sci Systems Inc)
Demand Registration. (a) In addition to If, at any time after the rights provided in Section 2.1end of the Applicable Holdback Period, the Majority Holders Company shall have the right to receive a written request in writing from FP that the Company register effect the registration under the Securities Act of all or part a portion of such Holders’ FP’s Registrable Securities that are not then registered by an effective Registration Statement (a “Request”) (which Request shall specify the amount of Registrable Securities intended to be disposed of by such Holders Securities, and specifying the intended method of disposition thereof) by filing a Registration Statement with the SEC pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into a Form S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling shareholders (not underwriters) of all or such portion of the Registrable Securities thereof (a “Demand Registration”); provided, however, that (A) if the Company is not eligible to register the Registrable Securities on Form S-3 under the Securities Act, then the Company shall be obligated to register the Registrable Securities upon such election only if the Registrable Securities to be registered, in the aggregate, constitute 10% or more of the then-outstanding Registrable Securities that are not registered under an effective Registration Statement, and (B) if the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election; provided, that (i) there shall not be more than one such request during each of the Company’s fiscal quarterly periods and (ii) the Registrable Securities to be registered must include at least 1,000,000 Common Shares, or, in the aggregate, have an anticipated offering price, net of underwriting discounts and commissions, of more than $5,000,000, calculated in accordance with Rule 457(c) under the Securities Act on the business day preceding such Request.
(b) As promptly as practicable, but no later than 10 days after receipt of a Request, the Company shall give written notice of such requested registration at least 15 days prior to all Holders the anticipated filing date of Registrable Securities and Pari Passu Holders the registration statement relating to such Demand Registration to each Non-Requesting Stockholder. Upon the Company’s giving notice of Pari Passu Securities. Subject to Section 2.2(c)a requested registration, the Company shall include in a Demand Registration will use its best efforts to effect, as expeditiously as possible, the registration under the Securities Act of:
(i) the Registrable Securities intended to be disposed of by the Initiating Holders and (ii) the Registrable Securities and Pari Passu Securities intended to be disposed of by any other Holder or Pari Passu Holder which shall have made a written request (which request shall specify the amount of Registrable Securities to be registered and the intended method of disposition thereof) to the Company for inclusion thereof in such registration within 20 days after the receipt of such written notice from the Company. The Company shall, as expeditiously as possible following a Request, use its best efforts to cause to be filed with the SEC a Demand Registration Statement providing for the registration under the Securities Act of the Registrable Securities and the Pari Passu Securities which that the Company has been so requested to register by FP, then held by FP, and
(ii) subject to the restrictions set forth in Section 4.02, all other Registrable Securities of the same class as that requested to be registered by FP which any Non-Requesting Stockholder entitled to request the Company to effect an Incidental Registration pursuant to Section 4.02 (all such Stockholders, together with FP, the “Holders”) have requested the Company to register by written request received by the Company within 15 days after the receipt by such Holders and Pari Passu Holdersof such written notice given by the Company, all to the extent necessary to permit the disposition of such Registrable Securities so to be registered (in accordance with the intended methods thereof as aforesaid) of disposition thereof specified in such Request or further requests if the Registrable Securities so requested. The to be registered, provided that the Company shall use its best efforts not be obligated to have effect a Demand Registration unless either (x) the aggregate proceeds expected to be received from the sale of the Common Shares requested to be included in such Demand Registration Statement declared effective equal or exceed $10,000,000 or, in the case of a Shortform Registration, $5,000,000 or (y) the remaining portion of Registrable Securities held by the SEC as soon as practicable thereafter and FP would be registered pursuant to keep such Demand Registration. In no event will the Company be required to effect more than one Demand Registration Statement continuously effective for the period specified in Section 4.1(b). The registration rights granted pursuant to the provisions of this Section 2.2 shall be in addition to the registration rights granted pursuant to the other provisions of this Section 2hereunder within any six-month period.
Appears in 2 contracts
Samples: Stockholders' Agreement (Nptest Holding Corp), Shareholder Agreement (Nptest Holding Corp)
Demand Registration. (a) In addition Registration Other Than on Form F-3 or Form S-3. Subject to the rights provided in Section 2.1terms of this Agreement, at any time or from time to time after the Majority Holders shall have earlier of (i) the right to fourth (4th) anniversary of the Initial Closing Date or (ii) the date that is six (6) months after the closing of the Qualified IPO, Holder(s) holding 30% or more of the issued and outstanding Registrable Securities (on an as-converted basis) may request in writing that the Company register all or part effect the Registration of the Registrable Securities. Upon receipt of such Holders’ a request, the Company shall (x) promptly give written notice of the proposed Registration to all other Holders and (y) as soon as practicable, use its commercially reasonable efforts to cause the Registrable Securities that are not then registered by an effective Registration Statement (a “Request”) (which Request shall specify specified in the amount of request, together with any Registrable Securities intended of any Holder who requests in writing to join such Registration within fifteen (15) days after receipt of the such written request, to be disposed Registered and/or qualified for sale and distribution in the United States. The Company shall be obligated to effect no more than three (3) Registrations pursuant to this Clause 12.1(a) that have been declared and ordered effective; provided that if the sale of by all of the Registrable Securities sought to be included pursuant to this Clause 12.1(a) is not consummated for any reason other than due to the action or inaction of the Holders including Registrable Securities in such Holders and Registration, such Registration shall not be deemed to constitute one of the intended method Registration rights granted pursuant to this Clause 12.1(a).
(b) Registration on Form F-3 or Form S-3. The Company shall use its commercially reasonable efforts to qualify for registration on Form F-3 or Form S-3. Subject to the terms of disposition thereof) by filing this Agreement, if the Company qualifies for registration on Form F-3 or Form S-3, any Holder may request the Company to file a Registration Statement with on Form F-3 or Form S-3, including without limitation any Registration Statement filed under the SEC Securities Act providing for the registration of, and the sale on a continuous or a delayed basis by the Holders of, all of the Registrable Securities pursuant to Rule 415 under the Securities Act on Form S-3 under and/or any similar rule that may be adopted by the Securities Act (or in the event that Commission. Upon receipt of such a request, the Company is ineligible shall (i) promptly give written notice of the proposed Registration to all other Holders and (ii) as soon as practicable, use such form, such other form as the Company is eligible its commercially reasonable efforts to use under the Securities Act provided that such other form shall be converted into a Form S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling shareholders (not underwriters) of all or such portion of cause the Registrable Securities (a “Demand Registration”); providedspecified in the request, however, that (A) if the Company is not eligible to register the together with any Registrable Securities on Form S-3 under of any Holder who requests in writing to join such Registration within twenty (20) days after the Securities ActCompany’s delivery of written notice, to be Registered and qualified for sale and distribution in the relevant jurisdiction within sixty (60) days of the receipt of such request. The Company shall be obligated to register the Registrable Securities upon such election only effect no more than two (2) Registrations that have been declared and ordered effective within any twelve (12)-month period pursuant to this Clause 12.1(b); provided that if the Registrable Securities to be registered, in the aggregate, constitute 10% or more sale of the then-outstanding Registrable Securities that are not registered under an effective Registration Statement, and (B) if the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election; provided, that (i) there shall not be more than one such request during each of the Company’s fiscal quarterly periods and (ii) the Registrable Securities to be registered must include at least 1,000,000 Common Shares, or, in the aggregate, have an anticipated offering price, net of underwriting discounts and commissions, of more than $5,000,000, calculated in accordance with Rule 457(c) under the Securities Act on the business day preceding such Request.
(b) As promptly as practicable, but no later than 10 days after receipt of a Request, the Company shall give written notice of such requested registration to all Holders of Registrable Securities and Pari Passu Holders of Pari Passu Securities. Subject to Section 2.2(c), the Company shall include in a Demand Registration (i) the Registrable Securities intended to be disposed of by the Initiating Holders and (ii) the Registrable Securities and Pari Passu Securities intended to be disposed of by any other Holder or Pari Passu Holder which shall have made a written request (which request shall specify the amount of Registrable Securities to be registered and the intended method of disposition thereof) to the Company for inclusion thereof in such registration within 20 days after the receipt of such written notice from the Company. The Company shall, as expeditiously as possible following a Request, use its best efforts to cause to be filed with the SEC a Demand Registration Statement providing for the registration under the Securities Act of the Registrable Securities and the Pari Passu Securities which the Company has been so requested sought to register by all such Holders and Pari Passu Holders, be included pursuant to this Clause 12.1(b) is not consummated for any reason other than due to the extent necessary to permit action or inaction of the disposition of such Holders including Registrable Securities so to be registered in accordance with the intended methods of disposition thereof specified in such Request or further requests if so requested. The Company Registration, such Registration shall use its best efforts not be deemed to have such Demand constitute one of the Registration Statement declared effective by the SEC as soon as practicable thereafter and to keep such Demand Registration Statement continuously effective for the period specified in Section 4.1(b). The registration rights granted pursuant to the provisions of this Section 2.2 shall be in addition to the registration rights granted pursuant to the other provisions of this Section 2Clause 12.1(b).
Appears in 2 contracts
Samples: Shareholder Agreement (ZEEKR Intelligent Technology Holding LTD), Shareholder Agreement (ZEEKR Intelligent Technology Holding LTD)
Demand Registration. (a) In addition If, at any time following the earlier of one hundred and eighty (180) days after the effective date of the registration statement for a Qualified IPO, the Company shall receive a request from the Designated Holders holding at least five percent (5%) Registrable Securities then outstanding (the “Requesting Shareholder”) that the Company effect the registration of the Registrable Securities under the Securities Act of such Requesting Shareholder’s Registrable Securities where the anticipated gross proceeds (before the deduction of any discounts or commissions) would be at least US$200 million, then the Company shall promptly give notice of such requested registration (each such request, a “Demand Registration”) to the other Shareholders and thereupon shall use its reasonable best efforts to effect, as expeditiously as possible, the registration under the Securities Act of:
(i) all Registrable Securities for which the Requesting Shareholder has requested registration under this Section 1; and
(ii) subject to the restrictions set forth in Sections 1(e) and 2, all other Registrable Securities of the same class as those requested to be registered by the Requesting Shareholder that any Shareholders with rights to request registration under this Section 1 (all such Shareholders, together with the Requesting Shareholders, and any Shareholders participating in a Piggyback Registration pursuant to Section 2, the “Registering Shareholders”) have requested the Company to register by request received by the Company within five (5) Business Days after such Shareholders receive the Company’s notice of the Demand Registration; all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered; provided that, subject to Section 1(d), the Company shall not be obligated to effect more than a total of three (3) Demand Registrations pursuant to this Section 1. In no event shall the Company be required to effect more than one (1) Demand Registration hereunder within any six- (6-) month period.
(b) Promptly after the expiration of the five- (5-) Business Day period referred to in Section 2.11(a)(ii), the Majority Holders Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Shareholders may revoke such request, without liability to any of the other Registering Shareholders, by providing a notice to the Company revoking such request.
(c) The Company shall be liable for and pay all Registration Expenses in connection with any Demand Registration, regardless of whether such registration is effected.
(d) A Demand Registration shall not be deemed to have occurred:
(i) unless the right registration statement relating thereto (1) has become effective under the Securities Act and (2) has remained effective for a period of at least one hundred and eighty (180) days (or such shorter period in which all Registrable Securities of the Registering Shareholders included in such registration have actually been sold thereunder); or
(ii) if the Maximum Offering Size is reduced in accordance with Section 1(e) so that less than fifty percent (50%) of the Registrable Securities of the Requesting Shareholders sought to request be included in such registration are included.
(e) If a Demand Registration involves an underwritten public offering and the managing underwriter advises the Company and the Requesting Shareholders that, in its view, the number of shares of Registrable Securities requested to be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be registered by the Requesting Shareholders;
(ii) second, all Registrable Securities requested to be included in such registration by any other Registering Shareholder (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such other Shareholders on the basis of the relative number of Registrable Securities so requested to be included in such registration by each such Shareholder); and
(iii) third, any securities proposed to be registered by any other Persons (including the Company), with such priorities among them as the Company shall determine.
(f) Upon notice to each Requesting Shareholder, the Company may postpone effecting a registration pursuant to this Section 1 on one occasion during any period of twelve (12) consecutive months for a reasonable time specified in the notice but not exceeding ninety (90) days (which period may not be extended or renewed), if (i) an investment banking firm of recognized national standing shall advise the Company and the Requesting Shareholders in writing that effecting the registration would materially and adversely affect an offering of securities of such Company the preparation of which had then been commenced or (ii) the Company register all or part is in possession of material non-public information the disclosure of which during the period specified in such Holders’ Registrable Securities that are notice the Company reasonably believes would not then registered by be in the best interests of the Company.
(g) After the closing of an initial public offering, the Company shall use its reasonable best efforts to qualify for registration on Form F-3. At any time following one hundred and eighty (180) days after the effective date of the registration statement for a Qualified IPO and when the Company is eligible to use a Form F-3 registration statement, each Designated Holder may request the Company in writing to file a Registration Statement on Form F-3 (or any successor form to Form F-3, or any comparable form for Registration in a “Request”jurisdiction other than the United States) (which Request shall specify the amount for a public offering of Registrable Securities intended to be disposed of by such Holders and the intended method of disposition thereof) by filing (including without limitation a Registration Statement with for the SEC sale on a continuous or a delayed basis by the holders of the Registrable Securities pursuant to Rule 415 under the Securities Act on Form S-3 under and/or any similar rule that may be adopted by the Securities Act (or in the event that SEC) for which the Company is ineligible entitled to use such form, such other Form F-3 or a comparable form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into a Form S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling shareholders (not underwriters) of all or such portion of the Registrable Securities (a “Demand Registration”); provided, however, that (A) if the Company is not eligible to register the requested Registrable Securities on Form S-3 under the Securities Act, Securities. Upon receipt of such a request the Company shall be obligated to register the Registrable Securities upon such election only if the Registrable Securities to be registered, in the aggregate, constitute 10% or more of the then-outstanding Registrable Securities that are not registered under an effective Registration Statement, and (B) if the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election; provided, that (i) there shall not be more than one such request during each promptly give written notice of the Company’s fiscal quarterly periods proposed registration to all other holders of Registrable Securities and (ii) as soon as practicable, and in any event within one hundred and twenty (120) days of the receipt of such request, cause the Registrable Securities to be registered must include at least 1,000,000 Common Shares, or, specified in the aggregate, have an anticipated offering price, net of underwriting discounts and commissions, of more than $5,000,000, calculated in accordance with Rule 457(c) under the Securities Act on the business day preceding such Request.
(b) As promptly as practicable, but no later than 10 days after receipt of a Request, the Company shall give written notice of such requested registration to all Holders of Registrable Securities and Pari Passu Holders of Pari Passu Securities. Subject to Section 2.2(c), the Company shall include in a Demand Registration (i) the Registrable Securities intended to be disposed of by the Initiating Holders and (ii) the Registrable Securities and Pari Passu Securities intended to be disposed of by any other Holder or Pari Passu Holder which shall have made a written request (which request shall specify the amount of Registrable Securities to be registered and the intended method of disposition thereof) qualified for sale and distribution in such jurisdictions as such Designated Holder may reasonably request. Each Designated Holder may at any time, and from time to time, require the Company for inclusion thereof in such registration within 20 days after the receipt of such written notice from the Company. The Company shall, as expeditiously as possible following a Request, use its best efforts to cause to be filed with the SEC a Demand Registration Statement providing for effect the registration under the Securities Act of the Registrable Securities and the Pari Passu Securities which the Company has been so requested to register by all such Holders and Pari Passu Holders, to the extent necessary to permit the disposition of such Registrable Securities so to be registered in accordance with the intended methods of disposition thereof specified in such Request or further requests if so requested. The Company shall use its best efforts to have such Demand Registration Statement declared effective by the SEC as soon as practicable thereafter and to keep such Demand Registration Statement continuously effective for the period specified in Section 4.1(b). The registration rights granted pursuant to the provisions of under this Section 2.2 shall be in addition to the registration rights granted pursuant to the other provisions of this Section 21(g).
Appears in 2 contracts
Samples: Shareholders Agreement (MINISO Group Holding LTD), Shareholders Agreement (MINISO Group Holding LTD)
Demand Registration. (a) In addition to If at any time following the rights provided in Section 2.1, earlier of (x) 180 days after the Majority Holders effective date of the registration statement for the First Public Offering and (y) the expiration of the period during which the managing underwriters for the First Public Offering shall have the right to request in writing that prohibit the Company register all from effecting any other public sale or part distribution of such Holders’ Registrable Securities that are not then registered by an effective Registration Statement (a “Request”) (which Request shall specify the amount of Registrable Securities intended to be disposed of by such Holders and the intended method of disposition thereof) by filing a Registration Statement with the SEC pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into a Form S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling shareholders (not underwriters) of all or such portion of the Registrable Securities (a “Demand Registration”); provided, however, that (A) if the Company is not eligible to register the Registrable Securities on Form S-3 under the Securities ActSecurities, the Company shall be obligated to register receive a joint request from the Registrable Securities upon such election only if Quadrangle Entities and the Registrable Securities to be registered, in CVC Entities (the aggregate, constitute 10% or more of the then-outstanding Registrable Securities “Requesting Shareholders”) that are not registered under an effective Registration Statement, and (B) if the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election; provided, that (i) there shall not be more than one such request during each of the Company’s fiscal quarterly periods and (ii) the Registrable Securities to be registered must include at least 1,000,000 Common Shares, or, in the aggregate, have an anticipated offering price, net of underwriting discounts and commissions, of more than $5,000,000, calculated in accordance with Rule 457(c) under the Securities Act on the business day preceding such Request.
(b) As promptly as practicable, but no later than 10 days after receipt of a Request, the Company shall give written notice of such requested registration to all Holders of Registrable Securities and Pari Passu Holders of Pari Passu Securities. Subject to Section 2.2(c), the Company shall include in a Demand Registration (i) the Registrable Securities intended to be disposed of by the Initiating Holders and (ii) the Registrable Securities and Pari Passu Securities intended to be disposed of by any other Holder or Pari Passu Holder which shall have made a written request (which request shall specify the amount of Registrable Securities to be registered and the intended method of disposition thereof) to the Company for inclusion thereof in such registration within 20 days after the receipt of such written notice from the Company. The Company shall, as expeditiously as possible following a Request, use its best efforts to cause to be filed with the SEC a Demand Registration Statement providing for effect the registration under the Securities Act of all or any portion of such Requesting Shareholder’s Registrable Securities, and specifying the intended method of disposition thereof, then the Company shall promptly give notice of such requested registration (each such request, a “Demand Registration”) at least 15 Business Days prior to the anticipated filing date of the registration statement relating to such Demand Registration to the Management Shareholders and thereupon shall use its best efforts to effect, as expeditiously as possible, the registration under the Securities Act of:
(i) all Registrable Securities and the Pari Passu Securities for which the Requesting Shareholders have requested registration under this Section 5.01, and
(ii) subject to the restrictions set forth in Sections 5.01(e) and 5.02, all other Registrable Securities of the same class as those requested to be registered by the Requesting Shareholders that any Shareholders with rights to request registration under Section 5.02 (all such Shareholders, together with the Requesting Shareholders, the “Registering Shareholders”) have requested the Company has been so requested to register by request received by the Company within 15 Business Days after such Shareholders receive the Company’s notice of the Demand Registration, all such Holders and Pari Passu Holders, to the extent necessary to permit the disposition of such Registrable Securities so to be registered (in accordance with the intended methods thereof as aforesaid) of disposition thereof specified the Registrable Securities so to be registered, provided that, subject to Section 5.01(d), the Company shall not be obligated to effect more than three Demand Registrations for the Institutional Shareholders, other than Demand Registrations to be effected pursuant to a Registration Statement on Form S-3 (or any successor thereto), for which an unlimited number of Demand Registrations shall be permitted; provided further that the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Registrable Securities requested to be included in such Request Demand Registration equals or further requests if so requestedexceeds $15,000,000. In no event shall the Company be required to effect more than one Demand Registration hereunder within any six-month period.
(b) Promptly after the expiration of the 15 Business Day-period referred to in Section 5.01(a)(ii), the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Shareholders may revoke such request, without liability to any of the other Registering Shareholders, by providing a notice to the Company revoking such request.
(c) The Company shall use its best efforts be liable for and pay all Registration Expenses in connection with any Demand Registration.
(d) A Demand Registration shall not be deemed to have occurred:
(i) unless the registration statement relating thereto (A) has become effective under the Securities Act and (B) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registering Shareholders included in such registration have actually been sold thereunder), provided that such registration statement shall not be considered a Demand Registration Statement declared effective if, after such registration statement becomes effective, (1) such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court and (2) less than 75% of the Registrable Securities included in such registration statement have been sold thereunder; or
(ii) if the Maximum Offering Size is reduced in accordance with Section 5.01(e) such that less than 662/3% of the Registrable Securities of the Requesting Shareholders sought to be included in such registration are included.
(e) If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholders that, in its view, the number of shares of Registrable Securities requested to be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be registered by the SEC Institutional Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such entities on the basis of the relative number of Registrable Securities so requested to be included in such registration by each),
(ii) second, all Registrable Securities requested to be included in such registration by any other Registering Shareholder (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Management Shareholders on the basis of the relative number of Registrable Securities so requested to be included in such registration by each such Shareholder), and
(iii) third, any securities proposed to be registered for the account of any other Persons (including the Company), with such priorities among them as soon as practicable thereafter the Company shall determine.
(f) Upon notice to each Requesting Shareholder, the Company may postpone effecting a registration pursuant to this Section 5.01 on one occasion during any period of twelve consecutive months for a reasonable time specified in the notice but not exceeding 90 days (which period may not be extended or renewed), if (i) an investment banking firm of recognized national standing shall advise the Company and to keep such Demand Registration Statement continuously effective for the Requesting Shareholders in writing that effecting the registration would materially and adversely affect an offering of securities of the Company the preparation of which had then been commenced or (ii) the Company is in possession of material non-public information the disclosure of which during the period specified in Section 4.1(b). The registration rights granted pursuant to such notice the provisions of this Section 2.2 shall Company reasonably believes would not be in addition to the registration rights granted pursuant to best interests of the other provisions of this Section 2Company.
Appears in 2 contracts
Samples: Shareholder Agreement, Shareholders Agreement (Ntelos Holdings Corp)
Demand Registration. (a) In addition to At any time after the rights provided in Section 2.1, date that is 180 days after the Majority Holders shall have the right to request in writing that date hereof (or such earlier date (i) as would permit the Company register all to cause any filings required hereunder to be filed on the 180th day after the date hereof or part (ii) as is permitted by waiver of such Holders’ Registrable Securities the IPO Underwriting Agreement), any Person that are not then registered by an effective Registration Statement is a Shareholder (a “RequestRequesting Shareholder”) on the date a Demand is made shall be entitled to make a written request of the Company (which Request shall specify a “Demand”) for registration under the Securities Act of an amount of Registrable Securities intended that, when taken together with the amounts of Registrable Securities requested to be disposed of by such Holders and the intended method of disposition thereof) by filing a Registration Statement with the SEC pursuant to Rule 415 registered under the Securities Act on Form S-3 under the Securities Act (by such Requesting Shareholder’s Affiliates, equals or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into a Form S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling shareholders (not underwriters) of all or such portion of greater than the Registrable Securities Amount (a “Demand Registration”); provided, however, that (A) if and thereupon the Company is not eligible to register the Registrable Securities on Form S-3 under the Securities Actwill, the Company shall be obligated to register the Registrable Securities upon such election only if the Registrable Securities to be registered, in the aggregate, constitute 10% or more of the then-outstanding Registrable Securities that are not registered under an effective Registration Statement, and (B) if the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election; provided, that (i) there shall not be more than one such request during each of the Company’s fiscal quarterly periods and (ii) the Registrable Securities to be registered must include at least 1,000,000 Common Shares, or, in the aggregate, have an anticipated offering price, net of underwriting discounts and commissions, of more than $5,000,000, calculated in accordance with Rule 457(c) under the Securities Act on the business day preceding such Request.
(b) As promptly as practicable, but no later than 10 days after receipt of a Request, the Company shall give written notice of such requested registration to all Holders of Registrable Securities and Pari Passu Holders of Pari Passu Securities. Subject to Section 2.2(c), the Company shall include in a Demand Registration (i) the Registrable Securities intended to be disposed of by the Initiating Holders and (ii) the Registrable Securities and Pari Passu Securities intended to be disposed of by any other Holder or Pari Passu Holder which shall have made a written request (which request shall specify the amount of Registrable Securities to be registered and the intended method of disposition thereof) subject to the Company for inclusion thereof in such registration within 20 days after the receipt terms of such written notice from the Company. The Company shall, as expeditiously as possible following a Requestthis Agreement, use its best commercially reasonable efforts to cause to be filed with the SEC a Demand Registration Statement providing for effect the registration under the Securities Act of of:
(i) the Registrable Securities and the Pari Passu Securities which the Company has been so requested to register by the Requesting Shareholders for disposition in accordance with the intended method of disposition stated in such Demand, which may be an Underwritten Offering;
(ii) all such Holders and Pari Passu Holdersother Registrable Securities which the Company has been requested to register pursuant to Section 4.1(b); and
(iii) all Common Shares which the Company may elect to register in connection with any offering of Registrable Securities pursuant to this Section 4.1, but subject to Section 4.1(f); all to the extent necessary to permit the disposition of such Registrable Securities so to be registered (in accordance with the intended methods thereof) of the Registrable Securities and the additional Common Shares, if any, to be so registered.
(b) A Demand shall specify: (i) the aggregate number of Registrable Securities requested to be registered in such Demand Registration, (ii) the intended method of disposition thereof specified in connection with such Request Demand Registration, to the extent then known and (iii) the identity of the Requesting Shareholder (or further requests Requesting Shareholders). Within five days after receipt of a Demand, the Company shall give written notice of such Demand to any other Persons that on the date a Demand is delivered to the Company is a Shareholder, provided, however, that no notice shall be required so long as the Shareholders, together, have Beneficial Ownership of at least 40% of the Voting Power of the Company. Subject to Section 4.1(f), the Company shall include in the Demand Registration covered by such Demand all Registrable Securities with respect to which the Company has received a written request for inclusion therein (i) if so requesteda notice by the Company is required by this paragraph, within five days after such notice by the Company has been given, or (ii) if no notice by the Company is required by this paragraph, within five days after receipt by the Company of such Demand. Such written request shall comply with the requirements of a Demand as set forth in this Section 4.1(b).
(c) Each Shareholder shall be entitled to an unlimited number of Demand Registrations until such time as the Shareholders, together, Beneficially Own less than a Registrable Amount.
(d) Demand Registrations shall be on such appropriate registration form of the Commission as shall be selected by the Requesting Shareholders, including, to the extent permissible, an existing effective registration statement filed by the Company with the Commission, and shall be reasonably acceptable to the Company.
(e) The Company shall use its best efforts not be obligated to have effect any Demand Registration (A) within three months of a “firm commitment” Underwritten Offering in which all Shareholders were given “piggyback” rights pursuant to Section 4.2 (subject to Section 4.1(f)) and at least 50% of the number of Registrable Securities requested by such Shareholders to be included in such Demand Registration Statement declared effective by were included) or (B) within three months of any other Underwritten Offering pursuant to Section 4.3(f). In addition, the SEC as soon as practicable thereafter Company shall be entitled to postpone (upon written notice to all Shareholders) for a reasonable period of time not to exceed 60 days in succession the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice, or for more than 90 days in the aggregate, in any period of 12 consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating to keep such Demand Registration Statement continuously effective would cause the disclosure of material, non-public information that the Company has a bona fide business purpose for preserving as confidential. In the period specified event of a postponement by the Company of the filing or effectiveness of a registration statement for a Demand Registration, the holders of a majority of Registrable Securities held by the Requesting Shareholder(s) shall have the right to withdraw such Demand in accordance with Section 4.1(b). The registration rights granted pursuant to the provisions of this Section 2.2 shall be in addition to the registration rights granted pursuant to the other provisions of this Section 24.4.
Appears in 2 contracts
Samples: Shareholder Agreement (SeaCube Container Leasing Ltd.), Shareholder Agreement (SeaCube Container Leasing Ltd.)
Demand Registration. (a) In addition to At any time after the rights provided in Section 2.1Closing Date but not later than the date which is sixty (60) days after the Closing Date, not less than two Stockholders (the Majority Holders shall have the right to "Initiating Stockholders") may request in writing a written notice that the Company register all or part of such Holders’ Registrable Securities that are not then registered by an effective Registration Statement (a “Request”) (which Request shall specify the amount of Registrable Securities intended to be disposed of by such Holders and the intended method of disposition thereof) by filing a Registration Statement Synetic file with the SEC pursuant to Rule 415 under the Securities Act on Form S-3 a registration statement under the Securities Act (or a similar document pursuant to any other statute then in effect corresponding to the event Securities Act), covering the registration of any or all Registrable Securities, up to and including the Maximum Registrable Amount for each Initiating Stockholder, held by such Initiating Stockholders (a "Demand Registration", the first such Demand Registration being the "First Demand Registration"), provided that there must be included in such registration at least the Company is ineligible Minimum Registrable Number of shares of Registrable Securities. Following receipt of any notice under this Section 2.02(a), Synetic shall (i) within five (5) business days notify the other Stockholder of such request in writing, (ii) within thirty (30) days cause to use such form, such other form as the Company is eligible to use be filed under the Securities Act provided that such other form shall be converted into a Form S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling shareholders (not underwriters) of all or such portion of the Registrable Securities (a “Demand Registration”); provided, however, that (A) if the Company is not eligible registration statement to register the resale of all Registrable Securities on Form S-3 under Securities, up to and including the Securities Act, the Company shall be obligated to register the Maximum Registrable Securities upon Amount for each such election only if the Registrable Securities to be registered, in the aggregate, constitute 10% or more of the then-outstanding Registrable Securities that are not registered under an effective Registration Statement, and (B) if the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election; providedStockholder, that (i) there shall not be more than one the Initiating Stockholders and such request during each of the Company’s fiscal quarterly periods and (ii) the Registrable Securities to be registered must include at least 1,000,000 Common Sharesother Stockholder, or, in the aggregategiven such notice, have an anticipated offering price, net of underwriting discounts and commissions, of more than $5,000,000, calculated in accordance with Rule 457(c) under the Securities Act on the business day preceding such Request.
(b) As promptly as practicable, but no later than 10 days after receipt of a Request, the Company shall give written notice of such requested registration to all Holders of Registrable Securities and Pari Passu Holders of Pari Passu Securities. Subject to Section 2.2(c), the Company shall include in a Demand Registration (i) the Registrable Securities intended to be disposed of by the Initiating Holders and (ii) the Registrable Securities and Pari Passu Securities intended to be disposed of by any other Holder or Pari Passu Holder which shall have made a written request (which request shall specify the amount of Registrable Securities to be registered and the intended method of disposition thereof(iii) to the Company for inclusion thereof in such registration within 20 days after the receipt of such written notice from the Company. The Company shall, as expeditiously as possible following a Request, use its reasonable best efforts to cause the registration to be filed with the SEC a Demand Registration Statement providing for the registration under the Securities Act of the Registrable Securities and the Pari Passu Securities which the Company has been so requested to register by all such Holders and Pari Passu Holders, to the extent necessary to permit the disposition of such Registrable Securities so to be registered in accordance with the intended methods of disposition thereof specified in such Request or further requests if so requested. The Company shall use its best efforts to have such Demand Registration Statement declared effective by the SEC as soon as practicable thereafter and to keep such possible.
(b) At any time not less than one (1) year after the effective date of the First Demand Registration, any Stockholder may request a second Demand Registration Statement continuously effective in the manner set forth in Section 2.02(a) above for the period specified balance of such Stockholder's then Registrable Securities (the "Second Demand Registration"), provided that there must be included in Section 4.1(b)such registration at least the Minimum Registrable Number of shares of Registrable Securities and there shall not be included in such registration in excess of of the Maximum Registrable Amount. The registration rights granted pursuant to the provisions Following receipt of any notice under this Section 2.2 2.02(b), Synetic shall (i) within five (5) business days notify the other Stockholder(s) of such request in writing and (ii) within thirty (30) days cause to be in addition filed under the Securities Act a registration statement to register the resale of all Registrable Securities that the Stockholders, given such notice, have requested be registered and (iii) uses its reasonable best efforts to cause the registration rights granted pursuant to be declared effective by the other provisions of this Section 2SEC as soon as possible.
Appears in 2 contracts
Samples: Registration Rights Agreement (Synetic Inc), Registration Rights Agreement (Synetic Inc)
Demand Registration. (i) At any time on or after the date of the first to occur of (a) In addition the second anniversary of the Closing, (b) a Company Change in Control, (c) a single party or affiliated group making a bona fide offer to acquire, acquiring or entering into an agreement to acquire 33% or more of the outstanding voting stock of the Company, or (d) Holder being compelled to sell its Shares pursuant to Section 5.5 of the Investment Agreement, if one or more Holders that own an aggregate market value of $15,000,000 or more at the time of the request of the Registrable Securities shall make a written request to the rights provided in Section 2.1Company, the Majority Holders Company shall have the right to request in writing that the Company register all or part of such Holders’ Registrable Securities that are not then registered by an effective Registration Statement (a “Request”) (which Request shall specify the amount of Registrable Securities intended cause there to be disposed of by such Holders and the intended method of disposition thereof) by filing a Registration Statement filed with the SEC pursuant to Rule 415 under Commission a registration statement meeting the Securities Act on Form S-3 under requirements of the Securities Act (or in the event that the Company is ineligible to use such forma "DEMAND REGISTRATION"), such other form as the Company is eligible to use under the Securities Act provided that such other form and each Holder shall be converted into a Form S-3 promptly after Form S-3 becomes available entitled to the Companyhave included therein (subject to SECTION 2.6) covering resales by the Holders as selling shareholders (not underwriters) of all or such portion number of such Holder's Registrable Securities as the Holders shall designate pursuant to SECTIONS 2.1(i) or (iii) hereof in writing; PROVIDED, HOWEVER, that no request may be made pursuant to this SECTION 2.1 if within 9 months prior to the date of such request a Demand Registration statement pursuant to this SECTION 2.1 shall have been declared effective by the Commission. Any request made pursuant to this SECTION 2.1 shall be addressed to the attention of the Registrable Securities (a “Demand Registration”); providedSecretary of the Company, however, that (A) if and shall specify the Company is not eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election only if the number of Registrable Securities to be registered, in the aggregate, constitute 10% or more of the then-outstanding Registrable Securities that are not registered under an effective Registration Statement, and (B) if the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election; provided, that (i) there shall not be more than one such request during each of the Company’s fiscal quarterly periods and (ii) the Registrable Securities to be registered must include at least 1,000,000 Common Shares, or, in the aggregate, have an anticipated offering price, net of underwriting discounts and commissions, of more than $5,000,000, calculated in accordance with Rule 457(c) under the Securities Act on the business day preceding such Request.
(b) As promptly as practicable, but no later than 10 days after receipt of a Request, the Company shall give written notice of such requested registration to all Holders of Registrable Securities and Pari Passu Holders of Pari Passu Securities. Subject to Section 2.2(c), the Company shall include in a Demand Registration (i) the Registrable Securities intended to be disposed of by the Initiating Holders and (ii) the Registrable Securities and Pari Passu Securities intended to be disposed of by any other Holder or Pari Passu Holder which shall have made a written request (which request shall specify the amount of Registrable Securities to be registered and the intended method of disposition thereof) to the Company for inclusion thereof in such registration within 20 days after the receipt of such written notice from the Company. The Company shall, as expeditiously as possible following a Request, use its best efforts to cause to be filed with the SEC a Demand Registration Statement providing for the registration under the Securities Act of the Registrable Securities and the Pari Passu Securities which the Company has been so requested to register by all such Holders and Pari Passu Holders, to the extent necessary to permit the disposition of such Registrable Securities so to be registered in accordance with the intended methods of disposition thereof specified and that the request is for a Demand Registration pursuant to this SECTION 2.1(i).
(ii) The Company shall be entitled to postpone for up to 90 days the filing of any Demand Registration statement otherwise required to be prepared and filed pursuant to this SECTION 2.1 if the Board determines, in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), that such Request registration and the Transfer of Registrable Securities contemplated thereby would materially interfere with, or further requests require premature disclosure of, any financing, acquisition or reorganization involving the Company or any of its wholly owned Subsidiaries and the Company promptly gives the Holders notice of such determination; PROVIDED, HOWEVER, that the Company shall not have postponed pursuant to this SECTION 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this SECTION 2.1 during the 12 month period ended on the date of the relevant request pursuant to SECTION 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to SECTION 2.1(i) to effect the registration of any Registrable Securities, the Company shall promptly give written notice of such proposed registration to all other Holders. Any such Holder may, within 20 days after receipt of such notice, request in writing that all of such Holder's Registrable Securities, or any portion thereof designated by such Holder, be included in the registration.
2.2. Following receipt of a request for a Demand Registration the Company shall:
(i) File the registration statement with the Commission in accordance with SECTION 4 hereof as promptly as practicable, and shall use the Company's reasonable best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company's reasonable efforts to keep the relevant registration statement Continuously Effective for up to 90 days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement. Notwithstanding the foregoing, if so requestedfor any reason the effectiveness of a registration pursuant to this SECTION 2 is suspended or postponed as permitted by SECTION 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.3. The Company shall use its best efforts be obligated to effect three Demand Registrations. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable to the Selling Holders and such interference is not thereafter eliminated, or (iii) if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived, other than by reason of a failure on the part of the Selling Holders. If the Company shall have complied with its obligations under this Agreement, a right to demand a registration pursuant to this SECTION 2 shall be deemed to have been satisfied upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been disposed of pursuant to the Registration Statement, and (y) the date as of which such Demand Registration Statement declared effective shall have been Continuously Effective for a period of 90 days.
2.4. A registration pursuant to this SECTION 2 shall be on such appropriate registration form of the Commission as shall (i) be selected by the SEC Company and be reasonably acceptable to the Selling Holders, and (ii) permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to SECTION 2.1(i) or SECTION 2.2, respectively.
2.5. If any registration pursuant to SECTION 2 involves an underwritten offering (whether on a "firm", "best efforts" or "all reasonable efforts" basis or otherwise), or an agented offering, the Company shall have the right to select the underwriter or underwriters and manager or managers to administer such underwritten offering or the Agent or Agents for such agented offering; PROVIDED, HOWEVER, that each Person so selected shall be reasonably acceptable to the Selling Holders.
2.6. Whenever the Company shall effect a registration pursuant to this SECTION 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters' Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Selling Holders holding at least a majority of the Registrable Securities (determined by the relative market value as soon as practicable thereafter of the date on which a timely demand is last received from Holder) proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters' Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to keep be included in such Demand Registration Statement continuously effective offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holders; first for the period specified in Section 4.1(b). The registration rights granted pursuant to account of the provisions of this Section 2.2 shall be in addition to the registration rights granted pursuant to the Holder, and second by all other provisions of this Section 2Selling Holders.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Metro One Telecommunications Inc), Registration Rights Agreement (Metro One Telecommunications Inc)
Demand Registration. (a) In addition to the rights provided in Section 2.1, the Majority Holders shall have the right to request in writing that the Company register all or part of such Holders’ Registrable Securities that are not then registered by an effective Registration Statement (a “Request”) (which Request shall specify the amount of Registrable Securities intended to be disposed of by such Holders and the intended method of disposition thereof) by filing a Registration Statement with the SEC pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into a Form S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling shareholders (not underwriters) of all or such portion of the Registrable Securities (a “Demand Registration”); provided, however, that (A) if the Company is not eligible to register the Registrable Securities on Form S-3 under the Securities Act, If the Company shall be obligated to register requested in writing by the Registrable Securities upon such election only if the Registrable Securities to be registeredPurchaser, in the aggregate, constitute 10% or more of the then-outstanding Registrable Securities that are not registered under an effective Registration Statement, and (B) if the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election; provided, that (i) there shall not be more than one such request during each of the Company’s fiscal quarterly periods and (ii) the Registrable Securities to be registered must include by Holders who beneficially own at least 1,000,000 Common 7,000,000 Purchaser Shares, or, in the aggregate, have an anticipated offering price, net of underwriting discounts and commissions, of more than $5,000,000, calculated in accordance with Rule 457(c) under the Securities Act on the business day preceding such Request.
(b) As promptly as practicable, but no later than 10 days after receipt of to effect a Request, the Company shall give written notice of such requested registration to all Holders of Registrable Securities and Pari Passu Holders of Pari Passu Securities. Subject to Section 2.2(c), the Company shall include in a Demand Registration (i) the Registrable Securities intended to be disposed of by the Initiating Holders and (ii) the Registrable Securities and Pari Passu Securities intended to be disposed of by any other Holder or Pari Passu Holder which shall have made a written request (which request shall specify the amount of Registrable Securities to be registered and the intended method of disposition thereof) to the Company for inclusion thereof in such registration within 20 days after the receipt of such written notice from the Company. The Company shall, as expeditiously as possible following a Request, use its best efforts to cause to be filed with the SEC a Demand Registration Statement providing for the registration under the Securities Act of Purchaser Shares in accordance with this Section 9.2, then the Registrable Securities Company shall promptly give written notice of such proposed registration to the Purchaser and all Holders and shall offer to include (subject to the terms of this Agreement) in such proposed registration any Purchaser Shares requested to be included in such proposed registration by such holders who respond in writing to the Company's notice within 15 days after delivery of such notice (which response shall specify the number of Purchaser Shares proposed to be included in such registration and the Pari Passu intended method of distribution, which may be pursuant to a shelf registration). Such written registration request shall specify the approximate number of Purchaser Shares requested to be registered and the anticipated per share price range for such offering. The Company shall promptly use its best efforts to effect such registration on an appropriate form under the Securities Act of the Purchaser Shares which the Company has been so requested to register by all such Holders and Pari Passu Holdersregister; provided, however, -------- ------- that the Company shall not be obligated to effect any registration under the extent necessary to permit the disposition of such Registrable Securities so to be registered Act except in accordance with the intended methods following provisions:
(i) the Company shall not be obligated to file a registration statement pursuant to this Section 9.2 prior to the first anniversary of disposition thereof specified the Closing Date unless (x) a Person other than the Purchaser or a Holder exercises a demand registration right (in which case the Company must immediately comply with any demand made hereunder) other than the registration rights referred to in Section 6.1(f) hereof or (y) executive officers (as such term is defined in Rule 3b-7 under the Exchange Act) of the Company shall have sold an aggregate of 850,000 or more shares of Common Stock from and after the Closing Date or (z) Xxxxx Xxxxxx shall have sold an aggregate of 600,000 or more shares of Common Stock from after the Closing Date;
(ii) the Company shall not be obligated to file more than (a) three registration statements in total pursuant to this Section 9.2 plus (b) one additional registration statement registering all Purchaser Shares then owned by the Purchaser, subject to paragraph (c) below;
(iii) the Company shall not be obligated to file or cause to be declared effective any registration statement during any period in which (A) any other registration statement (other than on Form S-4 or Form S-8 promulgated under the Securities Act or any successor forms thereto) pursuant to which Primary Shares are to be or were sold has been filed and not withdrawn or has been declared effective within the prior 180 days, provided, that the Company shall use reasonable efforts to -------- achieve a shorter period or to have such restrictions released in less than 180 days or (B) the Company has determined in good faith that the filing of a registration statement would require the disclosure of material information that the Company has a bona fide business purpose for preserving as confidential, such filing to be delayed until the date which is 90 days after such request for registration pursuant to this Section 9.2; provided that the Company may only so delay the filing or -------- effectiveness of a registration statement pursuant to this Section 9.2(a)(iii)(B) on one occasion during any twelve month period;
(iv) with respect to the registration pursuant to this Section, the Company may include in such Request registration any Primary Shares or further requests Other Shares; provided, however, that if so requestedthe managing underwriter advises the -------- ------- Company in writing that the inclusion of all Purchaser Shares, Primary Shares and Other Shares proposed to be included in such registration would adversely affect the successful marketing (including pricing) of all such securities, then the number of Purchaser Shares, Primary Shares and Other Shares proposed to be included in such registration shall be included in the following order:
(A) First, the Purchaser Shares held by all Selling Investors, ----- pro rata based upon the number of Purchaser Shares owned by each such --- ---- Selling Investor at the time of such registration;
(B) Second, the Primary Shares; and ------
(b) The Person requesting a registration pursuant to this Section may, in the notice delivered pursuant to paragraph (a) above, elect that such registration cover an underwritten offering. Upon such election, such Person shall elect one or more nationally recognized firms of investment banks to act as the managing underwriters and shall select any additional investment banks to be used in connection with such offering, provided that such investment banks must be reasonably satisfactory to the Company. The Company shall use its best efforts shall, together with Selling Investors, if it proposes to have sell Primary Shares in such Demand Registration Statement declared effective offering, enter into a customary underwriting agreement with such underwriters.
(c) A requested registration under this Section 9.2 may be rescinded by written notice to the Company by the SEC Selling Investors holding a majority of the Purchaser Shares to be included in such registration under the following circumstances:
(A) If such registration statement is rescinded prior to the filing date, such rescinded registration shall not count as soon a registration statement initiated pursuant to this Section 9.2 for purposes of paragraph (a) above;
(B) If such registration statement is rescinded after the filing date but prior to its effective date, such rescinded registration shall not count as practicable thereafter a registration statement initiated pursuant to this Section 9.2 for purposes of paragraph (a) above if the Selling Investors (x) have reimbursed the Company for all out-of-pocket expenses incurred by the Company in connection with such rescinded registration or (y)
(1) reasonably believed that the registration statement contained an untrue statement of material fact or omitted to state a material fact required to be stated therein or necessary to make the statements made therein not misleading, (2) notified the Company of such fact and requested that the Company correct such alleged misstatement or omission and (3) the Company has refused to keep correct such Demand Registration Statement continuously alleged misstatement or omission; and
(C) A registration shall not count as a registration statement initiated pursuant to this Section for purposes of paragraph (a) above unless it becomes effective and either (i) the Selling Investors are able to sell at least 80% of the Purchaser Shares sought to be included in such registration statement or (ii) such registration statement is kept effective for the period specified in Section 4.1(b). The registration rights granted pursuant at least 180 days prior to the provisions of this Section 2.2 shall be in addition to the registration rights granted pursuant to the other provisions of this Section 2such rescission notice.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Rare Medium Group Inc), Securities Purchase Agreement (Apollo Investment Fund Iv Lp)
Demand Registration. (ai) In addition to At any time following 180 days from the rights provided in Section 2.1date hereof, the Majority Holders Warrantholders shall have the right to request in writing that the Company register all or part of such Holders’ Registrable Securities that are not then registered by an effective Registration Statement (a “Request”) (which Request shall specify the amount of Registrable Securities intended to be disposed of by such Holders and the intended method of disposition thereof) by filing a Registration Statement with the SEC pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company right is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into a Form S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling shareholders (not underwriters) of all or such portion of the Registrable Securities (a “Demand Registration”); provided, however, that (A) if the Company is not eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election only if the Registrable Securities to be registered, in the aggregate, constitute 10% or more of the then-outstanding Registrable Securities that are not registered under an effective Registration Statement, and (B) if the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election; provided, that (i) there shall not be more than one such request during each of the Company’s fiscal quarterly periods and (ii) the Registrable Securities to be registered must include at least 1,000,000 Common Shares, or, in the aggregate, have an anticipated offering price, net of underwriting discounts and commissions, of more than $5,000,000, calculated in accordance with Rule 457(c) under the Securities Act on the business day preceding such Request.
(b) As promptly as practicable, but no later than 10 days after receipt of a Request, the Company shall give written notice of such requested registration to all Holders of Registrable Securities and Pari Passu Holders of Pari Passu Securities. Subject to Section 2.2(c), the Company shall include in a Demand Registration (i) the Registrable Securities intended to be disposed of by the Initiating Holders and (ii) the Registrable Securities and Pari Passu Securities intended to be disposed of by any other Holder or Pari Passu Holder which shall have made a written request (which request shall specify the amount of Registrable Securities to be registered and the intended method of disposition thereof) to the Company for inclusion thereof in such registration within 20 days after the receipt of such written notice from the Company. The Company shall, as expeditiously as possible following a Request, use its best efforts to cause to be filed with the SEC a Demand Registration Statement providing for the registration under the Securities Act of the Registrable Securities and the Pari Passu Securities which the Company has been so requested to register by all such Holders and Pari Passu Holders, to the extent necessary to permit the disposition of such Registrable Securities so to be registered in accordance with the intended methods of disposition thereof specified in such Request or further requests if so requested. The Company shall use its best efforts to have such Demand Registration Statement declared effective by the SEC as soon as practicable thereafter and to keep such Demand Registration Statement continuously effective for the period specified in Section 4.1(b). The registration rights granted pursuant to the provisions of this Section 2.2 shall be in addition to the registration rights granted under Section 11(b) hereof), exercisable by written notice to the Company after that date, to have the Company prepare and file with the Commission, on one occasion, a registration statement and such other documents, including a prospectus, as may be necessary in the opinion of both counsel for the Company and counsel for the Warrantholders, in order to comply with the provisions of the Securities Act, so as to permit a public offering and sale of the Warrant Securities for the earlier of (i) one year following the effectiveness of the registration statement or (ii) until all of the Warrant Securities are sold.
(ii) Notwithstanding the foregoing, the Company may delay the filing or effectiveness of any registration statement for a period of up to 180 days after the receipt of a demand for registration pursuant to subsection (a) above if at the time of receipt of such demand the Company is engaged, or has fixed plans to engage within 90 days of the time of such request, in a firm commitment underwritten public offering of Primary Shares in which the Company may include Warrant Securities pursuant to and subject to the limitations of Section 11(b);
(iii) The Warrantholders, upon receipt of any notice from the Company of any event of the kind described in Section 11(d)(ix) hereof, shall forthwith discontinue disposition of the Warrant Securities pursuant to the registration statement covering such Warrant Securities until such holder's receipt of the copies of the supplemented or amended prospectus contemplated by Section 11(d)(ix) hereof, and, if so directed by the Company, such holder shall deliver to the Company all copies, other provisions than permanent file copies then in such holder's possession, of this Section 2the prospectus covering such Warrant Securities at the time of receipt of such notice.
Appears in 2 contracts
Samples: Warrant Agreement (Pcsupport Com Inc), Warrant Agreement (Pcsupport Com Inc)
Demand Registration. (a) In addition At any time after the initial public offering of the ADSs representing interests in the Company’s Ordinary Shares pursuant to the rights provided in Section 2.1, the Majority Holders shall have the right to request in writing that the Company register all or part of such Holders’ Registrable Securities that are not then registered by an effective Registration Statement (a “Request”) (which Request shall specify the amount of Registrable Securities intended to be disposed of by such Holders and the intended method of disposition thereof) by filing a Registration Statement with the SEC pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into a Form S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling shareholders (not underwriters) of all or such portion of the Registrable Securities (a “Demand Registration”); provided, however, that (A) if the Company is not eligible to register the Registrable Securities on Form S-3 registration under the Securities Act, the Company shall be obligated to register holders of the Registrable Securities may notify the Company that they intend to offer or cause to be offered for public sale all or any portion of their Registrable Securities in the manner specified in such request. Upon receipt of such request, the Company shall promptly deliver notice of such request to all Investors holding Registrable Securities who shall then have ten (10) days to notify the Company in writing of their desire to be included in such registration. If the request for registration contemplates an underwritten public offering, the Company shall state such in the written notice and in such event the right of any Person to participate in such registration shall be conditioned upon such election only if Person’s participation in such underwritten public offering and the inclusion of such Person’s Registrable Securities to be registered, in the aggregate, constitute 10% or more underwritten public offering to the extent provided herein. The Company will use its best efforts to expeditiously effect (but in any event no later than sixty (60) days after such request) the registration of the then-outstanding all Registrable Securities that are not registered under an effective Registration Statement, and (B) if the Company is eligible to register the Registrable Securities on Form S-3 whose holders request participation in such registration under the Securities Act, but only to the extent provided for in this Agreement; provided however, that the Company shall not be obligated required to register effect registration pursuant to a request under this Section 2 more than (a) five (5) times over the course of any twelve (12) month period for the holders of the Registrable Securities as a group or (b) such other greater number of times as agreed upon by the Investors then holding Registrable Securities and the Company. Notwithstanding anything to the contrary contained herein, no request may be made under this Section 2 within ninety (90) days after the effective date of a registration statement filed by the Company covering a firm commitment underwritten public offering in which the holders of Registrable Securities shall have been entitled to join pursuant to Section 4 and in which there shall have been effectively registered all Registrable Securities as to which registration shall have been requested. A registration will not count as a requested registration under this Section 2(a) unless and until the registration statement relating to such electionregistration has been declared effective by the Commission; providedprovided however, that (i) there shall not be more than one such request during each the participating Investors holding a majority of the Company’s fiscal quarterly periods and (ii) the Registrable Securities to be being registered must include at least 1,000,000 Common Shares, orby all participating Investors (a “Participating Majority”) may request, in writing, that the aggregateCompany withdraw a registration statement which has been filed under this Section 2(a) but has not yet been declared effective, have an anticipated offering priceand a Participating Majority may thereafter request the Company to reinstate such registration statement, net if permitted under the Securities Act, or the holders of underwriting discounts and commissionsRegistrable Securities may request that the Company file another registration statement, of more than $5,000,000, calculated in accordance with Rule 457(c) the procedures set forth herein and without reduction in the number of demand registrations permitted under the Securities Act on the business day preceding such Requestthis Section 2(a).
(b) As promptly as practicable, but no later than 10 days after receipt of If a Request, requested registration involves an underwritten public offering and the Company shall give written notice managing underwriter of such requested registration offering determines in good faith that the number of securities sought to all Holders be offered should be limited due to market conditions, then the number of Registrable Securities and Pari Passu Holders securities to be included in such underwritten public offering shall be reduced to a number deemed satisfactory by such managing underwriter; provided, that the shares to be excluded shall be determined in the following order of Pari Passu Securities. Subject to Section 2.2(c), the Company shall include in a Demand Registration priority: (i) persons not having any contractual or other right to include such securities in the Registrable Securities intended to be disposed of by the Initiating Holders and registration statement, (ii) the Registrable Securities and Pari Passu Securities intended to be disposed of securities held by any other Holder or Pari Passu Holder which shall have made Persons (other than the holders of Registrable Securities) having a written request contractual, incidental “piggy back” right to include such securities in the registration statement, (which request shall specify iii) securities to be registered by the Company pursuant to such registration statement, (iv) pro rata based on the amount of Registrable Securities to be registered and sold by the intended method holders of disposition thereofRegistrable Securities.
(c) With respect to a request for registration pursuant to Section 2(a) which is for an underwritten public offering, all of the Company for inclusion thereof Investors selling Registrable Securities in such registration within 20 days after underwritten public offering will have the receipt of collective right to choose the managing underwriter for such written notice from the Companyunderwritten public offering. The Company shall, as expeditiously as possible following may not cause any other registration of securities for sale for its own account (other than a Request, use its best efforts registration effected solely to cause implement an employee benefit plan or a transaction to be filed with the SEC a Demand Registration Statement providing for the registration under which Rule 145 of the Securities Act is applicable) to become effective within one hundred twenty (120) days following the effective date of the Registrable Securities and the Pari Passu Securities which the Company has been so requested to register by all such Holders and Pari Passu Holders, to the extent necessary to permit the disposition of such Registrable Securities so to be registered in accordance with the intended methods of disposition thereof specified in such Request or further requests if so requested. The Company shall use its best efforts to have such Demand Registration Statement declared effective by the SEC as soon as practicable thereafter and to keep such Demand Registration Statement continuously effective for the period specified in Section 4.1(b). The any registration rights granted required pursuant to the provisions of this Section 2.2 shall be in addition to the registration rights granted pursuant to the other provisions of this Section 2.
Appears in 2 contracts
Samples: Registration Rights Agreement (HeadHunter Group PLC), Registration Rights Agreement (HeadHunter Group PLC)
Demand Registration. (a) In addition to Upon the rights provided in Section 2.1, the Majority Holders shall have the right to written request in writing of one or more Stockholders that the Company register all or part of such Holders’ Registrable Securities that are not then registered by an effective Registration Statement (a “Request”) (which Request shall specify effect the amount of Registrable Securities intended to be disposed of by such Holders and the intended method of disposition thereof) by filing a Registration Statement with the SEC pursuant to Rule 415 registration under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into a Form S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling shareholders (not underwriters) of all or such portion but not less than all of the Registrable Securities (a “Demand Registration”); providedowned by such Stockholder(s) in an underwritten offering pursuant to the terms of Section 4 hereof, however, that (A) if but subject to the Company is not eligible to register the Registrable Securities on Form S-3 under the Securities Actlimitations set forth herein, the Company shall be obligated to register the Registrable Securities upon such election only if the Registrable Securities to be registered, will promptly (but in the aggregate, constitute 10% or more of the then-outstanding Registrable Securities that are not registered under an effective Registration Statement, and (B) if the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election; provided, that (i) there shall not be no event more than one such request during each of the Company’s fiscal quarterly periods and (ii) the Registrable Securities to be registered must include at least 1,000,000 Common Shares, or, in the aggregate, have an anticipated offering price, net of underwriting discounts and commissions, of more than $5,000,000, calculated in accordance with Rule 457(c) under the Securities Act on the five business day preceding such Request.
(b) As promptly as practicable, but no later than 10 days after the receipt of a Request, the Company shall such request) give written notice of such requested registration to all Holders of Registrable Securities other Stockholders and Pari Passu Holders of Pari Passu Securities. Subject to Section 2.2(c)Xxxxx, and the Company shall include in a Demand Registration (i) file with the Registrable Securities intended to be disposed of by the Initiating Holders Commission as promptly as practicable after sending such notice, and (ii) the Registrable Securities and Pari Passu Securities intended to be disposed of by any other Holder or Pari Passu Holder which shall have made a written request (which request shall specify the amount of Registrable Securities to be registered and the intended method of disposition thereof) to the Company for inclusion thereof in such registration within 20 days after the receipt of such written notice from the Company. The Company shall, as expeditiously as possible following a Request, use its best efforts to cause to be filed with the SEC become effective, a Demand Registration Statement providing for the registration statement under the Securities Act of Act, or a prospectus supplement under or post-effective amendment to the Initial Registration Statement, registering the underwritten offering and sale of:
(i) the Registrable Securities and the Pari Passu Securities which the Company has been so requested to register by the Stockholders, and
(ii) all but not less than all of the Registrable Securities held by any other Stockholder or Xxxxx that has requested the Company to register by written request given to the Company within 30 days after the giving of such Holders and Pari Passu Holderswritten notice by the Company, all to the extent necessary to permit the disposition of such the Registrable Securities so to be registered (a “Demand Registration”); provided, that the Company shall not be obligated to file a registration statement pursuant to this Section 2(a) with respect to more than one registration in accordance with the intended methods of disposition thereof specified which all Registrable Securities requested to be included in such Request registration are actually included without reduction as provided by Section 2(b).
