Demand Registration. (a) Subject to the conditions of this Section 2.1, if the Company shall receive a written request from Initiating Holders that the Company file a registration statement under the Securities Act covering the registration of the Registrable Securities resulting in net offering proceeds of at least $20,000,000, then the Company will (x) promptly give written notice of the requested registration to all Holders and (y) prepare and file a registration statement and otherwise use its best efforts to cause such shares, and all Registrable Securities of any Holder or Holders joining in such registration pursuant to a written request delivered to the Company within thirty (30) days after receipt by such Holder or Holders of initial written notice from the Company, to be registered under the Securities Act within ninety (90) days of the request. (b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, then the Initiating Holders shall so advise the Company as a part of their written request made pursuant to this Section 2.1 or any request pursuant to Section 2.3, and the Company shall include such information in the written notice referred to in Section 2.1(a) or Section 2.3(a), as applicable. In such event, the right of any Holder to include 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. The Company shall (together with all Holders proposing to distribute their Registrable Securities through such underwriting) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company (which underwriter or underwriters shall be reasonably acceptable to a majority in interest of the Initiating Holders). Notwithstanding any other provision of this Section 2.1 or Section 2.3, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares 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), or in such other proportions as mutually agreed to by such selling Holders; provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration. (c) The Company shall not be required to effect a registration pursuant to this Section 2.1: (i) prior to the earlier of September 30, 2015 or six months after the Initial Offering; (ii) after the Company has effected three registrations pursuant to this Section 2.1 and either (A) all such registrations have been declared or ordered effective or (B) the request for such registration statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have not paid the Registration Expenses of such withdrawn registration; provided, however, that for purposes of Section 2.1, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Section 2.1(b), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have requested to be included in such registration statement are actually included; (iii) during the period starting with the date of filing of, and ending on the date one hundred eighty (180) days following, the effective date of the registration statement pertaining to the Initial Offering; provided that the Company makes reasonable efforts to cause the registration statement for the Initial Offering to become effective; (iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.1(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for its Initial Offering within ninety (90) days; (v) if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.1, a certificate signed by the Chairman of the Board of Directors of the Company (the “Board”) stating that, in the good faith judgment of the Board, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than once in any 12 month period; and provided further that the Company shall not register any securities for its own account or that of any other stockholder during such ninety (90) day period; (vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.3 below; or (vii) if the Company has, within the six month period preceding the date of such request, already effected a demand registration for the Holders pursuant to this Section 2.1 and such registration has been declared or ordered effective.
Appears in 3 contracts
Samples: Investor Rights Agreement (Viewray Inc), Investor Rights Agreement (Viewray Inc), Investor Rights Agreement (Viewray Inc)
Demand Registration. (a) Subject to the conditions of this Section 2.12.2, if the Company shall receive a written request from the Holders of 56% of the Registrable Securities (the “Initiating Holders Holders”) that the Company file a registration statement under the Securities Act covering the registration of all or a part of the Registrable Securities resulting in having (i) an anticipated aggregate offering price, net of underwriting discounts and commissions, of not less than $50,000,000 (if the Company has not yet completed its Initial Public Offering) or (ii) an anticipated aggregate offering proceeds price, net of at least underwriting discounts and commissions, of not less than $20,000,00010,000,000 (after the Company completes its Initial Public Offering), then the Company will (x) promptly shall, within 30 days of the receipt thereof, give written notice of the requested registration such request to all Holders and (y) prepare and file a and, subject to the limitations of this Section 2.2, effect, as expeditiously as reasonably possible, the registration statement and otherwise use its best efforts to cause such shares, and under the Securities Act of all Registrable Securities of that the Initiating Holders requested to be registered and any additional Registrable Securities requested to be included in such registration by any other Holder or Holders joining in such registration pursuant to a written request delivered as specified by notice given by each such Holder to the Company within thirty (30) 20 days after receipt by of such Holder or Holders of initial written notice from the Company, to be registered under the Securities Act within ninety (90) days of the request.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, then the Initiating Holders they shall so advise the Company as a part of their written request made pursuant to this Section 2.1 2.2 or any request pursuant to Section 2.3, 2.4 and the Company shall include such information in the written notice referred to in Section 2.1(a2.2(a) or Section 2.3(a2.4(a), as applicable. In such event, the right of any Holder to include 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. The Company shall (together with all All Holders proposing to distribute their Registrable Securities securities through such underwriting) underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company Holders of a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to a majority in interest of the Initiating HoldersCompany). Notwithstanding any other provision of this Section 2.1 2.2 or Section 2.32.4, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities), ) then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares of Common Stock 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), or in such other proportions as mutually agreed to by such selling Holders; provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company and securities of any other selling stockholders proposed to be sold by the Company or such selling stockholders are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.12.2:
(i) prior to the earlier of September 30, 2015 (A) the third anniversary of the date of this Agreement or (B) six months after following the Initial Public Offering;
(ii) after the Company has effected three two (2) registrations pursuant to this Section 2.1 2.2, and either (A) all such registrations have been declared or ordered effective or (B) the request for such registration statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have not paid the Registration Expenses of such withdrawn registration; provided, however, that for purposes of Section 2.1, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Section 2.1(b), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have requested to be included in such registration statement are actually includedSEC;
(iii) during the period starting with the date of filing with the SEC of, and ending on the date one hundred eighty (180) 180 days following, following the effective date of the registration statement pertaining to the Initial OfferingPublic Offering (or such longer period as may be determined pursuant to Section 2.11 hereof); provided that the Company makes reasonable good faith efforts to cause the such registration statement for the Initial Offering to become effective;
(iv) if within thirty (30) 30 days of receipt of a written request from Initiating Holders pursuant to Section 2.1(a2.2(a), the Company Company, gives notice to the Holders of the Companycompany’s intention to file a registration statement for its Initial Offering within ninety (90) 60 days;
(v) if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.1, 2.2 a certificate signed by the Chairman of the Board of Directors or the Chief Executive Officer of the Company (the “Board”) stating that, that in the good faith judgment of the Board, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) 90 days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than once twice in any 12 month period; and provided further that the Company shall not register any securities for its own account or that of any other stockholder during such ninety (90) day period;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.3 2.4 below; or
(vii) if in any particular jurisdiction in which the Company haswould be required to qualify to do business, within the six month period preceding the date to execute a general consent to service of process or to subject itself to taxation in effecting such requestregistration, already effected a demand registration for the Holders pursuant to this Section 2.1 and such registration has been declared qualification or ordered effectivecompliance.
Appears in 3 contracts
Samples: Investor Rights Agreement (Inozyme Pharma, Inc.), Investor Rights Agreement (Inozyme Pharma, Inc.), Investor Rights Agreement (Inozyme Pharma, Inc.)
Demand Registration. (a) Subject to the conditions of this Section 2.12.2, if the Company shall receive a written request from the Holders of a majority of the Registrable Securities (the “Initiating Holders Holders”) that the Company file a registration statement under the Securities Act covering the registration of at least a majority of the Registrable Securities resulting in then outstanding (or a lesser percent if the anticipated aggregate offering price, net offering proceeds of at least underwriting discounts and commissions, would exceed $20,000,00010,000,000 (a “Demand Offering”)), then the Company will (x) promptly give written notice of the requested registration to all Holders and (y) prepare and file a registration statement and otherwise use its best efforts to cause such sharesshall, and all Registrable Securities of any Holder or Holders joining in such registration pursuant to a written request delivered to the Company within thirty (30) days after of the receipt by such Holder or Holders of initial thereof, give written notice from of such request to all Holders, and subject to the Companylimitations of this Section 2.2, to be registered effect, as expeditiously as reasonably possible, the registration under the Securities Act within ninety (90) days of the requestall Registrable Securities that all Holders request to be registered.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, then the Initiating Holders they shall so advise the Company as a part of their written request made pursuant to this Section 2.1 2.2 or any request pursuant to Section 2.3, 2.4 and the Company shall include such information in the written notice referred to in Section 2.1(a2.2(a) or Section 2.3(a2.4(a), as applicable. In such event, the right of any Holder to include 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. The Company shall (together with all All Holders proposing to distribute their Registrable Securities securities through such underwriting) underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company Holders of a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to a majority in interest of the Initiating HoldersCompany). Notwithstanding any other provision of this Section 2.1 2.2 or Section 2.32.4, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities), ) then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares 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), or in such other proportions as mutually agreed to by such selling Holders; provided, however, that the number of shares of . In no event shall any Registrable Securities to be included in excluded from such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registrationexcluded. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.12.2:
(i) prior to the earlier expiration of September 30, 2015 or six months after the restrictions on transfer set forth in Section 2.10 following the Initial Offering;