(b) If the managing underwriter advises the Company in writing that, in its opinion, the number of securities requested to be included in such registration (including securities of the Company which are not Registrable Securities) exceeds the number which can be sold in such offering without a significant adverse effect on the price, timing or further requests if so requesteddistribution of the Registrable Securities offered, the Company will (subject to the last sentence of this paragraph) include in such registration only the Registrable Securities held by the Stockholders and Xxxxx which has been requested to be included in such registration (the “Stockholder/Xxxxx Registrable Securities”). In the event that the number of Stockholder/Xxxxx Registrable Securities exceeds the number which, in the opinion of such managing underwriter, can be sold, then the Company will include in such registration only the Registrable Securities held by the Stockholders which has been requested to be included in such registration (the “Stockholder Registrable Securities”). In the event the number of Stockholder Registrable Securities exceeds the number which, in the opinion of such managing underwriter, can be sold, then the Company will include in such registration only the number of Stockholder Registrable Securities which, in the opinion of the managing underwriter, can be sold, such number to be allocated pro rata among all requesting Stockholders on the basis of the relative number of shares of Registrable Securities then held by each such holder (provided that any shares thereby allocated to any such holder that exceed such holder’s request shall be reallocated among the remaining requesting holders of Registrable Securities in like manner). Notwithstanding anything set forth above, in the event that the number of Registrable Securities requested to be included in such registration is less than the number which, in the opinion of the managing underwriter, can be sold, the Company may include in such registration the securities of the Company or any other holder of the Company’s securities proposes to sell up to the number of securities that, in the opinion of the managing underwriter, can be sold without an adverse effect on the price, timing or distribution of the Registrable Securities offered.
(c) The Company shall use its best efforts be entitled to postpone for a reasonable period of time (not to exceed 120 days, which may not thereafter be extended) the filing of any registration statement otherwise required to be prepared and filed by it pursuant to Section 2(a) hereof if, at the time it receives a request for such registration, the Board of Directors of the Company determines in good faith that such offering will materially interfere with a pending or contemplated financing, merger, sale of assets, recapitalization or other similar corporate action of the Company, in which case the Company shall have furnished to holders of Registrable Securities requesting such Demand Registration Statement declared effective by registration an officers’ certificate to that effect; provided that the SEC Company shall not exercise the right to postpone registration pursuant to this Section 2(c) more than once in any 12 month period. After such period of postponement the Company shall effect such registration as soon promptly as practicable thereafter and to keep without further request from the holders of Registrable Securities, unless such Demand Registration Statement continuously effective for the period specified in Section 4.1(b). The registration rights granted pursuant to the provisions of this Section 2.2 shall be in addition to the registration rights granted pursuant to the other provisions of this Section 2request has been withdrawn by all participating Stockholders.
Appears in 2 contracts
Samples: Registration Rights Agreement (Polar Molecular Holding Corp), Registration Rights Agreement (Murdock Communications Corp)
Demand Registration. (a) In addition to If, at any time following one hundred and eighty (180) days after the rights provided in Section 2.1effective date of the registration statement for a Public Offering, the Majority Company shall receive a request from the Designated Holders shall have holding at least five percent (5%) Registrable Securities then outstanding (the right to request in writing “Requesting Shareholder”) that the Company register all or part effect the registration of such Holders’ the Registrable Securities that are not then registered by an effective Registration Statement (a “Request”) (which Request shall specify the amount of Registrable Securities intended to be disposed of by such Holders and the intended method of disposition thereof) by filing a Registration Statement with the SEC pursuant to Rule 415 under the Securities Act on Form S-3 under of such Requesting Shareholder’s Registrable Securities where the Securities Act anticipated gross proceeds (before the deduction of any discounts or in commissions) would be at least US$200 million (the event that “Demand Threshold”), then the Company is ineligible to use shall promptly give notice of such formrequested registration (each such request, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into a Form S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling shareholders (not underwriters) of all or such portion of the Registrable Securities (a “Demand Registration”); provided, however, that (A) if the Company is not eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election only if the Registrable Securities to be registered, in the aggregate, constitute 10% or more of the then-outstanding Registrable Securities that are not registered under an effective Registration Statement, and (B) if the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election; provided, that (i) there shall not be more than one such request during each of the Company’s fiscal quarterly periods and (ii) the Registrable Securities to be registered must include at least 1,000,000 Common Shares, or, in the aggregate, have an anticipated offering price, net of underwriting discounts and commissions, of more than $5,000,000, calculated in accordance with Rule 457(c) under the Securities Act on the business day preceding such Request.
(b) As promptly as practicable, but no later than 10 days after receipt of a Request, the Company shall give written notice of such requested registration to all Holders of Registrable Securities and Pari Passu Holders of Pari Passu Securities. Subject to Section 2.2(c), the Company shall include in a Demand Registration (i) the Registrable Securities intended to be disposed of by the Initiating Holders and (ii) the Registrable Securities and Pari Passu Securities intended to be disposed of by any other Holder or Pari Passu Holder which shall have made a written request (which request shall specify the amount of Registrable Securities to be registered and the intended method of disposition thereof) to the Company for inclusion thereof in such registration within 20 days after the receipt of such written notice from the Company. The Company shallother Shareholders and thereupon shall use its reasonable best efforts to effect, as expeditiously as possible following a Requestpossible, use its best efforts to cause to be filed with the SEC a Demand Registration Statement providing for the registration under the Securities Act of:
(i) all Registrable Securities for which the Requesting Shareholder has requested registration under this Section 1; and
(ii) subject to the restrictions set forth in Sections 1(e) and 2, all other Registrable Securities of the Registrable Securities same class as those requested to be registered by the Requesting Shareholder that any Shareholders with rights to request registration under this Section 1 (all such Shareholders, together with the Requesting Shareholders, and any Shareholders participating in a Piggyback Registration pursuant to Section 2, the Pari Passu Securities which “Registering Shareholders”) have requested the Company has been so requested to register by request received by the Company within five (5) Business Days after such Shareholders receive the Company’s notice of the Demand Registration; all such Holders and Pari Passu Holders, to the extent necessary to permit the disposition of such Registrable Securities so to be registered (in accordance with the intended methods thereof as aforesaid) of disposition thereof specified in such Request or further requests if the Registrable Securities so requested. The to be registered; provided that, subject to Section 1(d), the Company shall use its best efforts not be obligated to have effect more than three (3) Demand Registrations for such Requesting Shareholder, other than Demand Registration to be effected pursuant to a Registration Statement declared effective by on Form F-3, for which an unlimited number of Demand Registrations (including Shelf Offerings) shall be permitted. In no event shall the SEC as soon as practicable thereafter and Company be required to keep such effect more than one Demand Registration hereunder within any six- (6-) month period, provided that this restriction shall not apply to the filing of a Shelf Registration Statement continuously effective for and a Shelf Offering off such Shelf Registration Statement. Annex A-1
(b) Promptly after the expiration of the five- (5-) Business Day period specified referred to in Section 4.1(b1(a)(ii), the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. The registration rights granted pursuant At any time prior to the provisions effective date of this Section 2.2 shall be in addition the registration statement relating to such registration, the Requesting Shareholders may revoke such request, without liability to any of the other Registering Shareholders, by providing a notice to the registration rights granted pursuant to the other provisions of this Section 2Company revoking such request.
Appears in 2 contracts
Samples: Investor Rights Agreement (KE Holdings Inc.), Investor Rights Agreement (KE Holdings Inc.)
Demand Registration. (a) In addition At any time after the Trigger Date, if the Company shall receive a request from a Shareholder or group of Shareholders, in each case holding at least 10% of the outstanding Company Securities (the requesting Shareholder(s) shall be referred to herein as the rights provided in Section 2.1, the Majority Holders shall have the right to request in writing “Requesting Shareholder”) that the Company register all or part of such Holders’ Registrable Securities that are not then registered by an effective Registration Statement (a “Request”) (which Request shall specify the amount of Registrable Securities intended to be disposed of by such Holders and the intended method of disposition thereof) by filing a Registration Statement with the SEC pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into a Form S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling shareholders (not underwriters) of all or such portion of the Registrable Securities (a “Demand Registration”); provided, however, that (A) if the Company is not eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election only if the Registrable Securities to be registered, in the aggregate, constitute 10% or more of the then-outstanding Registrable Securities that are not registered under an effective Registration Statement, and (B) if the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election; provided, that (i) there shall not be more than one such request during each of the Company’s fiscal quarterly periods and (ii) the Registrable Securities to be registered must include at least 1,000,000 Common Shares, or, in the aggregate, have an anticipated offering price, net of underwriting discounts and commissions, of more than $5,000,000, calculated in accordance with Rule 457(c) under the Securities Act on the business day preceding such Request.
(b) As promptly as practicable, but no later than 10 days after receipt of a Request, the Company shall give written notice of such requested registration to all Holders of Registrable Securities and Pari Passu Holders of Pari Passu Securities. Subject to Section 2.2(c), the Company shall include in a Demand Registration (i) the Registrable Securities intended to be disposed of by the Initiating Holders and (ii) the Registrable Securities and Pari Passu Securities intended to be disposed of by any other Holder or Pari Passu Holder which shall have made a written request (which request shall specify the amount of Registrable Securities to be registered and the intended method of disposition thereof) to the Company for inclusion thereof in such registration within 20 days after the receipt of such written notice from the Company. The Company shall, as expeditiously as possible following a Request, use its best efforts to cause to be filed with the SEC a Demand Registration Statement providing for effect the registration under the Securities Act of all or any portion of the Requesting Shareholder’s Registrable Securities, and specifying the intended method of disposition thereof, then the Company shall as promptly as practicable following the date of receipt by the Company of such request give notice of such requested registration (each such request shall be referred to herein as a “Demand Registration”) at least 10 Business Days prior to the anticipated filing date of the registration statement relating to such Demand Registration to the other Shareholders and thereupon shall use its commercially reasonable efforts to effect, as expeditiously as possible, the registration under the Securities Act of:
(i) subject to the restrictions set forth in Sections 2.01(e), all Registrable Securities and the Pari Passu Securities for which the Company Requesting Shareholder has been so requested registration under this Section 2.01, and
(ii) subject to the restrictions set forth in Sections 2.01(e) and 2.02, all other Registrable Securities of the same class as those requested to register be registered by the Requesting Shareholder that any other Shareholders (all such Holders and Pari Passu Holdersother Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”) have requested the Company to register pursuant to Section 2.02, by request received by the Company within five Business Days after such other Shareholders received the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition of such Registrable Securities so to be registered (in accordance with the intended methods thereof as aforesaid) of disposition thereof specified the Registrable Securities so to be registered, provided that the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Registrable Securities requested to be included in such Request Demand Registration equals or further requests exceeds $10,000,000 or such lesser amount that constitutes all of the Requesting Shareholder’s Registrable Securities (provided that such lesser amount is at least $5,000,000). In no event shall the Company be required to effect more than two Demand Registrations or Underwritten Takedowns hereunder.
(b) Promptly after the expiration of the five-Business Day period referred to in Section 2.01(a)(ii), the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Shareholder may revoke such request, without liability to any of the other Registering Shareholders, by providing a notice to the Company revoking such request. A request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request), including without limitation if so requested. the Requesting Shareholder shall have learned of a material adverse change, or any development or event involving a prospective material adverse change, in the condition (financial or otherwise), results of operations, business or properties of the Company from that known to the Requesting Shareholder at the time of its request and have withdrawn the request with reasonable promptness after learning of such information, or (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses incurred by it as a result of such revoked request.
(c) The Company shall use its best efforts be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless of whether such registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A Demand Registration shall not be deemed to have occurred:
(i) unless the registration statement relating thereto (A) has become effective under the Securities Act and (B) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registering Shareholders included in such registration have actually been sold thereunder), provided that a Demand Registration Statement declared effective shall not be deemed to have occurred if, after such registration statement becomes effective, (1) such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court and (2) less than 75% of the Registrable Securities included in such registration statement have been sold thereunder; or
(ii) if the Maximum Offering Size is reduced in accordance with Section 2.01(e) such that less than 50% of the Registrable Securities of the Requesting Shareholder sought to be included in such registration are included.
(e) If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder that, in its view, the number of shares of Registrable Securities requested to be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be included in such registration by all Registering Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis of the relative number of Registrable Securities held by each such Shareholder); and
(ii) second, any securities proposed to be registered by the SEC as soon as practicable thereafter Company (including for the benefit of any other Persons not party to this Agreement).
(f) Upon notice to the Requesting Shareholder, the Company may postpone effecting a registration pursuant to this Section 2.01 on two occasions during any period of twelve consecutive months for a reasonable time specified in the notice but not exceeding 90 days (which period may not be extended or renewed), if (i) the Company reasonably determines that effecting the registration would materially and to keep such Demand Registration Statement continuously effective for adversely affect an offering of securities of the Company the preparation of which had then been commenced, or (ii) the Company is in possession of material non-public information the disclosure of which during the period specified in Section 4.1(b). The registration rights granted pursuant to such notice the provisions of this Section 2.2 shall Company reasonably believes would not be in addition to the registration rights granted pursuant to best interests of the other provisions of this Section 2Company.
Appears in 2 contracts
Samples: Registration Rights Agreement (AC Immune SA), Registration Rights Agreement (AC Immune SA)
Demand Registration. (a) In addition to If the rights provided in Section 2.1, Company shall receive a written request from Xxx Equity (the Majority Holders shall have the right to request in writing “Requesting Stockholder”) that the Company register all or part of such Holders’ Registrable Securities that are not then registered by an effective Registration Statement (a “Request”) (which Request shall specify the amount of Registrable Securities intended to be disposed of by such Holders and the intended method of disposition thereof) by filing a Registration Statement with the SEC pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into a Form S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling shareholders (not underwriters) of all or such portion of the Registrable Securities (a “Demand Registration”); provided, however, that (A) if the Company is not eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election only if the Registrable Securities to be registered, in the aggregate, constitute 10% or more of the then-outstanding Registrable Securities that are not registered under an effective Registration Statement, and (B) if the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election; provided, that (i) there shall not be more than one such request during each of the Company’s fiscal quarterly periods and (ii) the Registrable Securities to be registered must include at least 1,000,000 Common Shares, or, in the aggregate, have an anticipated offering price, net of underwriting discounts and commissions, of more than $5,000,000, calculated in accordance with Rule 457(c) under the Securities Act on the business day preceding such Request.
(b) As promptly as practicable, but no later than 10 days after receipt of a Request, the Company shall give written notice of such requested registration to all Holders of Registrable Securities and Pari Passu Holders of Pari Passu Securities. Subject to Section 2.2(c), the Company shall include in a Demand Registration (i) the Registrable Securities intended to be disposed of by the Initiating Holders and (ii) the Registrable Securities and Pari Passu Securities intended to be disposed of by any other Holder or Pari Passu Holder which shall have made a written request (which request shall specify the amount of Registrable Securities to be registered and the intended method of disposition thereof) to the Company for inclusion thereof in such registration within 20 days after the receipt of such written notice from the Company. The Company shall, as expeditiously as possible following a Request, use its best efforts to cause to be filed with the SEC a Demand Registration Statement providing for effect the registration under the Securities Act of all or any portion of the Requesting Stockholder’s Registrable Securities, and specifying the intended method of disposition thereof, then the Company shall promptly give notice of such requested registration (each such request shall be referred to herein as a “Demand Registration”) at least fifteen (15) Business Days prior to the anticipated filing date of the registration statement relating to such Demand Registration to the Additional Stockholders and thereupon shall use its best efforts to effect, as expeditiously as possible, the registration under the Securities Act of:
(i) all Registrable Securities for which the Requesting Stockholder and the Pari Passu other holders have has requested registration under this Section 5.01, and
(ii) subject to the restrictions set forth in Sections 5.01(e) and 5.02, all other Registrable Securities which of the same class as those requested to be registered by the Requesting Stockholder that any Stockholders with rights to request registration under Section 5.02 (all such Stockholders, together with the Requesting Stockholder, the “Registering Stockholders”) have requested the Company has been so requested to register by request received by the Company within ten (10) Business Days after such Stockholders receive the Company’s notice of the Demand Registration, all such Holders and Pari Passu Holders, to the extent necessary to permit the disposition of such Registrable Securities so to be registered (in accordance with the intended methods thereof as aforesaid) of disposition thereof specified the Registrable Securities so to be registered; provided that, subject to Section 5.01(d) hereof, the Company shall not be obligated to effect (x) more than ten (10) Demand Registrations, (y) more than one Demand Registration during any four-month period, or (z) any Demand Registration unless the aggregate gross proceeds expected to be received from the sale of the Registrable Securities requested to be included by all Registering Stockholders in such Request Demand Registration are at least (A) $50 million if such Demand Registration would constitute the Initial Public Offering, or further requests if so requested(B) $10 million in any Demand Registration other than the Initial Public Offering.
(b) Promptly after the expiration of the ten (10) Business Day period referred to in Section 5.01(a)(ii) hereof, the Company will notify all Registering Stockholders of the identities of the other Registering Stockholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Stockholder may revoke such request, without liability to any of the other Registering Stockholders, by providing a notice to the Company revoking such request.
(c) The Company shall use its best efforts be liable for and pay all Registration Expenses in connection with each Demand Registration, regardless of whether such Registration is effected.
(d) A Demand Registration shall not be deemed to have occurred:
(i) unless the registration statement relating thereto (A) has become effective under the Securities Act and (B) has remained effective for a period of at least 120 days (or such shorter period in which all Registrable Securities of the Registering Stockholders included in such registration have actually been sold thereunder), provided that such registration statement shall not be considered a Demand Registration Statement declared effective if, after such registration statement becomes effective, (1) such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court and (2) less than seventy-five percent (75%) of the Registrable Securities included in such registration statement have been sold thereunder; or
(ii) if the Maximum Offering Size (as defined below) is reduced in accordance with Section 5.01(e) such that less than fifty percent (50%) of the Registrable Securities of the Requesting Stockholder sought to be included in such registration are included.
(e) If a Demand Registration involves a Public Offering and the managing underwriter advises the Company and the Requesting Stockholder that, in its view, the number of Company Securities that the Registering Stockholder and the Company propose to include in such registration exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be registered by the SEC as soon as practicable thereafter and to keep such Demand Registration Statement continuously effective Registering Stockholders (allocated, if necessary for the period specified offering not to exceed the Maximum Offering Size, pro rata among such entities on the basis of the relative number of Registrable Securities so requested to be included in Section 4.1(bsuch registration by each). The registration rights granted pursuant ; and
(ii) second, all Registrable Securities proposed to be registered by the provisions of this Section 2.2 shall be in addition to the registration rights granted pursuant to the other provisions of this Section 2Company.
Appears in 2 contracts
Samples: Stockholders’ Agreement (Papa Murphy's Holdings, Inc.), Stockholders’ Agreement (Papa Murphy's Holdings, Inc.)
Demand Registration. (a) In addition Commencing six (6) calendar months following an IPO pursuant to the rights provided provisions of the Securities Act (other than a registration statement relating either to the sale of securities to employees of the Company pursuant to a share option, share purchase or similar plan or pursuant to a merger, exchange offer or a transaction of the type specified in Section 2.1Rule 145 of the Securities Act) until the Date of Termination (as defined in Clause 2.11 hereof), if the Majority Holders Company shall have received a written request (the right “Registration Request”) from Shareholders holding at least 30% of the voting power underlying the outstanding Registrable Securities (the “Initiating Holders”) to request in writing that file a registration under the Company register Securities Act of all or part of their Registrable Securities, then, the Company shall:
(i) promptly give written notice of such request to each other Shareholder; and
(ii) use its best efforts to effect, as soon as practicable, such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Initiating Holders’ Registrable Securities that as are not then registered by an effective Registration Statement (a “Request”) (which Request shall specify the amount of Registrable Securities intended to be disposed of by specified in such Holders and the intended method of disposition thereof) by filing a Registration Statement request, together with the SEC pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into a Form S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling shareholders (not underwriters) of all or such portion of the Registrable Securities (a “Demand Registration”); provided, however, that (A) if the Company is not eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election only if the Registrable Securities to be registered, in the aggregate, constitute 10% or more of the then-outstanding Registrable Securities that are not registered under an effective Registration Statement, and (B) if the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election; provided, that (i) there shall not be more than one such request during each of the Company’s fiscal quarterly periods and (ii) the Registrable Securities to be registered must include at least 1,000,000 Common Shares, or, in the aggregate, have an anticipated offering price, net of underwriting discounts and commissions, of more than $5,000,000, calculated in accordance with Rule 457(c) under the Securities Act on the business day preceding such Request.
(b) As promptly as practicable, but no later than 10 days after receipt of a Request, the Company shall give written notice of such requested registration to all Holders of Registrable Securities and Pari Passu Holders of Pari Passu Securities. Subject to Section 2.2(c), the Company shall include in a Demand Registration (i) the Registrable Securities intended to be disposed of by the Initiating Holders and (ii) the Registrable Securities and Pari Passu Securities intended to be disposed of by any other Holder or Pari Passu Holder which shall have made joining in such request as are specified in a written request given within fifteen (which request shall specify the amount of Registrable Securities to be registered and the intended method of disposition thereof15) to the Company for inclusion thereof in such registration within 20 days after the receipt of such written notice from the Company. The ; provided, however, that the Company shall, as expeditiously as possible following a Request, use its best efforts to cause to be filed shall file such registration statement with the SEC no later than forty-five (45) days after the date of the Registration Request and shall cause it to be effective no later than one-hundred twenty (120) days after the date of such filing.
(b) The Company shall not be obligated to effect any such registration, qualification or compliance, pursuant to this Clause 2.2(a):
(i) after the Company has effected one (1) registration pursuant to this Clause 2.2 and such registrations have been declared or ordered effective;
(ii) if the Initiating Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price (net of any underwriters’ discounts or commissions) of less than $7,500,000 (seven million five hundred thousand United States Dollars);
(iii) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form F-3 pursuant to a Demand Registration Statement providing request made in accordance with Clause 2.4;
(iv) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance; or
(v) if the Company shall furnish to such Initiating Holders a certificate signed by the Chairman of the Board stating that in the good faith judgment of the Board of Directors, it would be seriously detrimental to the Company or its shareholders for such registration to be effected at such time, in which event the Company shall have the right to defer the filing of the registration statement for a period of not more than one-hundred twenty (120) days from the date of receipt of the request of the Initiating Holder or Holders; provided, however, that the Company shall not utilize this right more than once in any twelve (12) month period; provided further, that the Company shall not register any Shares for the account of itself or any other shareholder during such 120 day period; and provided further, that, in such event, the Initiating Holder or Holders shall be entitled to withdraw such request and, if such request is withdrawn, such registration under shall not count as a registration pursuant to Clause 2.2(a) and the Securities Act of Company shall pay any Registration Expenses in connection with such withdrawn registration.
(c) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, then they shall so advise the Company as a part of their request made pursuant to this Clause 2.2 and the Pari Passu Company shall include such information in the written notice referred to in Clause 2.2 (a)(i). In such event the rights of any Holder to include its Registrable Securities which in such registration shall be conditioned upon such Holder’s participation in such underwriting and the Company has been so requested to register inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by all such a majority in interest of the Initiating Holders and Pari Passu Holders, such Holder) to the extent necessary provided herein. All holders of Registrable Securities proposing to permit distribute their securities through such underwriting shall enter into an underwriting agreement in the disposition customary form with the managing underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holders and reasonably acceptable to the Board of Directors of the Company. Notwithstanding any other provision of this Clause 2.2, if the underwriter(s) advise(s) the Company in writing that market factors require a limitation of the number of securities 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 reduced as required by the underwriter(s) and allocated among the holders of Registrable Securities on a pro rata basis based on the total number of Registrable Securities held by each Holder requesting registration (including the Initiating Holders); provided, however, that the number of shares of Registrable Securities then outstanding to be included in such underwriting and registration shall not be reduced unless all other securities of the Company (whether newly issued or held by third parties) are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded and withdrawn from such underwriting shall be withdrawn from the registration.
(d) If any Holder disapproves of the terms of the underwriting, such person may elect to withdraw from such underwriting by written notice to the Company, the managing underwriter and the Initiating Holders. The Registrable Securities and/or other securities held by such Holder affected shall be withdrawn from the registration.
(e) If the distribution of Registrable Securities is being effected by means of an underwriting and if the managing underwriter has not limited the number of Registrable Securities to be underwritten, the Company may include securities for its own account if the managing underwriter so agrees. The inclusion of such shares shall be on the same terms as the registration of shares held by the holders of Registrable Securities so participating in such registration. If the underwriters subsequently exclude some of the securities to be registered, the securities to be sold for the account of the Company, shall be excluded in their entirety prior to the exclusion of any Registrable Securities to be registered in accordance with the intended methods of disposition thereof specified in such Request or further requests if so requested. The Company shall use its best efforts to have such Demand Registration Statement declared effective by the SEC as soon as practicable thereafter and to keep such Demand Registration Statement continuously effective for the period specified in Section 4.1(b). The registration rights granted pursuant to the provisions of this Section 2.2 shall be in addition to the registration rights granted pursuant to the other provisions of this Section 2Initiating Holders.
Appears in 2 contracts
Samples: Registration Rights Agreement, Registration Rights Agreement (Yandex N.V.)
Demand Registration. (a) In addition Subject to the rights provided in conditions of this Section 2.12(a), if the Majority Holders shall have Company receives a written request from one or more of the right to request in writing Investors (the "Initiating Investors") that the Company register all or part of such Holders’ Registrable Securities that are not then registered by an effective Registration Statement (a “Request”) (which Request shall specify the amount of Registrable Securities intended to be disposed of by such Holders and the intended method of disposition thereof) by filing file a Registration Statement with the SEC pursuant to Rule 415 under the Securities Act on Form S-3 under registering the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into a Form S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling shareholders (not underwriters) of all or such portion resale of the Registrable Securities (a “Demand Registration”); providedSecurities, however, that (A) if then the Company is not eligible to register the Registrable Securities on Form S-3 under the Securities Actshall, the Company shall be obligated to register the Registrable Securities upon such election only if the Registrable Securities to be registered, in the aggregate, constitute 10% or more of the then-outstanding Registrable Securities that are not registered under an effective Registration Statement, and (B) if the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election; provided, that (i) there shall not be more than one give notice of such request during each to all Investors as soon as practicable, but in no event later than the tenth (10th) day following the date of the Company’s fiscal quarterly periods such request, and (ii) prepare promptly and file with the Registrable Securities to be registered must include at least 1,000,000 Common Shares, or, in the aggregate, have an anticipated offering price, net of underwriting discounts and commissions, of more than $5,000,000, calculated in accordance with Rule 457(c) under the Securities Act on the business day preceding such Request.
(b) As promptly SEC as soon as practicable, but in no event later than 10 days after receipt of a Request, the Company shall give written notice thirtieth (30th) day following the date of such requested registration to all Holders of Registrable Securities request, and Pari Passu Holders of Pari Passu Securities. Subject to Section 2.2(c), the Company shall include in a Demand Registration (i) the Registrable Securities intended to be disposed of by the Initiating Holders and (ii) the Registrable Securities and Pari Passu Securities intended to be disposed of by any other Holder or Pari Passu Holder which shall have made a written request (which request shall specify the amount of Registrable Securities to be registered and the intended method of disposition thereof) to the Company for inclusion thereof in such registration within 20 days after the receipt of such written notice from the Company. The Company shall, as expeditiously as possible following a Request, thereafter use its best efforts to cause to be filed with the SEC become effective as soon as practicable, a Demand Registration Statement providing for registering the registration resale of all Registrable Securities that the Initiating Investors request to be registered and all Registrable Securities owned by any other Investor that notifies the Company in writing, within fifteen (15) days after receipt of the Company's notice contemplated in clause (i) above, that it intends to participate in such demand registration, which notification shall include the number of Registrable Securities sought to be included by such Investor and the intended method or methods of distribution of such Registrable Securities. The Registration Statement filed hereunder, to the extent allowable under the Securities Act (including Rule 416), shall state that such Registration Statement also covers such indeterminate number of additional shares of Common Stock as may become issuable upon conversion of the Registrable Securities Notes and exercise of the Pari Passu Securities which Warrants to prevent dilution resulting from stock splits, stock dividends or similar transactions. The Registration Statement (and each amendment or supplement thereto, and each request for acceleration of effectiveness thereof) shall be provided to (and subject to the approval of) the Investors participating in such demand registration and their respective counsel prior to its filing or other submission. Notwithstanding the foregoing, the Company shall not be required to effect a demand registration pursuant to this Section 2(a): (1) prior to the 180th day following the date hereof, or (2) after the Company has effected one registration pursuant to this Section 2(a), and such registration has been so requested to register by all such Holders declared or ordered effective and Pari Passu Holders, to the extent necessary to permit the disposition of such Registrable Securities so to be registered remained continuously effective without interruption in accordance with the intended methods provisions of disposition thereof specified in such Request or further requests if so requested. The Company shall use its best efforts to have such Demand Registration Statement declared effective by the SEC as soon as practicable thereafter and to keep such Demand Registration Statement continuously effective Section 3 hereof for the period specified duration of the Registration Period (as defined in Section 4.1(b3(a) below). The registration rights granted pursuant to the provisions of this Section 2.2 shall be in addition to the registration rights granted pursuant to the other provisions of this Section 2.
Appears in 2 contracts
Samples: Registration Rights Agreement (P Com Inc), Registration Rights Agreement (P Com Inc)
Demand Registration. (a) In addition To the extent one or more Covered Persons have delivered Elections of Exchange pursuant to the rights provided Exchange Agreement in Section 2.1respect of any Quarterly Exchange Date covering Partnership Units having an aggregate market value (based on the most recent closing price of the Company’s Class A Common Stock on the securities exchange on which such Class A Common Stock is listed at the time of the applicable Demand Notice (as defined below)) of at least $75 million, the Majority Holders Demand Committee shall have the right at any time prior to the applicable Cut-Off Date to provide a written request in writing to the Company (a “Demand Notice”) that the Company register all or part of such Holders’ Registrable Securities that are not then registered by an effective Registration Statement (a “Request”) (which Request shall specify effect the amount of Registrable Securities intended to be disposed of by such Holders and the intended method of disposition thereof) by filing a Registration Statement with the SEC pursuant to Rule 415 registration under the Securities Act on Form S-3 under the Securities Act (or of, in the event Company’s sole and absolute discretion, (x) the offer and sale by such Covered Persons of Registrable Securities that the Company is ineligible shall deliver to use such formCovered Persons, at or prior to the settlement of such other form as offering, in exchange for the Partnership Units that are the subject of such Elections of Exchange at the applicable Exchange Rate or (y) the offer and sale by the Company is eligible to use under the Securities Act provided that such other form shall be converted into of a Form S-3 promptly after Form S-3 becomes available number of shares of Class A Common Stock (“Primary Issuance Funding Securities”) equal to the Company) covering resales product of the number of Partnership Units that are the subject of such Elections of Exchange multiplied by the Holders as selling shareholders Exchange Rate, the net proceeds of which issuance (determined after deduction of any underwriting discounts and commissions, but not underwritersof any other offering expenses, including Registration Expenses) the Company shall use to acquire from such Covered Persons the Partnership Units that are the subject of all or such portion Elections of the Registrable Securities Exchange (a “Demand Registration”); provided, however, that (A) if the Company is not eligible to register the Registrable Securities on Form S-3 under the Securities Act, whereupon the Company shall be obligated use its commercially reasonable efforts to register the Registrable Securities upon such election only if the Registrable Securities to be registered, in the aggregate, constitute 10% or more of the then-outstanding Registrable Securities that are not registered under an effective Registration Statement, and (B) if the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election; provided, that (i) there shall not be more than one such request during each of the Company’s fiscal quarterly periods and (ii) the Registrable Securities to be registered must include at least 1,000,000 Common Shares, or, in the aggregate, have an anticipated offering price, net of underwriting discounts and commissions, of more than $5,000,000, calculated in accordance with Rule 457(c) under the Securities Act on the business day preceding such Request.
(b) As promptly as practicable, but no later than 10 days after receipt of a Request, the Company shall give written notice of such requested registration to all Holders of Registrable Securities and Pari Passu Holders of Pari Passu Securities. Subject to Section 2.2(c), the Company shall include in a Demand Registration (i) the Registrable Securities intended to be disposed of by the Initiating Holders and (ii) the Registrable Securities and Pari Passu Securities intended to be disposed of by any other Holder or Pari Passu Holder which shall have made a written request (which request shall specify the amount of Registrable Securities to be registered and the intended method of disposition thereof) to the Company for inclusion thereof in such registration within 20 days after the receipt of such written notice from the Company. The Company shalleffect, as expeditiously as possible following a Requestreasonably practicable, use its best efforts subject to cause to be filed with the SEC a Demand Registration Statement providing for the paragraphs (c) and (d) of this Section 2.2, such registration under the Securities Act of the Registrable Securities and the Pari Passu or Primary Issuance Funding Securities for which the Company Demand Committee has been so requested to register by registration under this Section 2.2, all such Holders and Pari Passu Holders, to the extent necessary to permit the disposition of such Registrable Securities so to be registered offer and sale (in accordance with the intended methods thereof as aforesaid) of disposition thereof specified in the Registrable Securities or Primary Issuance Funding Securities to be so registered; provided, however, that the Company will not be obligated to effect any such Request or further requests if so requestedrequested registration within 180 days after the effective date of a previous Demand Registration. The public offering price for any Public Offering of Primary Issuance Funding Securities shall be determined as mutually agreed upon between the Company and the lead managing underwriters of such a Public Offering. Each Demand Notice delivered pursuant to this section 2.2(a) shall include the information set forth under Section 2.5(j) to the extent applicable. The Company shall use its best efforts inform the Demand Committee immediately upon request of the number of Partnership Units in respect of which Covered Persons have delivered Elections of Exchange for any Quarterly Exchange Date.
(b) At any time prior to have the effective date of the registration statement relating to a Demand Registration, the Demand Committee may revoke such Demand Notice by providing a notice to the Company revoking such Demand Notice. The Company shall be liable for and pay all Registration Statement declared effective Expenses in connection with any Demand Registration.
(c) If a Demand Registration involves a Public Offering and the sole or managing underwriters advise the Company that, in their view, the number of Registrable Securities, Primary Issuance Funding Securities and/or other securities that the Company and such Covered Persons intend to include in such registration exceeds the largest number of Registrable Securities, Primary Issuance Funding Securities and/or other securities that can be sold in such offering without adversely affecting the distribution of the securities being offered, the price that will be paid in such offering or the marketability thereof (the “Maximum Offering Size”), the Company shall include in such registration, in the following priority, up to the Maximum Offering Size:
(i) first, all Registrable Securities or Primary Issuance Funding Securities requested to be registered in the Demand Registration by the SEC Demand Committee (allocated, if necessary for the offering not to exceed the Maximum Offering Size, in such proportions as soon shall be determined by the Demand Committee);
(ii) second, any securities other than Primary Issuance Funding Securities proposed to be registered by the Company for its own account and any securities entitled to Other Registration Rights requested to be registered by the holders thereof, ratably among the Company and the holders of such Other Registration Rights, based (A) as practicable between the Company and the holders of such Other Registration Rights, on the respective amounts of securities requested to be registered, and (B) as among the holders of such Other Registration Rights, on the respective amounts of securities subject to such Other Registration Rights held by each such holder.
(d) Upon notice to the Demand Committee, the Company may postpone filing (but not the preparation of) a registration pursuant to this Section 2.2 for a reasonable time not exceeding 60 days thereafter or 90 days in any 365-day period, if (i) the Board or a committee of the Board shall determine in good faith that the filing of such registration statement or effecting a registration would materially and to keep such Demand Registration Statement continuously effective for adversely affect an offering of securities of the Company the preparation of which had then been commenced or (ii) the Company is in possession of material non-public information the disclosure of which, during the period specified in Section 4.1(b). The registration rights granted pursuant to such notice the provisions Board or a committee of this Section 2.2 shall the Board believes in good faith, would not be in addition the best interests of the Company, or would have a material adverse effect on any active proposal by the Company or any of its subsidiaries to the registration rights granted pursuant to the engage in any material acquisition, merger, consolidation, tender offer, other provisions of this Section 2business combination, reorganization, securities offering or other material transaction.
Appears in 2 contracts
Samples: Registration Rights Agreement (PJT Partners Inc.), Registration Rights Agreement (PJT Partners Inc.)
Demand Registration. (ai) In addition A Holder or Holders that hold not less than a majority of the then outstanding Registrable Securities (such Holder or group being referred to as the rights provided in Section 2.1, the Majority Holders “Initiating Holder”) shall have the right option and right, exercisable by delivering a written notice to request in writing that the Company register all or part of such Holders’ Registrable Securities that are not then registered by an effective Registration Statement Corporation (a “RequestDemand Notice”) (which Request shall specify ), to require the amount Corporation to, pursuant to the terms of and subject to the limitations contained in this Agreement, prepare and file with the SEC a Registration Statement registering the offering and sale of the number and type of Registrable Securities intended to be disposed of by such Holders on the terms and conditions specified in the Demand Notice in accordance with the intended timing and method or methods of disposition thereof) by filing distribution thereof specified in the Demand Notice, which may include sales on a Registration Statement with the SEC delayed or continuous basis pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into a Form S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling shareholders (not underwriters) of all or such portion of the Registrable Securities (a “Demand Registration”); provided, however, that (A) if . The Demand Notice must set forth the Company is not eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election only if the Registrable Securities to be registered, in the aggregate, constitute 10% or more number of the then-outstanding Registrable Securities that are not registered under an effective the Initiating Holder intends to include in such Demand Registration. Notwithstanding anything to the contrary herein, in no event shall the Corporation be required to effectuate a Demand Registration Statement, and (B) if the Company is eligible to register the for Registrable Securities having an aggregate value of less than $3.5 million based on Form S-3 under the Securities Act, the Company shall be obligated to register the VWAP of such Registrable Securities upon such election; provided, that (i) there shall not be more than one such request during each as of the Company’s fiscal quarterly periods and date of the Demand Notice.
(ii) Within five Business Days of the Registrable Securities to be registered must include at least 1,000,000 Common Shares, or, in the aggregate, have an anticipated offering price, net of underwriting discounts and commissions, of more than $5,000,000, calculated in accordance with Rule 457(c) under the Securities Act on the business day preceding such Request.
(b) As promptly as practicable, but no later than 10 days after receipt of a Requestthe Demand Notice, the Company Corporation shall give written notice of such requested registration Demand Notice to all Holders and, as soon as reasonably practicable thereafter, but in no event more than 60 days following receipt of Registrable Securities and Pari Passu Holders the Demand Notice, shall, subject to the limitations of Pari Passu Securities. Subject to this Section 2.2(c2(a), the Company shall include in file a Demand Registration (i) Statement covering all of the Registrable Securities intended that the Holders shall in writing request (such request to be disposed given to the Corporation within three days of receipt of such notice of the Demand Notice given by the Corporation pursuant to this Section 2(a)(ii)) to be included in such Demand Registration as promptly as practicable as directed by the Initiating Holders Holder in accordance with the terms and (ii) conditions of the Registrable Securities Demand Notice and Pari Passu Securities intended to be disposed of by any other Holder or Pari Passu Holder which shall have made a written request (which request shall specify the amount of Registrable Securities to be registered and the intended method of disposition thereof) to the Company for inclusion thereof in such registration within 20 days after the receipt of such written notice from the Company. The Company shall, as expeditiously as possible following a Request, use its best all commercially reasonable efforts to cause to be filed with the SEC a Demand such Registration Statement providing for the registration to become effective under the Securities Act and remain effective under the Securities Act until all Registrable Securities covered by such Registration Statement have been sold or otherwise cease to be Registrable Securities (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, the Corporation is not obligated hereunder to effect (A) more than two Demand Registrations in any 12 month period, (B) more than a total of six Demand Registrations pursuant to this Agreement and (C) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of the Registrable Securities held by the Holders providing such Demand Notice shall have become effective under the Securities Act and remains effective under the Pari Passu Securities which the Company has been so requested to register by all such Holders Act and Pari Passu Holders, to the extent necessary is sufficient to permit offers and sales of the disposition number and type of such Registrable Securities so to be registered on substantially the terms and conditions specified in the Demand Notice in accordance in all material respects with the intended timing and method or methods of disposition distribution thereof specified in such Request or further requests if so requestedthe Demand Notice. The Company shall use its best efforts In addition, the Corporation will not be required to have such Demand file a Registration Statement declared effective at a time when filing a Registration Statement would be prohibited by the SEC as soon as practicable thereafter and to keep such Demand Registration Statement continuously effective for the period specified in Section 4.1(b). The registration rights granted pursuant to the provisions terms of this Section 2.2 shall be in addition to the registration rights granted pursuant to the other provisions of this Section 2.a customary
Appears in 2 contracts
Samples: Registration Rights Agreement (Magellan Petroleum Corp /De/), Registration Rights Agreement (Magellan Petroleum Corp /De/)
Demand Registration. (a) In addition to the rights provided in Section 2.1, the Majority Holders shall have the right to request in writing that the Company register all or part Following receipt of such Holders’ Registrable Securities that are not then registered by an effective Registration Statement (a “Request”) (which Request shall specify the amount of Registrable Securities intended to be disposed of by such Holders and the intended method of disposition thereof) by filing a Registration Statement with the SEC pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into a Form S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling shareholders (not underwriters) of all or such portion of the Registrable Securities (a “Demand Registration”); provided, however, that (A) if the Company is not eligible to register the Registrable Securities on Form S-3 under the Securities ActNotice, the Company shall be obligated to register the Registrable Securities upon such election only if the Registrable Securities to be registered, in the aggregate, constitute 10% or more of the then-outstanding Registrable Securities that are not registered under an effective Registration Statement, and (B) if the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election; provided, that shall:
(i) there shall not be more than one such request during each of the Company’s fiscal quarterly periods and (ii) the Registrable Securities to be registered must include at least 1,000,000 Common Shares, or, in the aggregate, have an anticipated offering price, net of underwriting discounts and commissions, of more than $5,000,000, calculated in accordance with Rule 457(c) under the Securities Act on the business day preceding such Request.
(b) As promptly as practicable, but no later than 10 days after receipt of a Request, the Company shall give written notice of such requested request for registration to all Holders of Registrable Securities and Pari Passu Holders within fifteen (15) days after receipt of Pari Passu Securities. Subject to Section 2.2(c), the Company shall include in a such Demand Registration (i) the Registrable Securities intended to be disposed of by the Initiating Holders and Notice;
(ii) the cause to be filed, as soon as practicable, a Registration Statement covering such Registrable Securities that the Company has been so requested to register by the Requesting Holders and Pari Passu Securities intended to be disposed of by any other Holder or Pari Passu Holder which shall have made a written request (which request shall specify the amount Holders of Registrable Securities to be registered and the intended method of disposition thereof) who make a request to the Company for inclusion thereof in such registration Company, within 20 ten (10) days after of the receipt mailing of such written notice from the Company. The Company shall’s notice referred to in Section 1.2(b)(i) hereof, as expeditiously as possible following a Requestthat their Registrable Securities also be registered, use its best efforts to cause to be filed with the SEC a Demand Registration Statement providing for the registration under the Securities Act of the such Registrable Securities and the Pari Passu Securities which the Company has been so requested to register by all such Holders and Pari Passu Holders, to the extent necessary to permit the disposition of such Registrable Securities so to be registered in accordance with the intended methods method of disposition thereof distribution specified in such Request or further requests if Demand Notice; provided, that, such Registrable Securities are not already covered by an existing and effective Registration Statement that may be utilized for the offering and sale of the Registrable Securities requested to be registered in the manner so requested. The Company shall ;
(iii) use its best commercially reasonable efforts to have such Demand Registration Statement declared effective by the SEC as soon as practicable thereafter and thereafter;
(iv) refrain from filing any other Registration Statements, other than pursuant to keep a Registration Statement on Form S-4 or Form S-8 (or similar or successor forms), with respect to any equity securities of the Company until such date which is at least ninety (90) days (or, in the case of an IPO, one hundred eighty (180) days) following effectiveness of the Registration Statement relating to such Demand Registration; and
(v) if the Company shall have previously effected a Demand Registration pursuant to Section 1.2, the Company shall not be required to effect any registration pursuant to Section 1.2 until a period of one hundred eighty (180) days shall have elapsed from the effective date of such previous registration statement.
(vi) if a Registration Statement continuously filed pursuant to this Section 1.2 is a Shelf Registration Statement, then upon the demand of one or more Holders, the Company shall facilitate up to two (2) “takedowns” of Registrable Securities in the form of an underwritten offering utilizing the Shelf Registration Statement, in the manner and subject to the conditions described in Sections 1.2(b)(iv), 1.2(c), 1.2(e) and 1.2(f) of this Agreement, provided, that, the Company will not be required to effect a “takedown” made pursuant to this Section 1.2(b)(vi) if the Company reasonably believes, based on the advice of an underwriter that is a reputable nationally recognized investment bank, that such an offering would not reasonably be expected to generate gross proceeds (before deducting underwriters’ commissions and fees and other expenses) of at least $100,000,000. Within fifteen (15) days after receiving a request for an underwritten offering constituting a “takedown” from a Shelf Registration Statement, the Company shall give written notice of such request to all other Holders, and include in such underwritten offering all such Registrable Securities with respect to which the Company has received written requests for inclusion therein within ten (10) days after the Company’s giving of such notice, provided, that, such Registrable Securities are covered by an existing and effective Shelf Registration Statement that may be utilized for the period specified in Section 4.1(b). The registration rights granted pursuant offering and sale of the Registrable Securities requested to the provisions of this Section 2.2 shall be in addition to the registration rights granted pursuant to the other provisions of this Section 2registered.
Appears in 2 contracts
Samples: Registration Rights Agreement (Chicago Atlantic Real Estate Finance, Inc.), Registration Rights Agreement (AFC Gamma, Inc.)
Demand Registration. (a) In addition At any time following the third anniversary of the Closing (or, if earlier, the termination of the restrictions set forth in Section 6.01(a)(i)) and prior to the rights provided in Section 2.1, later of (x) the Majority Holders shall have tenth anniversary of the right to request in writing that Closing and (y) the Company register all or part date on which the Aggregate Ownership Percentage of such Holders’ Registrable Securities that are not then registered by an effective Registration Statement (a “Request”) (which Request shall specify the amount of Registrable Securities intended Investor Group ceases to be disposed of by such Holders and the intended method of disposition thereof) by filing a Registration Statement with the SEC pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into a Form S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling shareholders (not underwriters) of all or such portion of the Registrable Securities (a “Demand Registration”); provided, however, that (A) if the Company is not eligible to register the Registrable Securities on Form S-3 under the Securities Actat least 10%, the Company shall be obligated to register the Registrable Securities upon such election only if the Registrable Securities to be registered, in the aggregate, constitute 10% or more of the then-outstanding Registrable Securities that are not registered under an effective Registration Statement, and (B) if the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election; provided, that (i) there shall not be more than one such request during each of the Company’s fiscal quarterly periods and (ii) the Registrable Securities to be registered must include at least 1,000,000 Common Shares, or, in the aggregate, have an anticipated offering price, net of underwriting discounts and commissions, of more than $5,000,000, calculated in accordance with Rule 457(c) under the Securities Act on the business day preceding such Request.
(b) As promptly as practicable, but no later than 10 days after receipt of a Request, the Company shall give written notice of such requested registration to all Holders of Registrable Securities and Pari Passu Holders of Pari Passu Securities. Subject to Section 2.2(c), the Company shall include in a Demand Registration (i) the Registrable Securities intended to be disposed of by the Initiating Holders and (ii) the Registrable Securities and Pari Passu Securities intended to be disposed of by any other Holder or Pari Passu Holder which shall have made a written request (which request shall specify the amount of Registrable Securities to be registered and the intended method of disposition thereof) to the Company for inclusion thereof in such registration within 20 days after the receipt of such written notice from the Company. The Company shall, as expeditiously as possible following a Request, use its best efforts to cause to be filed with the SEC a Demand Registration Statement providing for effect the registration under the Securities Act of all or any portion of the Registrable Securities and of the Pari Passu Securities Investor Group in connection with which the Company has been so received a request (a registration pursuant to any such request, a “Demand Registration”) from the Investor. Any such request shall specify the intended method of disposition thereof, and the Company shall use commercially reasonable efforts to effect, as soon as reasonably practicable thereafter, the registration under the Securities Act of all Registrable Securities for which the Investor has requested to register by all such Holders and Pari Passu Holders, registration under this Section 5.01(a) to the extent necessary to permit the disposition of such Registrable Securities so to be registered (in accordance with the intended methods thereof as aforesaid) of disposition thereof specified in such Request or further requests if the Registrable Securities so requested. The to be registered; provided that the Company shall use its best efforts not be obligated to have effect more than one Demand Registration hereunder within any twelve-month period (other than (i) Demand Registrations to be effected pursuant to a Registration Statement on Form S-3 (or any successor form), which shall not exceed two Demand Registrations within any twelve-month period, or (ii) Demand Registrations pursuant to the Shelf Registration, for which an unlimited number of Demand Registrations shall be permitted); and provided, further, that the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Registrable Securities requested to be included in such Demand Registration Statement declared effective by equals or exceeds $5,000,000. “Registering Investor” means the SEC as soon as practicable thereafter and Investor or any Investor Group Member on whose behalf such Registrable Securities are to keep such Demand Registration Statement continuously effective for the period specified in Section 4.1(b). The registration rights granted be registered pursuant to the provisions of this Section 2.2 shall be in addition to the registration rights granted pursuant to the other provisions of this 5.01 or Section 25.02 hereof.
Appears in 2 contracts
Samples: Investor Rights Agreement, Investor Rights Agreement (Foundation Medicine, Inc.)
Demand Registration. (ai) In addition At any time after September 4, 2002, First Reserve may at any time and from time to the rights provided in Section 2.1, the Majority Holders shall have the right to time make a written request in writing that the Company register all or part of such Holders’ Registrable Securities that are not then registered by an effective Registration Statement (a “Request”) (which Request shall specify the amount of Registrable Securities intended to be disposed of by such Holders and the intended method of disposition thereof) by filing a Registration Statement with the SEC pursuant to Rule 415 for registration under the Securities Act on Form S-3 under the in a firm commitment underwritten public offering of Registrable Securities Act owned by them having a good faith estimated public offering price of at least $20 million (or in the event a "Demand Registration"); provided that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into a Form S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling shareholders (not underwriters) of all or such portion of the Registrable Securities (a “Demand Registration”); provided, however, that (A) if the Company is not eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register effect more than three Demand Registrations in any 12-month period or more than an aggregate of four Demand Registrations pursuant to this Section 5.2(a). Such request will specify the number of shares of Registrable Securities upon such election only if the Registrable Securities proposed to be registered, in the aggregate, constitute 10% or more sold. Within five days of the then-outstanding Registrable Securities that are not registered under an effective Registration Statement, and (B) if the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election; provided, that (i) there shall not be more than one such request during each of the Company’s fiscal quarterly periods and (ii) the Registrable Securities to be registered must include at least 1,000,000 Common Shares, or, in the aggregate, have an anticipated offering price, net of underwriting discounts and commissions, of more than $5,000,000, calculated in accordance with Rule 457(c) under the Securities Act on the business day preceding such Request.
(b) As promptly as practicable, but no later than 10 days after receipt of a Requestrequest, the Company shall give written notice of such requested registration request to all other Holders of Registrable Securities and Pari Passu Holders of Pari Passu Securities. Subject to Section 2.2(c), the Company shall include in a Demand Registration (i) the registration in respect of which notice has been given all Registrable Securities intended with respect to be disposed of by the Initiating Holders and (ii) the Registrable Securities and Pari Passu Securities intended to be disposed of by any other Holder or Pari Passu Holder which shall have made a written request (which request shall specify the amount of Registrable Securities to be registered and the intended method of disposition thereof) to the Company for inclusion thereof in such registration within 20 days after the receipt of such written notice from the Company. The Company shall, as expeditiously as possible following a Request, use its best efforts to cause to be filed with the SEC a Demand Registration Statement providing for the registration under the Securities Act of the Registrable Securities and the Pari Passu Securities which the Company has received written requests from Holders for inclusion therein within ten days after the Company's notice regarding such registration has been so requested to register by all such Holders and Pari Passu Holders, to the extent necessary to permit the disposition of such given as provided herein. If Registrable Securities so to be registered in accordance with the intended methods of disposition thereof specified other Holders are included in such Request registration, the Holder or further requests if so requested. The Company shall use its best efforts to have Holders requesting such Demand Registration may reduce the number of shares of Registrable Securities initially specified to be included in such registration in its or their sole discretion; provided, that Registrable Securities having a good faith estimated public offering price of at least $20 million are included in such registration. A registration will not count as a Demand Registration until the Registration Statement filed pursuant to such registration has been declared effective by the SEC as soon as practicable thereafter and to keep such Demand Registration Statement continuously remains effective for the period specified in Section 4.1(b5.2(d)(i). .
(ii) The Holder or Holders requesting the Demand Registration shall select the managing underwriters (including the book running lead managing underwriters) and any additional investment bankers and managers to be used in connection with the offering (unless a member of the First Reserve Group is included among the Holders selling pursuant to such registration, in which case First Reserve shall select such underwriters, investment bankers and managers); provided that the lead managing underwriter must be reasonably satisfactory to the Company.
(iii) Neither the Company nor any of its security holders (other than the Holders of Registrable Securities in such capacity) shall be entitled to include any of the Company's securities in a Registration Statement initiated as a Demand Registration under this Section 5.2(a) without the consent of First Reserve.
(iv) In addition to the Demand Registration rights enumerated above, with respect to the Amethyst Registrable Securities at any time after (X) July 1, 2002 or (Y) such earlier date which is 60 days prior to the date on which the Exchangeable Stock shall have been exchanged for Common Stock pursuant to Section 5.10 or 5.11 of the Purchase Agreement, First Reserve may make a request in writing that the Company file a registration rights granted statement under the Securities Act to register under the Securities Act all Amethyst Registrable Securities (whether or not such Amethyst Registrable Securities are then issued and outstanding) for resale on a delayed or continuous basis for a period of one year in an amount equal to the lesser of (A) all such Amethyst Registrable Securities, or (B) the number of Amethyst Registrable Securities that could be sold pursuant to the provisions of this Section 2.2 Rule 144 by an affiliate of the Company (assuming such Amethyst Registrable Securities were not restricted securities within the meaning of Rule 144) during such one-year period. Such a request (and the related registration) shall be in addition to the registration rights granted pursuant to the other provisions Demand Registrations provided for in Section 5.2(a)(i) of this Section 2Agreement.
Appears in 2 contracts
Samples: Shareholder Agreements (Pride International Inc), Shareholder Agreements (Pride International Inc)
Demand Registration. (ai) In addition A Xxxxxx Xxxxxx or Xxxxxx Holders may request (at any time after the Company completes an IPO) by written notice delivered to the rights provided Company that the Company register under the Securities Act all or any portion of the Registrable Securities then held by such Xxxxxx Xxxxxx or Xxxxxx Holders (the “Requesting Xxxxxx Holders”), representing in Section 2.1the aggregate not less than fifty percent (50%) of the Registrable Securities held by the Xxxxxx Holders, for sale in the manner specified in such notice (including, but not limited to, an underwritten public offering). In each such case, such notice shall specify the number of Registrable Securities for which registration is requested, the Majority proposed manner of disposition of such securities, and the minimum price per share at which the Requesting Xxxxxx Holders would be willing to sell such securities in an underwritten offering. The Company shall, within five (5) Business Days after its receipt of any Requesting Xxxxxx Holders’ notice under this Section 2(a)(i), give written notice of such request to all other Xxxxxx Holders and afford them the opportunity of including in the requested registration statement such of their Registrable Securities as they shall specify in a written notice given to the Company within twenty (20) days after their receipt of the Company’s notice. Within ten (10) Business Days after the expiration of such twenty (20) day period, the Company shall notify all Xxxxxx Holders requesting registration of (A) the aggregate number of Registrable Securities proposed to be registered by all Xxxxxx Holders, (B) the proposed filing date of the registration statement, and (C) such other information concerning the offering as any Holder may have reasonably requested. If the Xxxxxx Holders of a majority in aggregate amount of the Registrable Securities to be included in such offering shall have requested that such offering be underwritten, the managing underwriter for such offering shall be chosen by the Xxxxxx Holders of a majority in aggregate amount of the Registrable Securities being registered, with the consent of the Company, which consent shall not be unreasonably withheld, not less than thirty (30) days prior to the proposed filing date stated in the Company’s notice, and the Company shall thereupon promptly notify such Xxxxxx Holders as to the identity of the managing underwriter, if any, for the offering. On or before the 30th day prior to such anticipated filing date, any Xxxxxx Xxxxxx may give written notice to the Company and the managing underwriter specifying either that (A) Registrable Securities of such Xxxxxx Xxxxxx are to be included in the underwriting, on the same terms and conditions as the securities otherwise being sold through the underwriters under such registration or (B) such Registrable Securities are to be registered pursuant to such registration statement and sold in the open market without any underwriting, on terms and conditions comparable to those normally applicable to offerings in reasonably similar circumstances, regardless of the method of disposition originally specified in Holder’s request for registration; provided that, notwithstanding anything to the contrary contained herein, to the extent that any Xxxxxx Xxxxxx sells Registrable Securities off of a shelf registration statement on Form S-3 (or equivalent registration statement form) other than pursuant to an underwritten offering, such sales by the Xxxxxx Holders collectively shall (x) be subject to the terms of any lock-up agreement or similar agreement entered into by such Xxxxxx Xxxxxx with the Company and (y) be strictly limited in any 30 consecutive day period to the sale of the number of shares (inclusive of the sale of any unlegended shares during the applicable periods by such Xxxxxx Xxxxxx) equal to 1% of the shares of the Company outstanding as shown by the most recent report or statement published by the Company (with such limitation applying to transfers by the Xxxxxx Holders and their transferees collectively); provided further, that, if the Company has filed a shelf registration statement pursuant to Section 2(a)(iii) hereof in response to receiving a request from the Xxxxxx Holders to file such shelf registration statement at least 20 days prior to the 181st day after the IPO, and such registration statement has not become effective within 45 days of the filing of such shelf registration statement, the Xxxxxx Holders shall have the right to sell additional shares off of such shelf registration statement (without regard to the above 1% limit) equal to (x) 1% of the outstanding shares of common stock of the Company, multiplied by (y) a fraction, the numerator of which is the number of days beyond 45 days in which it took for such effectiveness to occur, and the denominator of which is 30, minus (z) the number of unlegended shares that were available to be sold by the Xxxxxx Holders and their transferees during such period beyond 45 days. Notwithstanding anything to the contrary contained herein, the Company shall not be obligated to file a shelf registration statement prior to the 181st day after the IPO at the request of the Xxxxxx Holders (and in writing order for the Company to be obligated to file such shelf registration statement on such 181st day, the Xxxxxx Holders must have made the relevant request at least 20 days prior to such date), any sales by the Xxxxxx Holders off of an effective shelf registration statement, other than pursuant to an underwritten offering, shall be effected through Xxxxxxxx & Co. or a firm that is one of the lead underwriters in the IPO and the Xxxxxx Holders hereby agree to provide prompt written notice to the Company (including the amount and, if directly placed with an identifiable purchaser, the transferee) after each such sale.
(ii) Blackstone and its affiliates may request at any time, and from time to time, that the Company register all or part of such Holders’ Registrable Securities that are not then registered by an effective Registration Statement (a “Request”) (which Request shall specify the amount of Registrable Securities intended to be disposed of by such Holders and the intended method of disposition thereof) by filing a Registration Statement with the SEC pursuant to Rule 415 under the Securities Act all or any portion of the Registrable Securities held by them for sale by written notice delivered to the Company in the manner specified in such notice (including, but not limited to, an underwritten public offering). If such manner is an underwritten public offering, the managing underwriter shall be selected by Blackstone.
(iii) The Company shall use all commercially reasonable efforts to file with the SEC within eighty (80) days (thirty (30) days if the Company may use a Registration Statement on Form S-3 under to register such Registrable Securities and on the 181st day after the IPO if the Xxxxxx Holders so request at least twenty (20) days prior thereto) after the Company’s receipt of the initial requesting Xxxxxx Holders’ or Blackstone’s written notice pursuant to Section 2(a)(i) or (ii), a registration statement for the public offering and sale, in accordance with the method of disposition specified by such Holders, of the number of Registrable Securities Act specified in such notice, and thereafter use all commercially reasonable efforts to cause such registration statement to become effective within sixty (60) days after its filing. Such registration statement may be on Form S-1 or in the event another appropriate form (including Form S-3) that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided and that such other form shall be converted into a Form S-3 promptly after Form S-3 becomes available is reasonably acceptable to the Company) covering resales by the Holders as selling shareholders (not underwriters) of all or such portion of the Registrable Securities (a “Demand Registration”)managing underwriter; provided, however, that (A) if the Company is not eligible to register the Registrable Securities a WKSI, a shelf registration on Form S-3 will, at the request of Blackstone or the Xxxxxx Holders, cover an unspecified number of shares of Common Stock to be sold by the Company and the Holders; provided further, that, the Xxxxxx Holders shall not demand or request that the Company file a shelf registration statement prior to the 181st day after the IPO (and in order for the Company to be obligated to file such shelf registration statement on such 181 st day, the Xxxxxx Holders must have made the relevant request at least 20 days prior to such date).
(iv) The Company shall not have any obligation hereunder, except in connection with any one registration pursuant to Section 2(a)(vi), to register any Registrable Securities under Section 2(a)(i) unless it shall have received requests from Holders to register at least five percent (5%) of the Securities ActOutstanding Registrable Securities. Notwithstanding anything to the contrary contained herein, the Company shall be obligated not have any obligation hereunder, except as and to register the Registrable Securities extent provided by Section 2(a)(vi) or Section 7(b), to permit or participate in more than an aggregate total of any two of the following: (A) the filing of any registration statements filed upon such election only the demand of the Xxxxxx Holders pursuant to Section 2(a)(i) (excluding the filing of a shelf registration statement if the Registrable Securities Xxxxxx Holders have requested it to be registered, in filed on the aggregate, constitute 10% or more of 181st day after the then-outstanding Registrable Securities that are not registered under an effective Registration StatementIPO) and any related offerings, and (B) if underwritten takedowns requested pursuant to Section 2(a)(vii) by the Xxxxxx Holders from a registration statement that has been declared effective prior to the time the request for an underwritten takedown is made.
(v) If the Company is eligible required to use all commercially reasonable efforts to register Registrable Securities in a registration initiated upon the demand of any Holder pursuant to Section 2(a)(i) or (ii) of this Agreement and the managing underwriters for such offering advise that the inclusion of all securities sought to be registered pursuant to Section 2 or 3 hereof may interfere with an orderly sale and distribution of or may materially adversely affect the price of such offering, then the Company will include in such offering (x) first, the aggregate number of Registrable Securities requested to be included by the Holders pursuant to Section 2(a)(i) or (ii), as the case may be, and Section 3 which the managing underwriters advise will not likely have such effect, allocated pro rata based on the number of securities duly requested to be included in such registration and (y) second, all other securities requested to be included in such registration.
(vi) If all of the Registrable Securities of the Xxxxxx Holders requested to be included in any registration pursuant to Section 2(a)(i) are not included in such registration as a result of the inclusion of any Registrable Securities in such registration pursuant to Section 3, the Xxxxxx Holders shall have one additional registration right under Section 2(a)(i).
(vii) Upon the demand of a Requesting Xxxxxx Xxxxxx or Blackstone pursuant to Section 2(a)(i) or (ii) made at any time and from time to time, the Company will facilitate in the manner described in this Agreement a “takedown” of shares of Common Stock off of an effective shelf registration statement on Form S-3. Notwithstanding the foregoing, such Holders may not demand a shelf takedown for an offering that will result in the imposition of a lockup on the Company and the Holders unless the shares requested to be sold by the demanding Holders in such takedown have an aggregate market value (based on the most recent closing price of the Common Stock at the time of the demand) of at least $50 million.
(viii) Upon the demand of a Requesting Xxxxxx Xxxxxx or Blackstone, the Company will file and seek the effectiveness of a post-effective amendment to an existing shelf registration statement on Form S-3 under in order to register up to the Securities Actnumber of shares previously taken down off of such shelf by such Holder and not yet “reloaded” onto such shelf registration statement. The Requesting Xxxxxx Xxxxxx or Blackstone, as applicable, and the Company shall be obligated will consult and coordinate with each other in order to register the Registrable Securities upon accomplish such election; provided, that (i) there shall not be more than one such request during each of the Company’s fiscal quarterly periods and (ii) the Registrable Securities replenishments from time to be registered must include at least 1,000,000 Common Shares, or, time in the aggregate, have an anticipated offering price, net of underwriting discounts and commissions, of more than $5,000,000, calculated in accordance with Rule 457(c) under the Securities Act on the business day preceding such Requesta sensible manner.
(b) As promptly as practicable, but no later than 10 days after receipt Notwithstanding any other provision of a Requestthis Agreement, the Company shall give written notice have the right to defer or suspend the filing or effectiveness of such a registration statement relating to any registration requested under Section 2(a) for a reasonable period of time not to exceed 90 days if a prior registration to all Holders statement of Registrable Securities and Pari Passu Holders of Pari Passu Securities. Subject to Section 2.2(c), the Company shall include in a Demand Registration (i) the Registrable Securities intended to be disposed of by the Initiating Holders and (ii) the Registrable Securities and Pari Passu Securities intended to be disposed of by any other Holder or Pari Passu Holder which shall have made a written request (which request shall specify the amount of Registrable Securities to be registered and the intended method of disposition thereof) to the Company for inclusion thereof in such registration within 20 days after the receipt of such written notice from the Company. The Company shallan underwritten, as expeditiously as possible following a Request, use its best efforts to cause to be filed with the SEC a Demand Registration Statement providing for the registration under the Securities Act of the Registrable Securities and the Pari Passu Securities which public offering by the Company has been so requested to register by all such Holders and Pari Passu Holders, to the extent necessary to permit the disposition of such Registrable Securities so to be registered in accordance with the intended methods of disposition thereof specified in such Request or further requests if so requested. The Company shall use its best efforts to have such Demand Registration Statement securities was declared effective by the SEC as soon as practicable thereafter and less than 120 days prior to keep such Demand Registration Statement continuously the anticipated effective for date of the period specified in Section 4.1(b). The requested registration.
(c) No registration rights granted of Registrable Securities under this Article 2 shall relieve the Company of its obligation (if any) to effect registrations of Registrable Securities pursuant to Article 3.
(d) For the provisions avoidance of this Section 2.2 doubt, except as provided under Article 13, no Holder other than a Xxxxxx Xxxxxx or Blackstone shall be in addition entitled to the registration any rights granted pursuant to the other provisions of under this Section Article 2.
Appears in 2 contracts
Samples: Registration Rights Agreement (Graham Packaging Co Inc.), Registration Rights Agreement (Graham Packaging Co Inc.)
Demand Registration. (a) In addition to If the rights provided in Section 2.1Company shall receive a written request from the DLJMB Members (such requesting person, the Majority Holders shall have the right to request in writing “Requesting Stockholder”) that the Company register all or part of such Holders’ Registrable Securities that are not then registered by an effective Registration Statement (a “Request”) (which Request shall specify the amount of Registrable Securities intended to be disposed of by such Holders and the intended method of disposition thereof) by filing a Registration Statement with the SEC pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into a Form S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling shareholders (not underwriters) of all or such portion of the Registrable Securities (a “Demand Registration”); provided, however, that (A) if the Company is not eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election only if the Registrable Securities to be registered, in the aggregate, constitute 10% or more of the then-outstanding Registrable Securities that are not registered under an effective Registration Statement, and (B) if the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election; provided, that (i) there shall not be more than one such request during each of the Company’s fiscal quarterly periods and (ii) the Registrable Securities to be registered must include at least 1,000,000 Common Shares, or, in the aggregate, have an anticipated offering price, net of underwriting discounts and commissions, of more than $5,000,000, calculated in accordance with Rule 457(c) under the Securities Act on the business day preceding such Request.
(b) As promptly as practicable, but no later than 10 days after receipt of a Request, the Company shall give written notice of such requested registration to all Holders of Registrable Securities and Pari Passu Holders of Pari Passu Securities. Subject to Section 2.2(c), the Company shall include in a Demand Registration (i) the Registrable Securities intended to be disposed of by the Initiating Holders and (ii) the Registrable Securities and Pari Passu Securities intended to be disposed of by any other Holder or Pari Passu Holder which shall have made a written request (which request shall specify the amount of Registrable Securities to be registered and the intended method of disposition thereof) to the Company for inclusion thereof in such registration within 20 days after the receipt of such written notice from the Company. The Company shall, as expeditiously as possible following a Request, use its best efforts to cause to be filed with the SEC a Demand Registration Statement providing for effect the registration under the Securities Act of all or any portion of such Requesting Stockholder’s Registrable Securities, and specifying the intended method of disposition thereof, then the Company shall promptly give notice of such requested registration (each such request shall be referred to herein as a “Demand Registration”) at least fifteen (15) Business Days prior to the anticipated filing date of the registration statement relating to such Demand Registration to the other Stockholders and thereupon shall use its best efforts to effect, as expeditiously as possible, the registration under the Securities Act of:
(i) all Registrable Securities and the Pari Passu Securities for which the Requesting Stockholders have requested registration under this Section 1.01, and
(ii) subject to the restrictions set forth in Sections 1.01(e) and 1.02, all other Registrable Securities of the same class as those requested to be registered by the Requesting Stockholders that any Stockholders with rights to request registration under Section 1.02 (all such Stockholders, together with the Requesting Stockholders, the “Registering Stockholders”) have requested the Company has been so requested to register by request received by the Company within ten (10) Business Days after such Stockholders receive the Company’s notice of the Demand Registration, all such Holders and Pari Passu Holders, to the extent necessary to permit the disposition of such Registrable Securities so to be registered (in accordance with the intended methods thereof as aforesaid) of disposition thereof specified the Registrable Securities so to be registered; provided that, subject to Section 1.01(d) hereof, the Company shall not be obligated to effect (x) more than six Demand Registrations, (y) more than one Demand Registration during any four-month period, or (z) any Demand Registration unless the aggregate gross proceeds expected to be received from the sale of the Registrable Securities requested to be included by all Registering Stockholders in such Request Demand Registration are at least (A) $50 million if such Demand Registration would constitute the Initial Public Offering, or further requests if so requested(B) $20 million in any Demand Registration other than the Initial Public Offering.
(b) Promptly after the expiration of the ten (10) Business Day period referred to in Section 1.01(a)(ii) hereof, the Company will notify all Registering Stockholders of the identities of the other Registering Stockholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Stockholders may revoke such request, without liability to any of the other Registering Stockholders, by providing a notice to the Company revoking such request.
(c) The Company shall use its best efforts be liable for and pay all Registration Expenses in connection with each Demand Registration, regardless of whether such Registration is effected.
(d) A Demand Registration shall not be deemed to have occurred:
(i) unless the registration statement relating thereto (A) has become effective under the Securities Act and (B) has remained effective for a period of at least 120 days (or such shorter period in which all Registrable Securities of the Registering Stockholders included in such registration have actually been sold thereunder), provided that such registration statement shall not be considered a Demand Registration Statement declared effective if, after such registration statement becomes effective, (1) such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court and (2) less than 75% of the Registrable Securities included in such registration statement have been sold thereunder; or
(ii) if the Maximum Offering Size (as defined below) is reduced in accordance with Section 1.01(e) such that less than 50% of the Registrable Securities of the Requesting Stockholders sought to be included in such registration are included.
(e) If a Demand Registration involves a Public Offering and the managing underwriter advises the Company and the Requesting Stockholders that, in its view, the number of Company Securities that the Registering Stockholders and the Company propose to include in such registration exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be registered by the SEC as soon as practicable thereafter and to keep such Demand Registration Statement continuously effective Registering Stockholders (allocated, if necessary for the period specified offering not to exceed the Maximum Offering Size, pro rata among such Stockholders on the basis of the relative number of Registrable Securities so requested to be included in Section 4.1(bsuch registration by each). The registration rights granted pursuant ; and
(ii) second, all Registrable Securities proposed to be registered by the provisions of this Section 2.2 shall be in addition to the registration rights granted pursuant to the other provisions of this Section 2Company.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (STR Holdings (New) LLC), Limited Liability Company Agreement (STR Holdings, Inc.)
Demand Registration. (a) In addition At any time following the Closing Date and as many times as may be required for the disposition of all Registrable Securities, the Initiating Holders may give a written request to the rights provided in Section 2.1, Company to effect the Majority Holders shall have the right to request in writing that the Company register all or part of such Holders’ Registrable Securities that are not then registered by an effective Registration Statement (a “Request”) (which Request shall specify the amount of Registrable Securities intended to be disposed of by such Holders and the intended method of disposition thereof) by filing a Registration Statement with the SEC pursuant to Rule 415 registration under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into a Form S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling shareholders (not underwriters) of all or such any portion of the such Holder’s Registrable Securities (a “Demand Registration”); providedSecurities, however, that (A) if the Company is not eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election only if the Registrable Securities to be registered, in the aggregate, constitute 10% or more of the then-outstanding Registrable Securities that are not registered under an effective Registration Statement, and (B) if the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election; provided, that (i) there shall not be more than one such request during each of the Company’s fiscal quarterly periods and (ii) the Registrable Securities to be registered must include at least 1,000,000 Common Shares, or, in the aggregate, have an anticipated offering price, net of underwriting discounts and commissions, of more than $5,000,000, calculated in accordance with Rule 457(c) under the Securities Act on the business day preceding such Request.
(b) As promptly as practicable, but no later than 10 days after receipt of a Request, the Company shall give which written notice of such requested registration to all Holders of Registrable Securities and Pari Passu Holders of Pari Passu Securities. Subject to Section 2.2(c), the Company shall include in a Demand Registration (i) the Registrable Securities intended to be disposed of by the Initiating Holders and (ii) the Registrable Securities and Pari Passu Securities intended to be disposed of by any other Holder or Pari Passu Holder which shall have made a written request (which request shall specify the amount number of Registrable Securities to be registered and the intended method of disposition thereofthereof (each such registration shall be referred to herein as a “Demand Registration”); provided that, subject to Section 2.1(d), the Company shall not be obligated to effect any Demand Registration (w) with respect to Registrable Securities that are subject to transfer restrictions (other than those pursuant to the Company for inclusion thereof in such registration Securities Act or applicable state or other securities laws) pursuant to this Agreement or the ModSpace Warrant Agreement, as applicable, (x) within 20 90 days after the receipt effective date of a previous Registration Statement (or such shorter period as the Company may determine in its sole discretion) pursuant to which the Holders were permitted to register the offer and sale under the Securities Act, and actually sold at least 75% of the Registrable Securities requested to be included therein by such Holders or (y) as provided in Section 2.1(f). Thereafter, the Company shall promptly, and in any event, within five (5) days after receiving such request, give written notice from of the Company. The Company shallproposed registration to all other Holders and all Existing Investors, which Existing Investors shall have piggyback rights with respect thereto pursuant to Section 2.3 of the Existing Agreement, and use its reasonable efforts to effect, as expeditiously soon as possible following a Requestpracticable, use its best efforts to cause to be filed with the SEC a Demand Registration Statement providing for the registration under the Securities Act of:
(i) first, all Registrable Securities for which the requesting Initiating Holder(s) has requested a Demand Registration under this Section 2.1;
(ii) second, the number of Existing Investor Securities requested by any Existing Investor specified in a written request received by the Company within five (5) days after written notice regarding such Existing Investor’s piggyback rights with respect to such Demand Registration pursuant to Section 2.3 of the Existing Agreement to be included in such Demand Registration by any such Existing Investor equal to the difference between the Maximum Offering Size and number of Registrable Securities requested to be included in such Demand Registration pursuant to clause (i) above, based on the pro rata percentage of Exisiting Investor Securities held by such Existing Investors (determined based on the aggregate number of Existing Investor Securities held by each such Existing Investor);
(iii) third, the number of Registrable Securities requested by any other Holder specified in a written request received by the Company within five (5) days after written notice regarding such other Holder’s piggyback rights with respect to such Demand Registration pursuant to Section 2.3 of this Agreement to be included in such Demand Registration by such other Holders equal to the difference between the Maximum Offering Size and the number of Registrable Securities and Existing Investor Securities requested pursuant to clauses (i) and
(ii) above, based on the Pari Passu pro rata percentage of Registrable Securities which held by such other Holders (determined based on the Company has been so requested aggregate number of Registrable Securities held by each such other Holder); and
(iv) fourth, any Common Stock to register be offered or sold by all such Holders and Pari Passu Holders, the Company; to the extent necessary to permit the disposition of such Registrable Securities so to be registered (in accordance with the intended methods thereof as aforesaid) of disposition thereof the Registrable Securities to be so registered. At any time the Company is eligible for use of an Automatic Shelf Registration Statement, if specified in such Request notice for a Demand Registration, such registration shall occur on such form.
(b) At any time prior to the effective date of the Registration Statement relating to such Demand Registration, any requesting Holder may, upon notice to the Company, revoke its request in whole or further requests in part with respect to the number of shares of Registrable Securities requested by such requesting Holder to be included in such Registration Statement.
(c) The Company shall be liable for and pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Demand Registration becomes effective.
(d) A Demand Registration shall not be deemed to have occurred:
(i) unless the Registration Statement relating thereto (A) has become effective under the Securities Act and (B) has remained continuously effective for a period of at least (x) 180 days (or such shorter period in which all Registrable Securities of the Holders included in such registration have actually been sold thereunder) or (y) with respect to a Shelf Registration, until the date set forth in Section 2.5(a)(ii); provided that such Registration Statement shall not be considered a Demand Registration if, after such Registration Statement becomes effective, (1) such Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court and (2) less than 75% of the Registrable Securities included in such Registration Statement have been sold thereunder; or
(ii) if so requestedthe Maximum Offering Size is reduced in accordance with Section 2.1(e) such that less than 66.67% of the Registrable Securities of the Holders sought to be included in such registration are included.
(e) The Company shall not include in any Demand Registration or Shelf Registration any securities that are not Registrable Securities or Existing Investor Securities without the prior written consent of the Holders of the Registrable Securities included in such Demand Registration or Shelf Registration. If a Demand Registration involves a Public Offering and the lead managing underwriter advises the Company and the Holders of the Registrable Securities included in such Demand Registration that, in its view, the number of shares of Registrable Securities and Existing Investor Securities requested to be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having a material and adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, up to the Maximum Offering Size, Registrable Securities and Existing Investor Securities in the order of priority described in Sections 2.1(a)(i)-(iii), above. The lead managing underwriter or underwriters selected for such registration shall be selected in accordance with Section 2.5(f).
(f) The Company may postpone for up to 60 days (i) the filing or effectiveness of a Registration Statement for a Demand Registration or Shelf Registration (except the Shelf Registration pursuant to Section 2.2(a)(I)) or (ii) the commencement of a Shelf Public Offering if the Board of Directors of the Company determines in its reasonable good faith judgment that such Demand Registration, Shelf Registration or Shelf Public Offering, as applicable, (i) materially interferes with a significant acquisition, corporate organization, financing, securities offering or other similar transaction involving the Company; (ii) requires premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) renders the Company unable to comply with requirements under the Securities Act or Exchange Act; provided, that in such event the Initiating Holders shall be entitled to withdraw their request therefor and, if such request for a Demand Registration is withdrawn, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder and the Company shall pay all registration expenses in connection with such registration. The Company shall use its best efforts to have such may delay a Demand Registration, Shelf Registration Statement declared effective by the SEC as soon as practicable thereafter and to keep such Demand Registration Statement continuously effective for the or Shelf Public Offering hereunder only twice in any period specified in Section 4.1(b). The registration rights granted pursuant to the provisions of this Section 2.2 shall be in addition to the registration rights granted pursuant to the other provisions of this Section 2twelve (12) consecutive months.
Appears in 2 contracts
Samples: Registration Rights Agreement, Registration Rights Agreement (WillScot Corp)
Demand Registration. (a) In addition to From the rights provided in Section 2.1, later of (i) the Majority Holders shall have the right to request in writing that the Company register all or part of such Holders’ Registrable Securities that are not then registered by an effective Registration Statement (a “Request”) (date on which Request shall specify the amount of Registrable Securities intended to be disposed of by such Holders and the intended method of disposition thereof) by filing a Registration Statement with the SEC pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use file registration statements on Form S-3; or (ii) one year after the date of this Agreement (the "Registrable Date"), until the third anniversary of the Registrable Date, subject to the terms of this Agreement, the holders of at least 50% of the then outstanding shares of the Registrable Securities may request one (1) registration under the Securities Act provided that such other form shall be converted into a Form S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling shareholders (not underwriters) of all or such portion part of the their Registrable Securities (a “"Demand Registration”"); , provided, however, that (A) if the Company is not must then be eligible to register the Registrable Securities file registration statements on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election only if the Registrable Securities to be registered, in the aggregate, constitute 10% or more of the thenany similar short-outstanding Registrable Securities that are not registered under an effective Registration Statement, and form registration. Within twenty (B20) if the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election; provided, that (i) there shall not be more than one such request during each of the Company’s fiscal quarterly periods and (ii) the Registrable Securities to be registered must include at least 1,000,000 Common Shares, or, in the aggregate, have an anticipated offering price, net of underwriting discounts and commissions, of more than $5,000,000, calculated in accordance with Rule 457(c) under the Securities Act on the business day preceding such Request.
(b) As promptly as practicable, but no later than 10 days after receipt of a Requestany request pursuant to this Section 2.1, the Company shall give written notice of such requested registration request to all Holders holders of Registrable Securities and Pari Passu Holders shall include in such registration all Registrable Securities with respect to which the Company has received written requests for inclusion within fifteen (15) days after delivery of Pari Passu the Company's notice.
(b) The Company shall include in any Demand Registration any Registrable Securities. Subject ; provided, however, if the Demand Registration is an underwritten public offering and the managing underwriters advise the Company in writing that in their opinion the number of securities requested to Section 2.2(c)be included exceeds the number of securities which can be sold in an orderly manner in such offering within a price range acceptable to the holders of a majority of the Registrable Securities initially requesting registration, the Company shall include in a Demand Registration (i) the such registration only that number of Registrable Securities intended requested to be disposed included which in the opinion of by such underwriters can be sold in an orderly manner within the Initiating Holders and (ii) price range of such offering, pro-rata among the Registrable Securities and Pari Passu Securities intended to be disposed respective holders thereof on the basis of by any other Holder or Pari Passu Holder which shall have made a written request (which request shall specify the amount of Registrable Securities to be registered and the intended method of disposition thereofowned by each such holder.
(c) to the Company for inclusion thereof in such registration within 20 days after the receipt of such written notice from the Company. The Company shall, as expeditiously as possible following may postpone for up to ninety (90) days the filing or the effectiveness of a Request, use its best efforts to cause to be filed with the SEC registration statement for a Demand Registration Statement providing for the registration under the Securities Act of the Registrable Securities and the Pari Passu Securities which if the Company has been so requested to register by all such Holders and Pari Passu Holders, to the extent necessary to permit the disposition of such Registrable Securities so to be registered in accordance with the intended methods of disposition thereof specified in such Request or further requests if so requested. The Company shall use its best efforts to have reasonably believes that such Demand Registration Statement declared effective would have an adverse effect on any proposal or plan by the SEC as soon as practicable thereafter and Company or any of its subsidiaries to keep such engage in any acquisition of assets (other than in the ordinary course of business) or any merger, consolidation, reorganization, tender offer or other significant transaction.
(d) The party originally requesting a Demand Registration Statement continuously effective for shall have the period specified right to select the managing underwriters to administer the offering anticipated by any Demand Registration; provided, however, that such managing underwriters are recognized nationally and are approved by the Company, which approval shall not be unreasonably withheld, conditioned or delayed. Notwithstanding the foregoing, if the Company proposes to participate in Section 4.1(b). The registration rights granted pursuant any Demand Registration, the Company shall have the sole and exclusive right to select the provisions of this Section 2.2 shall be in addition underwriter(s) to administer the registration rights granted pursuant to the other provisions of this Section 2offering.
Appears in 2 contracts
Samples: Registration Rights Agreement (Bingham Financial Services Corp), Registration Rights Agreement (Bingham Financial Services Corp)
Demand Registration. (a) In addition If at any time after the filing of the Initial Registration Statement, the Company receives a request from Holder of Registrable Securities then outstanding (an “Initiating Holder”) that the Company file a Registration Statement with respect to outstanding Registrable Securities of such Initiating Holder not already covered by an existing Registration Statement, then the Company shall, (i) within ten (10) days after the date such request is given, give notice to all Holders other than the Initiating Holder, and (ii) as soon as practicable, and in any event within sixty (60) days after the date such request is given, file a Form S-3 registration statement under the Securities Act (except if the Company is then ineligible to register for resale of the Registrable Securities on Form S-3, in which case such registration shall be on such other form available to the rights provided Company to register for resale of the Registrable Securities as a secondary offering) subject to the provisions of Section 3(d) covering all Registrable Securities requested to be included in such registration by the Initiating Holder and any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the notice pursuant to clause (i) above is given, and in each case, subject to the limitations of Sections 3(b) and (c). The Company shall use its commercially reasonable best efforts to cause such Registration to be declared effective under the Securities Act as promptly as practicable after the filing thereof. Upon the request of any Holder that Registrable Securities be registered pursuant to this Section 2.13(a), all such Registrable Securities shall thereafter be Registrable Securities for all purposes under this Agreement.
(b) If Tricadia Capital Management, LLC (“Tricadia”) intends to distribute the Registrable Securities registered pursuant to Section 3(a) by means of an underwriting, it shall so advise the Company as a part of its request made pursuant to this Section 3 and the Company shall include such information in the written notice referred to in subsection 1.2(a). The underwriter will be selected by Tricadia and shall be reasonably acceptable to the Company. In such event, the Majority right of any other Holder to include its, his or her 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 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) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding any other provision of this Section 3, if the managing underwriter(s) advises Tricadia and the Company 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 of Holders other than the Initiating Holder that may be included in the underwriting shall be allocated among all such Holders, in proportion (as nearly as practicable) to the amount of Registrable Securities of the Company owned by each such Holder.
(c) Notwithstanding the foregoing obligations, if the Company furnishes to Holders requesting a registration pursuant to this Section 3 a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Company’s Board of Directors it would be materially detrimental to the Company and its stockholders for such Registration Statement to either become effective or remain effective for as long as such Registration Statement otherwise would be required to remain effective, because such action would (i) materially interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act, then the Company shall have the right to request in writing that the Company register all defer taking action with respect to such filing, and any time periods with respect to filing or part of such Holders’ Registrable Securities that are not then registered by an effective Registration Statement (a “Request”) (which Request shall specify the amount of Registrable Securities intended to be disposed of by such Holders and the intended method of disposition thereof) by filing a Registration Statement with the SEC pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form effectiveness thereof shall be converted into tolled correspondingly, for a Form S-3 promptly period of not more than ninety (90) days after Form S-3 becomes available to the Company) covering resales by the Holders as selling shareholders (not underwriters) of all or such portion request of the Registrable Securities (a “Demand Registration”)Initiating Holder is given; provided, however, that the Company may not invoke this right more than once in any twelve (A12) if month period; and provided further that (x) the Company shall not register any securities for its own account or that of any other stockholder during such ninety (90) day period other than pursuant to a registration relating to the sale of securities to employees of the Company or a subsidiary pursuant to a stock option, stock purchase, or similar plan; (y) a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities; or (z) a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered.
(d) The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 3(a) (i) during the period that is thirty (30) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration, provided, that the Company is actively employing in good faith commercially reasonable best efforts to cause such registration statement to become effective or (ii) prior to January 1, 2015 with respect to a distribution of Registrable Securities by means of an underwriting .
(e) In the event that Form S-3 is not eligible available for the registration of the resale of Registrable Securities hereunder, the Company shall (i) register the resale of the Registrable Securities on another appropriate form and (ii) undertake to register the Registrable Securities on Form S-3 under the Securities Actpromptly after such form is available, provided that the Company shall be obligated to register maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities upon such election only if the Registrable Securities to be registered, in the aggregate, constitute 10% or more of the then-outstanding Registrable Securities that are not registered under an effective Registration Statement, and (B) if the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election; provided, that (i) there shall not be more than one such request during each of the Company’s fiscal quarterly periods and (ii) the Registrable Securities to be registered must include at least 1,000,000 Common Shares, or, in the aggregate, have an anticipated offering price, net of underwriting discounts and commissions, of more than $5,000,000, calculated in accordance with Rule 457(c) under the Securities Act on the business day preceding such Request.
(b) As promptly as practicable, but no later than 10 days after receipt of a Request, the Company shall give written notice of such requested registration to all Holders of Registrable Securities and Pari Passu Holders of Pari Passu Securities. Subject to Section 2.2(c), the Company shall include in a Demand Registration (i) the Registrable Securities intended to be disposed of by the Initiating Holders and (ii) the Registrable Securities and Pari Passu Securities intended to be disposed of by any other Holder or Pari Passu Holder which shall have made a written request (which request shall specify the amount of Registrable Securities to be registered and the intended method of disposition thereof) to the Company for inclusion thereof in such registration within 20 days after the receipt of such written notice from the Company. The Company shall, as expeditiously as possible following a Request, use its best efforts to cause to be filed with the SEC a Demand Registration Statement providing for the registration under the Securities Act of the Registrable Securities and the Pari Passu Securities which the Company has been so requested to register by all such Holders and Pari Passu Holders, to the extent necessary to permit the disposition of such Registrable Securities so to be registered in accordance with the intended methods of disposition thereof specified in such Request or further requests if so requested. The Company shall use its best efforts to have such Demand Registration Statement declared effective by the SEC as soon as practicable thereafter and to keep such Demand Registration Statement continuously effective for the period specified in Section 4.1(b). The registration rights granted pursuant to the provisions of this Section 2.2 shall be in addition to the registration rights granted pursuant to the other provisions of this Section 2Commission.
Appears in 2 contracts
Samples: Registration Rights Agreement (Cordia Bancorp Inc), Securities Purchase Agreement (Cordia Bancorp Inc)
Demand Registration. (a) In addition to If the rights provided in Section 2.1Company shall receive a written request by the LLC or its Permitted Transferees or DLJIP (any such requesting Person, the Majority Holders shall have the right to request in writing a "Selling Stockholder") that the Company register effect the registration under the Securities Act of all or part a portion of such Holders’ Selling Stockholder's Registrable Securities that are not then registered by an effective Registration Statement (a “Request”) (which Request shall specify the amount of Registrable Securities intended to be disposed of by such Holders Securities, and specifying the intended method of disposition thereof) by filing a Registration Statement with the SEC pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into a Form S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling shareholders (not underwriters) of all or such portion of the Registrable Securities (a “Demand Registration”); provided, however, that (A) if the Company is not eligible to register the Registrable Securities on Form S-3 under the Securities Act, then the Company shall be obligated to register the Registrable Securities upon such election only if the Registrable Securities to be registered, in the aggregate, constitute 10% or more of the then-outstanding Registrable Securities that are not registered under an effective Registration Statement, and (B) if the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election; provided, that (i) there shall not be more than one such request during each of the Company’s fiscal quarterly periods and (ii) the Registrable Securities to be registered must include at least 1,000,000 Common Shares, or, in the aggregate, have an anticipated offering price, net of underwriting discounts and commissions, of more than $5,000,000, calculated in accordance with Rule 457(c) under the Securities Act on the business day preceding such Request.
(b) As promptly as practicable, but no later than 10 days after receipt of a Request, the Company shall give written notice of such requested registration (a "Demand Registration") at least 30 days prior to all Holders the anticipated filing date of Registrable Securities and Pari Passu Holders of Pari Passu Securities. Subject the registration statement relating to Section 2.2(c), the Company shall include in a such Demand Registration (i) the Registrable Securities intended to be disposed of by the Initiating Holders and (ii) the Registrable Securities and Pari Passu Securities intended to be disposed of by any other Holder or Pari Passu Holder which shall have made a written request (which request shall specify the amount of Registrable Securities to be registered and the intended method of disposition thereof) to the Company for inclusion thereof in such registration within 20 days after the receipt of such written notice from the Company. The Company shall, as expeditiously as possible following a Request, Other Stockholders and thereupon will use its best efforts to cause to be filed with the SEC a Demand Registration Statement providing for effect, as expeditiously as possible, the registration under the Securities Act of of:
(i) the Registrable Securities and the Pari Passu Securities which the Company has been so requested to register by the Selling Stockholders, then held by the Selling Stockholders; and
(ii) subject to the restrictions set forth in Section 5.01(e), all other Registrable Securities of the same type as that to which the request by the Selling Stockholders relates which any Other Stockholder entitled to request the Company to effect an Incidental Registration (as such term is defined in Section 5.02) pursuant to Section 5.02 (all such Stockholders, together with the Selling Stockholders, the "Holders") has requested the Company to register by written request received by the Company within 15 days after the receipt by such Holders and Pari Passu Holdersof such written notice given by the Company, all to the extent necessary to permit the disposition of such Registrable Securities so to be registered (in accordance with the intended methods thereof as aforesaid) of disposition thereof specified the Registrable Securities so to be registered; provided that, subject to Section 5.01(d) hereof, the Company shall not be obligated to effect (A) more than six Demand Registrations for the LLC and its Permitted Transferees or (B) one Demand Registration for DLJIP (which Demand Registration right may not be exercised prior to the earlier of (1) five years from the Closing Date and (2) the date that is 180 days after an Initial Public Offering); and provided further that the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Common Stock to be included in such Request Demand Registration, in the reasonable opinion of DLJ Merchant Banking II, Inc. exercised in good faith, equals or further requests exceeds (Y) $30,000,000 if so requested. The Company shall use its best efforts to have such Demand Registration Statement declared would constitute the Initial Public Offering, or (Z) $10,000,000 in all other cases. In no event will the Company be required to effect more than one Demand Registration within any four-month period.
(b) Promptly after the expiration of the 15-day period referred to in Section 5.01(a)(ii) hereof, the Company will notify all the Holders to be included in the Demand Registration of the other Holders and the number of Registrable Securities requested to be included therein. The Selling Stockholders requesting a registration under this Section may, at any time prior to the effective date of the registration statement relating to such registration, revoke such request, without liability to any of the other Holders, by providing a written notice to the Company revoking such request, in which case such request, so revoked, shall be considered a Demand Registration unless the participating Stockholders reimburse the Company for all costs incurred by the Company in connection with such registration, or unless such revocation arose out of the fault of the Company, in which case such request shall not be considered a Demand Registration.
(c) The Company will pay all Registration Expenses in connection with any Demand Registration.
(d) A registration requested pursuant to this Section shall not be deemed to have been effected (i) unless the registration statement relating thereto (A) has become effective under the Securities Act and (B) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Holders included in such registration have actually been sold thereunder); provided that if after any registration statement requested pursuant to this Section becomes effective (x) such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC as soon as practicable thereafter or other governmental agency or court and to keep (y) less than 75% of the Registrable Securities included in such registration statement has been sold thereunder, such registration statement shall not be considered a Demand Registration Statement continuously effective or (ii) if the Maximum Offering Size (as defined below) is reduced in accordance with Section 5.01(e) or 5.01(f) such that less than 66 2/3% of the Registrable Securities of the Selling Stockholders sought to be included in such registration are included.
(e) If a Demand Registration involves an Underwritten Public Offering and the managing underwriter shall advise the Company and the Selling Stockholders that, in its view, (i) the number of Registrable Securities requested to be included in such registration (including any securities which the Company proposes to be included which are not Registrable Securities) or (ii) the inclusion of some or all of the Registrable Securities owned by the Holders, in any such case, exceeds the largest number of securities which can be sold without having an adverse effect on such offering, including the price at which such securities can be sold (the "Maximum Offering Size"), the Company will include in such registration, in the priority listed below, up to the Maximum Offering Size:
(A) first: (1) in the case of a Demand by the LLC and its Permitted Transferees, all Securities requested to be registered by the Selling Stockholder and by all of its Permitted Transferees and CRL, DLJIP, BB, Carlyle, and the TCW Entities (allocated, if necessary for the period specified offering not to exceed the Maximum Offering Size, pro rata among such Persons on the basis of the relative number of shares of Registrable Securities requested to be registered), or (2) in Section 4.1(bthe case of a Demand by DLJIP, all Securities requested to be registered by the Selling Stockholder and by all of its Permitted Transferees and BB, Carlyle, and the TCW Entities (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Persons on the basis of the relative number of shares of Registrable Securities requested to be registered);
(B) second: (1) in the case of a Demand by the LLC and its Permitted Transferees, all Registrable Securities requested to be included in such registration by any other Holder (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such other Holders on the basis of the relative number of shares of Registrable Securities requested to be included in such registration), or (2) in the case of a Demand by DLJIP, all Registrable Securities requested to be included in such registration by the LLC and its Permitted Transferees and by CRL (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such other Holders on the basis of the relative number of shares of Registrable Securities requested to be included in such registration);
(C) third: (1) in the case of a Demand by the LLC and its Permitted Transferees, any securities proposed to be registered by the Company, or (2) in the case of a Demand by DLJIP, all Registrable Securities requested to be included in such registration by any other Holder (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such other Holders on the basis of the relative number of shares of Registrable Securities requested to be included in such registration); and
(D) fourth: in the case of a Demand by DLJIP, any securities proposed to be registered by the Company.
(f) If the Company files a shelf registration statement with respect to the High Yield Warrants, the Company shall notify the holders of the Warrants at least 20 days prior to such filing. The registration rights granted pursuant holders of the Warrants shall have the right (which shall not be deemed to be a use of a Demand Registration right), by notice to the provisions of Company, to include the Warrants in such shelf registration statement. Notwithstanding anything in this Section 2.2 shall be in addition Agreement to the contrary, this Agreement shall not be construed to confer on any Stockholder (other than holders of Warrants in their capacity as such, together with any Persons entitled to indemnification hereunder in connection therewith) any rights in connection with such shelf registration rights granted pursuant to the other provisions of this Section 2statement.
Appears in 2 contracts
Samples: Investors' Agreement (Charles River Laboratories Holdings Inc), Investors' Agreement (Charles River Laboratories Inc)
Demand Registration. (a) In addition If the Company shall receive a request from a Shareholder or group of Shareholders (the requesting Shareholder(s) shall be referred to herein as the rights provided in Section 2.1, the Majority Holders shall have the right to request in writing “Requesting Shareholder”) that the Company register all or part of such Holders’ Registrable Securities that are not then registered by an effective Registration Statement (a “Request”) (which Request shall specify the amount of Registrable Securities intended to be disposed of by such Holders and the intended method of disposition thereof) by filing a Registration Statement with the SEC pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into a Form S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling shareholders (not underwriters) of all or such portion of the Registrable Securities (a “Demand Registration”); provided, however, that (A) if the Company is not eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election only if the Registrable Securities to be registered, in the aggregate, constitute 10% or more of the then-outstanding Registrable Securities that are not registered under an effective Registration Statement, and (B) if the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election; provided, that (i) there shall not be more than one such request during each of the Company’s fiscal quarterly periods and (ii) the Registrable Securities to be registered must include at least 1,000,000 Common Shares, or, in the aggregate, have an anticipated offering price, net of underwriting discounts and commissions, of more than $5,000,000, calculated in accordance with Rule 457(c) under the Securities Act on the business day preceding such Request.
(b) As promptly as practicable, but no later than 10 days after receipt of a Request, the Company shall give written notice of such requested registration to all Holders of Registrable Securities and Pari Passu Holders of Pari Passu Securities. Subject to Section 2.2(c), the Company shall include in a Demand Registration (i) the Registrable Securities intended to be disposed of by the Initiating Holders and (ii) the Registrable Securities and Pari Passu Securities intended to be disposed of by any other Holder or Pari Passu Holder which shall have made a written request (which request shall specify the amount of Registrable Securities to be registered and the intended method of disposition thereof) to the Company for inclusion thereof in such registration within 20 days after the receipt of such written notice from the Company. The Company shall, as expeditiously as possible following a Request, use its best efforts to cause to be filed with the SEC a Demand Registration Statement providing for effect the registration under the Securities Act of all or any portion of the Requesting Shareholder’s Registrable Securities, and specifying the intended method of disposition thereof, then the Company shall promptly give notice of such requested registration (each such request shall be referred to herein as a “Demand Registration”) at least 10 Business Days prior to the anticipated filing date of the registration statement relating to such Demand Registration to the other Shareholders and thereupon shall use its reasonable best efforts to effect, as expeditiously as possible, the registration under the Securities Act of:
(i) subject to the restrictions set forth in Sections 2.01(e), all Registrable Securities and the Pari Passu Securities for which the Company Requesting Shareholder has been so requested registration under this Section 2.01, and
(ii) subject to the restrictions set forth in Sections 2.01(e) and 2.02, all other Registrable Securities of the same class as those requested to register be registered by the Requesting Shareholder that any Shareholders (all such Holders and Pari Passu HoldersShareholders, together with the Requesting Shareholder, the “Registering Shareholders”) have requested the Company to register pursuant to Section 2.02, by request received by the Company within seven Business Days after such Shareholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition of such Registrable Securities so to be registered (in accordance with the intended methods thereof as aforesaid) of disposition thereof specified the Registrable Securities so to be registered; provided, however, that, the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Registrable Securities requested to be included in such Request Demand Registration equals or further requests if exceeds $10,000,000 or such lesser amount that constitutes all of the Requesting Shareholder’s Registrable Securities (provided that such lesser amount is at least $5,000,000). In no event shall the Company be required to effect more than one Demand Registration hereunder within any three-month period.
(b) Promptly after the expiration of the seven-Business Day period referred to in Section 2.01(a)(ii), the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Shareholder may revoke such request, without liability to any of the other Registering Shareholders, by providing a notice to the Company revoking such request. A request, so requested. revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request), or (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses of such revoked request.
(c) The Company shall use its best efforts be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A Demand Registration shall not be deemed to have occurred:
(i) unless the registration statement relating thereto (A) has become effective under the Securities Act and (B) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registering Shareholders included in such registration have actually been sold thereunder), provided that a Demand Registration Statement declared effective shall not be deemed to have occurred if, after such registration statement becomes effective, (1) such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court and (2) less than 75% of the Registrable Securities included in such registration statement have been sold thereunder; or
(ii) if the Maximum Offering Size is reduced in accordance with Section 2.01(e) such that less than 662/3% of the Registrable Securities of the Requesting Shareholders sought to be included in such registration are included.
(e) If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder that, in its view, the number of shares of Registrable Securities requested to be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be included in such registration by all Registering Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis of the relative number of Registrable Securities held by each such Shareholder); and
(ii) second, any securities proposed to be registered by the SEC as soon as practicable thereafter Company (including for the benefit of any other Persons not party to this Agreement).
(f) Upon notice to the Requesting Shareholder, the Company may postpone effecting a registration pursuant to this Section 2.01 on one occasion during any period of six consecutive months for a reasonable time specified in the notice but not exceeding 45 days (which period may not be extended or renewed), if (i) the Company reasonably determines that effecting the registration would materially and to keep such Demand Registration Statement continuously effective for adversely affect an offering of securities of the Company the preparation of which had then been commenced, or (ii) the Company is in possession of material non-public information the disclosure of which during the period specified in Section 4.1(b). The registration rights granted pursuant to such notice the provisions of this Section 2.2 shall Company reasonably believes would not be in addition to the registration rights granted pursuant to best interests of the other provisions of this Section 2Company.
Appears in 2 contracts
Samples: Registration Rights Agreement (RCS Capital Corp), Registration Rights Agreement (RCS Capital Corp)
Demand Registration. (ai) In addition Upon receipt of a request for Registration hereunder from (A) any Affiliate (or any affiliate thereof) or (B) any other Shareholder or Shareholders holding in the aggregate not less than 25% of the number of shares of any class of the Registrable Securities (a "25% Shareholder," and together with any Affiliate or any affiliate thereof, a "Requesting Party"), the Company shall, with respect to any request received from a Requesting Party (or Parties), subject to the rights terms and conditions of this Agreement, prepare and file with the Commission, and use commercially reasonable efforts to have declared effective a Registration Statement under the Securities Act relating to the offer and sale by the Requesting Party (or Parties) specified in such request through such method or methods of distribution as specified in such request and otherwise in accordance with this Agreement, of the Registrable Securities specified in such request; provided, that the Shareholders shall be permitted to make only four requests for Registration hereunder and the Company shall not be required to prepare and file more than four Registration Statements pursuant to this Agreement, provided in Section 2.1further, the Majority Holders shall have the right to request in writing that the Company register may satisfy its obligations under this Section 2(a) by (i) filing a shelf Registration Statement on Form F-3 (a "Shelf Registration Statement") under the Securities Act relating to the offer and sale by the Shareholder(s) at any time and from time to time on a delayed or continuous basis in accordance with Rule 415 under the Securities Act, through such method or methods of distribution as the Requesting Party (or Parties) shall select, of all or part of such Holders’ the Registrable Securities that are not then registered by an effective and (ii) using commercially reasonable efforts to keep such Shelf Registration Statement (a “Request”) (which Request shall specify effective under the amount of Registrable Securities intended to be disposed of Act for so long as permitted by such Holders and the intended method of disposition thereof) by filing a Registration Statement with the SEC pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in or, if earlier, until such time as no Shareholder owns any Registrable Securities. In the event that the Company is ineligible elects to use such formsatisfy its obligations under this Section 2(a) by filing a Shelf Registration Statement, such other form as then Shareholders shall not be permitted to make any further requests for Registration hereunder and the Company is eligible shall not be required to use under the Securities Act prepare or file further Registration Statements pursuant to this Agreement, provided that such other form shall be converted into a Form S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling shareholders (not underwriters) of all or such portion of the Registrable Securities have been registered thereunder or have otherwise become freely tradable under applicable securities laws.
(ii) Within five days following receipt of any request for a “Demand Registration”); provided, however, that (A) if the Company is not eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election only if the Registrable Securities to be registered, in the aggregate, constitute 10% or more of the then-outstanding Registrable Securities that are not registered under an effective Registration Statement, and (B) if the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election; provided, that (i) there shall not be more than one such request during each of the Company’s fiscal quarterly periods and (ii) the Registrable Securities to be registered must include at least 1,000,000 Common Shares, or, in the aggregate, have an anticipated offering price, net of underwriting discounts and commissions, of more than $5,000,000, calculated in accordance with Rule 457(c) under the Securities Act on the business day preceding such Request.
(b) As promptly as practicable, but no later than 10 days after receipt of a Request, the Company shall give deliver written notice of such requested registration request to all Holders other holders of Registrable Securities and Pari Passu Holders of Pari Passu Securitiesthe class or classes to be registered. Subject to Section 2.2(c)Thereafter, the Company shall include in a Demand such Registration (i) the any additional Registrable Securities intended to of each such class which the holder or holders thereof have requested in writing be disposed of included in such Registration, provided that all requests therefor have been received by the Initiating Holders and (ii) Company within ten days of the Registrable Securities and Pari Passu Securities intended Company's having sent the applicable notice to be disposed of by any other Holder such holder or Pari Passu Holder which shall have made a written request (which request holders. All such requests shall specify the aggregate amount and class of Registrable Securities to be registered and the intended method of disposition thereofdistribution of the same.
(iii) The Issuer shall be deemed to have effected a Registration if the Company for inclusion thereof in such registration within 20 days after the receipt of such written notice from the Company. The Company shall, as expeditiously as possible following a Request, use its best efforts to cause to be filed with the SEC a Demand applicable Registration Statement providing for the registration under the Securities Act of the Registrable Securities and the Pari Passu Securities which the Company has been so requested to register by all such Holders and Pari Passu Holders, to the extent necessary to permit the disposition of such Registrable Securities so to be registered in accordance with the intended methods of disposition thereof specified in such Request or further requests if so requested. The Company shall use its best efforts to have such Demand Registration Statement is declared effective by the SEC and remains effective for not less than 180 days (or such shorter period as soon as practicable thereafter and to keep will terminate when all Registrable Securities covered by such Demand Registration Statement continuously effective have been sold or withdrawn), or, if such Registration Statement relates to an Underwritten Offering, such longer period as, in the opinion of counsel for the period specified underwriter or underwriters, is required by law for the delivery of a Prospectus in Section 4.1(b). The registration rights granted pursuant to connection with the provisions sale of this Section 2.2 shall be in addition to the registration rights granted pursuant to the other provisions of this Section 2Registrable Securities by an underwriter or dealer.
Appears in 2 contracts
Samples: Registration Rights Agreement (Fiat S P A), Registration Rights Agreement (CNH Global N V)
Demand Registration. With respect to each Demand Registration undertaken for the account of any Principal Stockholder Party up to (aand including) the second Demand Registration that becomes effective as set forth in Section 4.1(b) hereof, and the distribution of the Registrable Securities pursuant thereto, the Company shall bear all reasonable out-of-pocket fees, costs and expenses incurred by the Company and each Participating Stockholder Party, including, without limitation, (i) all SEC and stock exchange registration and filing fees, (ii) stock exchange listing fees, (iii) fees and expenses of compliance with securities or blue sky laws (including reasonable fees and disbursements of counsel in connection with blue sky qualifications of the Registrable Securities), (iv) printing expenses (including the expense of printing Prospectuses), (v) messenger and delivery expenses, (vi) marketing expenses (including, without limitation, expenses in connection with road shows), (vii) reasonable fees and disbursements of counsel for the Company and each Principal Stockholder Party and their independent public accountants, and (viii) all Distribution Expenses (all such expenses being herein referred to herein as the "REGISTRATION EXPENSES"). In addition the case of any Demand Registration undertaken thereafter, the Participating Stockholder Parties shall bear all Registration Expenses incurred by the Company and the Participating Stockholder Parties in connection with such Demand Registration on a pro rata basis according to the rights provided relative number of shares proposed to be included in Section 2.1such registration by the Participating Stockholder Parties; PROVIDED, HOWEVER, that any Registration Expenses attributable to any securities included in the Majority Holders shall have the right to request in writing that Demand Registration by the Company register all or part in accordance with Section 4.1(a)(i)(B) hereof shall be borne by the Company on a pro rata basis according to the relative number of such Holders’ Registrable Securities that are not then registered by an effective Registration Statement (a “Request”) (which Request shall specify the amount of Registrable Securities intended proposed to be disposed included by it in the registration; and PROVIDED, FURTHER, that (x) the Company shall bear up to a maximum of by $25,000 for each Participating Stockholder Party of the fees and disbursements of counsel for such Holders Participating Stockholder Party and (y) except to the intended method extent set forth in the foregoing clause (x), each Participating Stockholder Party shall bear the fees and disbursements of disposition thereof) by filing a Registration Statement with its counsel, independent public accountants and other advisors. Notwithstanding the SEC pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or foregoing, in the event that the Company is ineligible to use such form, such other form as Xxxx Stockholders are issued shares of Common Stock in the Company is eligible to use under the Securities Act provided Merger that such other form shall be converted into a Form S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling shareholders (have not underwriters) of all or such portion of the Registrable Securities (a “Demand Registration”); provided, however, that (A) if the Company is not eligible to register the Registrable Securities on Form S-3 been registered under the Securities Act, the Company Xxxx Stockholders shall be obligated entitled to register the Registrable Securities upon such election only if the Registrable Securities to be registered, exercise an additional Demand Registration in the aggregate, constitute 10% or more which all of the then-outstanding Registrable Securities that are not registered under an effective Registration Statement, and (B) if the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company Expenses shall be obligated to register the Registrable Securities upon such election; provided, that (i) there shall not be more than one such request during each of borne by the Company’s fiscal quarterly periods and (ii) the Registrable Securities to be registered must include at least 1,000,000 Common Shares, or, in the aggregate, have an anticipated offering price, net of underwriting discounts and commissions, of more than $5,000,000, calculated in accordance with Rule 457(c) under the Securities Act on the business day preceding such Request.
(b) As promptly as practicable, but no later than 10 days after receipt of a Request, the Company shall give written notice of such requested registration to all Holders of Registrable Securities and Pari Passu Holders of Pari Passu Securities. Subject to Section 2.2(c), the Company shall include in a Demand Registration (i) the Registrable Securities intended to be disposed of by the Initiating Holders and (ii) the Registrable Securities and Pari Passu Securities intended to be disposed of by any other Holder or Pari Passu Holder which shall have made a written request (which request shall specify the amount of Registrable Securities to be registered and the intended method of disposition thereof) to the Company for inclusion thereof in such registration within 20 days after the receipt of such written notice from the Company. The Company shall, as expeditiously as possible following a Request, use its best efforts to cause to be filed with the SEC a Demand Registration Statement providing for the registration under the Securities Act of the Registrable Securities and the Pari Passu Securities which the Company has been so requested to register by all such Holders and Pari Passu Holders, to the extent necessary to permit the disposition of such Registrable Securities so to be registered in accordance with the intended methods of disposition thereof specified in such Request or further requests if so requested. The Company shall use its best efforts to have such Demand Registration Statement declared effective by the SEC as soon as practicable thereafter and to keep such Demand Registration Statement continuously effective for the period specified in Section 4.1(b). The registration rights granted pursuant to the provisions of this Section 2.2 shall be in addition to the registration rights granted pursuant to the other provisions of this Section 2.
Appears in 2 contracts
Samples: Stockholders Agreement (Unr Asbestos Disease Claims Trust), Stockholders Agreement (Rohn Industries Inc)
Demand Registration. (a) In addition to If at any time after 180 days from the rights provided in Section 2.1, the Majority Holders shall have the right to request in writing that the Company register all or part date of such Holders’ Registrable Securities that are not then registered by an effective Registration Statement (a “Request”) (which Request shall specify the amount of Registrable Securities intended to be disposed of by such Holders and the intended method of disposition thereof) by filing a Registration Statement with the SEC pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into a Form S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling shareholders (not underwriters) of all or such portion of the Registrable Securities (a “Demand Registration”); provided, however, that (A) if the Company is not eligible to register the Registrable Securities on Form S-3 under the Securities Act, ------------------- this Agreement the Company shall be obligated to register the Registrable Securities upon such election only if the Registrable Securities to be registered, requested in the aggregate, constitute 10% or more of the then-writing by LCO (and LCO then holds any issued and outstanding Registrable Securities that are not registered under an effective Registration Statement, and (Bat such time) if to effect the Company is eligible to register the Registrable Securities on Form S-3 registration under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election; provided, that (i) there shall not be more than one such request during each Act of shares of the Company’s fiscal quarterly periods and (ii) the Registrable Securities to be registered must include at least 1,000,000 's Common Shares, or, in the aggregate, have an anticipated offering price, net of underwriting discounts and commissions, of more than $5,000,000, calculated in accordance with Rule 457(c) under the Securities Act on the business day preceding such Request.
(b) As promptly as practicable, but no later than 10 days after receipt of a Request, the Company shall give written notice of such requested registration to all Holders of Registrable Securities and Pari Passu Holders of Pari Passu Securities. Subject to Section 2.2(c), the Company shall include in a Demand Registration (i) the Registrable Securities intended to be disposed of Stock then owned by the Initiating Holders and (ii) the Registrable Securities and Pari Passu Securities intended to be disposed of by any other Holder or Pari Passu Holder which shall have made a written request (which request shall specify the amount aggregate number of shares intended to be offered and sold by Holder, shall describe the nature or method of the proposed offer and sale thereof and shall contain an undertaking by Holder to cooperate fully with the Company in order to permit the Company to comply with all applicable requirements of the Act and the rules and regulations thereunder and to obtain acceleration of the effective date of the registration statement contemplated thereby), the Company shall effect the registration of such securities on an appropriate form under the Act, provided that:
2.1 LCO's rights under this Section 2 shall be exercisable only if the shares as to which LCO requests registration have an aggregate value of at least $500,000 based on the average of the closing sale price for the Company's common stock as listed on the American Stock Exchange or any other exchange on which the Company's common stock then may be traded for the thirty (30) trading- day period immediately preceding the date of such request for registration;
2.2 The independent members of the Company's Board of Directors, with the advice of such investment bankers or securities professionals as the Board shall deem necessary, shall have determined in good faith that the cost of complying with the request for registration under this Section 2 would not have a materially adverse effect upon the Company, its operations or the market for the Company's common stock, provided, however, that if the independent members of the Company's Board of Directors determine in good faith that the cost of complying with the request for registration would have a material adverse effect upon the Company, its operations or the market for the Company's common stock, the Company may decline Holder's request to register Holder's Registrable Securities under the Act, provided further, however, that in such event the Company may not thereafter again decline LCO's request for registration based upon this Section so long as such subsequent request is received by the Company more than 120 days after LCO's request for registration which was declined based upon this Section;
2.3 LCO shall be entitled to three demand registrations, provided that registrations two and three may be effected on Form S-3 or its then equivalent form promulgated by the SEC and, provided further, that any request for registration pursuant to this Section 2 which does not result in the declaration of effectiveness of a registration statement (which effectiveness is maintained continuously for at least 120 days or such shorter period ending when all shares to which LCO has requested registration in accordance herewith have been sold in accordance with such registration) covering the offer and sale of shares owned by Holder and requested to be registered and the intended method of disposition thereof) to the Company for inclusion thereof included in such registration statement, whether as a result of the withdrawal of the registration statement by the Company or through other action or inaction of the Company or for any other reason except for the voluntary decision of Holder to terminate the registration after the request for such registration has been delivered to the Company, shall not be counted in determining the number of times registration rights have been exercised pursuant to this Section 2;
2.4 The Company shall be entitled to postpone the filing of any registration statement otherwise required to be prepared and filed by it pursuant to this Section 2, if at the time it receives a request for such registration, the independent members of the Company's Board of Directors determine that such registration and offering would materially interfere with any existing or then presently contemplated financing, acquisition, corporate reorganization or other material transaction involving the Company, and the Company promptly gives LCO written notice of such determination, provided, however, that such postponement shall not extend beyond the time that such material interference continues to exist; and
2.5 LCO shall have no right to demand registration with respect to any shares within 20 ninety (90) calendar days after the receipt effective date of such written notice from any registration statement previously filed by the Company. The Company shall, as expeditiously as possible following other than a Request, use its best efforts to cause to be filed with the SEC a Demand Registration Statement providing for the registration under the Securities Act of the Registrable Securities and the Pari Passu Securities which the Company has been so requested to register by all such Holders and Pari Passu Holders, to the extent necessary to permit the disposition of such Registrable Securities so to be registered in accordance with the intended methods of disposition thereof specified in such Request statement on Form S-8 or further requests if so requested. The Company shall use its best efforts to have such Demand Registration Statement declared effective by the SEC as soon as practicable thereafter and to keep such Demand Registration Statement continuously effective for the period specified in Section 4.1(b). The registration rights granted pursuant to the provisions of this Section 2.2 shall be in addition to the registration rights granted pursuant to the other provisions of this Section 2similar form.
Appears in 2 contracts
Samples: Registration Rights Agreement (Ion Laser Technology Inc), Registration Rights Agreement (Ion Laser Technology Inc)
Demand Registration. (a) In addition to At any time after the rights provided in Section 2.1date which is 180 days following the Registration Date, the Majority Holders if JPM DJ shall have the right to request state in writing that it desires to sell Registrable Shares in the Company register all or part of such Holders’ Registrable Securities that are not then registered by an effective Registration Statement (a “Request”) (which Request shall specify public securities markets and requests the amount of Registrable Securities intended Corporation to be disposed of by such Holders and effect the intended method of disposition thereof) by filing a Registration Statement with the SEC pursuant to Rule 415 registration under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into a Form S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling shareholders (not underwriters) of all or such portion of the Registrable Securities (a “Demand Registration”); provided, however, that (A) if the Company is not eligible to register the Registrable Securities on Form S-3 under the Securities ActShares, the Company Corporation shall be obligated to register the Registrable Securities upon such election only if the Registrable Securities to be registered, in the aggregate, constitute 10% or more within 10 days of the then-outstanding Registrable Securities that are not registered under an effective Registration Statement, and (B) if the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election; provided, that (i) there shall not be more than one such request during each of the Company’s fiscal quarterly periods and (ii) the Registrable Securities to be registered must include at least 1,000,000 Common Shares, or, in the aggregate, have an anticipated offering price, net of underwriting discounts and commissions, of more than $5,000,000, calculated in accordance with Rule 457(c) under the Securities Act on the business day preceding such Request.
(b) As promptly as practicable, but no later than 10 days after receipt of a Request, the Company shall give written notice of such requested proposed registration to all Holders holders of Registrable Securities Shares and Pari Passu Holders of Pari Passu Securities. Subject shall offer to Section 2.2(c), the Company shall include in a Demand Registration (i) the such proposed registration only Registrable Securities intended Shares requested to be disposed included in such proposed registration by such holders who respond in writing to the Corporation within thirty (30) days after delivery of by the Initiating Holders and (ii) the Registrable Securities and Pari Passu Securities intended to be disposed of by any other Holder or Pari Passu Holder which shall have made a written request such notice (which request shall specify the amount number of Registrable Securities Shares proposed to be registered and the intended method of disposition thereof) to the Company for inclusion thereof included in such registration within 20 days after the receipt of such written notice from the Companyregistration). The Company Corporation shall, as expeditiously as possible following a Requestsubject to SECTION 2(b) below, promptly thereafter use its best efforts to cause to be filed with the SEC a Demand Registration Statement providing for the effect such registration under the Securities Act of the Registrable Securities and the Pari Passu Securities Shares which the Company Corporation has been so requested to register by all such Holders and Pari Passu Holders, to the extent necessary to permit the disposition of such Registrable Securities so to be registered for sale in accordance with the intended methods method of disposition thereof distribution specified in the initiating request. If JPM DJ so elects, the offering of such Request Registrable Shares pursuant to such registration shall be in the form of an underwritten offering in which case JPM DJ shall select one or further requests if so requested. The Company more nationally recognized firms of investment bankers reasonably acceptable to the Corporation to act as the lead managing underwriter or underwriters in connection with such offering and shall select any additional investment bankers and managers to be used in connection with the offering.
(b) Anything contained in SECTION 2(a) to the contrary notwithstanding, the Corporation shall not be obligated to effect pursuant to SECTION 2(a) any registration under the Securities Act except in accordance with the following provisions:
(i) the Corporation shall not be obligated to use its best efforts to have such Demand file and cause to become effective (A) more than three Registration Statements initiated pursuant to SECTION 2(a); PROVIDED HOWEVER, that if JPM DJ is unable to sell at least 75% of the Registrable Shares requested to be included in a registration pursuant to SECTION 2(a) as a result of an underwriter's cutback, then JPM DJ shall be entitled to an additional demand registration pursuant to this SECTION 2(b)(i), or (B) any Registration Statement during any period in which any other Registration 3 Statement (other than on Form S-4 or Form S-8 promulgated under the Securities Act or any successor forms thereto) pursuant to which Primary Shares are to be or were sold has been filed and not withdrawn or has been declared effective within the prior 180 days;
(ii) the Corporation may delay the filing or effectiveness of any Registration Statement pursuant to SECTION 2(a) for a period of up to 90 days after the date on which the Corporation gives notice to the Investors pursuant to this SECTION 2(b)(ii) if at the time of such notice (i) the Corporation is engaged, or has fixed plans to engage within 90 days of the time of such notice, in a firm commitment underwritten public offering of Primary Shares in which JPM DJ may include Registrable Shares pursuant to SECTION 4, or (ii) the Board reasonably determines that such registration and offering would interfere with any Material Transaction involving the Corporation; PROVIDED, HOWEVER, that the Corporation may only delay the filing or effectiveness of a Registration Statement pursuant to this SECTION 2(b) for a total of 180 days after the date of a request for registration pursuant to SECTION 2(a); and
(iii) with respect to any registration pursuant to SECTION 2(a), the Corporation may include in such registration any Primary Shares or Other Shares; PROVIDED, HOWEVER, that if the managing underwriter advises the Corporation that the inclusion of all Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration would interfere with the successful marketing (including pricing) of all such securities, then the number of Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration shall be included in the following order:
(A) FIRST, the Registrable Shares held by the Investors requesting that their Registrable Shares be included in such registration initiated pursuant to SECTION 2(a) (or, if necessary, such Registrable Shares PRO RATA among the holders thereof based upon the number of Registrable Shares requested to be registered by each such holder);
(B) SECOND, the Primary Shares; and
(C) THIRD, the Other Shares (or, if necessary, such Other Shares PRO RATA among the holders thereof based upon the number of Other Shares requested to be registered by each such holder).
(c) A requested registration under this SECTION 2 may be rescinded prior to such registration being declared effective by the SEC as soon as practicable thereafter and to keep such Demand Registration Statement continuously effective for the period specified in Section 4.1(b). The registration rights granted pursuant Commission by written notice to the provisions Corporation from JPM DJ; PROVIDED, HOWEVER, that the requested registration which has been rescinded shall count as a demand registration for purposes of this Section 2.2 SECTION 2(b)(i) unless the request for withdrawal shall be have been the result of, or made in addition to response to, a material adverse change or event on the registration rights granted pursuant to business, properties, condition (financial or otherwise), or operations of the other provisions of this Section 2Corporation.
Appears in 2 contracts
Samples: Registration Rights Agreement (Dj Orthopedics Capital Corp), Registration Rights Agreement (Dj Orthopedics Inc)
Demand Registration. (a) In addition Kriegsman may, upon written notice to the rights provided in Section 2.1Company at any time followinx xxx xxxe of this Warrant Agreement until the Expiration Date, the Majority Holders shall have the right to make one request in writing that the Company register all or part file with the Securities and Exchange Commission, within sixty (60) days of the delivery of such Holders’ Registrable Securities that are not then registered by an effective Registration Statement notice to the Company, a registration statement (a “Request”"Demand Registration") (which Request shall specify on a form satisfactory to the amount of Registrable Securities intended Company to be disposed of by such Holders and the intended method of disposition thereof) by filing a Registration Statement with the SEC pursuant to Rule 415 register under the Securities Act on Form S-3 of 1933, as amended (the "Securities Act"), the Warrant Shares issued or issuable (whether or not yet vested) by way of exercise of the Warrant ("Registrable Securities"). Notwithstanding the foregoing, Registrable Securities shall not include any securities that may be sold by a person to the public pursuant to Rule 144(k) under the Securities Act during any ninety (90) day period.
(b) If the Demand Registration is part of or in combined with an underwritten primary registration on behalf of the event that Company, and the managing underwriters advise the Company is ineligible that in their opinion the number of securities requested to use be included in such form, registration exceeds the number which can be sold in an orderly manner in such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into offering within a Form S-3 promptly after Form S-3 becomes available price range reasonably acceptable to the Company, then the Company will include in such registration (1) covering resales by first, the Holders as selling shareholders securities the Company proposes to sell, (not underwriters2) of all or such portion of second, the Registrable Securities requested to be included therein and any other securities requested to be included therein by other holders entitled to request inclusion of their securities in such registration, pro rata among the holders of such Registrable Securities and other securities on the basis of the number of Registrable Securities requested to be included therein and any other securities requested to be included therein by other holders entitled to request inclusion of their securities in such registration, and (3) third, other securities requested to be included in such registration.
(c) If the Demand Registration is part of or combined with an underwritten secondary registration on behalf of holders of the Company's Common Stock, and the managing underwriters advise the Company that in their opinion the number of securities requested to be included in such registration exceeds the number which can be sold in an orderly manner in such offering within a “price range reasonably acceptable to the holders initially requesting such registration, then the Company will include in such registration (1) first, the securities requested to be included therein by the holders requesting such registration, and (2) the Registrable Securities and any other securities requested to be included in such registration by other holders entitled to request inclusion of their securities in such registration, pro rata among the holders of such securities on the basis of the number of Registrable Securities requested to be included therein and any other securities requested to be included therein by other holders entitled to request inclusion of their securities in such registration.
(d) If the number of shares of Registrable Securities actually registered pursuant to the Demand Registration is reduced pursuant to either of subsections (b) or (c) above from the number of shares originally requested to be registered pursuant to subsection (a) above, then Kriegsman shall be permitted, at any time after the date which is ten (00) xxxx after the effective date of the registration statement filed by the Company pursuant to or in connection with the Demand Registration”), to make another Demand Registration in accordance with subsection (a) above for such number of shares of Registrable Securities as was originally requested in the prior Demand Registration but which were not actually registered; provided, however, that notwithstanding subsection (Aa) if the Company is not eligible to register the Registrable Securities on Form S-3 under the Securities Actabove, the Company shall be obligated to register the Registrable Securities upon file such election only if the Registrable Securities to be registered, in the aggregate, constitute 10% or more other registration statement within twenty (20) days of the then-outstanding Registrable Securities that are not registered under an effective Registration Statement, and (B) if the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election; provided, that (i) there shall not be more than one such request during each of the Company’s fiscal quarterly periods and (ii) the Registrable Securities to be registered must include at least 1,000,000 Common Shares, or, in the aggregate, have an anticipated offering price, net of underwriting discounts and commissions, of more than $5,000,000, calculated in accordance with Rule 457(c) under the Securities Act on the business day preceding such Request.
(b) As promptly as practicable, but no later than 10 days after receipt of a Request, the Company shall give written notice of such requested registration to all Holders of Registrable Securities and Pari Passu Holders of Pari Passu Securities. Subject to Section 2.2(c), the Company shall include in a Demand Registration (i) the Registrable Securities intended to be disposed of by the Initiating Holders and (ii) the Registrable Securities and Pari Passu Securities intended to be disposed of by any other Holder or Pari Passu Holder which shall have made a written request (which request shall specify the amount of Registrable Securities to be registered and the intended method of disposition thereof) delivery to the Company for inclusion thereof in such registration within 20 days after the receipt of such written notice from the Company. The Company shall, as expeditiously as possible following a Request, use its best efforts to cause to be filed with the SEC a Demand Registration Statement providing for the registration under the Securities Act of the Registrable Securities and the Pari Passu Securities which the Company has been so requested to register notice by all Kriegsman requesting such Holders and Pari Passu Holders, to the extent necessary to permit the disposition of such Registrable Securities so to be registered in accordance with the intended methods of disposition thereof specified in such Request or further requests if so requested. The Company shall use its best efforts to have such other Demand Registration Statement declared effective by the SEC as soon as practicable thereafter and to keep such Demand Registration Statement continuously effective for the period specified in Section 4.1(b). The registration rights granted pursuant to the provisions of this Section 2.2 shall be in addition to the registration rights granted pursuant to the other provisions of this Section 2Registration.
Appears in 2 contracts
Samples: Warrant Agreement (Immtech International Inc), Warrant Agreement (Immtech International Inc)
Demand Registration. (a) In addition At any time following the expiration of the Disposition Restriction Period, if the Company is unable to file, cause to be effective or maintain the rights provided in effectiveness of a Shelf Registration Statement as required under Section 2.15.1 hereof, the Majority Holders Investors’ Representative shall have the right right, by delivering a written notice to request in writing that the Company register all or part of such Holders’ Registrable Securities that are not then registered by an effective Registration Statement (a “RequestDemand Notice”) (which Request shall specify ), to require the amount Company to register under and in accordance with the provisions of the Securities Act the number of Registrable Securities intended Beneficially Owned by any Investors and requested by such Demand Notice to be disposed of by such Holders and the intended method of disposition thereof) by filing a Registration Statement with the SEC pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into a Form S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling shareholders (not underwriters) of all or such portion of the Registrable Securities so registered (a “Demand Registration”); provided, however, that the Company shall not be required to effect more than two (A2) Demand Registrations for underwritten offerings pursuant to this Section 5.2(a); and, provided, further, that the Investors shall not be entitled to deliver to the Company more than one (1) Demand Registration in any twelve (12) month period and, in any event, a Demand Notice may only be made if the Company is not eligible to register sale of the Registrable Securities on Form S-3 requested to be registered by the Investors’ Representative is reasonably expected to result in aggregate gross cash proceeds in excess of $100,000,000 (without regard to any underwriting discount or commission); and provided, further that the Investors shall not be entitled to request more than two (2) Company Supported Distributions in the aggregate (including underwritten Demand Registrations). A Demand Notice shall also specify the expected method or methods of disposition of the applicable Registrable Securities. Following receipt of a Demand Notice, the Company shall use commercially reasonable efforts to file, as promptly as reasonably practicable, but not later than 30 days after receipt by the Company of such Demand Notice, a Registration Statement relating to the offer and sale of the Registrable Securities requested to be included therein by the Investors thereof in accordance with the methods of distribution elected by such Investors (a “Demand Registration Statement”) and shall use commercially reasonable efforts to cause such Registration Statement to be declared effective under the Securities ActAct as promptly as practicable after the filing thereof, it being agreed that if any Investor intends to distribute any Registrable Securities by means of an underwritten offering it shall promptly so advise the Company and the Company shall cooperate with such Investor to facilitate such distribution, including but not limited to the actions required pursuant to Section 5.5(a)(viii) and, if a Company Supported Distribution is requested, Section 5.5(a)(xiv).
(b) If any of the Registrable Securities registered pursuant to a Demand Registration are to be sold in a firm commitment underwritten offering, and the managing underwriter(s) of such underwritten offering advise the Investors in writing that it is their good faith opinion that the total number or dollar amount of Registrable Securities proposed to be sold in such offering, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such firm commitment underwritten offering the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
(i) first, the Registrable Securities for which inclusion in such underwritten offering was requested by the Investors, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Investor; and
(ii) second, among any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holder of Other Securities; provided that, in the event that, due to a cutback in accordance with this clause (c), Investors are unable to sell at least 90% of the Registrable Securities initially proposed to be sold in a Company Supported Distribution, such offering shall not constitute a Company Supported Distribution and count against the limit thereof.
(c) In the event of a Demand Registration, the Company shall be obligated required to register maintain the continuous effectiveness of the applicable Registration Statement for a period of at least 180 days after the effective date thereof or such shorter period in which all Registrable Securities upon included in such election only if Registration Statement have actually been sold.
(d) The Investors’ Representative shall have the right to notify the Company that it has determined that the Registration Statement relating to a Demand Registration be abandoned or withdrawn, in which event the Company shall promptly abandon or withdraw such Registration Statement and such withdrawn registration shall not count against the limit of Demand Registrations or Company Supported Distributions, as applicable; provided, however, that the Company shall not be required to pay for expenses of any registration proceeding begun pursuant to Section 5.2(a) hereof, which has been subsequently withdrawn pursuant to this Section 5.2(d) at the request of the Investors’ Representative, and shall be reimbursed by the Investors whose Registrable Securities were intended to be registered, included in the aggregateDemand Registration Statement for reasonable and documented out-of-pocket expenses (including legal fees and printing expenses) so incurred, constitute 10% or more unless the withdrawal is based upon material adverse information concerning the Company that the Company has not publicly disclosed at least five (5) Business Days prior to the Company’s receipt of such withdrawal request.
(e) Notwithstanding anything contained herein to the contrary, with the prior written consent of the then-outstanding Registrable Securities that are Investors’ Representative (which consent shall not registered under an effective Registration Statementbe unreasonably withheld, and (B) if the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Actconditioned or delayed), the Company shall be obligated entitled to register the Registrable Securities upon such election; provided, that (i) there shall not be more than one such request during each of the Company’s fiscal quarterly periods and (ii) the Registrable Securities coordinate any offerings under this Section 5.2 with any offerings to be registered must include at least 1,000,000 Common Shareseffected pursuant to similar agreements with the holders of Other Securities, orincluding, in the aggregate, have an anticipated offering price, net of underwriting discounts and commissions, of more than $5,000,000, calculated in accordance with Rule 457(c) under the Securities Act on the business day preceding such Request.
(b) As promptly as if practicable, but no later than 10 days after receipt of a Request, the Company shall give written notice of such requested registration to all Holders of Registrable Securities and Pari Passu Holders of Pari Passu Securities. Subject to Section 2.2(c), the Company shall include in a Demand Registration (i) the Registrable Securities intended to be disposed of by the Initiating Holders and (ii) the Registrable Securities and Pari Passu Securities intended to be disposed of by any other Holder or Pari Passu Holder which shall have made a written request (which request shall specify the amount of Registrable Securities to be registered and the intended method of disposition thereof) to the Company for inclusion thereof in such registration within 20 days after the receipt of such written notice from the Company. The Company shall, as expeditiously as possible following a Request, use its best efforts to cause to be filed with the SEC a Demand filing one Registration Statement providing for the registration under the Securities Act of the Registrable Securities and the Pari Passu Securities which the Company has been so requested to register by all such Holders and Pari Passu Holders, to the extent necessary to permit the disposition of such Registrable Securities so to be registered in accordance with the intended methods of disposition thereof specified in such Request or further requests if so requested. The Company shall use its best efforts to have such Demand Registration Statement declared effective by the SEC as soon as practicable thereafter and to keep such Demand Registration Statement continuously effective for the period specified in Section 4.1(b). The registration rights granted pursuant to the provisions of this Section 2.2 shall be in addition to the registration rights granted pursuant to the other provisions of this Section 2Other Securities.
Appears in 2 contracts
Samples: Stockholders Agreement (Phillips Van Heusen Corp /De/), Shareholder Agreement (Tommy Hilfiger Holding Sarl)
Demand Registration. (a) In addition to At any time during the rights provided in Section 2.1first three years after the Effective Time ("Initial Demand Period"), the Majority Holders shall have the right to any Holder of Registrable Securities may request in writing that the Company register in an underwritten public offering under the Securities Act, all or part of such Holders’ Holder's Registrable Securities that are not then registered by an effective Registration Statement (a “Request”"Demand Registration") and the Company shall thereupon promptly use its best efforts to effect, subject to the next sentence and the provisions of Subsection 2.02(c), such Demand Registration. No Demand Registration shall be effected until 30 days following the end of the Pooling Period and the Company shall not be obligated (which Request shall specify i) to effect a Demand Registration in the amount six-month period following a sale of Registrable Securities intended under a previous Demand Registration, (ii) subject to be disposed Section 2.04, to effect more than three Demand Registrations or (iii) to effect a Demand Registration with respect to less than $25,000,000 in aggregate fair market value of by such Holders and the intended method of disposition thereof) by filing a Registration Statement with the SEC pursuant to Rule 415 under the Registrable Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into a Form S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling shareholders (not underwriters) of all or such portion lesser amount as shall constitute all of the Registrable Securities (a “then held by the Holders. A request for Demand Registration”); provided, however, that (A) if Registration will specify the Company is not eligible to register the number of shares of Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election only if the Registrable Securities proposed to be registered, in sold. A registration will not count as a Demand Registration until the aggregate, constitute 10% or more of registration statement relating thereto has been declared effective by the then-outstanding Registrable Securities that are not registered under an effective Registration Statement, and (B) if the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election; provided, that (i) there shall not be more than one such request during each of the Company’s fiscal quarterly periods and (ii) the Registrable Securities to be registered must include at least 1,000,000 Common Shares, or, in the aggregate, have an anticipated offering price, net of underwriting discounts and commissions, of more than $5,000,000, calculated in accordance with Rule 457(c) under the Securities Act on the business day preceding such RequestCommission.
(b) As promptly as practicable, Promptly (but in no later event more than 10 days 15 days) after receipt of a Requestrequest for registration of Registrable Securities pursuant to Section 2.02(a) hereof, the Company shall give written provide notice of such requested registration request to all Holders of Registrable Securities and Pari Passu Holders on the books of Pari Passu Securities. Subject to the Company other than those who made the request under Section 2.2(c2.02(a), and each such Holder shall have the right, within a period of fifteen (15) days after the date of such notice, to request the Company shall to include in the offering to which the Demand Registration relates all or a portion of such Holder's Registrable Securities.
(c) In the event that the Holders making a request to be included in a Demand Registration (ipursuant to Section 2.02(b) together with the Registrable Securities intended to be disposed of by the Initiating Holders and (ii) the Registrable Securities and Pari Passu Securities intended to be disposed of by any other Holder or Pari Passu Holder which shall have made a written request (which request shall specify the amount who requested registration of Registrable Securities pursuant to be registered and Section 2.02(a) hereof (the intended method "Participating Holders") have requested registration of disposition thereof) Registrable Securities in excess of the Maximum Demand Amount (as hereinafter defined), if applicable, each Participating Holder shall have the right to register up to such number of such Holder's Registrable Securities which bears the same proportion to the Company for inclusion thereof in such registration within 20 days after the receipt of such written notice from the Company. The Company shall, Maximum Demand Amount as expeditiously as possible following a Request, use its best efforts to cause to be filed with the SEC a Demand Registration Statement providing for the registration under the Securities Act all of the Registrable Securities and owned by such Participating Holder bears to the Pari Passu total number of Registrable Securities owned by all Participating Holders (hereinafter referred to as a Participating Holder's "Eligible Securities"). To the extent that any Participating Holder does not elect to have all or part of such Participating Holder's Eligible Securities included in the offering for which the Company Demand Registration has been so requested made, the Eligible Securities of the other Participating Holders who elect to register by all such Holders and Pari Passu Holders, to participate in the extent necessary to permit the disposition of such Registrable Securities so to be registered in accordance with the intended methods of disposition thereof specified in such Request or further requests if so requested. The Company shall use its best efforts to have such Demand Registration Statement declared effective by the SEC as soon as practicable thereafter and to keep such Demand Registration Statement continuously effective for the period specified in Section 4.1(b). The registration rights granted pursuant to the provisions of this Section 2.2 offering shall be in addition to increased pro rata based on the registration rights granted pursuant to the other provisions number of this Section 2Eligible Securities owned by each.
Appears in 2 contracts
Samples: Registration Rights Agreement (Fort James Corp), Registration Rights Agreement (James River Corp of Virginia)
Demand Registration. (a) In addition to the rights provided in Section 2.1, the Majority Holders (i) SAP and its Affiliated Companies shall have the right right, after the 180 day period following the IPO Date (or such other period as may be requested by the Company or an underwriter to facilitate compliance with applicable FINRA rules, or any successor provisions or amendments thereto), and (ii) Silver Lake and its Affiliated Companies shall have the right, after the two year period following the IPO Date, to request in writing that the Company register all or part of such Holders’ Registrable Securities that are not then registered by an effective Registration Statement (a “Request”) (which Request request shall specify the amount of Registrable Securities intended to be disposed of by such Holders requesting Holder, and the intended method of disposition distribution thereof) by filing , including in a Registration Statement with the SEC pursuant to Rule 415 under Offering, if the Company is then eligible to register such Registrable Securities Act on Form S-3 under the Securities Act (or in the event a successor form) for such offering) that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into a Form S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling shareholders (not underwriters) of all or register such portion of the requesting Holder’s Registrable Securities as shall be specified in the Request (a “Demand Registration”); provided) by filing with the SEC, however, that as soon as practicable (Athe “Filing Date”) if the Company is not eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election only if the Registrable Securities to be registered, in the aggregate, constitute 10% or more of the then-outstanding Registrable Securities that are not registered under an effective Registration Statement, and (B) if the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election; provided, that (i) there shall not be more than one such request during each of the Company’s fiscal quarterly periods and (ii) the Registrable Securities to be registered must include at least 1,000,000 Common Shares, or, in the aggregate, have an anticipated offering price, net of underwriting discounts and commissions, of more than $5,000,000, calculated in accordance with Rule 457(c) under the Securities Act on the business day preceding such Request.
(b) As promptly as practicable, but no later than 10 days after receipt of a Request, the Company shall give written notice of such requested registration to all Holders of Registrable Securities and Pari Passu Holders of Pari Passu Securities. Subject to Section 2.2(c), the Company shall include in a Demand Registration (i) the Registrable Securities intended to be disposed of by the Initiating Holders and (ii) the Registrable Securities and Pari Passu Securities intended to be disposed of by any other Holder or Pari Passu Holder which shall have made a written request (which request shall specify the amount of Registrable Securities to be registered and the intended method of disposition thereof) to the Company for inclusion thereof in such registration within 20 days after the receipt of such written notice from a Request by the Company. The Company shall, as expeditiously as possible following a Request, use its best efforts to cause to be filed with the SEC registration statement (a “Demand Registration Statement providing for the registration under the Securities Act of the Statement”) covering such Registrable Securities Securities, and the Pari Passu Securities which the Company has been so requested to register by all such Holders and Pari Passu Holders, to the extent necessary to permit the disposition of such Registrable Securities so to be registered in accordance with the intended methods of disposition thereof specified in such Request or further requests if so requested. The Company shall use its reasonable best efforts to have such Demand Registration Statement declared become effective by with the SEC concurrently with filing or as soon as practicable thereafter and thereafter, and, subject to Section 3.4, to keep such Demand Registration Statement continuously Continuously Effective for a period of at least 24 months, in the case of a Rule 415 Offering, or, in all other cases, for a period of at least 180 days following the date on which such Demand Registration Statement is declared effective (or for such shorter period which will terminate when all of the Registrable Securities covered by such Demand Registration Statement shall have been sold pursuant thereto) (provided that such period shall be extended for a period of time equal to the period specified the Holder of Registrable Securities refrains from selling any securities included in Section 4.1(b). The such registration rights granted statement at the request of the Company or the Underwriters’ Representative pursuant to the provisions of this Section 2.2 shall be in addition Agreement), including, if necessary, by filing with the SEC a post-effective amendment or a supplement to the Demand Registration Statement or the related prospectus or any document incorporated therein by reference or by filing any other required document or otherwise supplementing or amending the Demand Registration Statement, if required by the rules, regulations or instructions applicable to the registration rights granted form used by the Company for such Demand Registration Statement or by the Securities Act, the Exchange Act, any state securities or blue sky laws, or any rules and regulations thereunder; provided, that such period during which the Demand Registration Statement shall remain Continuously Effective shall, in the case of an Underwritten Offering, and subject to Section 3.4, be extended for such period (if any) as the underwriters shall reasonably require, including to satisfy, in the judgment of counsel to the underwriters, any prospectus delivery requirements imposed by applicable law.
(b) The Company shall not be obligated to effect more than two Demand Registrations in any calendar year for Silver Lake or more than one Demand Registration for SAP in any calendar quarter. For purposes of the preceding sentence, a Demand Registration shall not be deemed to have been effected for SAP and its Affiliated Companies or Silver Lake and its Affiliated Companies (and, therefore, not requested for purposes of paragraph (a) above), (i) unless a Demand Registration Statement with respect thereto has become effective, (ii) if after such Demand Registration Statement has become effective, the offer, sale or distribution of Registrable Securities thereunder is prevented by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court for any reason not attributable to SAP or its Affiliated Companies, or to Silver Lake or its Affiliated Companies, as the case may be, and such effect is not thereafter eliminated or (iii) if the conditions to closing specified in the purchase agreement or underwriting agreement entered into in connection with any offering pursuant to such registration are not satisfied or waived other than by reason of a failure on the part of SAP or its Affiliated Companies, or Silver Lake and its Affiliated Companies, as the case may be. If the Company shall have complied with its obligations under ARTICLE III, a right to a Demand Registration pursuant to this Section 3.1 shall be deemed to have been satisfied upon the earlier of (i) the date as of which all of the Registrable Securities included therein shall have been sold to the underwriters or distributed pursuant to the Demand Registration Statement and (ii) the date as of which such Demand Registration Statement shall have been effective for an aggregate period of at least 24 months, in the case of a Rule 415 Offering, or, in all other cases, for a period of at least 180 days following the effectiveness of such Demand Registration Statement; provided that such period shall be extended for a period of time equal to the period the Holder of Registrable Securities refrains from selling any securities included in such registration statement at the request of the Company or the Underwriters’ Representative pursuant to the provisions of this Agreement.
(c) Any request made pursuant to this Section 23.1 shall be addressed to the attention of the General Counsel of the Company and shall specify the number of Registrable Securities to be registered (which shall be not less than 0.5% of the outstanding shares of Company Common Stock).
(d) Without the prior written consent of SAP, the Company may not include in a Demand Registration pursuant to this Section 3.1 shares of Company Capital Stock for the account of the Company or any Subsidiary of the Company, but, if and to the extent required by a contractual obligation (including Section 3.2), may, subject to compliance with Section 3.1(e), include shares of Company Capital Stock for the account of any other Person who holds shares of Company Capital Stock entitled to be included therein (including any other Holder entitled to be included therein pursuant to Section 3.2); provided, that if the Underwriters’ Representative of any offering described in this Section 3.1 shall have informed the Company and/or the Holder making the Request in writing that in its judgment there is a Maximum Number of shares of Company Capital Stock that SAP and its Affiliated Companies, Silver Lake and its Affiliated Companies, all other Holders and any other Persons entitled to participate in such Demand Registration may include in such offering, then the Company shall include in such Demand Registration: (i) first, (A) the number of Registrable Securities held by SAP and its Affiliated Companies (“SAP Securities”), if any, up to 1% of the aggregate outstanding Company Capital Stock, that are requested to be included in such registration, (B) the number of Registrable Securities held by Silver Lake and its Affiliated Companies (“Silver Lake Securities”), if any, up to 1% of the aggregate outstanding Company Capital Stock, that are requested to be included in such registration and (C) the number of Registrable Securities held by Q II and its Affiliated Companies (“Q II Securities”), if any, up to 0.25% of the aggregate outstanding Company Capital Stock, that are requested to be included in such registration pursuant to Section 3.2 (clauses (A)-(C) collectively, the “Cap Amount”), except that if the number of shares of Company Capital Stock that may be included in such registration is less than the Cap Amount, the reduction shall be applied pro rata among the SAP Securities, Silver Lake Securities and Q II Securities based on each of their pro rata share of the Cap Amount (i.e., 44.44% SAP Securities/44.44% Silver Lake Securities/11.12% Q II Securities); (ii) second, up to the full number of SAP Securities in excess of the Cap Amount, if any, that are requested to be included in such registration; (iii) third, up to the full number of Silver Lake Securities and Q II Securities in excess of the Cap Amount, if any, that are requested to be included in such registration on a pro rata basis based on the number of shares of Company Capital Stock held by such Holders; (iv) fourth, such number of shares of Company Capital Stock duly requested to be included in such registration by other Persons, pro rata on the basis of the amount of such other shares of Company Capital Stock requested to be included or such other allocation method determined by the Company; and (v) fifth, securities the Company proposes to sell.
(e) No Holder may participate in any Underwritten Offering under this Section 3.1 and no other Person shall be permitted to participate in any such offering pursuant to this Section 3.1 unless it completes and executes all customary questionnaires, powers of attorney, custody agreements, underwriting agreements and other customary documents required under the customary terms of such underwriting arrangements. In connection with any Underwritten Offering under Section 3.1 hereof, each participating Holder and the Company and, except in the case of a Rule 415 Offering hereof, each other Selling Holder shall be a party to the underwriting agreement with the underwriters and may be required to make certain customary representations and warranties and provide certain customary indemnifications for the benefit of the underwriters.
(f) Any Holder having requested the Company to include any or all of its Registrable Securities in a registration statement under the Securities Act pursuant to Section 3.1 or Section 3.2 shall have the right to withdraw any such notice or direction with respect to any or all of the Registrable Securities designated by it for registration by giving written notice to such effect to the Company prior to the effective date of such registration statement. In the event of any such withdrawal, the Company shall not include such Registrable Securities in the applicable registration and such Registrable Securities shall continue to be Registrable Securities for all purposes of this Agreement (subject to the other terms and conditions of this Agreement). No such withdrawal shall affect the obligations of the Company with respect to the Registrable Securities not so withdrawn if any other Holder has requested pursuant to Section 3.1 or Section 3.2 that Registrable Securities be included in such registration; provided, however, that in the case of a Demand Registration, if such withdrawal shall reduce the number of Registrable Securities sought to be included in such registration below 0.5% of the outstanding shares of Company Common Stock, then the Company shall as promptly as practicable give each Holder seeking to register Registrable Securities notice to such effect and, within ten days following the mailing of such notice, such Holders still seeking registration shall, by written notice to the Company, elect to register additional Registrable Securities to satisfy the foregoing minimum offering size or elect that such registration statement not be filed or, if theretofore filed, be withdrawn. During such ten day period, the Company shall not file such registration statement if not theretofore filed or, if such registration statement has been theretofore filed, the Company shall not seek, and shall use reasonable best efforts to prevent, the effectiveness thereof.
Appears in 2 contracts
Samples: Stockholders’ Agreement (Silver Lake Group, L.L.C.), Stockholders’ Agreement (Qualtrics International Inc.)
Demand Registration. (a) In addition At any time after the expiration of the Lock-Up Period, one or more Buyer Parties (the “Requesting Parties”) then holding a majority of the Registrable Securities then held by all Buyer Parties may request in writing (a “Demand Request”) that the Company effect a registration (a “Demand Registration”) under the 1933 Act of Registrable Securities held by such Buyer Parties. The Demand Request shall be in writing and shall specify the Registrable Securities to be sold and the rights provided in Section 2.1intended method of disposition thereof. Upon receipt of a Demand Request, the Majority Holders Company shall deliver within five Business Days a written notice (a “Demand Notice”) to each Buyer Party that did not make such Demand Request stating that the Company intends to comply with a Demand Request and informing each such Buyer Party of its right to include Registrable Securities in such Demand Registration. Within five Business Days after receipt of a Demand Notice, each Buyer Party who received such Demand Notice shall have the right to request in writing that the Company register include all or part of such Holders’ Registrable Securities that are not then registered by an effective Registration Statement (a “Request”) (which Request shall specify the amount of Registrable Securities intended to be disposed of by such Holders and the intended method of disposition thereof) by filing a Registration Statement with the SEC pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into a Form S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling shareholders (not underwriters) of all or such specific portion of the Registrable Securities (a “held by such Buyer Party in such Demand Registration”. The Company shall file a registration statement including (subject to Section 5.1(c); provided, however, that (A) if the Company is not eligible to register the all Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election only if the Registrable Securities requested to be registered, in included therein by the aggregate, constitute 10% or more of the then-outstanding Registrable Securities that are not registered Requesting Parties and any other Buyer Party who validly exercises its rights under an effective Registration Statement, and (Bthis Section5.1(a) if the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election; provided, that (i) there shall not be more than one such request during each of the Company’s fiscal quarterly periods and (ii) the Registrable Securities to be registered must include at least 1,000,000 Common Shares, or, in the aggregate, have an anticipated offering price, net of underwriting discounts and commissions, of more than $5,000,000, calculated in accordance with Rule 457(c) under the Securities Act on the business day preceding such Request.
(b) As appropriate form as promptly as practicable, practicable (but no later than 10 days after receipt of a Request, the Company shall give written notice of such requested registration to all Holders of Registrable Securities and Pari Passu Holders of Pari Passu Securities. Subject to Section 2.2(c), the Company shall include in a Demand Registration (i) the Registrable Securities intended to be disposed of by the Initiating Holders and (ii) the Registrable Securities and Pari Passu Securities intended to be disposed of by any other Holder or Pari Passu Holder which shall have made a written request (which request shall specify the amount of Registrable Securities to be registered and the intended method of disposition thereof) to the Company for inclusion thereof in such registration within 20 90 days after the receipt date the Demand Request is delivered in the case of such written notice from a Form S-1 and 60 days after the Company. The Company shall, as expeditiously as possible following date the Demand Request is delivered in the case of a Request, Form S-3) and use its best commercially reasonable efforts to cause such registration statement to be filed with the SEC a Demand Registration Statement providing for the registration under the Securities Act of the Registrable Securities and the Pari Passu Securities which the Company has been so requested to register by all such Holders and Pari Passu Holders, to the extent necessary to permit the disposition of such Registrable Securities so to be registered in accordance with the intended methods of disposition thereof specified in such Request or further requests if so requested. The Company shall use its best efforts to have such Demand Registration Statement declared effective by the SEC as soon as practicable thereafter thereafter; provided, however, that the Company shall not be obligated to effect, or take any action to effect, any such registration pursuant to this Section 5.1:
(i) unless the Registrable Securities requested to be registered pursuant to such request (x) have an anticipated aggregate public offering price (before any underwriting discounts and to keep such commissions) of at least $25,000,000 or (y) represent at least 15% of the total shares of Common Stock then outstanding that are not Registrable Securities;
(ii) within 120 days of any other Demand Registration Statement continuously effective for or a Shelf Underwritten Offering;
(iii) within 120 days of a Piggyback Offering in which all Buyer Parties were given the right to include Registrable Securities to the extent required under this Agreement and at least 80% of the Registrable Securities requested by such Buyer Parties to be included in such Piggyback Offering were included;
(iv) during the period specified starting with the date 30 days prior to the Company’s good faith estimate of the date of filing of, and ending on the date 120 days immediately following a Piggyback Offering, provided that during the 30-day period prior to such filing the Company is actively employing in Section 4.1(b). The registration rights granted good faith all reasonable efforts to consummate such Piggyback Offering; provided, further, that the Company may only delay an offering pursuant to this subsection (a)(iv) for a period of not more than 120 days if a filing of any other registration statement is not made within that period and the provisions of Company may only exercise this Section 2.2 shall be right once in addition to the registration rights granted pursuant to the other provisions of this Section 2any 12-month period; or
(v) during any Suspension Period.
Appears in 2 contracts
Samples: Stockholders' Agreement (Professional Diversity Network, Inc.), Stock Purchase Agreement (Professional Diversity Network, Inc.)
Demand Registration. (a) In addition Subject to the rights provided in conditions of this Section 2.1, if at any time after March 14, 2012 the Majority Company shall receive a written request from a Holder or group of Holders that the Company register under the Securities Act Shares with an aggregate value (based on the SC Trading Average) of at least $1.0 million as of the date of such request (a “Demanding Holder”) then the Company shall, subject to the limitations of this Section 2.1, effect, as promptly as reasonably practicable, the registration under the Securities Act of all Registrable Securities that the Holder requests to be registered. Any such requested registration shall hereinafter be referred to as a “Demand Registration” and any such registration statement filed with the SEC shall be referred to as a “Demand Registration Statement.”
(b) If a demanding Holder so elects, an offering of Registrable Securities pursuant to a Demand Registration shall be in the form of an underwritten offering. Such demanding Holder shall have the right to request in writing that select the managing underwriter or underwriters to administer the offering; provided such managing underwriter or underwriters shall be reasonably acceptable to the Company.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.1: (i) after the Company register all or part has effected five (5) registrations pursuant to this Section 2.1, and each of such Holders’ Registrable Securities that are not then registered registrations has been declared or ordered effective and kept effective by an effective Registration Statement the Company as required by Section 2.4(a) of this Agreement; (ii) with respect to a “Request”) (which Request shall specify the amount registration of Registrable Securities intended to be disposed of by such Holders and during the intended method of disposition thereof) by filing a Registration Statement period starting with the SEC pursuant date thirty (30) days prior to Rule 415 under the Securities Act Company’s good faith estimate of the launch date of, and ending on Form S-3 under a date ninety (90) days after the Securities Act (closing date of, a Company-initiated registered offering of equity securities or in the event securities convertible into or exchangeable for equity securities; provided that the Company is ineligible actively employing in good faith all commercially reasonable efforts to use launch such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into a Form S-3 promptly after Form S-3 becomes available to the Companyregistered offering; (iii) covering resales by the Holders as selling shareholders during any Scheduled Black-out Period; (not underwriters) of all or such portion of the Registrable Securities (a “Demand Registration”); provided, however, that (Aiv) if the Company is not eligible has notified the Holder that in the good faith judgment of the Company, it would be materially detrimental to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon or its securityholders for such election only if the Registrable Securities registration to be registered, in the aggregate, constitute 10% effected at such time or more of the then-outstanding Registrable Securities that are not registered under an effective Registration Statement, and (Bv) if the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Act, filing or initial effectiveness of a Demand Registration Statement at any time would require the Company shall be obligated to register make disclosure of any event that the Registrable Securities upon such election; provided, that (i) there shall Board of Directors of the Company determines would not be more than one such request during each in the best interests of the Company’s fiscal quarterly periods Company and its shareholders due to a pending transaction, investigation or other event, including any public disclosure of material non-public information, where such disclosure would, at that time, materially adversely affect the Company and its shareholders, in which events described above in clauses (ii), (iv) and (ii) the Registrable Securities to be registered must include at least 1,000,000 Common Shares, or, in the aggregate, have an anticipated offering price, net of underwriting discounts and commissions, of more than $5,000,000, calculated in accordance with Rule 457(c) under the Securities Act on the business day preceding such Request.
(b) As promptly as practicable, but no later than 10 days after receipt of a Request, the Company shall give written notice of such requested registration to all Holders of Registrable Securities and Pari Passu Holders of Pari Passu Securities. Subject to Section 2.2(cv), the Company shall include have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Holder; provided that such right to delay a request shall be exercised by the Company for not more than two periods in any twelve (12) month period and not more than ninety (90) days in the aggregate in any twelve (12) month period.
(d) Promptly upon receipt of any request for a Demand Registration pursuant to Section 2.1(a) (ibut in no event more than five Business Days thereafter), the Company shall deliver a written notice (a “Demand Notice”) of any such registration request to all other Holders of Registrable Securities, and the Company shall include in such Demand Registration all Registrable Securities intended with respect to be disposed of by which the Initiating Holders and (iiCompany has received written requests for inclusion therein within ten Business Days after the date that the Demand Notice has been delivered. All requests made pursuant to this Section 2.1(d) the Registrable Securities and Pari Passu Securities intended to be disposed of by any other Holder or Pari Passu Holder which shall have made a written request (which request shall specify the aggregate amount of Registrable Securities to be registered and the intended method of disposition thereofdistribution of such securities.
(e) If the managing underwriter or underwriters of a proposed underwritten offering of the Registrable Securities included in a Demand Registration advise the Board of Directors of the Company in writing that, in its or their opinion, the number of securities requested to be included in such Demand Registration exceeds the number that can be sold in such offering without being likely to have a significant adverse effect on the price, timing or distribution of the securities offered or the market for the securities offered, the securities to be included in such Demand Registration shall be:
(i) first, up to 100% of the Registrable Securities that the demanding Holder proposes (or Holders propose) to include in the Demand Registration;
(ii) second, and only if all the securities referred to in clause (i) have been included, the number of Registrable Securities that, in the opinion of such managing underwriter or underwriters can be sold without having such adverse effect, with such number to be allocated pro rata among the Holders that have requested to participate in such Demand Registration based on the relative number of Registrable Securities then held by each such Holder (provided that any securities thereby allocated to a Holder that exceed such Holder’s request shall be reallocated among the remaining requesting Holders in like manner); and
(iii) third, and only if all the securities referred to in clause (ii) have been included, the number of securities that the Company for inclusion thereof proposes to include in such registration within 20 days after that, in the receipt opinion of the managing underwriter or underwriters can be sold without having such written notice from adverse effect.
(g) Any registration pursuant to this Section 2.1 may be required by the Company. The Company shall, as expeditiously as possible following a Request, use its best efforts to cause demanding Holders to be effected by means of a shelf registration statement filed with the SEC a Demand Registration Statement providing for if the registration Company qualifies to file using either (i) Form F-3 or S-3 or (ii) any successor form or other appropriate form under the Securities Act (a “Shelf Registration Statement”) relating to any or all of the Registrable Securities and the Pari Passu Securities which the Company has been so requested to register by all such Holders and Pari Passu Holders, to the extent necessary to permit the disposition of such Registrable Securities so to be registered in accordance with the intended methods of disposition thereof specified and distribution set forth in such Request or further requests if so requestedthe Shelf Registration Statement and Rule 415 under the Securities Act. The Company shall use its commercially reasonable efforts to cause any Shelf Registration Statement to remain effective, including by filing extensions of the Shelf Registration Statement, until the termination of the period contemplated in Section 2.6. The Company shall use its reasonable best efforts to have such Demand Registration Statement declared effective by the SEC as soon as practicable thereafter and to keep such Demand Shelf Registration Statement continuously effective for under the period specified Securities Act in Section 4.1(b). The registration rights granted order to permit the prospectus forming a part thereof to be usable by Holders until the earlier of (i) the date as of which all Registrable Securities have been sold pursuant to the provisions Shelf Registration Statement or another registration statement filed under the Securities Act (but in no event prior to the applicable period referred to in Section 4(3) of this the Securities Act and Rule 174 thereunder) and (ii) until the termination of the period contemplated in Section 2.2 shall 2.6.
(h) If the continued use of such Shelf Registration Statement at any time would require the Company to make disclosure of any event that the Board of Directors of the Company determines would not be in addition the best interests of the Company and its shareholders due to a pending transaction, investigation or other event, including any public disclosure of material non-public information, where such disclosure would, at that time, materially adversely affect the Company and its shareholders, the Company may, upon giving at least ten days’ prior written notice of such action to the registration rights granted pursuant Holders, suspend all Holders’ ability to use the Shelf Registration Statement (a “Shelf Suspension”); provided that the Company shall not be permitted to exercise a Shelf Suspension for more than two periods in any twelve (12) month period and not more than ninety (90) days in the aggregate in any twelve (12) month period. In the case of a Shelf Suspension, the Holders agree to suspend use of the applicable prospectus in connection with any sale or purchase of, or offer to sell or purchase, Registrable Securities, upon receipt of the notice referred to above. The Company shall immediately notify the Holders upon the termination of any Shelf Suspension, amend or supplement the prospectus, if necessary, so it does not contain any material untrue statement or omission and furnish to the other provisions Holders such numbers of this Section 2copies of the prospectus as so amended or supplemented as the Holders may reasonably request.
Appears in 2 contracts
Samples: Registration Rights Agreement, Registration Rights Agreement (Seaspan CORP)
Demand Registration. (a) In addition To the extent that a Registration Statement filed pursuant to Section 2(b) or a Shelf Registration Statement is not available to effect the rights provided in Section 2.1proposed transaction, following the applicable Lock-up Period, either (a) General Motors, (b) the Majority Sellers (other than General Motors) of at least a majority in interest of the then issued and outstanding number of Registrable Securities held by such Majority Sellers (other than General Motors) or (c) the Existing Holders shall have of at least a majority in interest of the right to then issued and outstanding number of Registrable Securities held by the Existing Holders (the “Demanding Holders”), in each case, may request in writing that the Company register under the Securities Act all or part any portion of its Registrable Securities pursuant to a Registration Statement on Form S-1 or any successor form thereto with respect to a underwritten public offering of Registrable Securities (each, a “Long-Form Registration”). Each request for a Long-Form Registration shall specify the number of Registrable Securities requested to be included in the Long-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than 10 days following receipt thereof) deliver notice of such Holders’ request to all other holders of Registrable Securities who shall then have 10 days from the date such notice is given to notify the Company in writing of their desire to be included in such registration (each such Holder that includes all or a portion of such Holder’s Registrable Securities in such Registration, a “Requesting Holder”). The Company shall prepare and file with the Commission a Registration Statement on Form S-1 or any successor form thereto covering all of the Registrable Securities that are not then registered by an effective the holders thereof have requested to be included in such Long-Form Registration within 60 days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter. Under no circumstances shall the Company be obligated to effect (x) more than an aggregate of three (3) Registrations pursuant to a “Request”Demand Registration by the Majority Sellers under this subsection 2(a) (which Request shall specify the amount of with respect to any or all Registrable Securities intended to be disposed of held by such Majority Sellers and (y) more than three (3) Registration pursuant to a Demand Registration by the Existing Holders under this subsection 2(a) with respect to any or all Registrable Securities held by such Existing Holders; provided, however, that a Registration pursuant to a Demand Registration shall not be counted for such purposes unless a Registration Statement that may be available at such time has become effective and all of the Registrable Securities requested by the Requesting Holders and the intended method Demanding Holders to be registered on behalf of disposition thereofthe Requesting Holders and the Demanding Holders in such Registration Statement have been sold, in accordance with Section 5 of this Agreement.
(b) by filing The Company shall, as soon as practicable, but in any event within fifteen (15) business days after the Closing Date, file a Registration Statement to permit the public resale of all the Registrable Securities held by the Holders from time to time as permitted by Rule 415 under the Securities Act (or any successor or similar provision adopted by the Commission then in effect) on the terms and conditions specified in this Section 2(b) and shall use its reasonable best efforts to cause the Registration Statement to be declared effective as soon as practicable after the filing thereof, but in no event later than the earlier of (i) the 60th day following the Closing Date and (ii) the 10th business day after the date the Company is notified (orally or in writing, whichever is earlier) by the Commission that the Registration Statement will not be “reviewed” or will not be subject to further review (such earlier date, the “Effectiveness Deadline”). The Registration Statement filed with the SEC Commission pursuant to this Section 2(b) shall be on Form S-1 or such other form of registration statement as is then available to effect a registration for the sale or resale of such Registrable Securities on a delayed or continuous basis pursuant to Rule 415 under the Securities Act on Form S-3 or any successor rule or provision similar thereto adopted by the Commission, covering such Registrable Securities, and shall contain a Prospectus in such form as to permit any Holder to sell such Registrable Securities pursuant to Rule 415 under the Securities Act (or any successor rule or similar provision adopted by the Commission then in effect) at any time beginning on the effective date for such Registration Statement. A Registration Statement filed pursuant to this Section 2(b) shall provide for the sale or resale pursuant to any method or combination of methods legally available to, and requested by, the Holders. The Company shall use its reasonable best efforts to cause a Registration Statement filed pursuant to Section 2(b) to remain effective, and to be supplemented and amended to the extent necessary to ensure that such Registration Statement is available or, if not available, that another Registration Statement or Shelf Registration Statement is continuously available, for the resale of all the Registrable Securities held by the Holders until all such Registrable Securities have ceased to be Registrable Securities. As soon as practicable following the effective date of a Registration Statement filed pursuant to this Section 2(b), but in any event that within one (1) business day of such date, the Company shall notify the Holders of the effectiveness of such Registration Statement. If, after the filing such Registration Statement, a holder of Registrable Securities requests registration under the Securities Act of additional Registrable Securities pursuant to such Registration Statement, the Company shall amend such Registration Statement to cover such additional Registrable Securities.
(c) The Company shall use its reasonable best efforts to qualify and remain qualified to register the offer and sale of securities under the Securities Act pursuant to a Registration Statement on Form S-3 or any successor form thereto. As soon as practicable after the date hereof, but not later than the Target Filing Date, the Company shall (i) prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration Statement”) that covers all Registrable Securities then outstanding for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”) and (ii) use its reasonable best efforts to cause such Shelf Registration Statement to be declared effective by the Commission as soon as practicable thereafter. In addition, the Company shall use its reasonable best efforts to cause a Shelf Registration Statement filed pursuant to Section 2(c) to remain effective, and to be supplemented and amended to the extent necessary to ensure that such Shelf Registration Statement is ineligible to use such formavailable or, such other form as if not available, that another Shelf Registration Statement (if the Company is eligible to use file a Shelf Registration Statement) or other Registration Statement (if the Company is not so eligible) is continuously available, for the resale of all the Registrable Securities held by the Holders until all such Registrable Securities have ceased to be Registrable Securities. For purposes hereof, “Target Filing Date” shall mean the date which is 30 days after the Company becomes qualified to register the offer and sale of securities under the Securities Act provided that pursuant to a Shelf Registration Statement. If, after the filing of a Shelf Registration Statement, a holder of Registrable Securities requests registration under the Securities Act of additional Registrable Securities pursuant to such other form Shelf Registration, the Company shall be converted into amend such Shelf Registration Statement to cover such additional Registrable Securities. At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 promptly after Form S-3 becomes available or any successor form thereto, the holders of Registrable Securities shall have the right to request an unlimited number of registrations under the Company) covering resales by the Holders as selling shareholders (not underwriters) Securities Act of all or such any portion of the their Registrable Securities pursuant to a Registration Statement on Form S-3 or any similar short-form Registration Statement (each, a “Short-Form Registration” and, collectively with each Long-Form Registration and Shelf Registration (as defined below), a “Demand Registration”); provided, however, that (A) if . Each request for a Short-Form Registration shall specify the Company is not eligible to register the number of Registrable Securities on requested to be included in the Short-Form S-3 under the Securities ActRegistration. Upon receipt of any such request, the Company shall be obligated to register the Registrable Securities upon such election only if the Registrable Securities to be registered, promptly (but in the aggregate, constitute 10% or more of the then-outstanding Registrable Securities that are not registered under an effective Registration Statement, and (B) if the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election; provided, that (i) there shall not be more than one such request during each of the Company’s fiscal quarterly periods and (ii) the Registrable Securities to be registered must include at least 1,000,000 Common Shares, or, in the aggregate, have an anticipated offering price, net of underwriting discounts and commissions, of more than $5,000,000, calculated in accordance with Rule 457(c) under the Securities Act on the business day preceding such Request.
(b) As promptly as practicable, but no event later than 10 days after following receipt of a Request, the Company shall give written thereof) deliver notice of such requested registration request to all Holders other holders of Registrable Securities and Pari Passu Holders of Pari Passu Securities. Subject who shall then have 10 days from the date such notice is given to Section 2.2(c), notify the Company in writing of their desire to be included in such registration. The Company shall include in prepare and file with (or confidentially submit to) the Commission a Demand Registration (i) Statement on Form S-3 or any successor form thereto covering all of the Registrable Securities intended that the holders thereof have requested to be disposed of by the Initiating Holders and (ii) the Registrable Securities and Pari Passu Securities intended to be disposed of by any other Holder or Pari Passu Holder which shall have made a written request (which request shall specify the amount of Registrable Securities to be registered and the intended method of disposition thereof) to the Company for inclusion thereof included in such registration Short-Form Registration within 20 30 days after the receipt of such written notice from date on which the Company. The Company shall, as expeditiously as possible following a Request, initial request is given and shall use its best efforts to cause such Registration Statement to be filed with the SEC a Demand Registration Statement providing for the registration under the Securities Act of the Registrable Securities and the Pari Passu Securities which the Company has been so requested to register by all such Holders and Pari Passu Holders, to the extent necessary to permit the disposition of such Registrable Securities so to be registered in accordance with the intended methods of disposition thereof specified in such Request or further requests if so requested. The Company shall use its best efforts to have such Demand Registration Statement declared effective by the SEC Commission as soon as practicable thereafter and to keep such Demand Registration Statement continuously effective for the period specified in Section 4.1(b). The registration rights granted pursuant to the provisions of this Section 2.2 shall be in addition to the registration rights granted pursuant to the other provisions of this Section 2thereafter.
Appears in 2 contracts
Samples: Registration Rights Agreement (Wejo Group LTD), Merger Agreement (Virtuoso Acquisition Corp.)
Demand Registration. (a) In addition Commencing upon the expiration of any lock-up agreement that the Holders have entered into with the underwriters in connection with an Initial Offering pursuant to SECTION 2.10, subject to the rights provided limitations set forth in Section 2.1this SECTION 2, the Majority Holders shall have of not less than 60% of the right then outstanding Registrable Securities (the "REQUESTING HOLDERS") may at any time give to request in writing that the Company register a written request for the registration (a "DEMAND REGISTRATION") by the Company under the Act of all or any part of such Holders’ the Registrable Securities that are not then registered held by an effective such Requesting Holders. Within 15 business days after the receipt by the Company of any such written request, the Company will give written notice of such request to all Holders of Registrable Securities.
(b) Subject to the limitations set forth in this SECTION 2, after the receipt of a written request for a Demand Registration, (i) the Company will be obligated to include in such Demand Registration Statement (a “Request”) (all Registrable Securities with respect to which Request shall specify the amount Company receives from Holders of Registrable Securities intended the written requests of such Holders for inclusion in such Demand Registration, within 30 days after the date on which the Company gives to all Holders a written notice of registration request pursuant to SECTION 2.1(a), and (ii) the Company shall file a registration statement covering all such Registrable Securities as soon as practicable after receipt of the written requests of such Holders for inclusion in such Demand Registration, and shall use its commercially reasonable efforts to effect the registration of all such Registrable Securities. All written requests made by Holders of Registrable Securities pursuant to this SECTION 2.1(b) will specify the number of Registrable Securities to be disposed of by such Holders registered and will also specify the intended method of disposition thereof) . If the Requesting Holders intend to distribute the Registrable Securities by filing a Registration Statement with the SEC pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that means of an underwriting, they shall so advise the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form in their request. The underwriter shall be converted into a Form S-3 promptly after Form S-3 becomes available reasonably acceptable to the Company.
(c) covering resales The registration statement filed pursuant to any Demand Registration pursuant to this SECTION 2.1 may, subject to the limitations set forth in this SECTION 2, include other securities of the Company which are held by persons other than the Holders as selling shareholders who, by virtue of agreements with the Company, are entitled to include their securities in any such registration.
(not underwritersd) of all or such portion of the Registrable Securities (a “Demand Registration”); provided, however, that (A) if the The Company is not eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election only if the Registrable Securities to be registered, in the aggregate, constitute 10% or more of the then-outstanding Registrable Securities that are not registered under an effective Registration Statement, and (B) if the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election; provided, that (i) there shall not be more than one such request during each required to effect any Demand Registration of the Company’s fiscal quarterly periods and (ii) the any Registrable Securities pursuant to be registered must include at least 1,000,000 Common Shares, or, in this SECTION 2.1 if the aggregate, have an anticipated aggregate offering price, net of underwriting discounts and commissions, of more than the Registrable Securities will not equal or exceed fifteen million dollars ($5,000,000, calculated in accordance with Rule 457(c) under the Securities Act on the business day preceding such Request15,000,000).
(be) As promptly as practicableThe Company shall not be required to effect more than two (2) Demand Registrations pursuant to this SECTION 2.1.
(f) The Company will not be obligated to effect any Demand Registration of any Registrable Securities pursuant to this SECTION 2.1 during the period commencing on the date falling 90 days prior to the Company's estimated date of filing of, but no later than 10 and ending on the date 180 days after receipt following the effective date of, any registration statement pertaining to any registration initiated by the Company, for the account of a Request, the Company shall give (other than with respect to securities registered solely in connection with acquisitions, employee benefit plans, and the like), if the written notice request of the Requesting Holders for such requested Demand Registration pursuant to SECTION 2.1(a) hereof is received by the Company after the Company has commenced an underwritten registration initiated by the Company and provides reasonable evidence that it commenced activities directly related to all Holders such filing before receiving the written request of the Holders; PROVIDED, HOWEVER, that the Company will use its commercially reasonable efforts in good faith to cause any such registration statement to be filed and to become effective as expeditiously as is reasonably possible.
(g) The Company will not be obligated to effect any Demand Registration of any Registrable Securities and Pari Passu Holders of Pari Passu Securities. Subject pursuant to Section 2.2(c)this SECTION 2.1 for not more than a 120-day period, the Company shall include in a Demand Registration if: (i) in the Registrable Securities intended good faith judgment of the Board of Directors of the Company, such registration would be seriously detrimental to be disposed the Company and the Board of by Directors of the Initiating Holders Company concludes, as a result, that it is essential to defer the filing of such registration statement at such time, and (ii) the Registrable Securities and Pari Passu Securities intended Company shall furnish to such Holders a certificate signed by the Chief Executive Officer of the Company stating that in the good faith judgment of the Board of Directors of the Company, it would be disposed of by any other Holder or Pari Passu Holder which shall have made a written request (which request shall specify the amount of Registrable Securities to be registered and the intended method of disposition thereof) seriously detrimental to the Company for inclusion thereof such registration statement to be filed in the near future and that it is, therefore, essential to defer the filing for a period of not more than 120 days after receipt of the request of the Requesting Holders; and FURTHER PROVIDED, that the Company shall not defer its obligation in this manner more than once in any twelve-month period.
(h) If the managing underwriters in any Demand Registration advise the Company that the number of securities proposed to be included in such registration within 20 days after exceeds, in the receipt opinion of the managing underwriters of such written notice from registration in light of marketing factors, the Company. The number of securities to which such registration should be limited (the "UNDERWRITERS' MAXIMUM NUMBER"), then: (i) the Company shall, as expeditiously as possible following a Request, use its best efforts will be obligated to cause include in such registration that number of Registrable Securities requested by Holders to be filed with included in such registration as does not exceed the SEC a Underwriters' Maximum Number, and such number of Registrable Securities will be allocated PRO RATA among such Holders on the basis of the number of Registrable Securities held by each such Holder; (ii) if the Underwriters' Maximum Number exceeds the number of Registrable Securities requested by Holders to be included in such registration, then the Company will be entitled to include in such registration that number of securities as has been requested by the Company to be included in such registration for the account of the Company and that is not greater than such excess; and (iii) if the Underwriters' Maximum Number exceeds the sum of the number of Registrable Securities that the Company is obligated under clause (i) above to include in such Demand Registration Statement providing plus the number of securities that the Company proposes to offer and sell for its own account in such registration, then the Company may include in such registration under that number of other securities as security holders other than Holders may have requested be included in such registration and that is not greater than such excess, and such number of excess securities will be allocated PRO RATA among such security holders other than the Securities Act Holders on the basis of the number of such securities requested to be included in such registration by each such security holder. Neither the Company nor any of its other security holders will be entitled to include any securities in any underwritten Demand Registration unless the Company or such security holders (as the case may be) agree in writing to sell such securities on the same terms and conditions as apply to the Registrable Securities and the Pari Passu Securities which the Company has been so requested to register held by all such Holders and Pari Passu Holders, to the extent necessary to permit the disposition of such Registrable Securities so to be registered in accordance with the intended methods of disposition thereof specified included in such Request or further requests if so requested. The Company shall use its best efforts to have such Demand Registration Statement declared effective by the SEC as soon as practicable thereafter and to keep such Demand Registration Statement continuously effective for the period specified in Section 4.1(b). The registration rights granted pursuant to the provisions of this Section 2.2 shall be in addition to the registration rights granted pursuant to the other provisions of this Section 2Registration.
Appears in 2 contracts
Samples: Investor Rights Agreement (Synta Pharmaceuticals Corp), Investor Rights Agreement (Synta Pharmaceuticals Corp)
Demand Registration. (a) In addition to At any time after the rights provided in Section 2.1six month anniversary of the consummation by the Company of the IPO, if the Company shall receive a written request from a Sponsor or Sponsors holding outstanding Registrable Securities (such requesting Persons, the Majority Holders shall have the right to request in writing “Requesting Stockholders”) that the Company register all or part of such Holders’ Registrable Securities that are not then registered by an effective Registration Statement (a “Request”) (which Request shall specify the amount of Registrable Securities intended to be disposed of by such Holders and the intended method of disposition thereof) by filing a Registration Statement with the SEC pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into a Form S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling shareholders (not underwriters) of all or such portion of the Registrable Securities (a “Demand Registration”); provided, however, that (A) if the Company is not eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election only if the Registrable Securities to be registered, in the aggregate, constitute 10% or more of the then-outstanding Registrable Securities that are not registered under an effective Registration Statement, and (B) if the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election; provided, that (i) there shall not be more than one such request during each of the Company’s fiscal quarterly periods and (ii) the Registrable Securities to be registered must include at least 1,000,000 Common Shares, or, in the aggregate, have an anticipated offering price, net of underwriting discounts and commissions, of more than $5,000,000, calculated in accordance with Rule 457(c) under the Securities Act on the business day preceding such Request.
(b) As promptly as practicable, but no later than 10 days after receipt of a Request, the Company shall give written notice of such requested registration to all Holders of Registrable Securities and Pari Passu Holders of Pari Passu Securities. Subject to Section 2.2(c), the Company shall include in a Demand Registration (i) the Registrable Securities intended to be disposed of by the Initiating Holders and (ii) the Registrable Securities and Pari Passu Securities intended to be disposed of by any other Holder or Pari Passu Holder which shall have made a written request (which request shall specify the amount of Registrable Securities to be registered and the intended method of disposition thereof) to the Company for inclusion thereof in such registration within 20 days after the receipt of such written notice from the Company. The Company shall, as expeditiously as possible following a Request, use its best efforts to cause to be filed with the SEC a Demand Registration Statement providing for effect the registration under the Securities Act of all or any portion of such Requesting Stockholders’ Registrable Securities, and specifying the intended method of disposition thereof, then the Company shall promptly give notice of such requested registration (each such request shall be referred to herein as a “Demand Registration”) at least ten (10) days prior to the anticipated filing date of the registration statement relating to such Demand Registration to the other Stockholders and thereupon shall use its reasonable best efforts to effect, as expeditiously as possible, the registration under the Securities Act of:
(i) all Registrable Securities and the Pari Passu Securities for which the Requesting Stockholders have requested registration under this Section 7.01, and
(ii) subject to the restrictions set forth in Section 7.01(d), all other Registrable Securities that any other Stockholders (all such Stockholders, together with the Requesting Stockholders, the “Registering Stockholders”) have requested the Company has been so requested to register by request received by the Company within seven (7) days after such Stockholders receive the Company’s notice of the Demand Registration, all such Holders and Pari Passu Holders, to the extent necessary to permit the disposition of such Registrable Securities so to be registered (in accordance with the intended methods thereof as aforesaid) of disposition thereof specified the Registrable Securities so to be registered; provided that no Person may participate in any registration statement pursuant to this Section 7.01(a) unless such Person agrees to sell their Registrable Securities to the underwriters selected as provided in Section 7.05(f) on the same terms and conditions as apply to the Requesting Stockholders; provided, however, that no such Registering Stockholders shall be required to make any representations or warranties, or provide any indemnity, in connection with any such registration other than representations and warranties (or indemnities with respect thereto) as to (i) such Person’s ownership of his, her or its Registrable Securities to be transferred free and clear of all liens, claims, and encumbrances, (ii) such Person’s power and authority to effect such transfer, and (iii) such matters pertaining to compliance with securities laws by such Registering Stockholder as may be reasonably requested; provided, further, however, that the obligation of such Person to indemnify pursuant to any such underwriting arrangements shall be several, not joint and several, among such Persons selling Registrable Securities, and the liability of each such Person will be in proportion thereto; and provided, further, that such liability will be limited to, the net proceeds received by such Person from the sale of his, her or its Registrable Securities pursuant to such registration; provided that, the Company shall not be obligated to effect a Demand Registration unless the aggregate gross proceeds expected to be received from the sale of the Registrable Securities requested to be included by all Registering Stockholders in such Request or further requests if so requestedDemand Registration are at least $25,000,000.
(b) Promptly after the expiration of the seven-day period referred to in Section 7.01(a)(ii) hereof, the Company will notify all Registering Stockholders of the identities of the other Registering Stockholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, a majority of the Requesting Stockholders may revoke such request without liability to any of the other Registering Stockholders, by providing a notice to the Company revoking such request.
(c) The Company shall use its best efforts be liable for and pay all Registration Expenses in connection with each Demand Registration, regardless of whether such Registration is effected; provided that holders of Registrable Securities shall pay all underwriting discounts, selling commissions, and stock transfer taxes applicable to have such the sale of Registrable Securities, and fees and disbursements of counsel for any Stockholder, except for the fees and disbursements of the Stockholders borne and paid by the Company as a Registration Expense.
(d) If a Demand Registration Statement declared effective by involves a Public Offering and the SEC as soon as practicable thereafter managing underwriter advises the Company and the Requesting Stockholders that, in its view, the number of Registrable Securities that the Registering Stockholders and the Company propose to keep include in such registration exceeds the largest number of Registrable Securities that can be sold without having an adverse effect on such offering, including the price at which such Registrable Securities can be sold (the “Demand Registration Statement continuously effective for Maximum Offering Size”), the period specified Company shall include in Section 4.1(b). The registration rights granted pursuant such registration, in the priority listed below, up to the provisions of this Section 2.2 shall be in addition to the registration rights granted pursuant to the other provisions of this Section 2.Demand Maximum Offering Size:
Appears in 2 contracts
Samples: Stockholders Agreement (INC Research Holdings, Inc.), Stockholders Agreement (INC Research Holdings, Inc.)
Demand Registration. (a) In addition to If the rights provided Company shall receive a written request from either DLJMB on behalf of the DLJ Entities or, in Section 2.1the case of a CVC Demand, CVC on behalf of the CVC Entities (the DLJ Entities or, in respect of a CVC Demand, the Majority Holders CVC Entities, shall have the right be referred to request in writing herein as a "Requesting Stockholder") that the Company register effect the registration under the Securities Act of all or part a portion of such Holders’ Requesting Stockholder's Registrable Securities that are not then registered by an effective Registration Statement (a “Request”) (which Request shall specify the amount of Registrable Securities intended to be disposed of by such Holders Securities, and specifying the intended method of disposition thereof) by filing a Registration Statement with the SEC pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into a Form S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling shareholders (not underwriters) of all or such portion of the Registrable Securities (a “Demand Registration”); provided, however, that (A) if the Company is not eligible to register the Registrable Securities on Form S-3 under the Securities Act, then the Company shall be obligated to register the Registrable Securities upon such election only if the Registrable Securities to be registered, in the aggregate, constitute 10% or more of the then-outstanding Registrable Securities that are not registered under an effective Registration Statement, and (B) if the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election; provided, that (i) there shall not be more than one such request during each of the Company’s fiscal quarterly periods and (ii) the Registrable Securities to be registered must include at least 1,000,000 Common Shares, or, in the aggregate, have an anticipated offering price, net of underwriting discounts and commissions, of more than $5,000,000, calculated in accordance with Rule 457(c) under the Securities Act on the business day preceding such Request.
(b) As promptly as practicable, but no later than 10 days after receipt of a Request, the Company shall give written notice of such requested registration (each such request, including the CVC Demand, shall be referred to all Holders herein as a "Demand Registration") at least 15 days prior to the anticipated filing date of Registrable Securities and Pari Passu Holders of Pari Passu Securities. Subject the registration statement relating to Section 2.2(c), the Company shall include in a such Demand Registration (i) the Registrable Securities intended to be disposed of by the Initiating Holders and (ii) the Registrable Securities and Pari Passu Securities intended to be disposed of by any other Holder or Pari Passu Holder which shall have made a written request (which request shall specify the amount of Registrable Securities to be registered and the intended method of disposition thereof) to the Company for inclusion thereof in such registration within 20 days after the receipt of such written notice from the Company. The Company shall, as expeditiously as possible following a Request, Other Stockholders and thereupon will use its best efforts to cause to be filed with the SEC a Demand Registration Statement providing for effect, as expeditiously as possible, the registration under the Securities Act of of:
(i) the Registrable Securities and the Pari Passu Securities which the Company has been so requested to register by the Requesting Stockholder; and
(ii) subject to the restrictions set forth in Section 5.02, all other Registrable Securities of the same class as that requested to be registered by the Requesting Stockholder which any Other Stockholder entitled to request the Company to effect an Incidental Registration pursuant to Section 5.02 (all such Stockholders, together with the Requesting Stockholder, the "Holders") has requested that the Company register by written request received by the Company within 15 days after the receipt by such Holders and Pari Passu Holdersof such written notice given by the Company, all to the extent necessary to permit the disposition of such Registrable Securities so to be registered (in accordance with the intended methods thereof as aforesaid) of disposition thereof specified the Registrable Securities so to be registered; provided that, subject to Section 5.01(d) hereof, the Company shall (i) not be obligated to effect more than five Demand Registrations for the DLJ Entities, (ii) be obligated to effect one Demand Registration for the CVC Entities (the "CVC Demand") which shall be exercisable by CVC on behalf of any CVC Entities only if immediately prior thereto (A) the Transfer Percentage of the CVC Entities is less than the Transfer Percentage of the DLJ Entities and (B) the DLJ Entities have transferred (other than to any of their Permitted Transferees) 70% or more of the sum of (x) their collective Initial Ownership of Common Stock and (y) any additional shares of Common Stock issued by the Company to the DLJ Entities after the date hereof in an issuance of Common Stock that was offered to the DLJ Entities and the CVC Entities on a pro rata basis and (iii) not be obligated to effect any Demand Registration unless the aggregate proceeds expected to be received from the sale of the Common Stock to be included in such Request Demand Registration, in the reasonable opinion of DLJSC exercised in good faith, equals or further requests exceeds (x) $50,000,000 if such Demand Registration would constitute the First Public Offering, or (y) $25,000,000 in all other cases. In no event will the Company be required to effect more than one Demand Registration hereunder within any four-month period.
(b) Promptly after the expiration of the 15-day period referred to in Section 5.01(a)(ii) hereof, the Company will notify all the Holders to be included in the Demand Registration of the other Holders and the number of Registrable Securities requested to be included therein. The Requesting Stockholder may, at any time prior to the effective date of the registration statement relating to such registration, revoke such request, without liability to any of the other Stockholders, by providing a written notice to the Company revoking such request, in which case such request, so requestedrevoked, shall be considered a Demand Registration unless the participating Stockholders reimburse the Company for all costs incurred by the Company in connection with such registration, or unless such revocation arose out of the fault of the Company, in which case such request shall not be considered a Demand Registration and the Company shall be obligated to pay all Registration Expenses in connection with such revoked request.
(c) The Company will be liable for and pay all Registration Expenses in connection with any Demand Registration pursuant to this Section 5.01, regardless of whether it is effected.
(d) A Demand Registration shall not be deemed to have occurred unless the registration statement relating thereto (A) has become effective under the Securities Act and (B) has remained effective for a period of at least 180 days without being subject to any stop order, injunction, or other order or requirement of the Commission or any other governmental authority for any reason (or such shorter period in which all Registrable Securities of the Holders requested to be included in such registration have actually been sold thereunder).
(e) If a Demand Registration involves an underwritten Public Offering and the managing underwriter shall advise the Company and the Requesting Stockholder that, in its view, (i) the number of Registrable Securities requested to be included in such registration (including any securities which the Company proposes to be included which are not Registrable Securities) or (ii) the inclusion of some or all of the Registrable Securities owned by the Holders, in any such case, exceeds the largest number of securities which can be sold without having an adverse effect on such offering, including the price at which such securities can be sold (the "Maximum Offering Size"), the Company will include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be registered by the Requesting Stockholder and all Registrable Securities requested to be included in such registration by any other Holder (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata, among such Holders on the basis of the relative number of Registrable Securities so requested to be included in such registration); provided that if the Transfer Percentage of CVC is less than the Transfer Percentage of the DLJ Entities collectively at such time, the amount of Registrable Securities which will be allocable to CVC pursuant to this subsection shall be increased by an amount such that, after giving effect to the sale of all Registrable Securities in such offering, the Transfer Percentage of CVC would equal the Transfer Percentage of the DLJ Entities collectively;
(ii) second, any securities proposed to be registered by the Company; and
(iii) third, any securities proposed to be registered for the account of any other Persons with such priorities among them as the Company shall determine.
(f) If, in connection with any Demand Registration pursuant to this Section with respect to the Common Shares or Preferred Shares, any Requesting Stockholder shall seek to Transfer any Warrants together with Common Shares or Preferred Shares, the Company shall at the request of any such Stockholder effect a registration of such Warrants to which the provisions of this Article 5 shall apply mutatis mutandis and a registration, pursuant to a shelf registration statement, so as to permit the resale of the Common Shares for which any Warrants so transferred may be exercisable. The Company shall use its best efforts maintain the effectiveness of any such shelf registration statement, and take all actions necessary to have permit resale of such Demand Registration Statement declared effective Common Shares as may be required by the SEC as soon as practicable thereafter and to keep such Demand Registration Statement continuously effective for the period specified in Section 4.1(b). The registration rights granted pursuant to the provisions of this Section 2.2 shall be in addition to the registration rights granted pursuant to the other provisions of this Section 2applicable state securities laws.
Appears in 2 contracts
Samples: Investors' Agreement (Donaldson Lufkin & Jenrette Inc /Ny/), Investors' Agreement (Insilco Holding Co)
Demand Registration. (ai) In addition At any time following the date that is one hundred and eighty (180) days after the closing date of the IPO, any Holder or group of Holders that holds Registrable Securities (the “Initiating Holder”) that desires to the rights provided in Section 2.1, the Majority Holders sell shall have the right option and right, exercisable by delivering a written notice to request the Partnership (a “Demand Notice”), to require the Partnership to, pursuant to the terms of and subject to the limitations contained in writing that this Agreement, prepare and file with the Company register all Commission a Registration Statement registering the offering and sale of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice in accordance with the intended timing and method or part methods of distribution thereof specified in the Demand Notice (the “Demand Registration”).
(ii) Within two (2) Trading Days of the receipt of the Demand Notice, the Partnership shall give written notice of such Holders’ Demand Notice to all Holders and shall, subject to the limitations of this Section 2(a), file a Registration Statement covering all of the Registrable Securities that are not then registered the Holders shall in writing request (such request to be given to the Partnership within three (3) days of receipt of such notice of the Demand Notice given by an effective the Partnership pursuant to this Section 2(a)(ii)) to be included in such Demand Registration as promptly as practicable as directed by the Initiating Holder in accordance with the terms and conditions of the Demand Notice and use all commercially reasonable efforts to cause such Registration Statement (a “Request”) (which Request shall specify the amount of Registrable Securities intended to be disposed of by such Holders and the intended method of disposition thereof) by filing a Registration Statement with the SEC pursuant to Rule 415 become effective under the Securities Act on Form S-3 and remain effective under the Securities Act for not less than six (or in 6) months following the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into a Form S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling shareholders (not underwriters) of all Effective Date or such portion of the shorter period when all Registrable Securities covered by such Registration Statement have been sold (a the “Demand RegistrationEffectiveness Period”); provided, however, that the Partnership shall not be required to effect the registration of Registrable Securities pursuant to this Section 2(a) unless at least an aggregate of 2,500,000 Registrable Securities (as adjusted to reflect splits, combinations, dividends and recapitalizations) are offered or the Registrable Securities are offered at an aggregate proposed offering price of not less than $50 million.
(iii) Subject to the other limitations contained in this Agreement, the Partnership is not obligated hereunder to effect more than (A) one (1) Demand Registration on Form S-1 (or any equivalent or successor form under the Securities Act) in any twelve (12) month period; provided, that notwithstanding anything in this Agreement to the contrary, the Partnership shall not be obligated to effect any Demand Registration on Form S-1 (or any equivalent or successor form under the Securities Act) that is not requested by a Sponsor or a Special Successor; and (B) two (2) Demand Registrations on Form S-3 (or any equivalent or successor form under the Securities Act) in any twelve (12) month period.
(iv) Notwithstanding any other provision of this Section 2(a), the Partnership shall not be required to effect a registration or file a Registration Statement pursuant to this Section 2(a): (A) during the period starting with the date sixty (60) days prior to a good faith estimate, with the approval of a simple majority of the Board of Directors of the General Partner, of the date of filing of, and ending on a date ninety (90) days after the effective date of, a Partnership-initiated registration; provided that the Partnership is actively employing commercially reasonable efforts to cause such registration statement to become effective; (B) for a period of up to ninety (90) days after the date of a Demand Notice for registration pursuant to this Section 2(a) if at the time of such request (1) the Partnership is engaged, or has fixed plans with the approval of a simple majority of the Board of Directors of the General Partner to engage, within ninety (90) days of the time of such Demand Notice, in a firm commitment underwritten public offering of Common Units in which the Holders of Registrable Securities include Registrable Securities pursuant to Section 2(b), or (2) the Partnership is currently engaged in a self-tender or exchange offer and the filing of a Registration Statement would cause a violation of the Exchange Act; or (C) for a period of up to ninety (90) days, if (1) the General Partner determines that a postponement is in the best interest of the Partnership and its Limited Partners generally due to a pending transaction or (2) the General Partner determines that a postponement is in the best interest of the Partnership due to an investigation or other event (any such period, a “Suspension Period”); provided, however, that in no event shall the Partnership postpone or defer any Demand Registration pursuant to this Section 2(a)(iv) and/or Section 7(f) for more than an aggregate of one hundred and eighty (180) days in any twelve (12) month period.
(v) Notwithstanding any other provision of this Section 2(a), if (A) the Holders intend to distribute the Registrable Securities covered by a Demand Registration by means of an underwriting and (B) the managing underwriter advises the Partnership that the inclusion of all of the Holders’ Registrable Securities in the subject Registration Statement would have a material adverse effect on the timing or success of the offering, then the Partnership shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of Registrable Securities that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (including the Initiating Holders). Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(vi) The Partnership may include in any such Demand Registration other Partnership Securities for sale for its own account or for the account of any other Person; provided that if the Company managing underwriter for the offering determines that the number of Partnership Securities proposed to be offered in such offering would have a material adverse effect on the timing or success of such offering, then the Registrable Securities to be sold by the Holders shall be included in such registration before any Partnership Securities proposed to be sold for the account of the Partnership or any other Person.
(vii) Subject to the limitations contained in this Agreement, the Partnership shall effect any Demand Registration on Form S-3 (except if the Partnership is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such Demand Registration shall be effected on another appropriate form for such purpose pursuant to the Securities Act) and if the Partnership becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities through a firm commitment underwriting shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities ActAct (if available to the Partnership); provided, however, that if at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Company shall be obligated Partnership that it intends to register effect an offering of all or part of the Registrable Securities upon included on such election only if Registration Statement, the Partnership will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(viii) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), the Partnership shall, (A) promptly prepare and file or cause to be prepared and filed (1) such additional forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents, as may be necessary or advisable to register or qualify the securities subject to such Demand Registration, including under the securities laws of such states as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, the Partnership would become subject to general service of process or to taxation or qualification to do business in such jurisdiction solely as a result of registration and (2) such forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents as may be necessary to apply for listing or to list the Registrable Securities subject to be registered, in such Demand Registration on the aggregate, constitute 10% or more of the then-outstanding Registrable Securities that are not registered under an effective Registration Statement, Trading Market and (B) if the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall do any and all other acts and things that may be obligated to register the Registrable Securities upon such election; provided, that (i) there shall not be more than one such request during each of the Company’s fiscal quarterly periods and (ii) the Registrable Securities to be registered must include at least 1,000,000 Common Shares, or, in the aggregate, have an anticipated offering price, net of underwriting discounts and commissions, of more than $5,000,000, calculated in accordance with Rule 457(c) under the Securities Act on the business day preceding such Request.
(b) As promptly as practicable, but no later than 10 days after receipt of a Request, the Company shall give written notice of such necessary or appropriate or reasonably requested registration to all Holders of Registrable Securities and Pari Passu Holders of Pari Passu Securities. Subject to Section 2.2(c), the Company shall include in a Demand Registration (i) the Registrable Securities intended to be disposed of by the Initiating Holders and (ii) to enable the Registrable Securities and Pari Passu Securities intended Holders to be disposed of by any other Holder or Pari Passu Holder which shall have made consummate a written request (which request shall specify the amount of Registrable Securities to be registered and the intended method of disposition thereof) to the Company for inclusion thereof in such registration within 20 days after the receipt of such written notice from the Company. The Company shall, as expeditiously as possible following a Request, use its best efforts to cause to be filed with the SEC a Demand Registration Statement providing for the registration under the Securities Act of the Registrable Securities and the Pari Passu Securities which the Company has been so requested to register by all such Holders and Pari Passu Holders, to the extent necessary to permit the disposition public sale of such Registrable Securities so to be registered in accordance with the intended timing and method or methods of disposition thereof specified distribution thereof.
(ix) In the event a Holder transfers Registrable Securities included on a Registration Statement and such Registrable Securities remain Registrable Securities following such transfer, at the request of such Holder, the Partnership shall amend or supplement such Registration Statement as may be necessary in order to enable such Request or further requests if so requested. transferee to offer and sell such Registrable Securities pursuant to such Registration Statement.
(x) The Company Partnership shall use its best commercially reasonable efforts to have such Demand Registration Statement declared effective become eligible to use Form S-3 and, after becoming eligible to use Form S-3, shall use commercially reasonable efforts to remain eligible to use Form S-3, including by timely filing all reports with the SEC as soon as practicable thereafter Commission and to keep such Demand Registration Statement continuously effective for the period specified in Section 4.1(b). The registration rights granted pursuant to the provisions of this Section 2.2 shall be in addition to the registration rights granted pursuant to meeting the other provisions requirements of this Section 2the Exchange Act.
Appears in 2 contracts
Samples: Registration Rights Agreement (Chesapeake Midstream Partners, L.P.), Registration Rights Agreement (Chesapeake Midstream Partners, L.P.)
Demand Registration. (a) In addition to If at any time following the rights provided in Section 2.1, expiration of the Majority Holders period during which the managing underwriters for the IPO shall have the right to request in writing that prohibit the Company register all from effecting any other public sale or part of such Holders’ Registrable Securities that are not then registered by an effective Registration Statement (a “Request”) (which Request shall specify the amount distribution of Registrable Securities intended to be disposed of by such Holders and the intended method of disposition thereof) by filing a Registration Statement with the SEC pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into a Form S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling shareholders (not underwriters) of all or such portion of the Registrable Securities (a “Demand Registration”); provided, however, that (A) if the Company is not eligible to register the Registrable Securities on Form S-3 under the Securities ActSecurities, the Company shall receive a request from either the Electrum Parties or the MERS Party (that party shall be obligated referred to register herein as the Registrable Securities upon such election only if the Registrable Securities to be registered, in the aggregate, constitute 10% or more of the then-outstanding Registrable Securities “Requesting Stockholder”) that are not registered under an effective Registration Statement, and (B) if the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election; provided, that (i) there shall not be more than one such request during each of the Company’s fiscal quarterly periods and (ii) the Registrable Securities to be registered must include at least 1,000,000 Common Shares, or, in the aggregate, have an anticipated offering price, net of underwriting discounts and commissions, of more than $5,000,000, calculated in accordance with Rule 457(c) under the Securities Act on the business day preceding such Request.
(b) As promptly as practicable, but no later than 10 days after receipt of a Request, the Company shall give written notice of such requested registration to all Holders of Registrable Securities and Pari Passu Holders of Pari Passu Securities. Subject to Section 2.2(c), the Company shall include in a Demand Registration (i) the Registrable Securities intended to be disposed of by the Initiating Holders and (ii) the Registrable Securities and Pari Passu Securities intended to be disposed of by any other Holder or Pari Passu Holder which shall have made a written request (which request shall specify the amount of Registrable Securities to be registered and the intended method of disposition thereof) to the Company for inclusion thereof in such registration within 20 days after the receipt of such written notice from the Company. The Company shall, as expeditiously as possible following a Request, use its best efforts to cause to be filed with the SEC a Demand Registration Statement providing for effected the registration under the Securities Act of all or any portion of such Requesting Stockholder’s Registrable Securities, and specifying the intended method of disposition thereof, then the Company shall promptly give notice of such requested registration (each such request shall be referred to herein as a “Demand Registration”) at least 2 Business Days prior to the anticipated pricing date of the offering relating to such Demand Registration to the other Stockholders and thereupon shall use its best efforts to effect, as expeditiously as possible, the registration under the Securities Act of:
(i) all Registrable Securities and the Pari Passu Securities for which the Requesting Stockholders have requested registration under this Section 2.01; and
(ii) subject to the restrictions set forth in Sections 2.01(d) and 2.02, all other Registrable Securities of the same class as those requested to be registered by the Requesting Stockholders that any Stockholders with rights to request registration under Section 2.01 (all such Stockholders, together with the Requesting Stockholders, and any Stockholders participating in a Piggyback Registration pursuant to Section 2.02, the “Registering Stockholders”) have requested the Company has been so requested to register by request received by the Company within 1 Business Day after such Stockholders receive the Company’s notice of the Demand Registration; all such Holders and Pari Passu Holders, to the extent necessary to permit the disposition of such Registrable Securities so to be registered (in accordance with the intended methods thereof as aforesaid) of disposition thereof the Registrable Securities so to be registered; provided that, subject to Section 2.01(c), the Company shall not be obligated to effect more than three Demand Registrations within a 12-month period.
(b) The Company shall be liable for and pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected.
(c) A Demand Registration shall not be deemed to have occurred:
(i) unless the registration statement relating thereto (A) has become effective under the Securities Act and (B) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registering Shareholders included in such registration have actually been sold thereunder); provided that such registration statement shall not be considered a Demand Registration if, after such registration statement becomes effective, (1) such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court and (2) less than 75% of the Registrable Securities included in such registration statement have been sold thereunder; or
(ii) if the Maximum Offering Size is reduced in accordance with Section 2.01(d) such that less than 66 2/3% of the Registrable Securities of the Requesting Shareholders sought to be included in such registration are included.
(d) If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Stockholders that, in its view, the number of shares of Registrable Securities requested to be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities of a party with rights under Section 2.01 (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such entities on the basis of the relative number of Registrable Securities so requested to be included in such registration by each such Stockholder); and
(ii) second, all Registrable Securities requested to be included in such registration by any other Registering Stockholder or Person, including the Company (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such other Stockholders on the basis of the relative number of Registrable Securities so requested to be included in such registration by each such Stockholder).
(e) Upon notice to each Requesting Stockholder, the Company may postpone effecting a registration pursuant to this Section 2.01 on one occasion during any period of six consecutive months for a reasonable time specified in the notice but not exceeding 90 days (which period may not be extended or renewed), if (i) an investment banking firm of recognized national standing shall advise the Company and the Requesting Stockholders in writing that effecting the registration would materially and adversely affect an offering of securities of such Company the preparation of which had then been commenced or (ii) the Company is in possession of material non-public information the disclosure of which during the period specified in such Request or further requests if so requested. The notice the Company reasonably believes would not be in the best interests of the Company.
(f) At any time following the consummation of the IPO, upon the request of the Electrum Parties, the Company shall use its best efforts to have such Demand Registration Statement declared effective file a “shelf” registration statement (the “Shelf Registration”) with respect to the Registrable Securities on an appropriate form pursuant to Rule 415 (or any similar provision that may be adopted by the SEC as soon as practicable thereafter SEC) under the Securities Act and to cause such Shelf Registration to become effective and to keep such Shelf Registration in effect until the Stockholders no longer hold any Registrable Securities. Any offer or sale of Registrable Securities pursuant to the Shelf Registration in any underwritten Public Offering shall be deemed to be a Demand Registration Statement continuously effective for the period specified in Section 4.1(b). The registration rights granted pursuant subject to the provisions of this Section 2.2 shall be in addition to the registration rights granted pursuant to the other provisions of this Section 22.01(a).
Appears in 2 contracts
Samples: Registration Rights Agreement (Gatos Silver, Inc.), Registration Rights Agreement (Sunshine Silver Mining & Refining Corp)
Demand Registration. (a) In addition to the rights provided in Section 2.1, the Majority Holders shall have the right to request in writing that the Company register all or part of such Holders’ Registrable Securities that are not then registered by an effective Registration Statement (a “Request”) (which Request shall specify the amount of Registrable Securities intended to be disposed of by such Holders and the intended method of disposition thereof) by filing a Registration Statement with the SEC pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into a Form S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling shareholders (not underwriters) of all or such portion of the Registrable Securities (a “Demand Registration”); provided, however, that (A) if the Company is not eligible to register the Registrable Securities on Form S-3 under the Securities Act, If the Company shall be obligated to register the Registrable Securities upon such election only if the Registrable Securities to be registeredreceive a request from, in the aggregatecase of a Xxxxxx Xxxxxxx Investor Demand, constitute 10% or more of the then-outstanding Registrable Securities that are not registered under an effective Registration Statement, and (B) if the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election; provided, that (i) there shall not be more than one such request during each of the Company’s fiscal quarterly periods and (ii) the Registrable Securities to be registered must include at least 1,000,000 Common Shares, any Xxxxxx Xxxxxxx Investor or, in the aggregate, have an anticipated offering price, net of underwriting discounts and commissions, of more than $5,000,000, calculated in accordance with Rule 457(c) under the Securities Act on the business day preceding such Request.
(b) As promptly as practicable, but no later than 10 days after receipt case of a RequestHSBC Co-Investor Demand, any HSBC Co-Investor (in the case of a Xxxxxx Xxxxxxx Investor Demand, the Company shall give written notice Xxxxxx Xxxxxxx Investor or, in the case of such requested registration to all Holders of Registrable Securities and Pari Passu Holders of Pari Passu Securities. Subject to Section 2.2(c)a HSBC Co-Investor Demand, the Company HSBC Co-Investor shall include in a Demand Registration (ibe referred to herein as the “Requesting Shareholder”) the Registrable Securities intended to be disposed of by the Initiating Holders and (ii) the Registrable Securities and Pari Passu Securities intended to be disposed of by any other Holder or Pari Passu Holder which shall have made a written request (which request shall specify the amount of Registrable Securities to be registered and the intended method of disposition thereof) to that the Company for inclusion thereof in such registration within 20 days after the receipt of such written notice from the Company. The Company shall, as expeditiously as possible following a Request, use its best efforts to cause to be filed with the SEC a Demand Registration Statement providing for effect the registration under the Securities Act of all or any portion of such Requesting Shareholder’s Registrable Securities, and specifying the intended method of disposition thereof, then the Company shall promptly give notice of such requested registration (each such request, including a HSBC Co-Investor Demand, shall be referred to herein as a “Demand Registration”) at least 20 Business Days prior to the anticipated filing date of the registration statement relating to such Demand Registration to the other Shareholders and thereupon shall use its best efforts to effect, as expeditiously as possible, the registration under the Securities Act of:
(i) all Registrable Securities and the Pari Passu Securities for which the Requesting Shareholder has requested registration under this Section 5.01, and
(ii) subject to the restrictions set forth in Sections 5.01(e) and 5.02, all other Registrable Securities of the same class as those requested to be registered by the Requesting Shareholder that any Shareholders with rights to request registration under Section 5.01 or Section 5.02 (all such Shareholders, together with the Requesting Shareholder, and any Shareholders participating in a Piggyback Registration pursuant to Section 5.02, the “Registering Shareholders”) have requested the Company has been so requested to register by request received by the Company within 15 Business Days after such Shareholders receive the Company’s notice of the Demand Registration, all such Holders and Pari Passu Holders, to the extent necessary to permit the disposition of such Registrable Securities so to be registered (in accordance with the intended methods thereof as aforesaid) of disposition thereof the Registrable Securities so to be registered, provided that, subject to Section 5.01(d), the Company shall not be obligated to effect more than (i) four Demand Registrations in the aggregate for the Xxxxxx Xxxxxxx Investors (each, a “Xxxxxx Xxxxxxx Investor Demand”), other than any Demand Registration to be effected pursuant to a Registration Statement on Form S-3 (or any successor thereto), for which an unlimited number of Demand Registrations shall be permitted or (ii) one Demand Registration for the HSBC Co-Investors (the “HSBC Co-Investor Demand”) (it being understood that any such HSBC Co-Investor Demand can occur only following the first anniversary of the First Public Offering); provided further that the Company shall not be obligated to effect a Demand Registration unless the aggregate gross proceeds expected to be received from the sale of the Registrable Securities requested to be included in such Demand Registration equals or exceeds $50,000,000. In no event shall the Company be required to effect more than one Demand Registration hereunder within any six-month period.
(b) Promptly after the expiration of the 15-Business Day-period referred to in Section 5.01(a)(ii), the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Shareholder may revoke such request, without liability to any of the other Registering Shareholders, by providing a notice to the Company revoking such request.
(c) The Company shall be liable for and pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected.
(d) A Demand Registration shall not be deemed to have occurred:
(i) unless the registration statement relating thereto (A) has become effective under the Securities Act and (B) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registering Shareholders included in such registration have actually been sold thereunder), provided that such registration statement shall not be considered a Demand Registration if, after such registration statement becomes effective, (1) such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court and (2) less than 75% of the Registrable Securities included in such registration statement have been sold thereunder; or
(ii) if the Maximum Offering Size is reduced in accordance with Section 5.01(e) such that less than 66 2/3% of the Registrable Securities of the Registering Shareholders sought to be included in such registration are included.
(e) If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder that, in its view, the number of shares of Registrable Securities requested to be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be included in such registration by all other Registering Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such other Shareholders on the basis of the relative number of Registrable Securities so requested to be included in such registration by each such Shareholder), and
(ii) second, any securities proposed to be registered for the account of any other Persons (including the Company), with such priorities among them as the Company shall determine.
(f) Upon notice to each Registering Shareholder, the Company may postpone effecting a registration pursuant to this Section 5.01 on one occasion during any period of six consecutive months for a reasonable time specified in the notice but not exceeding 90 days (which period may not be extended or renewed), if (i) an investment banking firm of recognized national standing shall advise the Company and the Requesting Shareholder in writing that effecting the registration would materially and adversely affect an offering of securities of such Company the preparation of which had then been commenced or (ii) the Board shall have determined in good faith that the Company is in possession of material non-public information the disclosure of which during the period specified in such Request or further requests if so requested. The notice the Company reasonably believes would not be in the best interests of the Company.
(g) At any time following the consummation of the First Public Offering, upon the request of a Majority in Interest of the Xxxxxx Xxxxxxx Investors, the Company shall use its best efforts to have such Demand Registration Statement declared effective file a “shelf’ registration statement (the “Shelf Registration”) with respect to the Registrable Securities on an appropriate form pursuant to Rule 415 (or any similar provision that may be adopted by the SEC as soon as practicable thereafter SEC) under the Securities Act and to cause such Shelf Registration to become effective and to keep such Shelf Registration in effect until the Shareholders shall no longer hold any Registrable Securities. Any offer or sale of Registrable Securities pursuant to the Shelf Registration in any underwritten Public Offering shall be deemed to be a Demand Registration Statement continuously effective for the period specified in Section 4.1(b). The registration rights granted pursuant subject to the provisions of this Section 2.2 shall be in addition to the registration rights granted pursuant to the other provisions of this Section 25.01(a).
Appears in 2 contracts
Samples: Shareholders Agreement (Tops Markets Ii Corp), Shareholders’ Agreement (Tops PT, LLC)
Demand Registration. (a) In addition to If the rights provided in Section 2.1Company shall receive, at any time after the Majority Holders shall have earlier of (i) the right to effective date of the registration statement for a Qualified IPO or (ii) October 14, 2023, a written request in writing from the record Holder(s) of a majority of the shares of Preferred Stock then outstanding, including Common Stock issued on conversion of Preferred Stock, and the shares of Conversion Common Stock then outstanding, voting together (on a combined and as-if converted basis) (the “Initiating Holders”), that the Company register all or part of such Holders’ Registrable Securities that are not then registered by an effective Registration Statement (file a “Request”) (which Request shall specify the amount of Registrable Securities intended to be disposed of by such Holders and the intended method of disposition thereof) by filing a Registration Statement with the SEC pursuant to Rule 415 under the Securities Act on Form S-3 registration statement under the Securities Act (or in the event that “Registration Request”), then the Company shall:
(i) within 10 days of the receipt of the Registration Request, give written notice of such request to all Holders that such registration is ineligible to be effected (the “Registration Notice”); and
(ii) use such formits best efforts to effect as soon as practicable, such other form as and in any event within 90 days of the Company is eligible to use receipt of the Registration Request, the registration under the Securities Act provided of all Registrable Securities that the Holders request to be registered in the Registration Request and such additional Registrable Securities for which it has received written requests to register by such other form shall be converted into a Form S-3 promptly Holders within 45 days after Form S-3 becomes available delivery of the Registration Notice, subject to the Companylimitations of subsection 1.2(b).
(b) covering resales by the Holders as selling shareholders (not underwriters) of all or such portion of the Registrable Securities (a “Demand Registration”); provided, however, that (A) if If the Company is not eligible required to register use Form S-1 (or similar forms promulgated after the Registrable Securities on Form S-3 under the Securities Actdate hereof), the Company shall be obligated to register (i) proceed with filing the Registrable Securities upon such election registration statement only if the Registrable Securities registration to be registered, in effected pursuant to the aggregate, constitute 10% or more Registration Request has anticipated aggregate gross offering proceeds of the then-outstanding Registrable Securities that are not registered under an effective Registration Statement, and (B) if the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election; provided, that (i) there shall not be more than one such request during each of the Company’s fiscal quarterly periods at least $10,000,000 and (ii) prepare, file and cause to become effective, at the sole expense of the Company, no more than two (2) registration statements on Form S-1 (or similar forms promulgated after the date hereof) pursuant to Registration Requests made under this Section 1.2. Once the Company has prepared, filed and caused to become effective two (2) registrations on Form S-1, at its sole expense, it shall still be obligated to comply with this Section 1.2, but the expense of any such registration shall be borne by the Holders participating in such registration.
(c) If the Initiating Holders intend to distribute the Registrable Securities to be registered must include at least 1,000,000 Common Sharescovered by such request by means of an underwriting, or, in the aggregate, have an anticipated offering price, net of underwriting discounts and commissions, of more than $5,000,000, calculated in accordance with Rule 457(c) under the Securities Act on the business day preceding such Request.
(b) As promptly as practicable, but no later than 10 days after receipt of a Request, they shall so advise the Company shall give written notice as a part of such requested registration to all Holders of Registrable Securities their Registration Request and Pari Passu Holders of Pari Passu Securities. Subject to Section 2.2(c), the Company shall include such information in the Registration Notice. The underwriter will be selected by the Company and a Demand Registration (i) majority in interest of the Initiating Holders. Notwithstanding any other provision of this Section 1.2, if the underwriter advises the participating Holders in writing that marketing factors require a limitation of the number of shares to be underwritten, then the number of shares of Registrable Securities intended that may be included in the underwriting shall be allocated pro rata among all participating Holders according to the total amount of securities entitled to be disposed included therein owned by such Holders; provided, however, that the number of by the Initiating Holders and (ii) the Registrable Securities and Pari Passu Securities intended to be disposed of by any other Holder or Pari Passu Holder which shall have made a written request (which request shall specify the amount shares of Registrable Securities to be registered included in such underwriting shall not be reduced unless all other securities are first entirely excluded from the underwriting.
(d) Notwithstanding the foregoing, if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 1.2 within thirty (30) days of the Registration Request a certificate signed by the President and Chief Executive Officer of the intended method Company stating that (i) the Company pursuant to an action approved by the Board already has a present plan to commence preparation of disposition thereofa registration statement, other than a Special Registration Statement, and to file the same within ninety (90) days, or (ii) in the good faith judgment of the Board, it would be seriously detrimental to the Company and its stockholders for inclusion thereof in such registration within 20 statement to be filed on or before the date filing would be required and it is therefore essential to defer the filing of such registration statement, the Company shall have the right to defer taking action with respect to such filing for a period of not more than 60 days from the date of the certificate required herein; provided, however, that the Company may not utilize this right more than twice in any 12-month period.
(e) In the event that the Holders of a majority of the Registrable Securities for which registration has been requested pursuant to this Section 1.2 determine for any reason not to proceed with a registration at any time before a registration statement has been declared effective by the Commission, and such registration statement, if theretofore filed with the Commission, is withdrawn with respect to the Registrable Securities covered thereby, and, unless the withdrawal is based on a material adverse change in the condition, business or prospects of the Company from that known to the Holders at the time of their registration request, the Holders of such Registrable Securities agree to bear their own expenses incurred in connection therewith and to reimburse the Company for the expenses incurred by it attributable to the registration of such Registrable Securities, and, if such Holders in fact so reimburse the Company, then the Holders of such Registrable Securities shall not be deemed to have exercised their right to require the Company to register Registrable Securities pursuant to this Section 1.2.
(f) In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to this Section 1.2:
(i) during the period starting with the date of filing of, and ending on a date 180 days after the receipt of such written notice from effective date of, a registration filed in connection with the Company. The ’s Qualified IPO of its Common Stock; provided that the Company shall, as expeditiously as possible following a Request, use its best is actively employing in good faith all reasonable efforts to cause such registration statement to become effective; or
(ii) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be filed immediately registered on Form S-3 pursuant to a request made pursuant to Section 1.11 below.
(g) If, at the time a Registration Request is received by the Company, the Company has already determined to proceed with the SEC actual preparation and filing of a Demand Registration Statement providing for the registration statement under the Securities Act in connection with the Company’s proposed offer and sale for cash of its securities, the Registration Request shall be deemed to have been given pursuant to Section 1.3 rather than this Section 1.2, and the rights and obligations of the Registrable Securities Holders and the Pari Passu Securities which the Company has been so requested to register by all such Holders and Pari Passu Holders, with respect to the extent necessary to permit the disposition of such Registrable Securities so to be registered in accordance with the intended methods of disposition thereof specified in such Registration Request or further requests if so requested. The Company shall use its best efforts to have such Demand Registration Statement declared effective by the SEC as soon as practicable thereafter and to keep such Demand Registration Statement continuously effective for the period specified in Section 4.1(b). The registration rights granted pursuant to the provisions of this Section 2.2 shall be in addition to the registration rights granted pursuant to the other provisions of this governed by Section 21.3 hereof.
Appears in 2 contracts
Samples: Investors’ Rights Agreement (Intuity Medical, Inc.), Investors’ Rights Agreement (Intuity Medical, Inc.)
Demand Registration. (a) In addition to During the rights provided in Section 2.1Demand Period, the Majority Holders shall have the right to Eligible Investors may at any time make a written request in writing that the Company register all or part of such Holders’ Registrable Securities that are not then registered by an effective Registration Statement (a “Request”) (which Request shall specify the amount for registration of Registrable Securities intended to be disposed of by such Holders and the intended method of disposition thereof) by filing a Registration Statement with the SEC pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into a Form S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling shareholders (not underwriters) of all or such portion of the Registrable Securities (a “Demand Registration”); provided, however, that (A) if the Company is not eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election only if the Registrable Securities to be registered, in the aggregate, constitute 10% or more of the then-outstanding Registrable Securities that are not registered under an effective Registration Statement, and (B) if the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Actsecurities or blue sky laws of any jurisdiction reasonably designated by such Investors (collectively, the Company shall be obligated to register the Registrable Securities upon such election“Demanding Holders”); provided, that (i) there shall the Company will not be required to effect any registration pursuant to this Section 3 unless the Minimum Offering Threshold is met; (ii) subject to Section 3(c) below, the Company will not be required to effect more than three registrations at the request of the Investors pursuant to this Section 3(a), (iii) the Company will not be required to effect such registration within the period beginning on the effective date of a registration statement to be filed by the Company or on its behalf covering a firm commitment underwritten public offering and ending on the expiration of any lock-up period (not to exceed one hundred eighty (180) days following the effective date of such registration statement, subject to certain limited extensions in accordance with applicable NASD rules and regulations) required by the underwriters, (iv) the Company will not be required to effect any such registration if the Company has effected a registration pursuant to this Section 3 within the twelve (12) month period immediately prior to such registration request during each and (v) if the Company shall furnish to such holders a certificate signed by the Chairman of the Board of Directors of the Company stating that in good faith judgment of the Board of Directors it would be seriously detrimental to the Company or its stockholders for a registration statement to be filed in the near future, then the Company’s fiscal quarterly periods and (iiobligation pursuant to Section 3(a) hereof to file a registration statement with the Commission relating to the Registrable Securities as to be registered must include at least 1,000,000 Common Shares, or, in the aggregate, have an anticipated offering price, net of underwriting discounts and commissions, of more than $5,000,000, calculated in accordance with Rule 457(c) under the Securities Act on the business day preceding which such Request.
(b) As promptly as practicable, but no later than 10 days after receipt of a Request, the Company shall give written notice of such requested registration to all Holders of Registrable Securities and Pari Passu Holders of Pari Passu Securities. Subject to Section 2.2(c), the Company shall include in request for a Demand Registration relates shall be deferred for a period not to exceed ninety (i90) days from the Registrable Securities intended to be disposed date of by receipt of the Initiating Holders and (ii) the Registrable Securities and Pari Passu Securities intended to be disposed of by any other Holder or Pari Passu Holder which shall have made a written request (which request shall specify the amount of Registrable Securities to be registered and the intended method of disposition thereof) to request; provided, however, that the Company for inclusion thereof may not utilize this right more than once in such registration within 20 days after the receipt of such written notice from the Company. The Company shall, as expeditiously as possible following a Request, use its best efforts to cause to be filed with the SEC a Demand Registration Statement providing for the registration under the Securities Act of the Registrable Securities and the Pari Passu Securities which the Company has been so requested to register by all such Holders and Pari Passu Holders, to the extent necessary to permit the disposition of such Registrable Securities so to be registered in accordance with the intended methods of disposition thereof specified in such Request or further requests if so requested. The Company shall use its best efforts to have such Demand Registration Statement declared effective by the SEC as soon as practicable thereafter and to keep such Demand Registration Statement continuously effective for the period specified in Section 4.1(b). The registration rights granted pursuant to the provisions of this Section 2.2 shall be in addition to the registration rights granted pursuant to the other provisions of this Section 2any twelve (12) month period.
Appears in 2 contracts
Samples: Registration Rights Agreement (Republic Companies Group, Inc.), Registration Rights Agreement (Republic Companies Group, Inc.)
Demand Registration. (a) In addition to At any time following the rights provided second (2nd) anniversary of the date of this Agreement, in Section 2.1the event that Shelf Registration Statement is not effective with the SEC covering all of the Registrable Securities of the Holders, the Majority Holders shall have the right right, subject to request in writing that the rules and regulations of the SEC, by delivering a written notice to the Company register all or part of such Holders’ Registrable Securities that are not then registered by an effective Registration Statement (a “RequestDemand Notice”) (which Request shall specify ), to require the amount Company to register under and in accordance with the provisions of the Securities Act the number of Registrable Securities intended to be disposed of by such Holders and the intended method of disposition thereof) by filing a Registration Statement with the SEC pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into a Form S-3 promptly after Form S-3 becomes available to the Company) covering resales Beneficially Owned by the Holders as selling shareholders (not underwriters) of all or and requested by such portion of the Registrable Securities Demand Notice to be so registered (a “Demand Registration”); provided, howeverhowever , that the Holders in the aggregate shall not be entitled pursuant to this Section 2.02 to require the Company to effectuate more than two (A2) Demand Registrations (which may collectively include underwritten Demand Registrations and Company Supported Distributions) during the Term of this Agreement. Notwithstanding the foregoing, if the at least 5,000,000 Preferred Shares (as adjusted for splits, dividends, reclassifications and the like) convert into the applicable number of Conversion Shares then the number of Demand Registrations that the Company is not eligible may be obligated to register undertake shall increase to three (3) and if at least 10,000,000 Preferred Shares (as adjusted for splits, dividends, reclassifications and the like) convert into the applicable number of Conversion Shares then the number of Demand Registrations that the Company may be obligated to undertake shall increase to four (4) and the Holders shall be entitled to deliver a Demand Notice for up to the two additional Demand Registrations any time after such conversion of the Preferred Shares into Conversion Shares has taken place. A Demand Notice shall also specify the expected method or methods of disposition of the applicable Registrable Securities on Form S-3 under the Securities ActSecurities. Following receipt of a Demand Notice, the Company shall be obligated use commercially reasonable efforts to register file, as promptly as reasonably practicable, but not later than forty-five (45) days after receipt by the Company of such Demand Notice provided that a Suspension Period is not in effect, a Registration Statement relating to the offer and sale of the Registrable Securities upon such election only if the Registrable Securities requested to be registered, in included therein by the aggregate, constitute 10% or more of the then-outstanding Registrable Securities that are not registered under an effective Registration Statement, and (B) if the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election; provided, that (i) there shall not be more than one such request during each of the Company’s fiscal quarterly periods and (ii) the Registrable Securities to be registered must include at least 1,000,000 Common Shares, or, in the aggregate, have an anticipated offering price, net of underwriting discounts and commissions, of more than $5,000,000, calculated Holders in accordance with Rule 457(cthe methods of distribution elected (a “Demand Registration Statement”) and shall use commercially reasonable efforts to cause such Registration Statement to be declared effective under the Securities Act on as promptly as practicable after the business day preceding filing thereof. The Holders agree that if any Holder intends to distribute any Registrable Securities by means of an underwritten offering it shall promptly so advise the Company and the Company shall cooperate with the Holder to facilitate such Requestdistribution, including the actions required pursuant to Sections 2.05(a)(ix)-(xv) and, if a Company Supported Distribution is requested, Section 2.05(a)(xvi) so long as the Holders have not previously exhausted the limit for such Company Supported Distributions specified in Section 2.05(a)(xvi).
(b) As promptly as practicableThe Holders agree that the Company may include any Other Securities covered by any Existing Registration Rights Agreements that it deems appropriate in any Demand Registration Statement filed pursuant to this Agreement, but no later than 10 days after receipt of subject to the cutback limitations set forth in Section 2.02(c) and Section 2.02(d).
(c) In the event that the SEC sets forth a Requestlimitation on the securities that may be registered on a particular Demand Registration Statement, the Company shall give written notice may reduce the number of securities to be registered on such requested registration Demand Registration Statement to all Holders such number of Registrable Securities and Pari Passu Holders of Pari Passu Securities. Subject to Section 2.2(c)securities as allowed by the SEC; provided, that, the Company shall include in a such Demand Registration Statement (i) first, the quantity of Registrable Securities intended requested to be disposed of by the Initiating Holders included in such Demand Registration Statement and (ii) second, any remaining amounts, if any, shall be allocable to holders of Other Securities, pro rata, based on the number of Other Securities proposed by the Company to be included in such Demand Registration Statement and the number of Other Securities Beneficially Owned by each such holder of Other Securities.
(d) If any of the Registrable Securities and Pari Passu Securities intended registered pursuant to a Demand Registration are to be disposed sold in a firm commitment underwritten offering, and the managing underwriter of by any other Holder such underwritten offering advises the Company or Pari Passu Holder which shall have made a written request (which request shall specify Holders in writing that it is their good faith opinion that the total number or dollar amount of Registrable Securities proposed to be registered and the intended method of disposition thereof) sold in such offering, together with any Other Securities proposed to be included by the Company for inclusion or holders thereof which are entitled to include securities in such registration within 20 days after Registration Statement, exceeds the receipt total number or dollar amount of such written notice from securities that can be sold without having an adverse effect on the Company. The Company shallprice, as expeditiously as possible following a Request, use its best efforts to cause to be filed with the SEC a Demand Registration Statement providing for the registration under the Securities Act timing or distribution of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such firm commitment underwritten offering the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
(i) first, up to eighty five percent (85%) of the total shares included in such underwritten offering shall be comprised of the Registrable Securities for which inclusion in such underwritten offering was requested by the Holders; and
(ii) second, the Company may include up to fifteen percent (15%) or such lower amount of the total shares included in such underwritten offering; and
(iii) third, any remaining amounts, if any, shall be allocable to holders of Other Securities, pro rata, based on the number of Other Securities proposed by the Company to be included in such underwritten offering and the Pari Passu number of Other Securities Beneficially Owned by each such holder of Other Securities;
(e) In the event of a Demand Registration, the Company shall be required to maintain the continuous effectiveness of the applicable Registration Statement for a period of at least one hundred twenty (120) days after the effective date thereof or such shorter period in which all Registrable Securities included in such Registration Statement have actually been sold.
(f) Any Holder whose Registrable Securities are covered by a Demand Registration shall have the right to notify the Company that it has determined that the Registration Statement relating to the Demand Registration be abandoned or withdrawn with respect to such Registrable Securities, in which event the Company shall promptly abandon or withdraw such Registration Statement with respect to such Registrable Securities. In the event that the Company has been so requested to register by all such Holders and Pari Passu Holders, to not yet filed the extent necessary to permit the disposition of such Registrable Securities so to be registered in accordance with the intended methods of disposition thereof specified in such Request or further requests if so requested. The Company shall use its best efforts to have such Demand Registration Statement declared effective by with the SEC as soon as practicable thereafter and to keep SEC, such abandoned Demand Registration Statement continuously effective shall not count against the limit for the period Demand Registrations specified in Section 4.1(b2.02(a). The registration rights granted pursuant However, if the Company has already filed the Demand Registration Statement with the SEC and the Holders request that it be withdrawn, the Holders agree that such withdrawn Demand Registration Statement shall count against the limit for Demand Registrations specified in Section 2.02(a) and will reimburse the Company for all Registration Expenses incurred by the Company in connection with such withdrawn Demand Registration Statement, unless (i) such abandonment or withdrawal is based upon material adverse information concerning the Company that the Company has not publicly disclosed in compliance with applicable securities Laws at least five (5) Business Days prior to the provisions Company’s receipt of this such withdrawal request, or (ii) there occurs an event or series of related events that (A) has a material adverse effect on the business, assets, condition (financial or otherwise) or results of operations of the Company or (B) has caused a Market Material Adverse Effect.
(g) In the case that Holders request a Company Supported Distribution in connection with a Demand Registration, the Holders shall have the right to notify the Company that they have determined that the offering be abandoned or withdrawn, in which event the Company shall promptly abandon or withdraw all activities undertaken in connection with such offering with respect to Registrable Securities. In the event that the Company has not yet Launched the offering, such withdrawn or abandoned offering shall not count against the limit of such Company Supported Distributions set forth in Section 2.2 shall be 2.05(a)(xvi). However, if such offering is abandoned or withdrawn after the offering has Launched, then such abandoned or withdrawn offering will count against the limit of such Company Supported Distributions set forth in addition Section 2.05(a)(xvi) unless (i) such abandonment or withdrawal is based upon material adverse information concerning the Company that the Company has not publicly disclosed in compliance with applicable securities Laws at least five (5) Business Days prior to the registration rights granted pursuant to Company’s receipt of such withdrawal request, or (ii) there occurs an event or series of related events that (A) has a material adverse effect on the business, assets, condition (financial or otherwise) or results of operations of the Company or (B) has caused a Market Material Adverse Effect. In the event that such offering is abandoned or withdrawn for any reason other provisions than the reason set forth in clauses (i) or (ii) of this Section 2the preceding sentences, the Holders shall reimburse the Company for all Registration Expenses incurred by the Company in connection with any such abandoned or withdrawn Company Supported Distribution.
Appears in 2 contracts
Samples: Registration Rights Agreement (General Electric Co), Registration Rights Agreement (General Electric Co)
Demand Registration. (a) In addition Demand Registration Other Than on Form F-3 or Form S-3.
(i) Subject to the rights provided in Section 2.1terms of this Agreement, at any time or from time to time following the Majority Holders shall have date that is six (6) months after the right to closing of a Qualified IPO, any Holder(s) of at least 50% of the then outstanding Class A Registrable Securities (the “Class A Initiating Holder”) may request in writing that the Company register all or part effect a Registration on the stock exchange for the Qualified IPO. Upon receipt of such Holders’ Registrable Securities that are not then registered by an effective a request, the Company shall (x) promptly give written notice of the proposed Registration Statement (a “Request”) (which Request shall specify to all the amount of Registrable Securities intended to be disposed of by such other Holders and the intended method of disposition thereof(y) by filing a Registration Statement with the SEC pursuant as soon as practicable, use its reasonable best efforts to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into a Form S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling shareholders (not underwriters) of all or such portion of cause the Registrable Securities (a “Demand Registration”); providedspecified in the request, however, that (A) if the Company is not eligible to register the together with any Registrable Securities on Form S-3 under of any Holder who requests in writing to join such Registration within fifteen (15) days after the Securities ActCompany’s delivery of written notice, to be Registered and/or qualified for sale and distribution in such jurisdiction as the Class A Initiating Holder may request. The Company shall be obligated to register effect no more than two (2) Registrations pursuant to this Section 2.1(a)(i) that have been declared and ordered effective, provided that if the sale of all of the Registrable Securities upon sought to be included pursuant to this Section 2.1(a)(i) is not consummated for any reason other than due to the action or inaction of the Class A Initiating Holder in such election only if Registration, such Registration shall not be deemed to constitute one of the Registration rights granted pursuant to this Section 2.1(a)(i). The Company shall not be obligated to take any action to effect any Registration pursuant to this Section 2.1(a)(i) unless the aggregate proceeds from the offering that is the subject of the Registration exceeds US$10,000,000.
(ii) Subject to the terms of this Agreement, at any time or from time to time following the date that is six (6) months after the closing of a Qualified IPO, any Holder(s) of at least 30% of the then outstanding Series A Registrable Securities (the “Series A Initiating Holder”) may request in writing that the Company effect a Registration on the stock exchange for the Qualified IPO. Upon receipt of such a request, the Company shall (x) promptly give written notice of the proposed Registration to all the other Holders and (y) as soon as practicable, use its reasonable best efforts to cause the Registrable Securities specified in the request, together with any Registrable Securities of any Holder who requests in writing to join such Registration within fifteen (15) days after the Company’s delivery of written notice, to be registered, Registered and/or qualified for sale and distribution in such jurisdiction as the aggregate, constitute 10% or more of the then-outstanding Registrable Securities that are not registered under an effective Registration Statement, and (B) if the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Series A Initiating Holder may request. The Company shall be obligated to register effect no more than two (2) Registrations pursuant to this Section 2.1(a)(ii) that have been declared and ordered effective, provided that if the sale of all of the Registrable Securities upon sought to be included pursuant to this Section 2.1(a)(ii) is not consummated for any reason other than due to the action or inaction of the Series A Initiating Holder including the Registrable Securities in such election; providedRegistration, that (i) there such Registration shall not be more than deemed to constitute one such request during each of the Company’s fiscal quarterly periods and (ii) the Registrable Securities Registration rights granted pursuant to be registered must include at least 1,000,000 Common Shares, or, in the aggregate, have an anticipated offering price, net of underwriting discounts and commissions, of more than $5,000,000, calculated in accordance with Rule 457(c) under the Securities Act on the business day preceding such Requestthis Section 2.1(a)(ii).
(biii) As promptly as practicableSubject to the terms of this Agreement, but no later than 10 days at any time or from time to time following the date that is six (6) months after the closing of a Qualified IPO, any Holder(s) of at least 30% of the then outstanding Series B Registrable Securities (the “Series B Initiating Holder”) may request in writing that the Company effect a Registration on the stock exchange for the Qualified IPO. Upon receipt of such a Requestrequest, the Company shall (x) promptly give written notice of such requested registration the proposed Registration to all the other Holders of and (y) as soon as practicable, use its reasonable best efforts to cause the Registrable Securities specified in the request, together with any Registrable Securities of any Holder who requests in writing to join such Registration within fifteen (15) days after the Company’s delivery of written notice, to be Registered and/or qualified for sale and Pari Passu Holders distribution in such jurisdiction as the Series B Initiating Holder may request. The Company shall be obligated to effect no more than two (2) Registrations pursuant to this Section 2.1(a)(iii) that have been declared and ordered effective, provided that if the sale of Pari Passu Securities. all of the Registrable Securities sought to be included pursuant to this Section 2.1(a)(iii) is not consummated for any reason other than due to the action or inaction of the Series B Initiating Holder including the Registrable Securities in such Registration, such Registration shall not be deemed to constitute one of the Registration rights granted pursuant to this Section 2.1(a)(iii).
(iv) Subject to Section 2.2(c)the terms of this Agreement, at any time or from time to time following the date that is six (6) months after the closing of a Qualified IPO, any Holder(s) of at least 30% of the then outstanding Series C Registrable Securities (the “Series C Initiating Holder”) may request in writing that the Company effect a Registration on the stock exchange for the Qualified IPO. Upon receipt of such a request, the Company shall include in a Demand (x) promptly give written notice of the proposed Registration (i) to all the Registrable Securities intended to be disposed of by the Initiating other Holders and (iiy) the Registrable Securities and Pari Passu Securities intended to be disposed of by any other Holder or Pari Passu Holder which shall have made a written request (which request shall specify the amount of Registrable Securities to be registered and the intended method of disposition thereof) to the Company for inclusion thereof in such registration within 20 days after the receipt of such written notice from the Company. The Company shall, as expeditiously soon as possible following a Requestpracticable, use its reasonable best efforts to cause the Registrable Securities specified in the request, together with any Registrable Securities of any Holder who requests in writing to join such Registration within fifteen (15) days after the Company’s delivery of written notice, to be filed with Registered and/or qualified for sale and distribution in such jurisdiction as the SEC a Demand Registration Statement providing for Series C Initiating Holder may request. The Company shall be obligated to effect no more than two (2) Registrations pursuant to this Section 2.1(a)(iv) that have been declared and ordered effective, provided that if the registration under the Securities Act sale of all of the Registrable Securities and sought to be included pursuant to this Section 2.1(a)(iv) is not consummated for any reason other than due to the Pari Passu action or inaction of the Series C Initiating Holder including the Registrable Securities which in such Registration, such Registration shall not be deemed to constitute one of the Registration rights granted pursuant to this Section 2.1(a)(iv).
(v) Subject to the terms of this Agreement, at any time or from time to time following the date that is six (6) months after the closing of a Qualified IPO, any Holder(s) of at least 50% of the then outstanding Series D Registrable Securities (the “Series D Initiating Holder”) may request in writing that the Company has been so requested effect a Registration on the stock exchange for the Qualified IPO. Upon receipt of such a request, the Company shall (x) promptly give written notice of the proposed Registration to register by all such the other Holders and Pari Passu Holders(y) as soon as practicable, use its reasonable best efforts to cause the Registrable Securities specified in the request, together with any Registrable Securities of any Holder who requests in writing to join such Registration within fifteen (15) days after the Company’s delivery of written notice, to the extent necessary to permit the disposition of such Registrable Securities so to be registered in accordance with the intended methods of disposition thereof specified Registered and/or qualified for sale and distribution in such Request or further requests if so requestedjurisdiction as the Series D Initiating Holder may request. The Company shall use its best efforts be obligated to effect no more than two (2) Registrations pursuant to this Section 2.1(a)(v) that have been declared and ordered effective, provided that if the sale of all of the Registrable Securities sought to be included pursuant to this Section 2.1(a)(v) is not consummated for any reason other than due to the action or inaction of the Series D Initiating Holder including the Registrable Securities in such Demand Registration, such Registration Statement declared effective by shall not be deemed to constitute one of the SEC as soon as practicable thereafter and to keep such Demand Registration Statement continuously effective for the period specified in Section 4.1(b). The registration rights granted pursuant to this Section 2.1(a)(v). The Company shall not be obligated to take any action to effect any Registration pursuant to this Section 2.1(a)(v) unless the provisions aggregate proceeds from the offering that is the subject of the Registration exceeds US$10,000,000.
(vi) Subject to the terms of this Section 2.2 Agreement, at any time or from time to time following the date that is six (6) months after the closing of a Qualified IPO, any Holder(s) of at least 30% of the then outstanding Series E Registrable Securities (the “Series E Initiating Holder”) may request in writing that the Company effect a Registration on the stock exchange for the Qualified IPO. Upon receipt of such a request, the Company shall (x) promptly give written notice of the proposed Registration to all the other Holders and (y) as soon as practicable, use its reasonable best efforts to cause the Registrable Securities specified in the request, together with any Registrable Securities of any Holder who requests in writing to join such Registration within fifteen (15) days after the Company’s delivery of written notice, to be Registered and/or qualified for sale and distribution in such jurisdiction as the Series E Initiating Holder may request. The Company shall be in addition obligated to effect no more than two (2) Registrations pursuant to this Section 2.1(a)(vi) that have been declared and ordered effective, provided that if the sale of all of the Registrable Securities sought to be included pursuant to this Section 2.1(a)(vi) is not consummated for any reason other than due to the registration action or inaction of the Series E Initiating Holder in such Registration, such Registration shall not be deemed to constitute one of the Registration rights granted pursuant to the other provisions of this Section 22.1(a)(vi).
Appears in 2 contracts
Samples: Share Purchase Agreement (eHi Car Services LTD), Share Purchase Agreement (eHi Car Services LTD)
Demand Registration. (a) In addition to At any time after the rights provided in Section 2.1, date that is 180 days after the Majority Holders shall have the right to request in writing that date hereof (or such earlier date (i) as would permit the Company register all to cause any filings required hereunder to be filed on the 180th day after the date hereof or part of such Holders’ Registrable Securities (ii) as is permitted by waiver under the IPO Underwriting Agreement), any Person that are not then registered by an effective Registration Statement is a Stockholder (a “RequestRequesting Stockholder”) on the date a Demand is made shall be entitled to make a written request of the Company (which Request shall specify the amount of Registrable Securities intended to be disposed of by such Holders and the intended method of disposition thereofa “Demand”) by filing a Registration Statement with the SEC pursuant to Rule 415 for registration under the Securities Act on Form S-3 of a number of Registrable Securities that, when taken together with the number of Registrable Securities requested to be registered under the Securities Act (by such Requesting Stockholder’s Affiliates, equals or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into a Form S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling shareholders (not underwriters) of all or such portion of greater than the Registrable Securities Amount (a “Demand Registration”); provided, however, that (A) if and thereupon the Company is not eligible to register the Registrable Securities on Form S-3 under the Securities Actwill, the Company shall be obligated to register the Registrable Securities upon such election only if the Registrable Securities to be registered, in the aggregate, constitute 10% or more of the then-outstanding Registrable Securities that are not registered under an effective Registration Statement, and (B) if the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election; provided, that (i) there shall not be more than one such request during each of the Company’s fiscal quarterly periods and (ii) the Registrable Securities to be registered must include at least 1,000,000 Common Shares, or, in the aggregate, have an anticipated offering price, net of underwriting discounts and commissions, of more than $5,000,000, calculated in accordance with Rule 457(c) under the Securities Act on the business day preceding such Request.
(b) As promptly as practicable, but no later than 10 days after receipt of a Request, the Company shall give written notice of such requested registration to all Holders of Registrable Securities and Pari Passu Holders of Pari Passu Securities. Subject to Section 2.2(c), the Company shall include in a Demand Registration (i) the Registrable Securities intended to be disposed of by the Initiating Holders and (ii) the Registrable Securities and Pari Passu Securities intended to be disposed of by any other Holder or Pari Passu Holder which shall have made a written request (which request shall specify the amount of Registrable Securities to be registered and the intended method of disposition thereof) subject to the Company for inclusion thereof in such registration within 20 days after the receipt terms of such written notice from the Company. The Company shall, as expeditiously as possible following a Requestthis Agreement, use its best commercially reasonable efforts to cause to be filed with the SEC a Demand Registration Statement providing for effect the registration under the Securities Act of of:
(i) the Registrable Securities and the Pari Passu Securities which the Company has been so requested to register by the Requesting Stockholders for disposition in accordance with the intended method of disposition stated in such Demand, which may be an Underwritten Offering;
(ii) all such Holders and Pari Passu Holdersother Registrable Securities which the Company has been requested to register pursuant to Section 4.1(b); and
(iii) all shares of Common Stock which the Company may elect to register in connection with any offering of Registrable Securities pursuant to this Section 4.1, but subject to Section 4.1(f); all to the extent necessary to permit the disposition of such Registrable Securities so to be registered (in accordance with the intended methods thereof) of the Registrable Securities and the additional Common Stock, if any, to be so registered.
(b) A Demand shall specify: (i) the aggregate number of Registrable Securities requested to be registered in such Demand Registration, (ii) the intended method of disposition thereof specified in connection with such Request Demand Registration, to the extent then known and (iii) the identity of the Requesting Stockholder (or further requests if so requestedRequesting Stockholders). Within five days after receipt of a Demand, the Company shall give written notice of such Demand to any other Persons that on the date a Demand is delivered to the Company is a Stockholder (excluding Fortress Affiliate Stockholders which have not signed a joinder as contemplated by Section 2.1). Subject to Section 4.1(f), the Company shall include in the Demand Registration covered by such Demand all Registrable Securities with respect to which the Company has received a written request for inclusion therein. Such written request shall comply with the requirements of a Demand as set forth in this Section 4.1(b).
(c) Each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as the Stockholders, together, Beneficially Own less than a Registrable Amount.
(d) Demand Registrations shall be on such registration form of the Commission for which the Company is eligible as shall be selected by the Requesting Stockholders whose shares represent a majority of the Registrable Securities that the Company has been requested to register, including, to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the Commission, and shall be reasonably acceptable to the Company.
(e) The Company shall use its best efforts not be obligated to have effect any Demand Registration (A) within one month of a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights pursuant to Section 4.2 (subject to Section 4.1(f)) and provided that at least 50% of the number of Registrable Securities requested by such Stockholders to be included in such Demand Registration Statement declared effective by were included) or (B) within one month of any other Underwritten Offering pursuant to Section 4.3(e). In addition, the SEC as soon as practicable thereafter Company shall be entitled to postpone (upon written notice to all Stockholders) for a reasonable period of time not to exceed 60 days in succession the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice, or for more than 90 days in the aggregate, in any period of 12 consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating to keep such Demand Registration Statement continuously effective would cause the disclosure of material, non-public information that the Company has a bona fide business purpose for preserving as confidential. In the period specified event of a postponement by the Company of the filing or effectiveness of a registration statement for a Demand Registration, the holders of a majority of Registrable Securities held by the Requesting Stockholder(s) shall have the right to withdraw such Demand in accordance with Section 4.1(b)4.4.
(f) The Company shall not include any securities other than Registrable Securities in a Demand Registration, except with the written consent of Stockholders participating in such Demand Registration that hold a majority of the Registrable Securities included in such Demand Registration. The If, in connection with a Demand Registration, any managing underwriter (or, if such Demand Registration is not an Underwritten Offering, a nationally recognized investment bank engaged in connection with such Demand Registration) advises the Company, that, in its opinion, the inclusion of all of the securities, including securities of the Company that are not Registrable Securities, sought to be registered in connection with such Demand Registration would adversely affect the marketability of the Registrable Securities sought to be sold pursuant thereto, then the Company shall include in such registration rights granted pursuant statement only such securities as the Company is advised by such underwriter or investment bank can be sold without such adverse effect as follows and in the following order of priority: (i) first, up to the provisions number of this Section 2.2 Registrable Securities requested to be included in such Demand Registration by the Stockholders, which, in the opinion of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Stockholders requesting such Demand Registration on the basis of the number of such securities held by such Stockholders and such Stockholders that are Piggyback Sellers; (ii) second, securities the Company proposes to sell; and (iii) third, all other securities of the Company duly requested to be included in such registration statement, pro rata on the basis of the number of such other securities requested to be included or such other method determined by the Company.
(g) Any investment bank(s) that will serve as an underwriter with respect to such Demand Registration or, if such Demand Registration is not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected (i) by FIG LLC, for so long as a majority of the outstanding Common Stock of the Company is owned by the Initial Stockholder, its Permitted Transferees and any Fortress Affiliate Stockholder, and thereafter (ii) by the Stockholder participating in addition to the registration rights granted pursuant to the other provisions such Demand Registration that holds (together with its Permitted Transferees) a number of this Section 2Registrable Securities included in such Demand Registration constituting a plurality of all Registrable Securities included in such Demand Registration.
Appears in 2 contracts
Samples: Shareholder Agreement (Springleaf Holdings, Inc.), Shareholder Agreement (Springleaf Holdings, LLC)
Demand Registration. (a) In addition At any time following the Effective Date, subject to any Lockup Period, upon the rights provided written request of any Holder (in Section 2.1such capacity, the Majority Holders shall have the right to request in writing a “Demand Party”) requesting that the Company register all or part of such Holders’ Registrable effect the registration under the Securities that are not then registered by an effective Registration Statement (a “Request”) (which Request shall specify the amount Act of Registrable Securities intended to be disposed of by such Holders and specifying the amount and intended method of disposition thereof) by filing a Registration Statement with the SEC pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into a Form S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling shareholders (not underwriters) of all or such portion of the Registrable Securities (a “Demand Registration”); provided, however, that (A) if the Company is not eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election only if the Registrable Securities to be registered, will (x) promptly (but in the aggregate, constitute 10% or more of the then-outstanding Registrable Securities that are not registered under an effective Registration Statement, and any event within five (B5) if the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election; provided, that (idays) there shall not be more than one such request during each of the Company’s fiscal quarterly periods and (ii) the Registrable Securities to be registered must include at least 1,000,000 Common Shares, or, in the aggregate, have an anticipated offering price, net of underwriting discounts and commissions, of more than $5,000,000, calculated in accordance with Rule 457(c) under the Securities Act on the business day preceding such Request.
(b) As promptly as practicable, but no later than 10 days after receipt of a Request, the Company shall give written notice of such requested registration to all the other Holders of Registrable Securities and Pari Passu Holders of Pari Passu Securities. Subject pursuant to Section 2.2(c)2.2 and other holders of Securities entitled to notice of such registration, the Company shall include in a Demand Registration (i) the Registrable Securities intended to be disposed of by the Initiating Holders if any, and (iiy) the Registrable Securities and Pari Passu Securities intended to be disposed of by any other Holder or Pari Passu Holder which shall have made a written request (which request shall specify the amount of Registrable Securities to be registered and the intended method of disposition thereof) to the Company for inclusion thereof in such registration within 20 days after the receipt of such written notice from the Company. The Company shall, as expeditiously as possible following after a Requestrequest for registration pursuant to this Section 2.1(a) is given to the Company, use its best efforts file a registration statement to cause to be filed with the SEC a Demand Registration Statement providing for effect the registration under the Securities Act of the of:
(A) such Registrable Securities and the Pari Passu Securities which the Company has been so requested to register by all such Holders and Pari Passu Holders, to the extent necessary to permit the disposition of such Registrable Securities so to be registered Demand Party in accordance with the intended methods method of disposition thereof specified thereof;
(B) the Registrable Securities of other Holders which the Company has been requested to register by written request given to the Company within ten (10) days after the giving of such written notice by the Company pursuant to Section 2.2; and
(C) all shares of Common Stock which the Company may elect to register in connection with any offering of Registrable Securities pursuant to this Section 2.1. Notwithstanding the foregoing, the Company shall not be obligated to file a registration statement relating to any registration request under this Section 2.1(a) (i) unless the aggregate offering price of the Registrable Securities to be sold in such Request offering is reasonably expected to be at least $20 million or further requests (ii) within a period of sixty (60) days (or such lesser period as the managing underwriters in an underwritten offering may permit) after the effective date of any other registration statement relating to any registration request under this Section 2.1(a) or relating to any registration referred to in Section 2.3. A Demand Party can withdraw all or any portion of its Registrable Securities to be included in a registration under this Section 2.1 at any time and, upon receipt of notice thereof, the Company shall cease all efforts to secure effectiveness of the applicable registration statement.
(b) The Company shall use reasonable best efforts to cause the registration statement filed pursuant to Section 2.1(a) to be declared effective by the SEC (if so requestedsuch registration statement is not an automatic shelf registration statement) promptly. The Company shall use its reasonable best efforts to cause the registration statement to become effective and remain effective for a period of at least one hundred and eighty (180) days (or such shorter period in which all Registrable Securities included in such registration statement have actually been sold thereunder).
(c) Each registration statement prepared at the request of a Demand Party shall be effected on such Demand Registration Statement declared effective appropriate form as requested by the SEC Demand Party and as soon shall be reasonably acceptable to the Company.
(d) The Company will pay all Registration Expenses in connection with each registration of Registrable Securities requested pursuant to this Section 2.1.
(e) If a requested registration pursuant to this Section 2.1 involves an underwritten offering, Holders of a majority of the Registrable Securities participating in such offering shall have the right to select the investment banker or bankers and managers to administer the offering, including the lead managing underwriter; provided, however, that such investment banker or bankers and managers shall be reasonably satisfactory to the Company. For the avoidance of doubt, each applicable Holder participating in such an underwritten offering shall be responsible for paying the underwriting discounts and commissions applicable to such Holder’s Registrable Securities sold by the underwriters in such underwritten offering.
(f) If a requested registration pursuant to this Section 2.1 involves an underwritten offering and the managing underwriter advises the Company that, in its opinion, the number of Securities requested to be included in such registration (including Securities of the Company which are not Registrable Securities) exceeds the number which can be sold in such offering, so as practicable thereafter to be likely to have an adverse effect on the price, timing or distribution of, or the market for, the Securities offered in such offering, then the number of such Securities to be included in such registration shall be allocated in the following order of priority: (i) first, up to the number of Registrable Securities requested to be included in such registration by the Demand Party and such other Holders who have requested to keep have Registrable Securities included in such registration pursuant to Section 2.2, which, in the opinion of the managing underwriter, can be sold without having the adverse effect referred to above, which number of Registrable Securities shall be allocated pro rata among the Demand Registration Statement continuously effective Party and the requesting Holders on the basis of the relative number of Registrable Securities requested to be included in such registration statement; and (ii) second, and only if all the Registrable Securities requested to be included by the Demand Party and such other Holders who have requested to have Registrable Securities included in such registration pursuant to Section 2.2 have been included, the number of Securities the Company proposes to sell that, in the opinion of the managing underwriter, can be sold without having the adverse effect referred to above.
(g) Notwithstanding anything to the contrary in this Agreement, the Company shall be entitled, upon written notice to all applicable Holders, to postpone the filing or the effectiveness of a registration statement filed pursuant to this Section 2.1 for a reasonable period of time, which shall not exceed (i) two occasions during any twelve (12)-month period or (ii) thirty (30) days in succession on any one occasion, if the period specified Board determines in Section 4.1(b)good faith and in its reasonable judgment, after consultation with counsel, that the filing or effectiveness of such registration statement would require the disclosure of material, non-public information that would otherwise not be required to be disclosed and that the Company has a bona fide business purpose for preserving as confidential. The registration rights granted pursuant Company shall immediately notify the Holders in writing once the Company is able to proceed with the provisions filing or effectiveness of this Section 2.2 shall be in addition to the registration rights granted pursuant statement and prepare any necessary amendments or supplements thereto such that the registration statement will not include an untrue statement of material fact or omit to state any material fact necessary to make the other provisions statements therein, in light of this Section 2the circumstances under which they were made, not misleading.
Appears in 2 contracts
Samples: Registration Rights Agreement (WCI Communities, Inc.), Registration Rights Agreement (WCI Communities, Inc.)
Demand Registration. (a) In addition to If at any time following the rights provided in Section 2.1, the Majority Holders shall have the right to request in writing that the Company register all or part of such Holders’ Registrable Securities that are not then registered by an effective Registration Statement (a “Request”) (which Request shall specify the amount of Registrable Securities intended to be disposed of by such Holders and the intended method of disposition thereof) by filing a Registration Statement with the SEC pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into a Form S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling shareholders (not underwriters) of all or such portion first anniversary of the Registrable Securities (a “Demand Registration”); provided, however, that (A) if the Company is not eligible to register the Registrable Securities on Form S-3 under the Securities ActEffective Date, the Company shall be obligated to register receive a request from any Stockholder, or group of Stockholders, that holds in the Registrable Securities upon such election only aggregate 20% (or, if the Registrable Securities to be registeredFirst Public Offering has occurred, any Stockholder, or group of Affiliated Stockholders, that holds in the aggregate, constitute aggregate 10% %) or more of the then-then outstanding Registrable Securities Common Stock (the "Requesting Stockholder") that are not registered under an effective Registration Statement, and (B) if the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election; provided, that (i) there shall not be more than one such request during each of the Company’s fiscal quarterly periods and (ii) the Registrable Securities to be registered must include at least 1,000,000 Common Shares, or, in the aggregate, have an anticipated offering price, net of underwriting discounts and commissions, of more than $5,000,000, calculated in accordance with Rule 457(c) under the Securities Act on the business day preceding such Request.
(b) As promptly as practicable, but no later than 10 days after receipt of a Request, the Company shall give written notice of such requested registration to all Holders of Registrable Securities and Pari Passu Holders of Pari Passu Securities. Subject to Section 2.2(c), the Company shall include in a Demand Registration (i) the Registrable Securities intended to be disposed of by the Initiating Holders and (ii) the Registrable Securities and Pari Passu Securities intended to be disposed of by any other Holder or Pari Passu Holder which shall have made a written request (which request shall specify the amount of Registrable Securities to be registered and the intended method of disposition thereof) to the Company for inclusion thereof in such registration within 20 days after the receipt of such written notice from the Company. The Company shall, as expeditiously as possible following a Request, use its best efforts to cause to be filed with the SEC a Demand Registration Statement providing for effect the registration under the Securities Act of all or any portion of such Requesting Stockholder's Registrable Securities, and specifying the intended method of disposition thereof, then the Company shall promptly give notice of such requested registration (each such request shall be referred to herein as a "Demand Registration") at least 20 Business Days prior to the anticipated filing date of the registration statement relating to such Demand Registration to the other Stockholders and thereupon shall use its best efforts to effect, as expeditiously as possible, the registration under the Securities Act of:
(i) all Registrable Securities and the Pari Passu Securities for which the Requesting Stockholders have requested registration under this Section 2.01, and
(ii) subject to the restrictions set forth in Sections 2.01(h) andSection 2.09, all other Registrable Securities that any other Stockholders (all such other Stockholders, together with the Requesting Stockholders, the "Registering Stockholders") have requested the Company has been so requested to register by request received by the Company within 20 Business Days after such Stockholders receive the Company's notice of the Demand Registration (such request shall include all information with respect to such Holders and Pari Passu HoldersStockholder required to effect the registration of such Stockholder's Registrable Securities), all to the extent necessary to permit the disposition of such Registrable Securities so to be registered (in accordance with the intended methods thereof as aforesaid) of disposition thereof specified the Registrable Securities so to be registered, provided that, subject to Section 2.01(d)(g), the Company shall not be obligated to effect more than 4 Demand Registrations (at least one of which shall be available for use after the First Public Offering has occurred), and provided further that the Company shall not be obligated to effect a Demand Registration unless (i) the aggregate market price or fair value on the date of such request of the Registrable Securities requested to be included in such Request Demand Registration equals or further requests exceeds $25,000,000 or (ii) the number of Common Shares requested to be registered pursuant to such Demand Registration equals or exceeds 10% of then outstanding Common Shares on the date of such request. In no event shall the Company be required to effect more than one Demand Registration hereunder within any six-month period.
(b) Promptly after the expiration of the 20 Business Day-period referred to in Section 2.01(a)(ii), the Company will notify all Registering Stockholders of the identities of the other Registering Stockholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Stockholders may revoke such request, without liability to any of the other Registering Stockholders, by providing a notice to the Company revoking such request. A request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request), or (ii) the Requesting Stockholders reimburse the Company for all Registration Expenses of such revoked request.
(c) The Company shall be liable for and pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, except as set forth in Section 2.01(b).
(d) Any registration statement filed pursuant to a Demand Registration shall be a shelf registration statement that complies with the provisions of Rule 415 under the Securities Act, unless otherwise agreed by the Requesting Stockholder and at least one other Stockholder, or group of Affiliated Stockholders, if so requested. The any, that holds in the aggregate 20% or more of the then outstanding Registrable Securities (a "Second Large Holder"); provided that the first registration statement filed pursuant to a Demand Registration after the First Public Offering shall be a shelf registration statement that complies with the provisions of Rule 415 under the Securities Act.
(e) Unless otherwise agreed with the Requesting Stockholder and at least one Second Large Holder, if any, any registration of the Company's Common Stock pursuant to this Section 2.01 shall be effected solely for the purpose of registering the offer and sale of the Common Stock held by the Registering Stockholders and shall not be effected for any offer or sale by the Company of securities by the Company.
(f) If requested by any Stockholder, or group of Stockholders, that holds in the aggregate 20% (or, if the First Public Offering has occurred, any Stockholder, or group of Affiliated Stockholders, that holds in the aggregate 10%) or more of the then outstanding Common Stock, the Company shall use its best efforts to have the Common Stock quoted on the Nasdaq National market or listed on a national securities exchange, in each case as designated by such Requesting Stockholder so long as the Company is subject to the reporting requirements under the Exchange Act, whether or not as a result of a Demand Registration, and otherwise qualifies for such quotation or listing.
(g) A Demand Registration Statement declared shall not be deemed to have occurred:
(i) unless the registration statement relating thereto (A) has become effective under the Securities Act and (B) has remained effective for a period of at least 180 days, or in the case of a shelf registration statement, two years (or such shorter period in which all Registrable Securities of the Registering Stockholders included in such registration have actually been sold thereunder), provided that such registration statement shall not be considered a Demand Registration if, after such registration statement becomes effective, (1) such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC as soon as practicable thereafter or other governmental agency or court and (2) less than 75% of the Registrable Securities included in such registration statement have been sold thereunder; or
(ii) if the Maximum Offering Size is reduced in accordance with Section 2.01(h) such that less than 662/3% of the Registrable Securities of the Requesting Stockholders sought to keep be included in such registration are included.
(h) If a Demand Registration Statement continuously effective involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Stockholders that, in its view, the number of shares of Registrable Securities requested to be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the "Maximum Offering Size"), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be registered by any Registering Stockholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such entities on the basis of the relative number of Registrable Securities so requested to be included in such registration by each), and
(ii) second, subject to Section 2.01(e), any securities proposed to be registered for the account of the Company.
(i) Upon notice to each Registering Stockholder, the Company may postpone effecting a registration pursuant to this Section 2.01 on one occasion during any period of six consecutive months for a reasonable time specified in the notice but not exceeding 60 days (which period may not be extended or renewed), if (i) an investment banking firm of recognized national standing shall advise the Company and the Requesting Stockholders in writing that effecting the registration would materially and adversely affect an offering of securities of such Company the preparation of which had then been commenced or (ii) the Company is in possession of material non-public information the disclosure of which during the period specified in Section 4.1(b). The registration rights granted pursuant to such notice the provisions of this Section 2.2 shall Company reasonably believes would not be in addition to the registration rights granted pursuant to best interests of the other provisions of this Section 2Company.
Appears in 2 contracts
Samples: Registration Rights Agreement (McLeodUSA Holdings Inc), Registration Rights Agreement (McLeodusa Inc)
Demand Registration. (a) In addition to If at any time following the rights provided in Section 2.1, earlier of (x) 180 days after the Majority Holders effective date of the registration statement for the IPO and (y) the expiration of the period during which the managing underwriters for the IPO shall have the right to request in writing that prohibit the Company register all from effecting any other public sale or part distribution of such Holders’ Registrable Securities that are not then registered by an effective Registration Statement (a “Request”) (which Request shall specify the amount of Registrable Securities intended to be disposed of by such Holders and the intended method of disposition thereof) by filing a Registration Statement with the SEC pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into a Form S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling shareholders (not underwriters) of all or such portion of the Registrable Securities (a “Demand Registration”); provided, however, that (A) if the Company is not eligible to register the Registrable Securities on Form S-3 under the Securities ActSecurities, the Company shall be obligated to register the Registrable Securities upon such election only if the Registrable Securities to be registered, in the aggregate, constitute 10% or more receive a request from any of the then-outstanding Registrable Securities Preferred Stockholders or BSC (the “Requesting Stockholder”) that are not registered under an effective Registration Statement, and (B) if the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election; provided, that (i) there shall not be more than one such request during each of the Company’s fiscal quarterly periods and (ii) the Registrable Securities to be registered must include at least 1,000,000 Common Shares, or, in the aggregate, have an anticipated offering price, net of underwriting discounts and commissions, of more than $5,000,000, calculated in accordance with Rule 457(c) under the Securities Act on the business day preceding such Request.
(b) As promptly as practicable, but no later than 10 days after receipt of a Request, the Company shall give written notice of such requested registration to all Holders of Registrable Securities and Pari Passu Holders of Pari Passu Securities. Subject to Section 2.2(c), the Company shall include in a Demand Registration (i) the Registrable Securities intended to be disposed of by the Initiating Holders and (ii) the Registrable Securities and Pari Passu Securities intended to be disposed of by any other Holder or Pari Passu Holder which shall have made a written request (which request shall specify the amount of Registrable Securities to be registered and the intended method of disposition thereof) to the Company for inclusion thereof in such registration within 20 days after the receipt of such written notice from the Company. The Company shall, as expeditiously as possible following a Request, use its best efforts to cause to be filed with the SEC a Demand Registration Statement providing for effect the registration under the Securities Act of all or any portion of such Requesting Stockholder’s Registrable Securities, which notice shall specify the intended method or methods of disposition thereof, then the Company shall promptly give notice of such requested registration (each such request shall be referred to herein as a “Demand Registration”) at least 15 Business Days prior to the anticipated filing date of the registration statement relating to such Demand Registration to the other Stockholders and thereupon shall use its reasonable best efforts to effect, as expeditiously as possible, the registration under the Securities Act of:
(i) all Registrable Securities and the Pari Passu Securities for which the Requesting Stockholders have requested registration under this Section 4.01, and
(ii) subject to the restrictions set forth in Section 4.01(e) and Section 4.02, all other Registrable Securities of the same class as those requested to be registered by the Requesting Stockholders that any Stockholders with rights to request registration under this Section 4.01 (all such Stockholders, together with the Requesting Stockholders, and any Stockholders participating in a Piggyback Registration pursuant to Section 4.02, the “Registering Stockholders”) have requested the Company has been so requested to register by request received by the Company within 15 Business Days after such Stockholders receive the Company’s notice of the Demand Registration, all such Holders and Pari Passu Holders, to the extent necessary to permit the disposition of such Registrable Securities so to be registered (in accordance with the intended methods thereof as aforesaid) of disposition thereof specified the Registrable Securities so to be registered, provided that, subject to Section 4.01(d), the Company shall not be obligated to effect more than one (1) Demand Registrations for any Preferred Stockholder or BSC, other than Demand Registration to be effected pursuant to a Registration Statement on Form S-3 (or any successor thereto), for which an unlimited number of Demand Registrations shall be permitted, and provided further that the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Registrable Securities requested to be included in such Request Demand Registration equals or further requests if so requestedexceeds $40,000,000. In no event shall the Company be required to effect more than one Demand Registration hereunder within any six-month period.
(b) Promptly after the expiration of the 15-Business Day-period referred to in Section 4.01(a)(ii), the Company will notify all Registering Stockholders of the identities of the other Registering Stockholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Stockholders may revoke such request, without liability to any of the other Registering Stockholders, by providing a notice to the Company revoking such request.
(c) The Company shall use its best efforts be liable for and pay all Registration Expenses in connection with any Demand Registration.
(d) A Demand Registration shall not be deemed to have occurred:
(i) unless the registration statement relating thereto (A) has become effective under the Securities Act and (B) has remained effective for a period of at least 180 calendar days (or such shorter period in which all Registrable Securities of the Registering Stockholders included in such registration have actually been sold thereunder), provided that such registration statement shall not be considered a Demand Registration Statement declared effective if, after such registration statement becomes effective, (1) such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court and (2) less than 75% of the Registrable Securities included in such registration statement have been sold thereunder; or
(ii) if the Maximum Offering Size is reduced in accordance with Section 4.01(e) such that less than 66 2⁄3% of the Registrable Securities of the Requesting Stockholders sought to be included in such registration are included.
(e) If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Stockholders that, in its view, the number of shares of Registrable Securities requested to be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be registered by the SEC as soon as practicable thereafter Preferred Stockholders and to keep such Demand Registration Statement continuously effective BSC (allocated, if necessary for the period specified offering not to exceed the Maximum Offering Size, pro rata among such entities on the basis of the relative number of Registrable Securities so requested to be included in Section 4.1(bsuch registration by each). The ,
(ii) second, all Registrable Securities requested to be included in such registration rights granted pursuant by any other Registering Stockholder (allocated, if necessary for the offering not to exceed the provisions Maximum Offering Size, pro rata among such other Stockholders on the basis of this Section 2.2 shall the relative number of Registrable Securities so requested to be included in addition such registration by each such Stockholder), and
(iii) third, any securities proposed to be registered by the registration rights granted pursuant to the other provisions of this Section 2Company.
Appears in 2 contracts
Samples: Stockholders Agreement (TriVascular Technologies, Inc.), Stockholders Agreement (TriVascular Technologies, Inc.)
Demand Registration. (a) In addition to At any time from and after the rights provided in Section 2.1date that is [*] from the date of this Agreement, the Majority Holders shall have the right to may request in writing that the Company register effect the registration under the 1933 Act of any or all of the Registrable Securities held by such requesting Holders, which notice shall specify the intended method or part methods of disposition of such Registrable Securities. Except as otherwise provided herein, the Company shall prepare and (within 90 days after such request has been given) file with the Securities and Exchange Commission (the “SEC”) a registration statement with respect to (x) all Registrable Securities included in such request and (y) all Registrable Securities included in any request delivered by the Requesting Holders pursuant to Section 2.1(f) (together, the “Covered Registrable Securities”), and thereafter use its reasonable efforts to effect the registration under the 1933 Act and applicable state securities laws of such Registrable Securities for disposition in accordance with the intended method or methods of disposition stated in such request (which requested method of disposition may be a Rule 415 Offering, provided that the Company shall not be required to maintain the effectiveness of a registration statement relating to a Rule 415 Offering to the extent the securities included in such registration cease to be Registrable Securities); provided further that the Company shall not be obligated to effect any such registration pursuant to this Section 2.1(a) (i) during the period starting with the date of filing of, and ending on the date 90 days following the effective date of, a registration statement pertaining to a public offering initiated or requested by the Company or any stockholder other than a Holder, (ii) if within 30 days of receipt of a written request from the Requesting Holders, the Company gives notice to the Requesting Holders of the Company’s intention to make a public offering within 90 days for the Company’s account or (iii) if the Company furnishes to the Requesting Holders a certified resolution of the Board of Directors stating that in the Board of Directors’ good faith judgment it would be materially prejudicial (a “Materially Prejudicial Condition”) to the Company for such a registration statement to be filed and become effective, and, if requested by the Requesting Holders (and subject to their entering into a customary confidentiality obligation as to such information), setting forth in reasonable detail the general reasons for such judgment. The Company shall also be able to suspend the use of, or withdraw and terminate the effectiveness of, any effective registration statement by furnishing the Holders with a certified copy of such resolution of the Board of Directors as to a Materially Prejudicial Condition. Upon receipt of such certified copy, the Holders shall immediately discontinue use of the prospectus contained in such registration statement and, if so directed by the Company, the Holders shall deliver to the Company all copies, other than permanent file copies, of the prospectus covering such Registrable Securities that are not then registered is current at the time of receipt of such notice. The Company shall promptly deliver to each Requesting Holder or Holders, as applicable, written notice of the non-existence of any Materially Prejudicial Condition with respect to which the Company previously furnished notice. Neither the filing nor the effectiveness of any such registration statement may be delayed, or the use of the prospectus contained in any such registration statement suspended, for a period in excess of 90 days due to the occurrence of any particular Materially Prejudicial Condition and the Company may exercise its delay or suspension rights on only one occasion in connection with any registration request under Section 2.1 in any twelve-month period. If requested by the Initial Requesting Holders, the Company shall, if any registration statement shall have failed to have been filed or shall have been suspended, withdrawn or terminated because of a Materially Prejudicial Condition, promptly after such time as the Materially Prejudicial Condition no longer exists or, if earlier, at the end of the 90-day period following the occurrence of such Materially Prejudicial Condition, file the unfiled registration statement, a post-effective amendment to the suspended registration statement and/or an effective Registration Statement (amended or supplemented prospectus thereto, or a “Request”) (which Request shall specify new registration statement covering the amount of Registrable Securities intended to be disposed of that were covered by such unfiled, suspended or withdrawn or terminated registration and maintain the effectiveness thereof for such time as is required under this Agreement.
(b) The Majority Holders and may collectively exercise their rights to require a registration under Section 2.1(a) once, provided that the intended method Majority Holders may collectively exercise their rights to require a registration under Section 2.1(a) on an [*] for each time that less than all of disposition thereof) the Covered Registrable Securities are included in the registration statement filed by filing a Registration Statement the Company with the SEC pursuant to Rule 415 a request under Section 2.1(a) because of the Securities Act on Form S-3 under operation of Section 2.1(g).
(c) Without limiting the Securities Act last sentence of Section 2.1(a), the Holders shall not have the right to require the filing of a registration statement pursuant to this Section 2.1 while any registration statement that has been filed pursuant to this Section 2.1 has yet to become effective or within [*] following the effectiveness of any registration statement that was filed pursuant to this Section 2.1.
(d) A registration pursuant to this Section 2.1 shall not be deemed to have been effected (and, therefore, rights of a Requesting Holder shall be deemed not to have been exercised for purposes of paragraph (a) above) (i) unless it has become effective, (ii) if after it has become effective such registration (or the use of the prospectus contained in such registration statement) is (A) interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court for any reason other than a misrepresentation or an omission by any Holder or (B) delayed, withdrawn, suspended or terminated and, in each case, as a result thereof, the Registrable Securities requested to be registered cannot be completely distributed in accordance with the plan of distribution set forth in the related registration statement (until such time as the Registrable Securities requested to be registered may be completely distributed in accordance with the plan of distribution set forth in the related registration statement) or (iii) if the conditions to closing specified in any purchase agreement or underwriting agreement entered into in connection with such registration are not satisfied or waived other than because of some act or omission by any Holder.
(e) In the event that the Company is ineligible any registration pursuant to use such formSection 2.1(a) shall involve, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into a Form S-3 promptly after Form S-3 becomes available to the Company) covering resales by in whole or in part, an underwritten offering, the Holders as selling shareholders (not underwriters) of all or such portion a majority of the Registrable Securities (a “Demand Registration”); provided, however, that (A) if the Company is not eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election only if the Registrable Securities to be registered, in the aggregate, constitute 10% or more of the then-outstanding Registrable Securities that are not registered under an effective Registration Statement, and (B) if the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election; provided, that (i) there shall not be more than one such request during each of the Company’s fiscal quarterly periods and (ii) the Registrable Securities to be registered must include at least 1,000,000 Common Sharesshall select the lead underwriter or underwriters (which selection or selections shall be subject to the approval of the Company, orwhich approval shall not be unreasonably withheld), in as well as counsel for the aggregateHolders, have an anticipated offering price, net of underwriting discounts and commissions, of more than $5,000,000, calculated in accordance with Rule 457(c) under the Securities Act on the business day preceding respect to such Requestregistration.
(bf) As promptly as practicable, but no later than 10 days after Upon receipt of a Requestwritten request from the Initial Requesting Holders pursuant to the first sentence of Section 2.1(a), the Company shall promptly give written notice of such requested registration to all other Holders of Registrable Securities and Pari Passu Holders the intended method or methods of Pari Passu Securitiesdisposition stated in such request. Subject Each other Holder may, by written notice to Section 2.2(c), the Company to be delivered within [*] of the delivery of the Company’s notice, request the inclusion in such registration of any Registrable Securities held by such other Holder. The Company shall include in a Demand Registration promptly after the expiration of such [*] period notify each Requesting Holder of (i) the Registrable Securities intended to be disposed identity of by the Initiating other Requesting Holders and (ii) the number of Registrable Securities requested to be included therein by each Requesting Holder. In the event that the Initial Requesting Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, the right of any Holder to include all or any portion of its 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 to the extent provided herein. All Holders proposing to distribute all of any portion of their Registrable Securities through such underwriting shall enter into an underwriting agreement in customary form (for secondary sales by selling stockholders) with the underwriter or underwriters selected pursuant to Section 2.1(e).
(g) The Company shall have the right to cause the registration of additional equity securities for sale for the account of any person or entity that is not a Holder (including the Company and any directors, officers or employees of the Company (such additional equity securities, the “Additional Equity Securities”)) in any registration of Registrable Securities requested by the Requesting Holders; provided that if such registration is to be an underwritten registration and such Requesting Holders are advised in writing (with a copy to the Company) by a nationally recognized investment banking firm selected pursuant to paragraph (e) above that, in such firm’s good faith view, all or a part of the equity securities to be included in such registration (including any Additional Equity Securities) cannot be sold and the inclusion of all or part of the equity securities that would otherwise be included in such registration would be likely to have an adverse effect on the price, timing or distribution of the offering and sale of the equity securities to be included in such registration, then the Company shall exclude from such registration such Additional Equity Securities or part thereof (other than Company Securities that the Company proposes to include in such registration), to the nearest extent possible on a pro rata basis, except to the extent doing so would be inconsistent with the provisions of any agreement under which any of the Additional Equity Securities are entitled to registration rights, in which case the Company shall include in such registration:
(i) first, up to the full number of any Third Party Priority Securities that are requested to be included in such registration which, in the good faith view of such investment banking firm, can be so sold without so adversely affecting such offering in the manner described above, to the nearest extent possible on a pro rata basis;
(ii) second, up to the full number of (A) Registrable Securities held by Holders and (B) any Third Party Parity Securities that are requested to be included in such registration, in excess of the number of any Third Party Priority Securities to be sold in such offering which, in the good faith view of such investment banking firm, can be so sold without so adversely affecting such offering in the manner described above, to the nearest extent possible on a pro rata basis (with the number of Registrable Securities and Pari Passu Third Party Parity Securities intended to that will be disposed so included in such registration being determined on the basis of by any other Holder or Pari Passu Holder which shall have made a written request (which request shall specify the amount number of Registrable Securities to that the Holders request be registered and the intended method of disposition thereof) to the Company for inclusion thereof included in such registration within 20 days after and the receipt number of such written notice from the Company. The Company shall, as expeditiously as possible following a Request, use its best efforts to cause Third Party Parity Securities that are requested to be filed with included in such registration);
(iii) third, up to the SEC a Demand Registration Statement providing for full number of Company Securities that the registration under the Securities Act Company proposes to include in such registration, in excess of the number of Third Party Priority Securities, Registrable Securities and Third Party Parity Securities to be sold in such offering which, in the Pari Passu good faith view of such investment banking firm, can be sold without so adversely affecting such offering in the manner described above; and
(iv) fourth, up to the full number of any Other Securities which (that are not Third Party Priority Securities, Registrable Securities, Third Party Parity Securities or Company Securities) held by other holders of the Company has been so Company’s securities entitled to registration rights that are requested to register by all be included in such Holders registration, in excess of the number of Third Party Priority Securities, Registrable Securities, Third Party Parity Securities and Pari Passu HoldersCompany Securities to be sold in such offering which, to in the extent necessary to permit the disposition good faith view of such investment banking firm, can be so sold without so adversely affecting such offering in the manner described above. In the event that the number of Registrable Securities so requested to be registered included in accordance with the intended methods of disposition thereof specified in such Request or further requests if so requested. The Company shall use its best efforts to have such Demand Registration Statement declared effective a registration statement that will not include any Additional Equity Securities by the SEC as soon as practicable thereafter and to keep Requesting Holders exceeds the number which, in the good faith view of such Demand Registration Statement continuously effective for investment banking firm, can be sold without adversely affecting the period specified price, timing, distribution or sale of securities in Section 4.1(b). The registration rights granted pursuant to the provisions of this Section 2.2 offering, the number shall be allocated pro rata among all of the Requesting Holders on the basis of the relative number of Registrable Securities then held by each such Requesting Holder (with any number in addition to excess of a Requesting Holder’s request reallocated among the registration rights granted pursuant to the other provisions of this Section 2remaining Requesting Holders in a like manner).
Appears in 2 contracts
Samples: Registration Rights Agreement (Diversa Corp), Asset Sale Agreement (Diversa Corp)
Demand Registration. (a) In addition Upon receipt of a written request (a "Registration Request") from Initiating Holders with respect to Registrable Stock representing at least 25% of such Initiating Holders' Registrable Stock (or any lesser percentage having a reasonably anticipated aggregate offering price to the rights provided in Section 2.1public of $2,000,000)(a "Demand Registration"), the Majority Company shall (i) promptly give notice of the Registration Request to all non-requesting Holders shall have and (ii) prepare and file with the right to request Commission promptly, but in writing that any event within (x) 90 days after its receipt of such Registration Request if the Company register all or part had not conducted an underwritten public offering of the Common Stock before such time and (y) 45 days after its receipt of such Holders’ Registration Request if the Company had conducted an underwritten public offering of the Common Stock before such time, a registration statement for the purpose of effecting a Registration of the sale of all Registrable Securities Stock requested to be Registered by the requesting Holders and any other Holder who requests to have his Registrable Stock included in such registration statement within ten days after receipt of notice by such Holder of the Registration Request. The Company shall use commercially reasonable efforts to effect such Registration as soon as practicable (including, without limitation, the execution of an undertaking to file post-effective amendments and appropriate qualification under applicable state securities laws); and shall keep such Registration continuously effective until the earlier of (i) the second anniversary of the date that are not then registered by an effective Registration Statement (a “Request”) (which Request shall specify the amount shares of Registrable Securities intended to be disposed of by such Holders and the intended method of disposition thereof) by filing a Registration Statement with the SEC Stock are first sold pursuant to such Registration, (ii) the date on which all shares of Registrable Stock have been sold pursuant to such registration statement or Rule 415 under 144 and (iii) the Securities Act date on Form S-3 under the Securities Act (or which, in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into a Form S-3 promptly after Form S-3 becomes available reasonable opinion of counsel to the Company) covering resales by the Holders as selling shareholders (not underwriters) of , all or such portion of the Registrable Securities (a “Demand Registration”Stock may be sold in accordance with Rule 144(k); provided, however, that the Company shall not be obligated to take any action to effect any such Registration, qualification or compliance pursuant to this Section 2 (Ai) if in any particular jurisdiction in which the Company would become subject to taxation or would be required to execute a general consent to service of process in effecting such Registration, qualification or compliance unless the Company is not eligible already subject to register taxation or service in such jurisdiction or (ii) during the Registrable Securities period starting with the date 60 days prior to the Company's good faith estimate of the date of filing of, and ending on Form S-3 under a date 180 days after the Securities Acteffective date of, a Company-initiated registration. Notwithstanding the foregoing, the Company shall be obligated have the right (the "Suspension Right") to register defer such filing (or suspend sales under any filed registration statement or defer the Registrable Securities upon such election only updating of any filed registration statement and suspend sales thereunder) at any time or from time to time, for a period of not more than 90 days during any period of 365 days, if the Registrable Securities Company shall furnish to be registeredthe Holders a certificate signed by an executive officer or any trustee of the Company stating that, in the aggregate, constitute 10% or more of the then-outstanding Registrable Securities that are not registered under an effective Registration Statement, and (B) if the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election; provided, that (i) there shall not be more than one such request during each good faith judgment of the Company’s fiscal quarterly periods , it would be detrimental to the Company and its shareholders to file such registration statement or amendment thereto at such time (iior continue sales under a filed registration statement) and therefore the Registrable Securities Company has elected to be registered must include at least 1,000,000 Common Shares, or, in defer the aggregate, have an anticipated offering price, net filing of underwriting discounts and commissions, of more than $5,000,000, calculated in accordance with Rule 457(c) such registration statement (or suspend sales under the Securities Act on the business day preceding such Requesta filed registration statement).
(b) As promptly as practicableIf a Demand Registration is an underwritten Demand Registration with other holders requesting to include their securities pursuant to other piggy back rights and the managing underwriters advise the Company in writing that, but no later than 10 days after receipt in their opinion, the number of securities to be included in such registration exceeds the number that can be sold in an orderly manner in such offering within a Requestprice range acceptable to the Holders, the Company shall give written notice will include securities in such registration in the following order of such requested registration to all Holders of Registrable Securities and Pari Passu Holders of Pari Passu Securities. Subject to Section 2.2(c), the Company shall include in a Demand Registration priority:
(i) first, the Registrable Securities intended Stock requested to be disposed of included in such registration by the Initiating Holders exercising rights pursuant to Section 2(a) and any securities requested to be included therein by the Series AA Holders or the Series CC Holders, pro rata among all such holders based upon the number of shares of such securities requested for inclusion in such registration by each such holder;
(ii) the Registrable Securities and Pari Passu Securities intended second, any securities requested to be disposed of included therein by any other Holder or Pari Passu Holder which shall have made a written request holders pursuant to such holders' piggyback rights, if any, pro rata based upon the number of shares of such securities requested for inclusion in such registration by each such holder; and
(which request shall specify iii) third, the amount of Registrable Securities Common Stock proposed to be registered and the intended method of disposition thereof) to the Company for inclusion thereof in such registration within 20 days after the receipt of such written notice from by the Company. The Company shall, as expeditiously as possible following a Request, use its best efforts to cause to be filed with the SEC a Demand Registration Statement providing for the registration under the Securities Act of the Registrable Securities and the Pari Passu Securities which the Company has been so requested to register by all such Holders and Pari Passu Holders, to the extent necessary to permit the disposition of such Registrable Securities so to be registered in accordance with the intended methods of disposition thereof specified in such Request or further requests if so requested. any.
(c) The Company shall use its best efforts not be required to have such Demand Registration Statement declared effective by the SEC as soon as practicable thereafter and to keep such Demand Registration Statement continuously effective for the period specified in Section 4.1(b). The registration rights granted effect more than two Registrations pursuant to the provisions of this Section 2.2 shall be in addition to the registration rights granted pursuant to the other provisions of this Section 2.
Appears in 2 contracts
Samples: Registration Rights Agreement (Credit Suisse/), Registration Rights Agreement (Commvault Systems Inc)
Demand Registration. (a1) In addition to At any time after the rights provided in Section 2.1, the Majority Holders shall have the right to request in writing that the Company register all or part of such Holders’ Registrable Securities that are not then registered by an effective Registration Statement (a “Request”) (which Request shall specify the amount of Registrable Securities intended to be disposed of by such Holders and the intended method of disposition thereof) by filing a Registration Statement with the SEC pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into a Form S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling shareholders (not underwriters) of all or such portion of the Registrable Securities (a “Demand Registration”); provided, however, that (A) if the Company is not eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election only if the Registrable Securities to be registered, in the aggregate, constitute 10% or more of the then-outstanding Registrable Securities that are not registered under an effective Registration Statementdate hereof, and (B) if the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election; provided, that (i) there shall not be more than one such request during each of the Company’s fiscal quarterly periods and (ii) the Registrable Securities to be registered must include at least 1,000,000 Common Shares, or, in the aggregate, have an anticipated offering price, net of underwriting discounts and commissions, of more than $5,000,000, calculated in accordance with Rule 457(c) under the Securities Act on the business day preceding such Request.
(b) As promptly as practicable, but no later than 10 days after receipt of a Request, the Company shall give written notice of such requested registration to all Holders of Registrable Securities and Pari Passu Holders of Pari Passu Securities. Subject to Section 2.2(c), the Company shall include in a Demand Registration (i) the Registrable Securities intended to be disposed of by the Initiating Holders and (ii) the Registrable Securities and Pari Passu Securities intended to be disposed of by any other Holder or Pari Passu Holder which shall have made a written request (which request shall specify the amount of Registrable Securities to be registered and the intended method of disposition thereof) to the Company for inclusion thereof in such registration within 20 days after the receipt of such written notice from the Company. The Company shall, as expeditiously as possible following a Request, use its best efforts to cause to be filed with the SEC a Demand Registration Statement providing for the registration under the Securities Act of the Registrable Securities and the Pari Passu Securities which the Company has been so requested to register by all such Holders and Pari Passu Holders, to the extent necessary to permit the disposition of such Registrable Securities so to be registered in accordance with the intended methods of disposition thereof specified in such Request or further requests if so requested. The Company shall use its best efforts to have such Demand Registration Statement declared effective by the SEC as soon as practicable thereafter and to keep such Demand Registration Statement continuously effective for the period specified in Section 4.1(b). The registration rights granted pursuant to the provisions of this Section 2.2 shall be in addition to the registration rights granted pursuant subject to the other provisions of this Section 12, the Executive shall have the right, exercisable by making a written request to the Company, to demand that the Company effect the Registration of any Registrable Securities in accordance with the provisions of the Act. The Company shall then comply with Section 12(a)(2) hereof. Any provision herein to the contrary notwithstanding, the right to demand Registration pursuant to this Section 12 shall be limited to one Registration demand per calendar year. A right to demand Registration hereunder shall be deemed to have been exercised and all of the Company's demand Registration obligations hereunder for such calendar year shall be deemed to be fully satisfied when the registration statement filed on account of such exercise has been declared effective by the Commission. If any other executive of the Company exercises his or her right, if any, to demand that the Company effect the Registration of any Registrable Securities, then the Executive shall have the right to Register an equivalent number of Registrable Securities without reducing the number demand Registrations the Executive shall have in any calendar year.
(2) Following receipt of a request pursuant to Section 12(a)(1) hereof, the Company shall (i) file within ninety (90) days thereafter a registration statement on the appropriate form under the Act for the shares of Common Stock that the Company has been requested to Register; (ii) if the applicable Offering is pursuant to an underwriting agreement, enter into an underwriting agreement in such form as said managing or sole underwriter shall require (which must only contain terms and conditions customary for offerings of equity securities of entities with market capitalizations that are approximately equal to the Company's then current market capitalization and may contain customary provisions requiring the Company and the Executive to indemnify and provide contribution to the underwriter or underwriters of such Offering); and (iii) use its reasonable best efforts to have such registration statement declared effective as promptly as practicable and to remain effective for at least one hundred eighty (180) days. Notwithstanding any other provision hereof, the Executive acknowledges and agrees that there can be no guarantee or warranty from or by the Company that any such registration statement will ever be declared effective by the Commission, and that the Company makes no such guarantee or warranty in this Agreement.
Appears in 2 contracts
Samples: Executive Employment Agreement (European Micro Holdings Inc), Executive Employment Agreement (European Micro Holdings Inc)
Demand Registration. (a) In addition to At any time after the rights provided in Section 2.1, date that is 180 days after the Majority Holders shall have the right to request in writing that date hereof (or such earlier date (i) as would permit the Company register all to cause any filings required hereunder to be filed on the 180th day after the date hereof or part of such Holders’ Registrable Securities (ii) as is permitted by waiver under the IPO Underwriting Agreement), any Person that are not then registered by an effective Registration Statement is a Stockholder (a “RequestRequesting Stockholder”) on the date a Demand is made shall be entitled to make a written request of the Company (which Request shall specify the amount of Registrable Securities intended to be disposed of by such Holders and the intended method of disposition thereofa “Demand”) by filing a Registration Statement with the SEC pursuant to Rule 415 for registration under the Securities Act on Form S-3 of a number of Registrable Securities that, when taken together with the number of Registrable Securities requested to be registered under the Securities Act (by such Requesting Stockholder’s Affiliates, equals or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into a Form S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling shareholders (not underwriters) of all or such portion of greater than the Registrable Securities Amount (a “Demand Registration”); provided, however, that (A) if and thereupon the Company is not eligible to register the Registrable Securities on Form S-3 under the Securities Actwill, the Company shall be obligated to register the Registrable Securities upon such election only if the Registrable Securities to be registered, in the aggregate, constitute 10% or more of the then-outstanding Registrable Securities that are not registered under an effective Registration Statement, and (B) if the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election; provided, that (i) there shall not be more than one such request during each of the Company’s fiscal quarterly periods and (ii) the Registrable Securities to be registered must include at least 1,000,000 Common Shares, or, in the aggregate, have an anticipated offering price, net of underwriting discounts and commissions, of more than $5,000,000, calculated in accordance with Rule 457(c) under the Securities Act on the business day preceding such Request.
(b) As promptly as practicable, but no later than 10 days after receipt of a Request, the Company shall give written notice of such requested registration to all Holders of Registrable Securities and Pari Passu Holders of Pari Passu Securities. Subject to Section 2.2(c), the Company shall include in a Demand Registration (i) the Registrable Securities intended to be disposed of by the Initiating Holders and (ii) the Registrable Securities and Pari Passu Securities intended to be disposed of by any other Holder or Pari Passu Holder which shall have made a written request (which request shall specify the amount of Registrable Securities to be registered and the intended method of disposition thereof) subject to the Company for inclusion thereof in such registration within 20 days after the receipt terms of such written notice from the Company. The Company shall, as expeditiously as possible following a Requestthis Agreement, use its best commercially reasonable efforts to cause to be filed with the SEC a Demand Registration Statement providing for effect the registration under the Securities Act of of:
(i) the Registrable Securities and the Pari Passu Securities which the Company has been so requested to register by the Requesting Stockholders for disposition in accordance with the intended method of disposition stated in such Demand, which may be an Underwritten Offering;
(ii) all such Holders and Pari Passu Holdersother Registrable Securities which the Company has been requested to register pursuant to Section 4.1(b); and
(iii) all shares of Common Stock which the Company may elect to register in connection with any offering of Registrable Securities pursuant to this Section 4.1, but subject to Section 4.1(f); all to the extent necessary to permit the disposition of such Registrable Securities so to be registered (in accordance with the intended methods thereof) of the Registrable Securities and the additional Common Stock, if any, to be so registered.
(b) A Demand shall specify: (i) the aggregate number of Registrable Securities requested to be registered in such Demand Registration, (ii) the intended method of disposition thereof specified in connection with such Request Demand Registration, to the extent then known and (iii) the identity of the Requesting Stockholder (or further requests if so requestedRequesting Stockholders). Within five days after receipt of a Demand, the Company shall give written notice of such Demand to any other Persons that on the date a Demand is delivered to the Company is a Stockholder (excluding Fortress Affiliate Stockholders which have not signed a joinder as contemplated by Section 2.1). Subject to Section 4.1(f), the Company shall include in the Demand Registration covered by such Demand all Registrable Securities with respect to which the Company has received a written request for inclusion therein. Such written request shall comply with the requirements of a Demand as set forth in this Section 4.1(b).
(c) Each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as the Stockholders, together, Beneficially Own less than a Registrable Amount.
(d) Demand Registrations shall be on such registration form of the Commission for which the Company is eligible as shall be selected by the Requesting Stockholders whose shares represent a majority of the Registrable Securities that the Company has been requested to register, including, to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the Commission, and shall be reasonably acceptable to the Company.
(e) The Company shall use its best efforts not be obligated to have effect any Demand Registration (A) within one month of a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights pursuant to Section 4.2 (subject to Section 4.1(f)) and provided that at least 50% of the number of Registrable Securities requested by such Stockholders to be included in such Demand Registration Statement declared effective by were included or (B) within one month of any other Underwritten Offering pursuant to Section 4.3(e). In addition, the SEC as soon as practicable thereafter Company shall be entitled to postpone (upon written notice to all Stockholders) for a reasonable period of time not to exceed 60 days in succession the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice, or for more than 90 days in the aggregate, in any period of 12 consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating to keep such Demand Registration Statement continuously effective would cause the disclosure of material, non-public information that the Company has a bona fide business purpose for preserving as confidential. In the period specified event of a postponement by the Company of the filing or effectiveness of a registration statement for a Demand Registration, the holders of a majority of Registrable Securities held by the Requesting Stockholder(s) shall have the right to withdraw such Demand in accordance with Section 4.1(b)4.4.
(f) The Company shall not include any securities other than Registrable Securities in a Demand Registration, except with the written consent of Stockholders participating in such Demand Registration that hold a majority of the Registrable Securities included in such Demand Registration. The If, in connection with a Demand Registration, any managing underwriter (or, if such Demand Registration is not an Underwritten Offering, a nationally recognized investment bank engaged in connection with such Demand Registration) advises the Company, that, in its opinion, the inclusion of all of the securities, including securities of the Company that are not Registrable Securities, sought to be registered in connection with such Demand Registration would adversely affect the marketability of the Registrable Securities sought to be sold pursuant thereto, then the Company shall include in such registration rights granted pursuant statement only such securities as the Company is advised by such underwriter or investment bank can be sold without such adverse effect as follows and in the following order of priority: (i) first, up to the provisions number of this Section 2.2 Registrable Securities requested to be included in such Demand Registration by the Stockholders, which, in the opinion of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Stockholders requesting such Demand Registration on the basis of the number of such securities held by such Stockholders and such Stockholders that are Piggyback Sellers; (ii) second, securities the Company proposes to sell; and (iii) third, all other securities of the Company duly requested to be included in such registration statement, pro rata on the basis of the number of such other securities requested to be included or such other method determined by the Company.
(g) Any investment bank(s) that will serve as an underwriter with respect to such Demand Registration or, if such Demand Registration is not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected (i) by FIG LLC, for so long as a majority of the outstanding Common Stock of the Company is owned by the Initial Stockholders, their Permitted Transferees and any Fortress Affiliate Stockholder, and thereafter (ii) by the Stockholder participating in addition to the registration rights granted pursuant to the other provisions such Demand Registration that holds (together with its Permitted Transferees) a number of this Section 2Registrable Securities included in such Demand Registration constituting a plurality of all Registrable Securities included in such Demand Registration.
Appears in 2 contracts
Samples: Shareholder Agreement (Intrawest Resorts Holdings, Inc.), Shareholder Agreement (Intrawest Resorts Holdings, Inc.)
Demand Registration. (ai) In addition Subject to the rights provided in terms and conditions of this Agreement, including Section 2.12(a)(ii) below, at any time and from time to time after the expiration of the lock-up period applicable to the IPO, each Holder (any such requesting Holder, the Majority Holders “Initiating Holder”) shall have the right to request in writing that require the Company register all to file one or part of such Holders’ Registrable Securities that are not then registered by an effective Registration Statement (a “Request”) (which Request shall specify the amount of Registrable Securities intended to be disposed of by such Holders and the intended method of disposition thereof) by filing a Registration Statement with the SEC pursuant to Rule 415 more registration statements under the Securities Act on Form S-3 under the covering all or any part of their Registrable Securities Act (or in the event that upon written notice to the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into a Form S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling shareholders (not underwriters) of all or such portion of the Registrable Securities (a “Demand RegistrationNotice”); provided, however, that (A) if the Company . The registration so requested is not eligible referred to register the Registrable Securities on Form S-3 under the Securities Act, the herein as a “Demand Registration.” The Company shall be obligated to register the Registrable Securities upon such election only if the Registrable Securities to be registeredpromptly (but in any event, in the aggregate, constitute 10% or more of the then-outstanding Registrable Securities that are not registered under an effective Registration Statement, and (B) if the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election; provided, that (i) there shall not be more later than one such request during each of ten Business Days following the Company’s fiscal quarterly periods and (ii) the Registrable Securities to be registered must include at least 1,000,000 Common Shares, or, in the aggregate, have an anticipated offering price, net of underwriting discounts and commissions, of more than $5,000,000, calculated in accordance with Rule 457(c) under the Securities Act on the business day preceding such Request.
(b) As promptly as practicable, but no later than 10 days after receipt of a Request, the Company shall Demand Notice) give written notice (“Demand Eligible Holder Notice”) of such requested registration to all Holders of Registrable Securities and Pari Passu Holders of Pari Passu Securities. Subject to Section 2.2(c), the Company shall include in a Demand Registration (i) the Registrable Securities intended to be disposed of by the Initiating Holders and (ii) the Registrable Securities and Pari Passu Securities intended to be disposed of by any other Holder or Pari Passu Holder which shall have made a written request (which request shall specify the amount of Registrable Securities to be registered and the intended method of disposition thereof) to the Company for inclusion thereof in such registration within 20 days after the receipt of such written notice from Demand Notice to all Holders (other than the CompanyInitiating Holder) that, to its knowledge, hold Registrable Securities (each a “Demand Eligible Holder”). The Company shallshall promptly (but in any event, as expeditiously as possible not later than 60 days following the Company’s receipt of a Request, Demand Notice) file the appropriate Registration Statement (the “Demand Registration Statement”) and use its best commercially reasonable efforts to cause to be filed with effect, at the SEC a Demand Registration Statement providing for earliest practicable date, the registration under the Securities Act and under applicable state securities laws of (A) the Registrable Securities and the Pari Passu Securities which the Company has been so requested to register by the Initiating Holder in the Demand Notice, (B) all such other Registrable Securities of the same class or series as those requested to be registered in the Demand Notice which the Company has been requested to register by the Demand Eligible Holders by written request (the “Demand Eligible Holder Request”) given to the Company within ten Business Days after the giving of the Demand Eligible Holder Notice, and Pari Passu Holders(C) any Registrable Securities to be offered and sold by the Company, in each case subject to Section 2(a)(ii), all to the extent necessary required to permit the disposition of such Registrable Securities so to be registered (in accordance with the intended methods of disposition thereof specified in such Request or further requests if disposition) of the Registrable Securities to be so requestedregistered. The Company shall use its best efforts to have such effect any requested Demand Registration Statement declared effective by using a registration statement on Form S-3 whenever the SEC as soon as practicable thereafter Company is a Seasoned Issuer or a WKSI, and to keep such Demand shall use an Automatic Shelf Registration Statement continuously effective for the period specified in Section 4.1(b). The registration rights granted pursuant to the provisions of this Section 2.2 shall be in addition to the registration rights granted pursuant to the other provisions of this Section 2if it is a WKSI.
Appears in 2 contracts
Samples: Registration Rights Agreement (FTS International, Inc.), Registration Rights Agreement (FTS International, Inc.)
Demand Registration. (a) In addition to At any time during the rights provided in Section 2.1Demand Period, the Majority Holders shall have the right to request in writing that require the Company register to file a Registration Statement under the Securities Act (a "Demand Registration") covering all or any part of such Holders’ their respective Registrable Securities that are not then registered by an effective Registration Statement (delivering a “Request”) (which Request shall specify written request therefor to the amount Company specifying the number of Registrable Securities intended to be disposed of included in such registration by such Holder or Holders and the intended method of disposition distribution thereof) by filing . In no event shall the Company's obligation to effect a Demand Registration reduce or relieve the Company of any obligation to effect and maintain the Shelf Registration Statement with for the SEC pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into a Form S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling shareholders (not underwriters) of all or such portion benefit of the Registrable Securities (a “Demand Registration”); provided, however, that (A) if other PVH Holders. Upon the Company is not eligible to register the Registrable Securities on Form S-3 under the Securities Actreceipt of such demand, the Company shall be obligated to register the Registrable Securities upon such election only if the Registrable Securities to be registered, in the aggregate, constitute 10% or more of the then-outstanding Registrable Securities that are not registered under an effective Registration Statement, and (B) if the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election; provided, that will (i) there shall not be more than one such request during each of the Company’s fiscal quarterly periods and (ii) the Registrable Securities to be registered must include at least 1,000,000 Common Shareswithin ten days, or, in the aggregate, have an anticipated offering price, net of underwriting discounts and commissions, of more than $5,000,000, calculated in accordance with Rule 457(c) under the Securities Act on the business day preceding such Request.
(b) As promptly as practicable, but no later than 10 days after receipt of a Request, the Company shall give written notice of such requested registration the Demand Registration to all Holders of Registrable Securities and Pari Passu Holders of Pari Passu Securities. Subject to Section 2.2(c), the Company shall include in a Demand Registration (i) the Registrable Securities intended to be disposed of by the Initiating other Holders and (ii) the Registrable Securities and Pari Passu Securities intended to be disposed of by any other Holder or Pari Passu Holder which shall have made a written request (which request shall specify the amount of Registrable Securities to be registered and the intended method of disposition thereof) to the Company for inclusion thereof in such registration within 20 days after the receipt of such written notice from the Company. The Company shall, as expeditiously soon as possible following a Requestpracticable, use its best commercially reasonable efforts to cause to be filed effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with the SEC a Demand Registration Statement providing for the registration applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities and the Pari Passu Securities which the Company has been so requested to register register, for distribution in accordance with such intended method of distribution, together with all or such portion of the Registrable Securities of any Holder or Holders joining in such request as are specified in a written request received by all the Company within 20 days after receipt of such Holders and Pari Passu Holderswritten notice from the Company; provided, however, that the Company shall not be obligated to take any action to effect any such Demand Registration, pursuant to this Section 2.2(a):
(i) after the Company has effected three Demand Registrations pursuant to this Section 2.2(a), which registrations are deemed effective pursuant to Section 2.2(d) hereof;
(ii) if Registrable Securities equal to at least 25% of the originally issued Series B Stock or having an aggregate market value of at least $25,000,000 (which market value shall be determined by multiplying the number of Registrable Securities to be included in the Demand Registration by the proposed per share offering price) are not included in such Demand Registration;
(iii) if the Company shall have furnished to the extent necessary Holders requesting a registration pursuant to permit this Section 2.2(a) a certificate signed by the disposition Chairman of the Board of Directors or President of the Company stating that in the good faith judgment of the Board of Directors it would be detrimental to the Company and its stockholders for such registration statement to be filed at such time, then the Company's obligation to make such filing shall be deferred for a period not to exceed 180 days from the date of receipt of written request in respect of such Demand Registration; provided, however, that the Company shall not exercise such right more than once in any 12-month period;
(iv) during the period of time starting with the date 60 days immediately prior to the Company's estimated date of filing of, and ending on the date 90 days (or 180 days in the case of an underwritten public offering) immediately following the effective date of any registration statement pertaining to securities issued for the account of the Company (other than a registration of securities in a Rule 145 transaction or with respect to an employee benefit plan); provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective; provided, further, that the Company shall not exercise such right more than once in any 12-month period; or
(v) of any Registrable Securities if such Registrable Securities so to be registered in accordance with the intended methods of disposition thereof specified in such Request or further requests if so requested. The Company shall use its best efforts to have such Demand are then covered by an effective Registration Statement declared effective by the SEC as soon as practicable thereafter and to keep such Demand Registration Statement continuously effective for the period specified in Section 4.1(b). The registration rights granted pursuant to the provisions of this Section 2.2 shall be in addition to the registration rights granted pursuant to the other provisions of this Section 2Statement.
Appears in 2 contracts
Samples: Registration Rights Agreement (Phillips Van Heusen Corp /De/), Registration Rights Agreement (Phillips Van Heusen Corp /De/)
Demand Registration. (a) In addition to If the rights provided in Section 2.1, Company shall receive a request (a “Registration Request”) from an Investor Party (the Majority Holders shall have the right to request in writing “Requesting Investor”) that the Company register all or part of such Holders’ Registrable Securities that are not then registered by an effective Registration Statement (a “Request”) (which Request shall specify the amount of Registrable Securities intended to be disposed of by such Holders and the intended method of disposition thereof) by filing a Registration Statement with the SEC pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into a Form S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling shareholders (not underwriters) of all or such portion of the Registrable Securities (a “Demand Registration”); provided, however, that (A) if the Company is not eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election only if the Registrable Securities to be registered, in the aggregate, constitute 10% or more of the then-outstanding Registrable Securities that are not registered under an effective Registration Statement, and (B) if the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election; provided, that (i) there shall not be more than one such request during each of the Company’s fiscal quarterly periods and (ii) the Registrable Securities to be registered must include at least 1,000,000 Common Shares, or, in the aggregate, have an anticipated offering price, net of underwriting discounts and commissions, of more than $5,000,000, calculated in accordance with Rule 457(c) under the Securities Act on the business day preceding such Request.
(b) As promptly as practicable, but no later than 10 days after receipt of a Request, the Company shall give written notice of such requested registration to all Holders of Registrable Securities and Pari Passu Holders of Pari Passu Securities. Subject to Section 2.2(c), the Company shall include in a Demand Registration (i) the Registrable Securities intended to be disposed of by the Initiating Holders and (ii) the Registrable Securities and Pari Passu Securities intended to be disposed of by any other Holder or Pari Passu Holder which shall have made a written request (which request shall specify the amount of Registrable Securities to be registered and the intended method of disposition thereof) to the Company for inclusion thereof in such registration within 20 days after the receipt of such written notice from the Company. The Company shall, as expeditiously as possible following a Request, use its best efforts to cause to be filed with the SEC a Demand Registration Statement providing for effect the registration under the Securities Act of all or any portion of such Investor Party’s Registrable Securities, and specifying the intended method of disposition thereof, then the Company shall promptly give notice of such Registration Request to each other Investor Party, and thereafter the Company shall use its best efforts to effect, as expeditiously as possible, the registration under the Securities Act of (each such registration shall be referred to herein as a “Demand Registration”): (i) all Registrable Securities and the Pari Passu Securities for which the Requesting Investor has requested registration under this Section 4.01 and (ii) all other Registrable Securities that Investor Parties have requested the Company has been so requested to register by request received by the Company within 10 Business Days after such holder receives the Company’s notice of the Demand Registration (all such Holders Investor Parties together with the Requesting Investor, and Pari Passu Holdersany Investor Parties participating in a Piggyback Registration pursuant to Section 4.03, the “Registering Investors”), all to the extent necessary to permit the disposition of such Registrable Securities so to be registered (in accordance with the intended methods thereof as aforesaid) of disposition thereof the Registrable Securities so to be registered; provided that, (i) subject to Section 4.01(d), the Company shall not be obligated to effect more than (i) two Demand Registrations in any calendar year, other than Demand Registrations to be effected pursuant to a Registration Statement on Form S-3 (or any successor thereto), for which an unlimited number of Demand Registrations shall be permitted and (ii) the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Registrable Securities requested to be included in such Demand Registration equals or exceeds $30,000,000.
(b) Promptly after the expiration of the 15 Business Day period referred to in Section 4.01(a)(ii), the Company shall notify all Registering Investors of the identities of the other Registering Investors and the number of shares of Registrable Securities requested to be included in the Demand Registration. At any time prior to the effective date of the Registration Statement relating to a Demand Registration, the Requesting Investor may revoke its Registration Request, without liability to any of the other Registering Investors, by providing a notice to the Company revoking such Registration Request. A request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request), or (ii) the Requesting Investor reimburses the Company for all Registration Expenses of such revoked request.
(c) The Company shall be liable for and pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, except as set forth in Section 4.02(b)(ii).
(d) A Demand Registration shall not be deemed to have occurred:
(i) unless the Registration Statement relating thereto (A) has become effective under the Securities Act and (B) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities included in such registration have actually been sold thereunder); provided that such Registration Statement shall not be considered a Demand Registration if, after such Registration Statement becomes effective, (1) such Registration Statement is interfered with by any stop order, injunction or other order or requirement of any Governmental Authority and (2) less than 75% of the Registrable Securities included in such Registration Statement have been sold thereunder;
(ii) if the Maximum Offering Size is reduced in accordance with Section 4.01(e) such that less than 75% of the Registrable Securities sought to be included in such registration are included; or
(iii) as permitted pursuant to Section 4.01(b) or 4.01(f).
(e) If a Demand Registration involves a Public Offering and the managing underwriter advises the Company and the Registering Investors that, in its view, the number of shares of Registrable Securities requested to be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be registered by the Registering Investors (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Registering Investors on the basis of their Relative Investor Ownership);
(ii) second, any securities proposed to be registered by the Company; and
(iii) third, any securities proposed to be registered for the account of any other Persons, with such priorities among them as the Company shall determine.
(f) Upon notice to each Registering Investor (the “Delay Notice”), the Company may postpone effecting a registration pursuant to this Section 4.01 on two occasions during any period of twelve consecutive months for a reasonable time specified in the notice but not exceeding 60 days (which period may not be extended or renewed and provided that such Request periods in the aggregate shall not exceed 90 days in any period of twelve consecutive months), if the filing, initial effectiveness or further requests if so requestedcontinued use of a Registration Statement relating to a Demand Registration would require the Company to make an Adverse Disclosure (a “Demand Suspension”). No Registration Statement filed and subsequently withdrawn pursuant to this Section 4.01(f) shall count as a Demand Registration. The Registering Investors agree to suspend use of the applicable Prospectus in connection with any sale or purchase, or offer to sell or purchase, Registrable Securities, upon receipt of the Delay Notice. The Company shall use its best efforts immediately notify the Registering Investors upon the termination of any Demand Suspension, amend or supplement the Prospectus, if necessary, so it does not contain any untrue statement or omission and furnish to have each Registering Investor such numbers of copies of the Prospectus as so amended or supplemented as such Registering Investor may reasonably request. The Company shall, if necessary, supplement or make amendments to the Registration Statement relating to the Demand Registration, if required by the registration form used by the Company for the Demand Registration Statement declared effective or by the SEC as soon as practicable thereafter and instructions applicable to keep such Demand Registration Statement continuously effective for registration form or by the period specified in Section 4.1(b). The registration rights granted pursuant to the provisions of this Section 2.2 shall be in addition to the registration rights granted pursuant to the other provisions of this Section 2Securities Act.
Appears in 2 contracts
Samples: Shareholder Agreement (MRC Global Inc.), Purchase Agreement (MRC Global Inc.)
Demand Registration. (a) In addition to the rights provided in Section 2.1, the Majority Holders The Shareholders shall each have the right to request in writing on an unlimited number of occasions that the Company register all or part of such Holders’ Registrable Securities that are not then registered by an effective Registration Statement (a “Request”) (which Request shall specify the amount of Registrable Securities intended to be disposed of by such Holders and the intended method of disposition thereof) by filing file a Registration Statement with the SEC pursuant to Rule 415 under on the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other appropriate registration form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into a Form S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling shareholders (not underwriters) of for all or such portion part of the Registrable Securities Shares held (or that would be held upon conversion of any securities into Registrable Shares) by such Shareholder once such Shareholder is no longer subject to the lock-up applicable to it entered into in connection with the IPO (which may be due to the expiration or waiver of such lock-up with respect to such Registrable Shares) (a “Demand Notice”) by delivering a written request to the Company specifying the number of Registrable Shares such Shareholder wishes to Register and the intended method of distribution thereof (a “Demand Registration” and the Shareholder submitting such Demand Registration, the “Initiating Holder”). The Company shall (i) within 10 Business Days of the receipt of such request, give written notice of such Demand Registration (the “Company Notice”) to all Shareholders other than the relevant Initiating Holder (the “Eligible Holders”), (ii) use its reasonable best efforts to file a Registration Statement in respect of such Demand Registration within 45 days of receipt of the request, provided that all necessary documents for the registration can be obtained and prepared within such 45-day period; and (iii) use its reasonable best efforts to cause such Registration Statement to become effective as soon as reasonably practicable thereafter. The Company shall include in such Registration all Registrable Shares that the Eligible Holders request to be included within the 10 Business Days following their receipt of the Company Notice. If the method of distributing the offering is an underwritten public offering, the Company may designate (i) in its sole discretion, the managing underwriter for such offering, subject to there being no reasonable objection from the Shareholders holding a majority of Registrable Shares referred to in the Demand Notice and (ii) in its reasonable discretion, the underwriters for such offering, provided that the Shareholders agree that the designation of XP Investments US, LLC and Itaú BBA USA Securities, Inc., or either of them separately, as an underwriter or underwriters, as the case may be, shall at all times be reasonable; provided, however, that (A) if in connection with a Block Trade pursuant to a Block Trade Notice delivered by the Company is not eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election only if the Registrable Securities to be registered, in the aggregate, constitute 10% or more of the then-outstanding Registrable Securities that are not registered under an effective Registration Statement, and (B) if the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election; provided, that (i) there shall not be more than one such request during each of the Company’s fiscal quarterly periods and (ii) the Registrable Securities to be registered must include at least 1,000,000 Common Shares, or, in the aggregate, have an anticipated offering price, net of underwriting discounts and commissions, of more than $5,000,000, calculated Itaú Shareholders as Initiating Holders in accordance with Rule 457(c) under Section 3 below, the Securities Act on Itaú Shareholders may designate in their sole discretion, the business day preceding underwriters for such Requestoffering.
(b) As promptly as practicable, but no later The Company shall not be obligated to use its commercially reasonable efforts to file and cause to become effective: (i) more than 10 two Registration Statements initiated pursuant to Section 2(a) in a 12 -month period; or (ii) any Registration Statement pursuant to Section 2(a) during any period in which any other registration statement (other than on Form F-4 or Form S-8 promulgated under the Securities Act or any successor forms thereto) pursuant to which Shares are to be or were sold under the Securities Act (A) has been filed and not withdrawn or has been declared effective within the prior 180 days after receipt of a Requestand (B) in connection with any such registration statement that has not been declared effective, the Company shall give written notice is in good faith using commercially reasonable efforts to cause such registration statement to become effective. The Registrable Shares requested to be Registered pursuant to Section 2(a) (including, for the avoidance of such doubt, the Registrable Shares of Eligible Holders requested registration to all Holders be registered) must represent (i) an aggregate offering price of Registrable Securities Shares that is reasonably expected to equal at least $25,000,000 or (ii) all of the remaining Registrable Shares owned by the Initiating Holder and Pari Passu Holders its Affiliates or that would be owned upon conversion of Pari Passu Securities. Subject all of the Class B Common Shares held by the Initiating Holder and its Affiliates into Class A Common Shares.
(c) With respect to any registration pursuant to Section 2.2(c2(a), the Company shall may include in a Demand Registration such registration any Primary Shares or Other Shares; provided, however, that if the managing underwriter or underwriters formally advise(s) the Company in writing and with sufficient explanation that the inclusion of all Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration would interfere with the successful marketing (including, but not limited to, pricing) of all such securities, then the number of Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration shall be included in the following order:
(i) first, the Registrable Securities intended Shares held by the Shareholders requesting that their Registrable Shares be included in such registration pursuant to Section 2(a), pro rata based upon the number of Registrable Shares owned by each such Shareholder at the time of such registration; provided, however, that the number of Registrable Shares held by the Shareholders to be disposed of by included in such underwriting shall not be reduced unless all Primary Shares and Other Shares are first entirely excluded from the Initiating Holders and underwriting;
(ii) second, the Primary Shares; and
(iii) third, the Other Shares; provided, however, that, a registration shall not be counted as “effected” for the purposes of this Section 2 and shall not count as a registration initiated pursuant to this Section 2 for purposes of Section 2(b)(i) above, if, as a result of an exercise of the underwriter’s cutback provisions in this clause (c), fewer than 25% of the total number of Registrable Securities and Pari Passu Securities intended Shares that the Shareholders have requested to be disposed of by any other Holder or Pari Passu Holder which shall have made a written request (which request shall specify the amount of Registrable Securities to be registered and the intended method of disposition thereof) to the Company for inclusion thereof included in such registration within 20 days after the receipt of such written notice from the Company. The Company shall, as expeditiously as possible following a Request, use its best efforts to cause to be filed with the SEC a Demand Registration Statement providing for the statement are actually included.
(d) A requested registration under the Securities Act of the Registrable Securities and the Pari Passu Securities which the Company has been so requested this Section 2 may be rescinded at any time prior to register by all such Holders and Pari Passu Holders, to the extent necessary to permit the disposition of such Registrable Securities so to be registered in accordance with the intended methods of disposition thereof specified in such Request or further requests if so requested. The Company shall use its best efforts to have such Demand Registration Statement registration being declared effective by the SEC by written notice to the Company from those Shareholders who initiated the request, at their discretion; provided, however, that such rescinded registration shall not count as soon a registration initiated pursuant to this Section 2 for purposes of Section 2(b)(i) above if the Company shall have been reimbursed (pro rata by the Shareholders requesting registration or in such other proportion as practicable thereafter they may agree) for all reasonable and documented out-of-pocket expenses incurred by the Company in connection with such rescinded registration; provided, further, however, that if, at the time of such rescission, the Shareholders who initiated the request shall have learned of an event that is, or is reasonably likely to keep result in, a material adverse change in the Company’s business, financial condition or results of operations from that known to such Demand Shareholders at the time of their request and have withdrawn the request with reasonable promptness after learning of such information then the Shareholders shall not be required to reimburse the Company for any out-of-pocket expenses incurred by the Company in connection with such rescinded registration and such rescinded registration shall not count as a registration initiated pursuant to this Section 2 for purposes of clause (i) of subsection (b).
(e) The Company shall be deemed to have effected a Registration for purposes of Section 2(a) if the Registration Statement continuously is declared effective by the SEC or becomes effective upon filing with the SEC, and remains effective until the earlier of (i) the date when all Registrable Shares thereunder have been sold and (ii) 60 days from the effective date of the Registration Statement (the “Registration Period”).
(f) In the event that the Company intends to effect a Registration for purposes of Section 2(a) by means of an Underwritten Offering, no Holder may include Registrable Shares in such Registration unless such Holder, subject to the period specified limitations set forth in Section 4.1(b). The registration rights granted pursuant 9, (i) agrees to sell its Registrable Shares on the provisions basis provided in the applicable underwriting arrangements; (ii) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents reasonably required and in customary form under the terms of such underwriting arrangements and (iii) cooperates with the Company’s reasonable and customary requests in connection with such Registration (it being understood that the Company’s failure to perform its obligations hereunder, which failure is caused by such Holder’s failure to cooperate, will not constitute a breach by the Company of this Section 2.2 shall be in addition to the registration rights granted pursuant to the other provisions of this Section 2Agreement).
Appears in 2 contracts
Samples: Agreement on Registration Rights and Other Resales (XP Inc.), Registration Rights Agreement (XP Control LLC)
Demand Registration. (a) In addition Investor or any person acquiring by transfer any Shares (a "Permitted Transferee") (Investor and any such Permitted Transferees being hereinafter referred to individually as a "Stockholder" and collectively as the rights provided in Section 2.1, the Majority Holders "Stockholders") shall at any time have the right to request in writing that the Company register all or part of such Holders’ Registrable Securities that are not then registered by an effective Registration Statement (a “Request”) (which Request shall specify the amount of Registrable Securities intended to be disposed of by such Holders and the intended method of disposition thereof) by filing a Registration Statement with the SEC pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into a Form S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling shareholders (not underwriters) of all or such portion of the Registrable Securities (a “Demand Registration”); provided, however, that (A) if the Company is not eligible to register the Registrable Securities on Form S-3 registration under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election only if the Registrable Securities to be registered, in the aggregate, constitute 10% or more of the then-outstanding Shares and any securities issued in exchange for or in respect of such Shares whether pursuant to a stock dividend, stock split, stock reclassification or otherwise (such Shares and such securities issued in exchange for or in respect of such Shares being collectively referred to herein as the "Registrable Securities that are not registered under an effective Registration Statement, Shares") upon the terms and (B) if subject to the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election; provided, that (i) there shall not be more than one such request during each of the Company’s fiscal quarterly periods and (ii) the Registrable Securities to be registered must include at least 1,000,000 Common Shares, or, conditions set forth in the aggregate, have an anticipated offering price, net of underwriting discounts and commissions, of more than $5,000,000, calculated in accordance with Rule 457(c) under the Securities Act on the business day preceding such Requestthis Agreement.
(b) As Upon receipt by ANTEC of a written request for registration hereunder, ANTEC shall (i) promptly notify each other Stockholder in writing of its receipt of such initial written request for registration and (ii) as soon as practicable, but in no later event more than 10 45 days after receipt of a Requestsuch written request, file with the Company shall give written notice of such requested registration to all Holders of Registrable Securities and Pari Passu Holders of Pari Passu Securities. Subject to Section 2.2(cExchange Commission (the "Commission"), the Company shall include in a Demand Registration (i) the Registrable Securities intended to be disposed of by the Initiating Holders and (ii) the Registrable Securities and Pari Passu Securities intended to be disposed of by any other Holder or Pari Passu Holder which shall have made a written request (which request shall specify the amount of Registrable Securities to be registered and the intended method of disposition thereof) to the Company for inclusion thereof in such registration within 20 days after the receipt of such written notice from the Company. The Company shall, as expeditiously as possible following a Request, use its best efforts to cause to be filed with the SEC become effective, a Demand Registration Statement providing for the registration statement under the Securities Act (a "Registration Statement") which shall cover the Registrable Shares specified in the initial written request and in any written request from any other Stockholder received by ANTEC within 20 days of its giving the notice specified in clause (i) hereof.
(c) If so requested by any Stockholder requesting participation in a public offering or distribution of Registrable Shares (a "Selling Stockholder") pursuant to this Section 1 or Section 2, the Registration Statement shall provide for delayed or continuous offering of Registrable Shares pursuant to Rule 415 promulgated under the Securities Act or any similar rule then in effect (a "Shelf Offering"). If so requested by Selling Stockholders who own a majority of the Registrable Securities Shares, the public offering or distribution of Registrable Shares under this Agreement shall be pursuant to a firm commitment underwriting, the managing underwriter of which shall be a nationally recognized investment banking firm selected and engaged by the Selling Stockholders and approved by ANTEC, which approval shall not be unreasonably withheld. ANTEC shall enter into the same underwriting agreement as shall the Selling Stockholders, containing representations, warranties and agreements not substantially different from those customarily made by an issuer in underwriting agreements with respect to secondary distributions. ANTEC, as a condition to fulfilling its obligations under this Agreement may require the underwriters to enter into an agreement in customary form indemnifying ANTEC against any Losses (as defined in Section 6 hereof) that arise out of or are based upon an untrue statement or an alleged untrue statement or omission in the Disclosure Documents (as defined in Section 6 hereof) made in reliance upon and in conformity with written information furnished to ANTEC by the underwriters specifically for use in the preparation thereof.
(d) ANTEC shall be entitled to postpone, for a reasonable period of time, but in no event in excess of 120 days after its receipt of an initial request for registration pursuant to this Agreement, the filing of any Registration Statement, if at the time it received a request therefor ANTEC determines, in its reasonable business judgment, that such registration and offering could interfere with any financing, acquisition, corporate reorganization, or other material transaction or development involving ANTEC or any of its affiliates and gives the Selling Stockholders written notice of such determination. If ANTEC shall postpone the filing of any Registration Statement, any of the Selling Stockholders shall have the right to withdraw his or its request for such registration by giving notice to ANTEC within 15 days of the notice of postponement. In the event that all of the Selling Stockholders withdraw their request, such request shall not be counted for purposes of determining the number of registrations to which Stockholders are entitled hereunder.
(e) Each Selling Stockholder may, before such a Registration Statement becomes effective, withdraw his or its Registrable Shares from sale, should the terms of the sale not be satisfactory to such Selling Stockholder; should all Selling Stockholders who are participating in such registration so withdraw, however, such registration shall be deemed to have occurred for the purposes of Section 4 hereof unless such Selling Stockholders pay (pro rata, in proportion to the number of shares requested to be included) within 20 days after any such withdrawal, all of the out-of-pocket expenses of ANTEC incurred in connection with such registration.
(f) In the event that a Registration Statement requested by a Selling Stockholder pursuant to Section 1 hereof involves a firmly underwritten public offering and the Pari Passu Securities which managing underwriter thereof determines reasonably and in good faith that the Company has been so requested inclusion in such Registration Statement of any additional shares of Common Stock or other securities of ANTEC to register be offered and sold for the account of any person (including ANTEC) other than such Selling Stockholder (each, a "Piggy-Back Seller") would adversely affect the offering of any Registrable Shares by the Selling Stockholder, then the number of shares to be offered for the accounts of each Piggy-Back Seller shall be reduced or limited in proportion to the number of shares owned by each such Piggy-Back Seller (as compared to all such Holders and Pari Passu Holders, Piggy-Back Stockholders) to the extent necessary to permit reduce the disposition total number of shares to be included in such Registration Statement by all Piggy-Back Sellers to the amount that such managing underwriter determines would not adversely affect the offering of the number of Registrable Securities so Shares requested to be registered by the Selling Stockholder. Without limiting the foregoing, in accordance with no event shall a Selling Stockholder be required to reduce the intended methods number of disposition thereof specified Registrable Shares requested to be registered by such Selling Stockholder pursuant to Section 1 hereof as a result of the inclusion in such Request or further requests if so requested. The Company shall use its best efforts to have such Demand any Registration Statement declared effective by the SEC as soon as practicable thereafter of Common Stock or other securities of ANTEC to be offered and to keep such Demand Registration Statement continuously effective sold for the period specified in Section 4.1(b). The registration rights granted pursuant to the provisions account of this Section 2.2 shall be in addition to the registration rights granted pursuant to the other provisions of this Section 2any Piggy-Back Seller.
Appears in 2 contracts
Samples: Registration Rights Agreement (Liberty Media Corp /De/), Registration Rights Agreement (Tci Communications Inc)
Demand Registration. (a) In addition to The Purchaser may at any time after the rights provided in Section 2.1, date one year from the Majority Holders shall have the right to date hereof request in writing that the Company register under the Securities Act of 1933, as amended (the "Securities Act") all or part any portion of the Registrable Stock (as defined below) for sale in the manner specified in such notice; and provided, that the aggregate purchase price to the public of such Holders’ Registrable Securities that are not then registered by an effective Registration Statement (a “Request”) (which Request shall specify public offering of the amount shares of Registrable Securities intended Stock for which registration has been requested shall reasonably be anticipated to exceed $1 million; and provided, further that (i) the Company shall not be disposed of by such Holders and the intended method of disposition thereof) by filing a Registration Statement with the SEC obligated to register Purchaser's Registrable Stock pursuant to this paragraph (a) on more than one occasion, and (ii) the Company shall not be obligated to effect a shelf registration as such is defined in Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into a Form S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling shareholders (not underwriters) of all or such portion of the Registrable Securities (a “Demand Registration”); provided, however, that (A) if the Company is not eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election only if the Registrable Securities to be registered, in the aggregate, constitute 10% or more of the then-outstanding Registrable Securities that are not registered under an effective Registration Statement, and (B) if the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election; provided, that (i) there shall not be more than one such request during each of the Company’s fiscal quarterly periods and (ii) the Registrable Securities to be registered must include at least 1,000,000 Common Shares, or, in the aggregate, have an anticipated offering price, net of underwriting discounts and commissions, of more than $5,000,000, calculated in accordance with Rule 457(c) under the Securities Act on the business day preceding such Request.
(b) As promptly as practicable, but no later than 10 days after Following receipt of any notice delivered in compliance with paragraph (a) of this Section 1 (a Request, the Company shall give written notice of such requested registration to all Holders of Registrable Securities and Pari Passu Holders of Pari Passu Securities. Subject to Section 2.2(c"Demand"), the Company shall include in a Demand Registration (i) the Registrable Securities intended to be disposed of by the Initiating Holders and (ii) the Registrable Securities and Pari Passu Securities intended to be disposed of by any other Holder or Pari Passu Holder which shall have made a written request (which request shall specify the amount of Registrable Securities to be registered and the intended method of disposition thereof) to the Company for inclusion thereof in such registration within 20 days after the receipt of such written notice from the Company. The Company shall, as expeditiously as possible following a Request, use its best efforts to cause to be filed with the SEC a Demand Registration Statement providing for the registration under the Securities Act of the Registrable Securities and the Pari Passu Securities which the Company has been so requested to register by all such Holders and Pari Passu Holders, to the extent necessary to permit the disposition of such Registrable Securities so to be registered in accordance with the intended methods of disposition thereof specified in such Request or further requests if so requested. The Company shall use its best efforts to register under the Securities Act, for public sale in accordance with the method of disposition specified in such Demand, the number of shares of Registrable Stock specified in such Demand. Purchaser may request a specific managing underwriter or underwriters, which shall be of national standing, subject to the approval of the Company, which approval shall not unreasonably be withheld or unreasonably delayed. The Company shall be deemed to have satisfied an obligation to register Registrable Stock pursuant to a Demand when a registration statement covering at least 90% of the shares of Registrable Stock specified in the Demand for sale in accordance with the method of disposition specified in the Demand shall have become effective and the period of distribution of the registration contemplated thereby has been completed (determined as hereinafter provided).
(c) The Company shall be entitled to include in any registration statement filed in response to a Demand made in accordance with this Section 1, for sale in accordance with the method of disposition specified by the Purchaser in such Demand, shares of Common Stock to be sold by the Company for its own account or that of other security holders, except as and to the extent that, in the opinion of the managing underwriters, such inclusion would adversely affect the marketing of the Registrable Stock, or the price thereof or the number of shares to be included for which registration has been requested in connection with such Demand. Except for registration statements on From S-4, X-0 xx any successor forms thereto, the Company will not file with the Securities and Exchange Commission (the "Commission") any other registration statement with respect to its Common Stock, whether for its own account or that of other security holders, from the date of receipt of a Demand pursuant to this Section 1 until 45 days following the completion of the period of distribution of the registration contemplated thereby (determined as hereinafter provided).
(d) The Company may at its option elect that any requested registration pursuant to Section 1(a) be delayed for a period not in excess of 90 days from the date of such Demand Registration Statement declared effective by but only if, at the SEC as soon as practicable thereafter and to keep time of such Demand Registration Statement continuously effective for request, the period specified Company is engaged in Section 4.1(b). The registration rights granted pursuant a transaction which is material to the provisions Company and the disclosure of this Section 2.2 shall be in addition to which would have a material adverse effect on the registration rights granted pursuant to the other provisions of this Section 2Company.
Appears in 2 contracts
Samples: Registration Rights Agreement (CPH 2 L L C), Registration Rights Agreement (Capital Pacific Holdings Inc)
Demand Registration. (ai) In addition Subject in all cases to Section II.2(a)(iii) below, at any time beginning on June 1, 2007, if the rights provided in Section 2.1, the Majority Holders Company shall have the right to request been requested in writing that (a “Registration Request”) by a Prentice Investor or a Laminar Investor to effect the registration under the 1933 Act of shares of Registrable Securities (the “Requesting Stockholders”), then the Company register all or part shall:
(1) within ten (10) days of the receipt of such Holders’ Registration Request (but in no event prior to June 1, 2007), give written notice of such request to all Investors other than the Requesting Stockholders describing the terms of such request; and
(2) use its reasonable efforts to file, as soon as practicable on or after June 1, 2007, a Registration Statement under the 1933 Act for the sale of (x) all Registrable Securities for which the Requesting Stockholders shall have requested registration under this Section II.2(a) and (y) all other Registrable Securities that are not then registered any Investors with rights to request registration under Section II.2(b) have requested the Company include in such registration by an effective request received by the Company within 15 days after such Persons receive the Company’s notice, subject to the limitation of paragraph (v) below.
(ii) Any Registration Statement Request will specify (a “Request”i) (which Request shall specify the amount number of Registrable Securities intended proposed to be disposed of by such Holders and the intended method of disposition thereof) by filing a Registration Statement with the SEC pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into a Form S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling shareholders (not underwriters) of all or such portion of the Registrable Securities (a “Demand Registration”); provided, however, that (A) if the Company is not eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election only if the Registrable Securities to be registered, in the aggregate, constitute 10% or more of the then-outstanding Registrable Securities that are not registered under an effective Registration Statement, and (B) if the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election; provided, that (i) there shall not be more than one such request during each of the Company’s fiscal quarterly periods sold and (ii) the Registrable Securities to be registered must include at least 1,000,000 Common Shares, or, in the aggregate, have an anticipated offering price, net intended method of underwriting discounts and commissions, of more than $5,000,000, calculated in accordance with Rule 457(c) under the Securities Act on the business day preceding such Requestdistribution thereof.
(biii) As promptly as practicable, but no later than 10 days after receipt Notwithstanding the provisions of a Request, the Company shall give written notice of such requested registration to all Holders of Registrable Securities and Pari Passu Holders of Pari Passu Securities. Subject to Section 2.2(cII.2(a)(i), the Company shall not be obligated to file or cause to become effective any Registration Statement relating to a Registration Request unless Investors holding at least two-thirds of the outstanding Registrable Securities shall have elected to participate in such offering pursuant to such Registration Statement, and such registration shall include at least 1,000,000 shares of Registrable Securities. In addition, notwithstanding the provisions of Section II.2(a)(i), the Company shall not be obligated to file and cause to become effective more than three Registration Statements pursuant to Section II.2(a)(i). In addition, notwithstanding the provisions of Section II.2(a)(i), the Company shall not be obligated to file a Registration Statement relating to any Registration Request: (A) within a period of 60 days after the effective date of any other registration statement of the Company (other than a registration statement on Form S-4 or S-8 or any successor or other form hereafter promulgated for similar purposes) or (B) while a registration statement contemplated by Section 2(d) is effective under the 1933 Act. A Registration Statement shall not be counted for purposes of the foregoing until such time as such Registration Statement has been declared effective by the Commission.
(iv) The Company shall select the registration statement form for any registration pursuant to Section II.2(a)(i); provided that the prospectus included in a Demand Registration Statement for an Underwritten Offering shall include such information required by Form S-1 (ior any successor form) as the Registrable Securities intended managing Underwriters may reasonably request.
(v) In the event of an Underwritten Offering, the Company, together with all Investors proposing to be disposed of by distribute their securities through such underwriting in accordance with this Agreement (the Initiating Holders “Participating Stockholders”), shall enter into an underwriting agreement in customary form and (ii) the Registrable Securities and Pari Passu Securities intended to be disposed of by any other Holder or Pari Passu Holder which shall have made a written request (which request shall specify the amount of Registrable Securities to be registered and the intended method of disposition thereof) reasonably satisfactory to the Company with the managing Underwriter(s) selected for inclusion thereof in such registration within 20 days after underwriting by the receipt of such written notice from Requesting Stockholders, which Underwriter(s) shall be reasonably acceptable to the Company. The Notwithstanding any other provision hereof, if the managing Underwriter(s) advises the Company shall, as expeditiously as possible following a Request, use its best efforts to cause and the Participating Stockholders in writing that because the number of shares requested by the Participating Stockholders to be filed with the SEC a Demand Registration Statement providing for included in the registration under exceeds the Securities Act number which can be sold in an orderly manner in such offering within a price range acceptable to the Requesting Stockholders or that marketing factors require a limitation of the number of shares to be underwritten on behalf of the Participating Stockholders (the “Underwritten Registration Cutback”), and such Underwritten Registration Cutback results in less than all of the Registrable Securities and of the Pari Passu Securities Participating Stockholders that are requested to be included in such registration to actually be included in such registration, then the Company will include in such registration, a number of shares which the Company has been is so requested to register by all advised can be sold in (or during the time of) such Holders and Pari Passu Holdersoffering without such interference or affect on the price or sale, to the extent necessary to permit the disposition such number of such Registrable Securities so to be registered in accordance with shared pro rata among all of the intended methods Participating Stockholders based on the total number of disposition thereof specified in Registrable Securities held by each such Request or further requests if so requested. The Company Participating Stockholder and shall use its best efforts to have such Demand Registration Statement declared effective by not include any securities of any other Person, including without limitation the SEC as soon as practicable thereafter and to keep such Demand Registration Statement continuously effective for the period specified in Section 4.1(b). The registration rights granted pursuant to the provisions of this Section 2.2 shall be in addition to the registration rights granted pursuant to the other provisions of this Section 2Company.
Appears in 2 contracts
Samples: Investors' Rights Agreement (De Shaw Laminar Portfolios LLC), Investors' Rights Agreement (De Shaw Laminar Portfolios LLC)
Demand Registration. (a) In addition to At any time after the rights provided in Section 2.1, six month anniversary of the Majority Holders shall have Registration Date: (i) Shareholders owning a majority of the right to request in writing that then outstanding Registrable Shares may on two occasions give the Company register all or part of such Holders’ Registrable Securities that are not then registered by an effective Registration Statement written notice (a “RequestDemand Notice”) (which Request shall specify requiring the amount of Registrable Securities intended Company to be disposed of by such Holders and the intended method of disposition thereof) by filing file a Registration Statement with covering the SEC pursuant to Rule 415 under sale or distribution of, at such Shareholders’ option, either (x) ADSs representing the Securities Act on Form S-3 under the Securities Act Registrable Shares owned by such Shareholders, or (or y) in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use shall have previously registered under the Securities Act provided the sale to the public of preferred shares, the Registrable Shares owned by such Shareholders, in either case, that are identified in the Demand Notice in accordance with any reasonable and lawful method of distribution selected by them; and (ii) the Company shall within 10 days after receipt of such Demand Notice give written notice to the other Shareholders of their right to include in such Registration Statement any Registrable Shares owned by them (or ADSs representing any Registrable Shares owned by them, as applicable) that such other form Shareholders shall be converted into a Form S-3 promptly after Form S-3 becomes available request the Company to include therein by written notice given to the Company no more than 20 days after receipt of such notice from the Company) covering resales by . The Company shall thereafter use its commercially reasonable efforts to effect the Holders as selling shareholders (not underwriters) of all or such portion registration of the Registrable Shares (and/or ADSs representing any Registrable Shares owned by them, as applicable) identified by the Shareholders in the preceding clauses (i) and (ii) as soon as practicable, but in any event within 90 days from receipt of the Demand Notice. If the method of distributing the offering is an underwritten public offering, the Company may designate the managing underwriter for such offering, subject to the approval of the Shareholders holding a majority of the Registrable Shares included referred to in the Demand Notice (such approval not to be unreasonably withheld).
(b) The Company shall not be obligated to use its commercially reasonable efforts to file and cause to become effective: (i) more than two Registration Statements initiated pursuant to Section 2(a); or (ii) any Registration Statement pursuant to Section 2(a) during any period in which any other registration statement (other than on Form S-4 or Form S-8 promulgated under the Securities Act or any successor forms thereto) pursuant to which New Preferred Shares or ADSs representing New Preferred Shares are to be or were sold under the Securities Act (a “Demand Registration”A) has been filed and not withdrawn or has been declared effective within the prior 180 days and (B) in connection with any such registration statement that has not been declared effective, the Company is in good faith using commercially reasonable efforts to cause such registration statement to become effective.
(c) With respect to any registration pursuant to Section 2(a), the Company may include in such registration any Primary Shares or Other Shares (or any ADSs representing Primary Shares or Other Shares); provided, however, that (A) if the managing underwriter advises the Company is not eligible that the inclusion of all Registrable Shares, Primary Shares and Other Shares (and/or ADSs representing all Registrable Shares, Primary Shares and Other Shares) proposed to register be included in such registration would interfere with the successful marketing (including pricing) of all such securities, then the number of Registrable Shares, Primary Shares and Other Shares (and/or ADSs representing Registrable Shares, Primary Shares and Other Shares) proposed to be included in such registration shall be included in the following order:
(i) first, the Registrable Securities on Form S-3 under Shares (and/or ADSs representing Registrable Shares, as applicable) held by the Securities ActShareholders requesting that their Registrable Shares (or ADSs representing Registrable Shares, as applicable) be included in such registration pursuant to Section 2(a), pro rata based upon the Company shall be obligated to register number of Registrable Shares (or ADSs representing Registrable Shares, as applicable) owned by each such Shareholder at the Registrable Securities upon time of such election only if the Registrable Securities to be registered, in the aggregate, constitute 10% or more of the then-outstanding Registrable Securities that are not registered under an effective Registration Statement, and (B) if the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such electionregistration; provided, however, that the number of Registrable Shares (ior ADSs representing Registrable Shares) there held by the Shareholders to be included in such underwriting shall not be more than one such request during each of reduced unless all Primary Shares and Other Shares (and/or ADSs representing Primary Shares and Other Shares, as applicable) are first entirely excluded from the Company’s fiscal quarterly periods and underwriting;
(ii) second, the Primary Shares; and
(iii) third, the Other Shares; provided, however, that, a registration shall not be counted as “effected” for the purposes of this Section 2 and shall not count as a registration initiated pursuant to this Section 2 for purposes of Section 2(b)(i) above, if, as a result of an exercise of the underwriter’s cutback provisions in this clause (c), fewer than one-half of the total number of Registrable Securities Shares or ADSs representing Registrable Shares, as applicable, that the Shareholders have requested to be registered must include at least 1,000,000 Common Shares, or, included in the aggregate, have an anticipated offering price, net of underwriting discounts and commissions, of more than $5,000,000, calculated in accordance with Rule 457(c) under the Securities Act on the business day preceding such Requestregistration statement are actually included.
(bd) As promptly as practicable, but no later than 10 days after receipt of a Request, the Company shall give written notice of such A requested registration under this Section 2 may be rescinded prior to all Holders of Registrable Securities and Pari Passu Holders of Pari Passu Securities. Subject to Section 2.2(c), the Company shall include in a Demand Registration (i) the Registrable Securities intended to be disposed of by the Initiating Holders and (ii) the Registrable Securities and Pari Passu Securities intended to be disposed of by any other Holder or Pari Passu Holder which shall have made a written request (which request shall specify the amount of Registrable Securities to be registered and the intended method of disposition thereof) to the Company for inclusion thereof in such registration within 20 days after the receipt of such written notice from the Company. The Company shall, as expeditiously as possible following a Request, use its best efforts to cause to be filed with the SEC a Demand Registration Statement providing for the registration under the Securities Act of the Registrable Securities and the Pari Passu Securities which the Company has been so requested to register by all such Holders and Pari Passu Holders, to the extent necessary to permit the disposition of such Registrable Securities so to be registered in accordance with the intended methods of disposition thereof specified in such Request or further requests if so requested. The Company shall use its best efforts to have such Demand Registration Statement being declared effective by the SEC by written notice to the Company from those Shareholders who initiated the request; provided, however, that such rescinded registration shall not count as soon as practicable thereafter and to keep such Demand Registration Statement continuously effective for the period specified in Section 4.1(b). The a registration rights granted initiated pursuant to the provisions of this Section 2.2 2 for purposes of Section 2(b)(i) above if the Company shall have been reimbursed (pro rata by the Shareholders requesting registration or in such other proportion as they may agree) for all reasonable and documented out-of-pocket expenses incurred by the Company in connection with such rescinded registration; provided, further, however, that if, at the time of such rescission, the Shareholders who initiated the request shall have learned of an event that is, or is reasonably likely to result in, a material adverse change in the Company’s business, financial condition or results of operations from that known to such Shareholders at the time of their request and have withdrawn the request with reasonable promptness after learning of such information then the Shareholders shall not be required to reimburse the Company for any out-of-pocket expenses incurred by the Company in addition to the connection with such rescinded registration rights granted and such rescinded registration shall not count as a registration initiated pursuant to the other provisions of this Section 22 for purposes of clause (i) of subsection (b).
Appears in 2 contracts
Samples: Registration Rights Agreement (Azul Sa), Registration Rights Agreement (Azul Sa)
Demand Registration. (a) In addition Subject to the rights provided limitations set forth in Section 2.1this Agreement, at any time after the date which is 90 days after the Closing Date, the Majority Holders shall have Holder may request the right Company to request register under the Securities Act, all or any portion (but not less than $2.0 million of the Holder's Restricted Securities) of its Restricted Securities for sale on terms and conditions comparable to those normally applicable to offerings of equity securities in writing similar circumstances as determined by the Company on Form S-3 or such other form as the Company deems appropriate; provided, however, that the Company register all or part of such Holders’ Registrable Securities that are not then registered by an effective request for registration must be for a Shelf Registration Statement (a “Request”) (which Request shall specify the amount of Registrable Securities intended to be disposed of by such Holders and the intended method of disposition thereof) by filing a Registration Statement with the SEC pursuant to Rule 415 under the Securities Act. The Company shall be obligated to register Restricted Securities pursuant to this Section 2.2(a) on two occasions only, provided, however, that such registrations shall be counted only if (A) the corresponding Registration Statements have become effective under the Securities Act, and (B) the public offerings have been consummated on the terms and conditions specified therein or if not consummated, such failure was not attributable to an action taken by the Company. The Company shall be entitled to include in any Shelf Registration Statement filed pursuant to this Section 2.2(a) securities of the Company held by any other shareholder of the Company and, in an underwritten public offering, Common Stock of the Company to be sold by the Company for its own account so long as the inclusion of such additional securities will not result in a decrease of the amount of Restricted Securities to be registered pursuant to this Section 2.2(a).
(b) In connection with the Shelf Registration Statement, the Company shall comply with all the provisions of Section 2.4 below and shall use its reasonable efforts to effect such registration to permit the sale of the Restricted Securities being sold in accordance with the intended method or methods of distribution thereof (as indicated in the information furnished to the Company pursuant to Section 2.2(c)). Subject to Section 2.2(d), the Company shall use its best efforts to keep each such Shelf Registration Statement continuously effective, supplemented and amended as required by the provisions of Section 2.2(d) to the extent necessary to ensure that it is available for resales of Restricted Securities by the Holder, and to ensure that it conforms with the requirements of this Agreement, the Securities Act on Form S-3 and the policies, rules and regulations of the Commission as announced from time to time, for a period of 18 months from the Effective Time or such longer period as required by Section 2.2(d) or such shorter period that will terminate when all the securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or otherwise cease to be Restricted Securities (the "Effective Period"). Upon the occurrence of any event that would cause any Shelf Registration Statement or the Prospectus contained therein (i) to contain a material misstatement or omission or (ii) not to be effective and usable for sale or resale of Restricted Securities during the period required by this Agreement, the Company shall file promptly an appropriate amendment to such Shelf Registration Statement or the related Prospectus or any document incorporated therein by reference, in the case of clause (i), correcting any such misstatement or omission, and, in the case of either clause (i) or (ii), use its reasonable efforts to cause such amendment to be declared effective and such Registration Statement and the related Prospectus to become usable for its intended purpose(s) as soon as practicable thereafter.
(c) The Holder may not include any of its Restricted Securities in a Shelf Registration Statement pursuant to this Agreement unless and until such Holder furnishes to the Company in writing, within 30 Business Days after receipt of a written request therefor, such information specified in Item 507 of Regulation S-K under the Securities Act and such other information as the Company may reasonably request for use in connection with a Shelf Registration Statement or Prospectus or preliminary Prospectus included therein and in any application to the NASD. The Holder agrees to furnish promptly to the Company all information required to be disclosed in order to make the information previously furnished to the Company by such Holder not materially misleading.
(d) Notwithstanding anything to the contrary contained herein, if (x) the Board determines in good faith that the registration and distribution of Restricted Securities (or in the event use of any such Shelf Registration Statement or the Prospectus contained therein) would interfere with any proposed or pending material corporate transaction involving the Company or any of its subsidiaries or would require premature disclosure thereof or would require the Company to disclose information that the Company is ineligible to use such form, such other form as has not otherwise made public and that the Company reasonably determines is eligible in the best interests of the Company not to use under disclose at such time, and (y) the Securities Act provided Company notifies the Holder in writing not later than three days following such determination (such notice a "Blackout Notice"), the Company may (A) postpone the filing of such Shelf Registration Statement or (B) allow such Shelf Registration Statement to fail to be effective and usable or elect that such other form shall Shelf Registration Statement not be converted into usable for a Form S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling shareholders (reasonable period of time, but not underwriters) in excess of all or such portion of the Registrable Securities 30 days (a “Demand Registration”"Blackout Period"); provided, however, that the aggregate number of days included in all Blackout Periods shall not exceed 90 during any consecutive 12 months and shall not exceed 150 during the period specified in Section 2.2(b) of this Agreement; and provided, further, that the Effective Period referred to in Section 2.2(b) during which a Shelf Registration Statement is required to be effective and usable shall be extended by the aggregate number of days during which such Shelf Registration Statement was not effective or usable pursuant to the foregoing provisions.
(Ae) if Notwithstanding anything to the Company is not eligible to register the Registrable Securities on Form S-3 under the Securities Actcontrary contained herein, the Company shall not be obligated to register the Registrable file a Shelf Registration Statement in respect of Restricted Securities upon such election only if the Registrable Securities pursuant to be registered, in the aggregate, constitute 10% or more of the then-outstanding Registrable Securities that are not registered under an effective Registration Statement, and (B) if the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election; provided, that this Section 2.2 if: (i) there shall the Company has previously filed a Shelf Registration Statement with respect to Restricted Securities, and a period of at least 180 days has not be more than one elapsed from the date on which the Effective Period of such request during each of the Company’s fiscal quarterly periods Shelf Registration Statement has expired; and (ii) the Registrable Company has previously filed a Company Registration Statement pursuant to which Restricted Securities to be have been registered must include under Section 2.3 hereof, and a period of at least 1,000,000 Common Shares, or, in 120 days has not elapsed from the aggregate, have an anticipated offering price, net of underwriting discounts and commissions, of more than $5,000,000, calculated in accordance with Rule 457(c) under the Securities Act on the business day preceding such Request.
(b) As promptly as practicable, but no later than 10 days after receipt of a Request, the Company shall give written notice Effective Time of such requested registration to all Holders of Registrable Securities and Pari Passu Holders of Pari Passu Securities. Subject to Section 2.2(c), the Company shall include in a Demand Registration (i) the Registrable Securities intended to be disposed of by the Initiating Holders and (ii) the Registrable Securities and Pari Passu Securities intended to be disposed of by any other Holder or Pari Passu Holder which shall have made a written request (which request shall specify the amount of Registrable Securities to be registered and the intended method of disposition thereof) to the Company for inclusion thereof in such registration within 20 days after the receipt of such written notice from the Company. The Company shall, as expeditiously as possible following a Request, use its best efforts to cause to be filed with the SEC a Demand Registration Statement providing for the registration under the Securities Act of the Registrable Securities and the Pari Passu Securities which the Company has been so requested to register by all such Holders and Pari Passu Holders, to the extent necessary to permit the disposition of such Registrable Securities so to be registered in accordance with the intended methods of disposition thereof specified in such Request or further requests if so requested. The Company shall use its best efforts to have such Demand Registration Statement declared effective by the SEC as soon as practicable thereafter and to keep such Demand Registration Statement continuously effective for the period specified in Section 4.1(b). The registration rights granted pursuant to the provisions of this Section 2.2 shall be in addition to the registration rights granted pursuant to the other provisions of this Section 2Statement.
Appears in 2 contracts
Samples: Registration Rights Agreement (Compost America Holding Co Inc), Registration Rights Agreement (Wasteco Ventures LTD)
Demand Registration. (a) In addition to After receipt of a written request from the rights provided in Section 2.1, the Majority Holders shall have the right to request in writing Investor (or any other Holder) requesting that the Company register all or part of such Holders’ Registrable Securities that are not then registered by an effective Registration Statement (effect a “Request”) (which Request shall specify the amount of Registrable Securities intended to be disposed of by such Holders and the intended method of disposition thereof) by filing a Registration Statement with the SEC pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into a Form S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling shareholders (not underwriters) of all or such portion of the Registrable Securities registration (a “Demand Registration”); provided, however, that (A) if the Company is not eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election only if the Registrable Securities to be registered, in the aggregate, constitute 10% or more of the then-outstanding Registrable Securities that are not registered under an effective Registration Statement, and (B) if the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election; provided, that (i) there shall not be more than one such request during each of the Company’s fiscal quarterly periods and (ii) the Registrable Securities to be registered must include at least 1,000,000 Common Shares, or, in the aggregate, have an anticipated offering price, net of underwriting discounts and commissions, of more than $5,000,000, calculated in accordance with Rule 457(c) under the Securities Act on covering all or part of the business day preceding Registrable Securities held by the Investor (or such Request.
(bother Holder) As promptly as practicable, but no later than 10 days after receipt which specifies the intended method or methods of a Requestdisposition thereof, the Company shall give written notice of such requested registration to promptly notify all Holders in writing of Registrable Securities and Pari Passu Holders of Pari Passu Securities. Subject to Section 2.2(c), the Company shall include in a Demand Registration (i) the Registrable Securities intended to be disposed of by the Initiating Holders and (ii) the Registrable Securities and Pari Passu Securities intended to be disposed of by any other Holder or Pari Passu Holder which shall have made a written request (which request shall specify the amount of Registrable Securities to be registered and the intended method of disposition thereof) to the Company for inclusion thereof in such registration within 20 days after the receipt of such request and each such Holder, in lieu of exercising its rights under Section 3 hereof may elect (by written notice sent to the Company within ten (10) Business Days from the date of such Holder’s receipt of the aforementioned notice from the Company) to have all or part of such Holder’s Registrable Securities included in such registration thereof pursuant to this Section 2, and such Holder shall specify in such notice the number of Registrable Securities that such Holder elects to include in such registration. The Thereupon the Company shall, as expeditiously as possible following is reasonably possible, but in any event no later than (i) forty-five (45) days (excluding any days which occur during a Requestpermitted Blackout Period under Section 4 below) after receipt of a written request for a Demand Registration or (ii) if, as of such forty-fifth (45th) day the Company does not have audited financial statements required to be included in a registration statement, thirty (30) days after receipt by the Company from its independent public accountants of such audited financial statements but in no event later than ninety (90) days after receipt of a written request for a Demand Registration Statement, file with the SEC and use its best reasonable efforts to cause to be filed with the SEC declared effective, a registration statement (a “Demand Registration Statement providing for the registration under the Securities Act Statement”) relating to all shares of the Registrable Securities and the Pari Passu Securities which the Company has been so requested to register by all such Holders and Pari Passu (“Participating Demand Holders”) for sale, to the extent necessary required to permit the disposition (in accordance with the intended method or methods thereof, as aforesaid) of the Registrable Securities so registered, provided, however, that the aggregate value of the Registrable Securities requested to be registered (i) be at least US$25 million, based on the closing trading price of the Equity Shares on the date the demand to file such Demand Registration Statement is made or (ii) include all Registrable Securities of the Investor (or other Holder) requesting the Demand Registration which remain outstanding at such time.
(1) If the Investor (or other Holder) requesting the Demand Registration or the Participating Demand Holders holding a majority of the shares being so registered in a Demand Registration relating to a public offering so request that the offering be underwritten with a managing underwriter selected in the manner set forth in Section 12 below and such managing underwriter of such Demand Registration advises the Company in writing that, in its opinion, the number of securities to be included in such offering is greater than the total number of securities which can be sold therein without having a material adverse effect on the distribution of such securities or otherwise having a material adverse effect on the marketability thereof (the “Maximum Number of Securities”), then the Company shall include in such Demand Registration the Registrable Securities that the Participating Demand Holders have requested to be registered thereunder only to the extent the number of such Registrable Securities so does not exceed the Maximum Number of Securities. If such amount exceeds the Maximum Number of Securities, the number of Registrable Securities included in such Demand Registration shall be allocated among all the Participating Demand Holders on a pro rata basis (based on the number of Registrable Securities held by each Participating Demand Holder). If the amount of such Registrable Securities does not exceed the Maximum Number of Securities, the Company may include in such Registration any Equity Shares of the Company and other Equity Shares held by other security holders of the Company, as the Company may in its discretion determine or be obligated to allow, in an amount which together with the Registrable Securities included in such Demand Registration shall not exceed the Maximum Number of Securities.
(2) If any Early Investor (or any Holder as defined in the First Registration Rights Agreement) requests pursuant to its piggy-back registration rights under the First Registration Rights Agreement to participate in a Demand Registration (the “Piggy-Back Holders”) and the managing underwriter of such Demand Registration advises the Company in writing that, in its opinion, the number of Registrable Securities (including, for this section only, the registrable securities held by the Piggy-Back Holders) to be included in such offering is greater than the Maximum Number of Securities, then the Company shall include in such Demand Registration the Registrable Securities that the Piggy-Back Holders have requested to be registered thereunder only to the extent the number of such Registrable Securities does not exceed the Maximum Number of Securities. If such amount exceeds the Maximum Number of Securities, the number of Registrable Securities included in such Demand Registration shall be allocated among all the Participating Demand Holders and the Piggy-Back Holders on a pro rata basis (based on the number of Registrable Securities held by each Participating Demand Holder or Piggy-Back Holder, as the case may be); provided that (x) the Piggy-Back Holders of Registrable Securities constituting Equity Shares issuable upon conversion of the Series H CCPSs (as defined in the First Registration Rights Agreement) shall have the right upon not more than one occasion to have their Registrable Securities included in such Demand Registration prior to any other Participating Demand Holders or Piggy-Back Holders and (y) if any of International Finance Corporation, DEG-Deutsche Investitions – und Entwicklungsgesellschaft mbH, IFC GIF Investment Company I or Société de Promotion et de Participation pour la Coopération Économique have notified the Company of a Policy Breach (as defined in the First Registration Rights Agreement), and such Policy Breach is not rectified within 120 days after such notice, such Piggy-Back Holders shall have the right to include their Registrable Securities in such Demand Registration prior to any other Participating Demand Holders or Piggy-Back Holders. If the amount of such Registrable Securities does not exceed the Maximum Number of Securities, the Company may include in such Demand Registration any Equity Shares of the Company and other Equity Shares held by other security holders of the Company, as the Company may in its discretion determine or be obligated to allow, in an amount which together with the Registrable Securities included in such Demand Registration shall not exceed the Maximum Number of Securities.
(c) At any time when the Company meets the requirements for the use of Form F-3 (or successor form) or Form S-3 (or successor form) under the Securities Act for registration of a secondary offering of equity securities (a “shelf registration statement”), any Demand Registration Statement may be required by the Investor (or other Holder) requesting the demand therefor, to be in an appropriate form under the Securities Act (a “Shelf Registration Statement”) relating to any or all of the Registrable Securities in accordance with the methods and distribution set forth in the Shelf Registration Statement and Rule 415 under the Securities Act (the “Shelf Registration”). In the event an Investor (or other Holder) so requests a Shelf Registration, the Company shall (x) notify all Holders in writing of the receipt of such request and each such Holder may elect (by written notice sent to the Company within fifteen (15) Business Days from the date of such Holder’s receipt of the aforementioned notice from the Company) to have all or part of such Holder’s Registrable Securities included in such registration thereof pursuant to this Section 2(c), and such Holder shall specify in such notice the number of Registrable Securities that such Holder elects to include in such registration and (y) use its reasonable efforts to (a) file the Shelf Registration Statement with the SEC and have the Shelf Registration Statement declared effective, (b) subject to Section 4, prepare and file with the SEC such amendments and supplements to the Shelf Registration Statement and the prospectus used in connection therewith (including filing such additional registration statements as necessary and using reasonable efforts to have such registration statements be declared effective so that a Shelf Registration Statement remains continuously effective as set forth below) as may be necessary to comply with the provisions of the Securities Act, and the rules thereunder with respect to the disposition of all securities covered by such Shelf Registration Statement and to keep a shelf registration statement continuously effective with respect to such Registrable Securities, until the earlier of (i) the date on which all Registrable Securities covered by the Shelf Registration Statement have been sold by the Holders, or (ii) the date on which either all such Registrable Securities are distributed to the public pursuant to Rule 144 (or any successor provision then in effect), and (c) comply with the provisions of the Securities Act with respect to the disposition of all securities covered by the Shelf Registration Statement during such period in accordance with the intended methods of disposition thereof specified by the Holders as set forth in the Shelf Registration Statement. Any offering under a Shelf Registration Statement shall be underwritten at the request of Holders of Registrable Securities under such Registration Statement that hold an aggregate value of the Registrable Securities at least equal to US$10 million, based on the closing trading price of the Equity Shares on a date no earlier than three (3) days prior to such request; provided that the Company shall not be obligated to effect, or take any action to effect, an underwritten offering within six months following the last date on which an underwritten offering was effected pursuant to this Section 2(c) or Section 2(b). Any request for an underwritten offering hereunder shall be made to the Company in accordance with the notice provisions of this Agreement and the managing underwriter for such offering shall be selected in the manner set forth in Section 12 below. If the managing underwriter of an offering described in this Section 2(c) advises the Company and the Selling Holders of the Registrable Securities included in such Request offering that the size of the intended offering is such that the success of the offering or further requests if so requested. The Company price per share of the securities sold would be adversely affected by inclusion of all the Registrable Securities requested to be included, then the amount of securities to be offered for the accounts of Holders shall use its best efforts be reduced pro rata (according to the Registrable Securities requested for inclusion) to the extent necessary to reduce the total amount of securities to be included in such offering to the amount recommended by such managing underwriter.
(d) Each Holder shall be entitled to request up to five (5) registrations of Registrable Securities pursuant to this Section 2 (each, a “Demand for Registration”); provided that no more than one (1) Demand for Registration may be made by the Holders per six-month period; and provided further, that a registration requested pursuant to this Section 2 shall not be deemed to have such Demand Registration Statement been effected for purposes of this Section 2(d) unless (i) it has been declared effective by the SEC as soon as practicable thereafter and to keep such Demand Registration Statement continuously SEC, (ii) it has remained effective for the period specified set forth in Section 4.1(b5(a). The , (iii) Holders of Registrable Securities included in such registration rights granted pursuant have not withdrawn sufficient shares from such registration such that the remaining holders requesting registration would not have been able to request registration under the provisions of this Section 2.2 shall 2 and (iv) the offering of Registrable Securities pursuant to such registration is not subject to any stop order, injunction or other order or requirement of the SEC (other than any such stop order, injunction, or other requirement of the SEC prompted by act or omission of Holders of Registrable Securities); and provided further that, in the event a Holder revokes a Demand for Registration (which revocation may only be in addition made prior to the registration rights granted pursuant Company requesting acceleration of effectiveness of the applicable Registration Statement), then such Demand for Registration shall count as having been effected unless such Holder pays all the Registration Expenses in connection with such revoked Demand for Registration within thirty (30) days of written request therefor by the Company. Notwithstanding the foregoing, a Holder may revoke a Demand for Registration without being required to reimburse the other provisions Company for any of the Registration Expenses and without such demand counting toward the number of Demand for Registrations permitted under this Section 2, if such revocation occurs during a Blackout Period or if there has been a material adverse change in the business of the Company.
(e) Notwithstanding anything to the contrary contained herein, the Company shall not be required to prepare and file any Demand Registration Statement within 90 days following an underwritten offering pursuant to a Demand Registration Statement.
(f) Each Holder agrees that, in connection with any offering pursuant to this Agreement, it will not prepare or use or refer to, any “free writing prospectus” (as defined in Rule 405 of the Securities Act) without the prior written authorization of the Company (which authorization shall not be unreasonably withheld), and will not distribute any written materials in connection with the offer or sale of the Registrable Securities pursuant to any registration statement hereunder other than the prospectus included in a Registration Statement and any such free writing prospectus so authorized.
Appears in 2 contracts
Samples: Subscription Agreement (Azure Power Global LTD), Subscription Agreement (Azure Power Global LTD)
Demand Registration. (a) In addition to If one Shareholder or a group of Shareholders holding not less than 15% of the rights provided in Section 2.1, then Registrable Securities (the Majority Holders shall have the right to “Demand Requesting Shareholders”) request in writing that the Company register all or part of such Holders’ Registrable Securities that are not then registered by an effective Registration Statement (file a “Request”) (which Request shall specify the amount of Registrable Securities intended to be disposed of by such Holders and the intended method of disposition thereof) by filing a Registration Statement with the SEC pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into a Form S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling shareholders (not underwriters) of all or such portion of the Registrable Securities registration statement (a “Demand Registration”); provided, however, that (A) if and the Company is not eligible to register the Registrable Securities on use Form S-3 under (or a successor to Form S-3) in connection with the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election only if resale of the Registrable Securities to be registered, in sold pursuant to the aggregate, constitute 10% or more of the then-outstanding Registrable Securities that are not registered under an effective Registration Statement, and (B) if the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Actregistration statement, the Company shall be obligated to register the Registrable Securities upon such election; provided, that Company: (i) there shall not be more than one such request during each promptly give notice thereof at least ten Business Days prior to the anticipated filing date of the Company’s fiscal quarterly periods and registration statement relating to such Demand Registration to all Shareholders (not including the Demand Requesting Shareholders); (ii) the Registrable Securities to be registered must include at least 1,000,000 Common Shares, or, in the aggregate, have an anticipated offering price, net of underwriting discounts and commissions, of more than $5,000,000, calculated in accordance with Rule 457(c) shall file such registration statement under the Securities Act on the business day preceding such Request.
(b) As promptly as practicable, but no later than 10 days after receipt of a Request, the Company shall give written notice of such requested registration to all Holders of Registrable Securities and Pari Passu Holders of Pari Passu Securities. Subject to Section 2.2(c), the Company shall include in a Demand Registration (i) the Registrable Securities intended to be disposed of by the Initiating Holders and (ii) the Registrable Securities and Pari Passu Securities intended to be disposed of by any other Holder or Pari Passu Holder which shall have made a written request (which request shall specify the amount of Registrable Securities to be registered and the intended method of disposition thereof) to the Company for inclusion thereof in such registration within 20 45 days after the receipt occurrence of such written notice from the Company. The Company shallrequest; and (iii) thereupon shall use its reasonable best efforts to effect, as expeditiously as possible following a Requestpossible, use its best efforts to cause to be filed with the SEC a Demand Registration Statement providing for the registration under the Securities Act of:
(1) subject to the restrictions set forth in Sections 2.01(e), all Registrable Securities for which the Demand Requesting Shareholders have requested registration under this Section 2.01; and
(2) subject to the restrictions set forth in Sections 2.01(e), all other Registrable Securities of the Registrable Securities and same class as those requested to be registered by the Pari Passu Securities which Demand Requesting Shareholders that any Shareholders (all such Shareholders, together with the Demand Requesting Shareholders, the “Registering Shareholders”) have requested the Company has been so requested to register by request received by the Company within seven days after such Shareholders receive the Company’s notice of the Demand Registration, all such Holders and Pari Passu Holders, to the extent necessary to permit the disposition of such Registrable Securities so to be registered (in accordance with the intended methods method of disposition thereof specified by the Registering Shareholders of the Registrable Securities) so to be registered.
(b) Promptly after the expiration of the seven-day period referred to in clause (ii) of Section 2.01(a)(2), the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such Request registration, the Demand Requesting Shareholders (by majority vote) may revoke such request, without liability to any of the other Registering Shareholders, by providing a notice to the Company revoking such request. A request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request), or further requests if so requested. (ii) the Demand Requesting Shareholders or any other Shareholder or Shareholders reimburse the Company for all Registration Expenses of such revoked request.
(c) The Company shall use its best efforts be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, unless the Demand Requesting Shareholders elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A Demand Registration shall not be deemed to have occurred:
(1) unless the registration statement relating thereto (A) has become effective under the Securities Act, and (B) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registering Shareholders included in such registration have actually been sold thereunder), provided that a Demand Registration Statement declared effective shall not be deemed to have occurred if, after such registration statement becomes effective, (1) such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court, and (2) less than 75% of the Registrable Securities included in such registration statement have been sold thereunder; or
(2) if the Maximum Offering Size is reduced in accordance with Section 2.01(e) such that less than a majority of the Registrable Securities of the Requesting Shareholders sought to be included in such registration are included.
(e) If a Demand Registration involves an underwritten Public Offering, the holders of a majority of the Registrable Securities to be sold in the Public Offering shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such Public Offering, subject to consent of the Company, which consent will not be unreasonably withheld or delayed. If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Registering Shareholders that, in its view, the number of shares of Registrable Securities requested to be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(1) first, all Registrable Securities requested to be included in such registration by all Registering Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis of the relative number of Registrable Securities held by each such Shareholder); and
(2) second, any securities proposed to be registered by the SEC as soon as practicable thereafter Company (including for the benefit of any other Persons not party to this Agreement).
(f) Upon notice to the Registering Shareholders, the Company may postpone effecting a registration pursuant to this Section 2.01 on one occasion during any period of six consecutive months for a reasonable time specified in the notice but not exceeding 90 days (which period may not be extended or renewed), if (i) the Company reasonably determines that effecting the registration would materially and to keep such Demand Registration Statement continuously effective for adversely affect an offering of securities of the Company the preparation of which had then been commenced, or (ii) the Company is in possession of material non-public information the disclosure of which during the period specified in Section 4.1(b)such notice the Company reasonably believes would not be in the best interests of the Company.
(g) Notwithstanding anything that may be to the contrary in this Article 2, if the Common Shares are then listed on a national securities exchange and Rule 144 is available in connection with a sale of Registrable Securities, then the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Registrable Securities requested to be included in such Demand Registration equals or exceeds $20,000,000 or such lesser amount that constitutes all the Registrable Securities of the Demand Requesting Shareholders (provided that such lesser amount is at least $10,000,000) or all of the Registrable Securities then outstanding. The Notwithstanding anything that may be to the contrary in this Article 2, the Company shall not be required to effect (A) more than one registration rights granted pursuant to Section 2.01 hereunder within any six-month period, or (B) more than three Demand Registrations hereunder in the provisions of this Section 2.2 shall aggregate.
(h) Notwithstanding anything that may be in addition to the registration rights granted pursuant contrary in this Article 2, the Company shall not be obligated to register any Registrable Securities unless the other provisions holder thereof has notified the Company in writing of this Section 2its intended method of distribution in a timely manner.
Appears in 2 contracts
Samples: Registration Rights Agreement (Behringer Harvard Reit I Inc), Master Modification Agreement (Behringer Harvard Reit I Inc)
Demand Registration. (a) In addition From and after the date that is six (6) months after the date of this Agreement, in case the Company shall receive from the Investor a written request or requests that the Company effect a Registration (“Demand Registration”), which if the Company is a WKSI as of the filing date thereof, shall be an automatic Shelf Registration Statement, and any related qualification or compliance, with respect to all or any part of the Registrable Securities owned by the Investor, then the Company shall file and use its best efforts (i) to cause the Registration Statement covering such Registrable Securities to be declared effective under the Securities Act (unless it becomes effective automatically upon filing) as promptly as possible after the filing thereof, and (ii) to keep such Registration Statement continuously effective under the Securities Act until such date as is the earlier of (x) the date on which all Registrable Securities covered by such Registration Statement have been sold or (y) the date on which the Registrable Securities may be sold without any restriction pursuant to Rule 144. (b) Notwithstanding anything to the rights contrary provided in Section 2.1above, the Majority Holders Company shall not be obligated to effect any such Registration, qualification or compliance pursuant to this Section 2.2: (1) if the aggregate anticipated price to the public of any Registrable Securities which the Investor proposes to sell pursuant to such registration, together with the aggregate anticipated price to the public of any other securities of the Company entitled to inclusion in such registration, is less than US$50,000,000 (or the equivalent thereof in other currencies), unless such Registration covers all remaining Registrable Securities; (2) if the Company shall furnish to the Investor a certificate certifying the same signed by the Chief Executive Officer stating that in the good faith judgment of the Board, it would be materially detrimental to the Company and its shareholders for such registration to be effected at such time, in which event the Company shall have the right to request in writing that defer the Company register all or part filing of such Holders’ Registrable Securities that are not then registered by an effective the Registration Statement no more than once during any twelve (12) month period for a “Request”period of not more than ninety (90) (which Request shall specify the amount of Registrable Securities intended to be disposed of by such Holders and the intended method of disposition thereof) by filing a Registration Statement with the SEC pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into a Form S-3 promptly days after Form S-3 becomes available to the Company) covering resales by the Holders as selling shareholders (not underwriters) of all or such portion receipt of the Registrable Securities (a “Demand Registration”request of the Investor under this Section 2.2(a); provided, however, that such period shall terminate if the Company registers any of its other Shares during such period; or (A3) if the Company is not eligible to register has, within the Registrable Securities on Form S-3 under six (6) month period preceding the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election only if the Registrable Securities to be registered, in the aggregate, constitute 10% or more of the then-outstanding Registrable Securities that are not registered under an effective Registration Statement, and (B) if the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election; provided, that (i) there shall not be more than one such request during each of the Company’s fiscal quarterly periods and (ii) the Registrable Securities to be registered must include at least 1,000,000 Common Shares, or, in the aggregate, have an anticipated offering price, net of underwriting discounts and commissions, of more than $5,000,000, calculated in accordance with Rule 457(c) under the Securities Act on the business day preceding such Request.
(b) As promptly as practicable, but no later than 10 days after receipt of a Request, the Company shall give written notice date of such requested registration to all Holders of Registrable Securities and Pari Passu Holders of Pari Passu Securities. Subject to Section 2.2(c)request, the Company shall include in already effected a Demand Registration (i) the Registrable Securities intended to be disposed of by the Initiating Holders and (ii) the Registrable Securities and Pari Passu Securities intended to be disposed of by any other Holder or Pari Passu Holder which shall have made a written request (which request shall specify the amount of Registrable Securities to be registered and the intended method of disposition thereof) to the Company for inclusion thereof in such registration within 20 days after the receipt of such written notice from the Company. The Company shall, as expeditiously as possible following a Request, use its best efforts to cause to be filed with the SEC a Demand Registration Statement providing for the registration under the Securities Act other than a registration from which the Registrable Securities of the Investor have been excluded (with respect to all or any portion of the Registrable Securities and the Pari Passu Securities which the Company has been so Investor requested to register by all such Holders and Pari Passu Holders, to the extent necessary to permit the disposition of such Registrable Securities so to be registered in accordance with the intended methods of disposition thereof specified included in such Request or further requests if so requested. The Company shall use its best efforts to have such Demand Registration Statement declared effective by the SEC as soon as practicable thereafter and to keep such Demand Registration Statement continuously effective for the period specified in Section 4.1(b). The registration rights granted registration) pursuant to the provisions of this Section 2.2 shall be in addition to the registration rights granted pursuant to the other provisions of this Section 22.1(b).
Appears in 2 contracts
Samples: Registration Rights Agreement (Naspers LTD), Share Purchase Agreement (Naspers LTD)
Demand Registration. (a) In addition 2.1 Registration on Form F-3 or Form S-3. Subject to the rights provided terms of this Agreement, at any time after the first (1st) anniversary of the effective date of a Qualified IPO of the Company, Holders holding fifteen percent (15%) or more in Section 2.1, voting power of the Majority Holders shall have the right to Registrable Securities may request in writing (a “Registration Request”) that the Company register all or part of such Holders’ Registrable Securities that are not then registered by an effective Registration Statement (a “Request”) (which Request shall specify the amount of Registrable Securities intended to be disposed of by such Holders and the intended method of disposition thereof) by filing file a Registration Statement with on Form F-3 or Form S-3 (or any comparable form for Registration in a jurisdiction other than the SEC United States), so long as the Company is entitled to use such a form, including, without limitation, any registration statement filed under the Securities Act providing for the registration of, and the sale on a continuous or delayed basis by the Initiating Holders of, all of the Registrable Securities pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event and/or any similar rule that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall may be converted into a Form S-3 promptly after Form S-3 becomes available to the Company) covering resales adopted by the Holders as selling shareholders (not underwriters) Commission, for a public offering of all or part of their Registrable Securities. Upon receipt of such portion a Registration Request, the Company shall (i) promptly give written notice of the proposed Registration to all other Holders and (ii) as soon as practicable, and in any event within ninety (90) days of the receipt of such request, cause the Registrable Securities specified in the request, together with any Registrable Securities of any Holder who requests in writing to join such Registration within fifteen (a “Demand Registration”)15) days after the Company’s delivery of written notice, to be Registered and qualified for sale and distribution in such jurisdictions as the Initiating Holders may reasonably request. The Holders may at any time, and from time to time, require the Company to effect the Registration of Registrable Securities under this Section 2.1 so long as the proposed maximum aggregate offering price for each such Registration exceeds US$500,000; provided, however, that the Holders shall not exercise the right under this Section 2.1 more than twice in any twelve (A12) if month period (it being the Company is not eligible to register understanding of the Registrable Securities on Form S-3 Parties that a Registration Request given under the Securities Act, the Company this Section 2.1 shall be obligated deemed to register the Registrable Securities upon such election only if the Registrable Securities to be registered, in the aggregate, constitute 10% or more have been effected for purposes of the then-outstanding Registrable Securities that are not registered under an effective Registration Statement, and (B) foregoing even if the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election; provided, that (i) there shall not be more than one such request during each of the Company’s fiscal quarterly periods and (ii) the Registrable Securities to be registered must include at least 1,000,000 Common Shares, or, in the aggregate, have an anticipated offering price, net of underwriting discounts and commissions, of more than $5,000,000, calculated in accordance with Rule 457(c) under the Securities Act on the business day preceding such Request.
(b) As promptly as practicable, but no later than 10 days after receipt of a Request, the Company shall give written notice of such requested registration to all subsequently withdrawn by Holders of Registrable Securities and Pari Passu Holders of Pari Passu Securities. Subject to Section 2.2(c), the Company shall include in a Demand Registration (i) the Registrable Securities intended to be disposed of by the Initiating Holders and (ii) the Registrable Securities and Pari Passu Securities intended to be disposed of by any other Holder or Pari Passu Holder which shall have made a written request (which request shall specify the amount of Registrable Securities to be registered and the intended method of disposition thereof) to the Company for inclusion thereof included in such registration within 20 days after the receipt of such written notice from the Company. The Company shall, as expeditiously as possible following a Registration Request, use its best efforts to cause to be filed with the SEC a Demand Registration Statement providing for the registration under the Securities Act of the Registrable Securities and the Pari Passu Securities which the Company has been so requested to register by all such Holders and Pari Passu Holders, to the extent necessary to permit the disposition of such Registrable Securities so to be registered in accordance with the intended methods of disposition thereof specified in such Request or further requests if so requested. The Company shall use its best efforts to have such Demand Registration Statement declared effective by the SEC as soon as practicable thereafter and to keep such Demand Registration Statement continuously effective for the period specified in Section 4.1(b). The registration rights granted pursuant to the provisions of this Section 2.2 shall be in addition to the registration rights granted pursuant to the other provisions of this Section 2.
Appears in 2 contracts
Samples: Investor Rights Agreement (China Mass Media International Advertising Corp.), Investor Rights Agreement (China Mass Media International Advertising Corp.)
Demand Registration. (a) In addition 2.1.1 If at any time and from time to time on or after the rights provided in Section 2.1date hereof, the Majority Company shall receive a request from one or more Holders shall have (such Holders, the right to request in writing “Requesting Shareholders”) that the Company register Company, effect a registration under the Securities Act of all or part any portion of such Holders’ the Requesting Shareholder’s Registrable Securities that are not then registered by an effective Registration Statement (a “Request”) (which Request shall specify the amount of Registrable Securities intended to be disposed of by such Holders and Securities, specifying the intended method of disposition thereof) by filing a Registration Statement with the SEC pursuant , including whether to Rule 415 under the Securities Act on Form S-3 under the Securities Act be conducted via an underwritten offering (or in the event that the Company is ineligible to use each such form, such other form as the Company is eligible to use under the Securities Act provided that such other form request shall be converted into a Form S-3 promptly after Form S-3 becomes available referred to the Company) covering resales by the Holders herein as selling shareholders (not underwriters) of all or such portion of the Registrable Securities (a “Demand Registration”); provided, howeverthe Company shall use its reasonable best efforts to effect, as expeditiously as possible, and in no event later than 45 Business Days after the receipt of such request, the filing of a Registration Statement and the effectiveness of the Demand Registration, subject to the restrictions set forth in this ARTICLE II. The Company shall give reasonably prompt notice of a Demand Registration (and in no event later than 15 Business Days or 5 Business Days in the case of a Bought Deal prior to the anticipated filing date of the Registration Statement relating to such Demand Registration) to the other Holders with respect to all other Registrable Securities of the same class as those requested to be registered by the Requesting Shareholders (all such Holders, together with the Requesting Shareholders, and any other Holders participating in a Demand Registration or Piggyback Registration, the “Registering Shareholders”) that such Holders have the right to request the Company to register by request received by the Company within 10 Business Days, or 2 Business Days in the case of a Bought Deal, after the date of the Company’s notice of the Demand Registration, and the Company shall use reasonable best efforts to include all Registrable Securities requested to be registered by the Registering Shareholders in such Registration Statement. Notwithstanding the foregoing, the Company shall not be obligated to effect a Demand Registration (Ai) unless the aggregate proceeds expected to be received from the sale of the Registrable Securities requested to be included in such Demand Registration equals or exceeds $30,000,000 and (ii) if the Company shall have effected a Demand Registration in which Holders had the opportunity to sell Registrable Securities within the three-month period prior to receipt of the Demand Registration.
2.1.2 At any time prior to the Public Offering Launch of a Demand Registration, the Requesting Shareholders may revoke such request, without liability to any of the other Registering Shareholders, by providing a notice to the Company revoking such request.
2.1.3 The Company shall be liable for and pay all Registration Expenses in connection with any Demand Registration, regardless of whether (i) such Demand Registration is completed or (ii) a Requesting Shareholder sells Registrable Securities pursuant to such Demand Registration.
2.1.4 A Demand Registration shall be deemed not eligible to register have occurred:
(a) unless the Public Offering Pricing has been completed and a final Prospectus or Shelf Prospectus Supplement relating to the applicable Registration Statement containing pricing information has been filed with the Commission; provided that a Demand Registration shall be deemed not to have occurred if either (1) such Registration Statement is interfered with by any cease trade or stop order, injunction or other order or requirement of the Commission or any other governmental agency or court or (2) less than 75% of the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon included in such election only if the Registrable Securities to be registered, in the aggregate, constitute 10% or more of the then-outstanding Registrable Securities that are not registered under an effective Registration Statement, and (B) if the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such electionStatement have been sold thereunder; provided, that (i) there shall not be more than one such request during each of the Company’s fiscal quarterly periods and (ii) the Registrable Securities to be registered must include at least 1,000,000 Common Shares, or, in the aggregate, have an anticipated offering price, net of underwriting discounts and commissions, of more than $5,000,000, calculated in accordance with Rule 457(c) under the Securities Act on the business day preceding such Request.
(b) As promptly as practicableif the Maximum Offering Size is reduced in accordance with subsection 2.1.5 such that less than 75% of the Registrable Securities of the Requesting Shareholders sought to be included in such registration are included.
2.1.5 If a Demand Registration involves an underwritten Public Offering and the managing underwriters advise the Company and the Registering Shareholders that, but no later than 10 days after receipt of a Requestin their view, the Company shall give written notice of such requested registration to all Holders amount of Registrable Securities and Pari Passu Holders requested to be included in such Demand Registration (including any securities that the Company proposes to include) exceeds the largest amount of Pari Passu Securities. Subject to Section 2.2(cRegistrable Securities that can be sold without having an adverse effect on such offering, including the price at which such Registrable Securities can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(a) first, all Registrable Securities requested to be registered by the Registering Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Persons on the basis of the relative number of Registrable Securities beneficially owned by such Registering Shareholders); and
(b) second, any securities proposed to be registered by any other Persons (including the Company), with such priorities among them as the Company shall determine.
2.1.6 The Company may postpone effecting a Demand Registration on one occasion during any period of twelve consecutive months for a reasonable time specified in the notice but not exceeding 60 days (i) which period may not be extended or renewed), if the Registrable Securities intended Company provides a certificate signed by the principal executive officer of the Company stating that in the good faith judgement of the Board that it would be seriously detrimental to the Company and its shareholders for such Demand Registration to be disposed effected at such time. It is agreed that the existence or anticipation of by a material acquisition or financing activity will be sufficient reason for the Initiating Company to postpone a Demand Registration.
2.1.7 At any time that Holders and (ii) may request a Demand Registration, upon the request of one or more Holders that satisfy the Registration Requirements, the Company shall use its reasonable best efforts to file a Registration Statement for a Shelf Registration with respect to the Registrable Securities and Pari Passu Securities intended to cause such Shelf Registration to become effective as soon as practicable thereafter. Any request for the Company to prepare and file a Shelf Prospectus Supplement pursuant to a Shelf Registration in any underwritten Public Offering shall be deemed to be disposed of by any other Holder or Pari Passu Holder which shall have made a written request (which request shall specify the amount of Registrable Securities to be registered and the intended method of disposition thereof) to the Company for inclusion thereof in such registration within 20 days after the receipt of such written notice from the Company. The Company shall, as expeditiously as possible following a Request, use its best efforts to cause to be filed with the SEC a Demand Registration Statement providing subject to the provisions of subsection 2.1.1; provided, that for purposes of such Shelf Prospectus Supplement, the reference to 45 business days in subsection 2.1.1 shall be deemed to be 25 business days; provided, further that none of (x) the filing of a Shelf Prospectus or (y) the filing of Shelf Prospectus Supplement that does not relate to an underwritten Public Offering and is only for the registration under purpose of updating a Shelf Prospectus with the Securities Act identities of any selling shareholders, the amounts of securities to be sold and any related information required by the applicable Registration Statement, shall constitute a Demand Registration subject to the provisions of subsection 2.1.1; provided, further, that no Holder may request a Shelf Registration pursuant to this subsection 2.1.7 if such Holder’s Registrable Securities and may, at the Pari Passu Securities which time of such request, be resold pursuant to a Registration Statement previously filed by the Company has been so requested to register and declared effective by all such Holders and Pari Passu Holders, to the extent necessary to permit the disposition of such Registrable Securities so to be registered in accordance with the intended methods of disposition thereof specified in such Request or further requests if so requestedCommission. The Company shall use its best efforts to have such Demand give notice of any Shelf Registration Statement declared effective by the SEC as soon as practicable thereafter and to keep such Demand Registration Statement continuously effective for the period specified in Section 4.1(b). The registration rights granted pursuant to the provisions of this Section 2.2 shall be procedures in addition to the registration rights granted pursuant to the other provisions of this Section 2subsection 2.1.1.
Appears in 2 contracts
Samples: Registration Rights and Lock Up Agreement (D-Wave Quantum Inc.), Registration Rights and Lock Up Agreement (DPCM Capital, Inc.)
Demand Registration. 2.1 If the Company shall receive on or after the date that is nine (a9) In addition to months following the rights provided in Section 2.1, date hereof a written request from the Majority Holders shall have holders of a majority of the right to request in writing Registrable Securities then outstanding (“Initiating Investors”) that the Company register all or part file a registration statement under the Securities Act for an offering of such Holders’ the Registrable Securities that are not then registered by an effective Registration Statement (on a “Request”) (which Request shall specify the amount of Registrable Securities intended to be disposed of by such Holders and the intended method of disposition thereof) by filing a Registration Statement with the SEC continuous basis pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into a Form S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling shareholders (not underwriters) of all or such portion of the Registrable Securities (a “Demand Registration”); provided, however, that (A) if covering the Company is not eligible to register the registration of Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election only if the Registrable Securities to be registered, in the aggregate, constitute 10% or more of the then-outstanding Registrable Securities that are not registered under with an effective Registration Statement, and (B) if the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election; provided, that (i) there shall not be more than one such request during each of the Company’s fiscal quarterly periods and (ii) the Registrable Securities to be registered must include at least 1,000,000 Common Shares, or, in the aggregate, have an anticipated aggregate offering price, net of underwriting discounts any placement agent fees, broker’s fees, and commissions on similar discounts, fees or commissions, of more than at least $5,000,0005 million, calculated in accordance with Rule 457(c) under the Securities Act on the business day preceding such Request.
(b) As promptly as practicable, but no later than 10 days after receipt of a Request, then the Company shall shall, within ten (10) days of the receipt thereof, give written notice of such requested registration request to all Holders holders of Registrable Securities and Pari Passu Holders of Pari Passu Securities. Subject to Section 2.2(c), the Company shall include in a Demand Registration (i) the Registrable Securities intended to be disposed of by the Initiating Holders and (ii) the Registrable Securities and Pari Passu Securities intended to be disposed of by any other Holder or Pari Passu Holder which shall have made a written request (which request shall specify the amount of Registrable Securities to be registered and the intended method of disposition thereof) shall, subject to the Company for inclusion thereof limitation of this Section 2.1, use its reasonable best efforts to effect as soon as practicable, and in such registration any event within 20 ninety (90) days after of the receipt of such written notice from the Company. The Company shallrequest, as expeditiously as possible following a Request, use its best efforts to cause to be filed with the SEC a Demand Registration Statement providing for the registration under the Securities Act of the all Registrable Securities and the Pari Passu Securities which the Company has been so requested to register by all such Holders and Pari Passu Holders, to the extent necessary to permit the disposition of such Registrable Securities so holders request to be registered in accordance with within twenty (20) days of the mailing of such notice by the Company. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof which shall not include any underwritten, agency or similar method and that the request is for a Demand Registration pursuant to this Section 2.1. In connection with the Demand Registration, the Company shall:
(a) Be entitled to postpone for up to ninety (90) days from the date of request of the Initiating Investor the filing of any Demand Registration statement otherwise required to be prepared and filed pursuant to Section 2.1, if the board of directors of the Company determines, in its good faith reasonable judgment, that such registration and the Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving the Company or any of its wholly owned subsidiaries and the Company promptly gives the Initiating Investors notice of such determination;
(b) Use its reasonable best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, and in any event within ninety (90) days of the receipt of the request for the registration, giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering;
(c) Use its reasonable best efforts to keep the relevant registration statement Continuously Effective for the lesser of two (2) years or until such time as all holders who included Registrable Securities in the Registration Statement no longer hold any Registrable Securities (the “Registration Period”). Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or postponed, the foregoing period shall be extended by the aggregate number of days of such suspension or postponement; and
(d) Be obligated to effect no more than one (1) Demand Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, or (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable to the Selling Investors and such interference is not thereafter eliminated.
2.2 A registration pursuant to this Section 2 shall be on such appropriate registration form of the Commission as shall (i) be selected by the Company and be reasonably acceptable to the Majority Selling Investors and (ii) permit the disposition of the Registrable Securities in accordance with the intended method of disposition specified in Section 2.1.
2.3 The Company shall furnish to one firm of counsel for the Selling Investors (selected by Majority Selling Investors) copies of the filed registration statement or prospectus or any amendments or supplements thereto in the form substantially as proposed to be filed with the Commission at least five (5) business days prior to filing for review and comment by such Request counsel, which opportunity to comment shall include the right to contest disclosure if the applicable Selling Investor reasonably believes that such disclosure contains an untrue statement of a material fact or further requests omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading.
2.4 The Company shall prepare and file with the Commission such amendments and supplements to such registration statement and the prospectus used in connection with such registration statement as may be necessary to comply with the provisions of the Securities Act and rules thereunder with respect to the disposition of all securities covered by such registration statement. The Company shall amend the registration statement or supplement the prospectus so that it will remain current and in compliance with the requirements of the Securities Act for the Registration Period, and if during such period any event or development occurs as a result of which the registration statement or prospectus contains a misstatement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading, the Company shall promptly notify each Selling Investor, amend the registration statement or supplement the prospectus so requestedthat each will thereafter comply with the Securities Act and furnish to each Selling Investor of Registrable Securities such amended or supplemented prospectus, which each such Investor shall thereafter use in the Transfer of Registrable Securities covered by such registration statement. Pending such amendment or supplement each such Investor shall cease making offers or Transfers of Registrable Securities pursuant to the prior prospectus. In the event that any Registrable Securities included in a registration statement subject to, or required by, this Agreement remain unsold at the end of the period during which the Company is obligated to use its reasonable best efforts to maintain the effectiveness of such registration statement, the Company may file a post-effective amendment to the registration statement for the purpose of removing such Securities from registered status.
2.5 The Company shall furnish to each Selling Investor of Registrable Securities, without charge, such numbers of copies of the registration statement, any pre-effective or post-effective amendment thereto, the prospectus, including each preliminary prospectus and any amendments or supplements thereto, in each case in conformity with the requirements of the Securities Act and the rules thereunder, and such other related documents as any such Selling Investor may reasonably request in order to facilitate the disposition of Registrable Securities owned by such Selling Investor.
2.6 The Company shall use its reasonable best efforts (i) to register and qualify the securities covered by such registration statement under such other securities or Blue Sky laws of such states or jurisdictions as shall be reasonably requested by the Majority Selling Investors, and (ii) to obtain the withdrawal of any order suspending the effectiveness of a registration statement, or the lifting of any suspension of the qualification (or exemption from qualification) of the offer and transfer of any of the Registrable Securities in any jurisdiction, at the earliest possible moment; provided, however, that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business, subject itself to taxation in any such states or jurisdictions or to file a general consent to service of process in any such states or jurisdictions.
2.7 The Company shall promptly notify each Selling Investor of any stop order issued or threatened to be issued by the Commission in connection therewith (and take all reasonable actions required to prevent the entry of such stop order or to remove it if entered).
2.8 The Company shall make generally available to its security holders an earnings statement satisfying the provisions of Section 11(a) of the Securities Act no later than ninety (90) days after the end of the twelve (12)-month period beginning with the first month of the Company’s first fiscal quarter commencing after the effective date of each registration statement filed pursuant to this Agreement.
2.9 The Company shall make available for inspection by any Selling Investor and the representatives of such Selling Investor (but not more than one firm of counsel to such Selling Investors), all financial and other information as shall be reasonably requested by them, and provide the Selling Investor and the representatives of such Selling Investor the opportunity to discuss the business affairs of the Company with its principal executives and independent public accountants who have certified the audited financial statements included in such registration statement, in each case, as shall be necessary to enable them to exercise their due diligence responsibility under the Securities Act; provided, however, that information that the Company determines, in good faith, to be confidential and which the Company advises such Person in writing, is confidential shall not be disclosed unless such Person signs a confidentiality agreement reasonably satisfactory to the Company or the related Selling Investor of Registrable Securities agrees to be responsible for such Person’s breach of confidentiality on terms reasonably satisfactory to the Company.
2.10 The Company shall provide and cause to be maintained a transfer agent and registrar for all Registrable Securities covered by such registration statement from and after a date not later than the effective date of such registration statement.
2.11 The Company shall use its reasonable best efforts to have such Demand Registration Statement declared effective by the SEC as soon as practicable thereafter and to keep such Demand Registration Statement continuously effective provide a CUSIP number for the period specified in Section 4.1(b). The registration rights granted pursuant Registrable Securities prior to the provisions earlier of this Section 2.2 the listing of such Registrable Securities on the New York Stock Exchange or the effective date of the first registration statement including Registrable Securities.
2.12 The Company shall be take such other actions as are reasonably required in addition order to expedite or facilitate the registration rights granted pursuant to disposition of Registrable Securities included in the other provisions of this Section 2Demand Registration.
Appears in 2 contracts
Samples: Investment Agreement (Urstadt Biddle Properties Inc), Registration Rights Agreement (Urstadt Biddle Properties Inc)
Demand Registration. (a) In addition At any time following the exercise of the Warrant and prior to the rights provided in Section 2.1Registration of all of the Warrant Shares, and subject to the Majority Holders other provisions of this Agreement, Orbiter shall have the right right, exercisable by making a written request (the "Registration Request") to request in writing the Company, to demand that the Company register all or part effect the Registration of such Holders’ any Registrable Securities that are not then registered by an effective Registration Statement (a “Request”) (which Request shall specify the amount of Registrable Securities intended to be disposed of by such Holders and the intended method of disposition thereof) by filing a Registration Statement in accordance with the SEC pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into a Form S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling shareholders (not underwriters) of all or such portion provisions of the Registrable Securities (a “Demand Registration”); provided, however, that (A) if Act. Upon receipt of the Company is not eligible to register the Registrable Securities on Form S-3 under the Securities ActRegistration Request, the Company shall be obligated to register each of the Registrable Securities upon such election only if the Registrable Securities to be registered, beneficially owned by Orbiter in the aggregate, constitute 10% or more of manner set forth in Section 2(b) hereof. Any provision herein to the then-outstanding Registrable Securities that are not registered under an effective Registration Statement, and (B) if the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Actcontrary notwithstanding, the Company right to demand Registration pursuant to this Section 2 shall be obligated limited to register the Registrable Securities upon such election; provided, that one (i1) there Registration demand. A right to demand Registration hereunder shall not be more than one such request during each deemed to have been exercised and all of the Company’s fiscal quarterly periods and (ii) the Registrable Securities 's demand Registration obligations hereunder shall be deemed to be registered must include at least 1,000,000 Common Shares, or, in fully satisfied when the aggregate, have an anticipated offering price, net registration statement filed on account of underwriting discounts and commissions, of more than $5,000,000, calculated in accordance with Rule 457(c) under such exercise has been declared effective by the Securities Act on the business day preceding such RequestCommission.
(b) As promptly as practicable, but no later than 10 days after Following receipt of a Requestthe Registration Request pursuant to Section 2(a) hereof, the Company shall give written notice of such requested registration to all Holders of Registrable Securities and Pari Passu Holders of Pari Passu Securities. Subject to Section 2.2(c), the Company shall include in a Demand Registration (i) file within ninety (90) days thereafter a registration statement on the Registrable Securities intended to be disposed of by appropriate form under the Initiating Holders and (ii) the Registrable Securities and Pari Passu Securities intended to be disposed of by any other Holder or Pari Passu Holder which shall have made a written request (which request shall specify the amount of Registrable Securities to be registered and the intended method of disposition thereof) to the Company for inclusion thereof in such registration within 20 days after the receipt of such written notice from the Company. The Company shall, as expeditiously as possible following a Request, use its best efforts to cause to be filed with the SEC a Demand Registration Statement providing Act for the registration under the Securities Act shares of the Registrable Securities and the Pari Passu Securities which Common Stock that the Company has been so requested to register by all Register; (ii) if the applicable Offering is pursuant to an underwriting agreement, enter into an underwriting agreement in such Holders form as said managing or sole underwriter shall require (which must only contain terms and Pari Passu Holders, conditions customary for offerings of equity securities of entities with market capitalizations that are approximately equal to the extent necessary Company's then current market capitalization and may contain customary provisions requiring the Company and Orbiter to permit indemnify and provide contribution to the disposition underwriter or underwriters of such Registrable Securities so to be registered in accordance with the intended methods of disposition thereof specified in such Request or further requests if so requested. The Company shall Offering); and (iii) use its reasonable best efforts to have such Demand Registration Statement registration statement declared effective as promptly as practicable and to remain effective for at least one hundred and twenty (120) days. Notwithstanding any other provision hereof, Orbiter acknowledges and agrees that there can be no guarantee or warranty from or by the Company that any such registration statement will ever be declared effective by the SEC as soon as practicable thereafter Commission, and to keep that the Company makes no such Demand Registration Statement continuously effective for the period specified guarantee or warranty in Section 4.1(b). The registration rights granted pursuant to the provisions of this Section 2.2 shall be in addition to the registration rights granted pursuant to the other provisions of this Section 2Agreement or otherwise.
Appears in 2 contracts
Samples: Registration Rights Agreement (Genetic Vectors Inc), Registration Rights Agreement (Genetic Vectors Inc)