(ii) after the Company has effected three two (2) registrations pursuant to this Section 2.1 2.2, and either (A) all such registrations have been declared or ordered effective or (B) the request for such registration statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have not paid the Registration Expenses of such withdrawn registration; provided, however, that for purposes of Section 2.1, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Section 2.1(b), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have requested to be included in such registration statement are actually includedeffective;
(iii) during the period starting with the date of filing of, and ending on the date one hundred eighty (180) days following, following the effective date of the registration statement pertaining to the Initial Offeringa public offering, other than pursuant to a Special Registration Statement (or such longer period as may be determined by Section 2.10 hereof); provided that the Company makes reasonable good faith efforts to cause the such registration statement for the Initial Offering to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.1(a2.2(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for its Initial Offering a public offering, other than pursuant to a Special Registration Statement within ninety (90) days;
(v) if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.1, 2.2 a certificate signed by the Chairman of the Board of Directors of the Company (the “Board”) stating that, that in the good faith judgment of the BoardBoard of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety one hundred twenty (90120) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than once twice in any 12 twelve (12) month period; and provided further that the Company shall not register any securities for its own account or that of any other stockholder during such ninety (90) day period;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.3 2.4 below; or
(vii) if in any particular jurisdiction in which the Company haswould be required to qualify to do business or to execute a general consent to service of process in effecting such registration, within the six month period preceding the date of such request, already effected a demand registration for the Holders pursuant to this Section 2.1 and such registration has been declared qualification or ordered effectivecompliance.
Appears in 3 contracts
Samples: Registration Rights Agreement (C3.ai, Inc.), Registration Rights Agreement (C3.ai, Inc.), Registration Rights Agreement (C3.ai, Inc.)
Demand Registration. (a) Subject to the conditions of this Section 2.12.2, if the Company shall receive a written request from the Holders of a majority of the Registrable Securities (the “Initiating Holders Holders”) that the Company file a registration statement under the Securities Act covering the registration of the Registrable Securities resulting in with an anticipated aggregate offering price, net offering proceeds of at least Selling Expenses, of $20,000,00010,000,000, then the Company will (x) promptly shall, within 10 days of the receipt thereof, give written notice of the requested registration such request to all Holders Holders, and subject to the limitations of this Section 2.2, effect, as expeditiously as reasonably possible, and in any event within one hundred and twenty (y120) prepare and days after the date such request is given by the Initiating Holders, file a registration statement and otherwise use its best efforts to cause such shares, and all Registrable Securities of any Holder or Holders joining in such registration pursuant to a written request delivered to the Company within thirty (30) days after receipt by such Holder or Holders of initial written notice from the Company, to be registered under the Securities Act within ninety (90) days of the requestcovering all Registrable Securities that all Holders request to be registered.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, then the Initiating Holders they shall so advise the Company as a part of their written request made pursuant to this Section 2.1 2.2 or any request pursuant to Section 2.3, 2.4 and the Company shall include such information in the written notice referred to in Section 2.1(a2.2(a) or Section 2.3(a2.4(a), as applicable. In such event, the right of any Holder to include 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. The Company shall (together with all All Holders proposing to distribute their Registrable Securities securities through such underwriting) underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company Holders of a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to a majority in interest of the Initiating HoldersCompany). Notwithstanding any other provision of this Section 2.1 2.2 or Section 2.32.4, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities), ) then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares 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), or in such other proportions as mutually agreed to by such selling Holders; provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.12.2:
(i) prior to the earlier of September 30, 2015 (A) the fourth anniversary of the date of this Agreement or six months after (B) the expiration of the restrictions on transfer set forth in Section 2.11 following the Initial Offering;
(ii) after the Company has effected three two registrations pursuant to this Section 2.1 2.2, and either (A) all such registrations have been declared or ordered effective or (B) the request for such registration statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have not paid the Registration Expenses of such withdrawn registration; providedeffective, however, provided that for purposes of Section 2.1, a registration shall not be counted deemed effected until it has been declared as “effected” if, as a result of an exercise of such by the underwriter’s cutback provisions in Section 2.1(b), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have requested to be included in such registration statement are actually includedSEC;
(iii) during the period starting with the date of filing of, and ending on the date one hundred eighty (180) 180 days following, following the effective date of the registration statement pertaining to the Initial OfferingOffering (or such longer period as may be determined pursuant to Section 2.11 hereof); provided that the Company makes reasonable good faith efforts to cause the such registration statement for the Initial Offering to become effective;
(iv) if within thirty (30) 30 days of receipt of a written request from Initiating Holders pursuant to Section 2.1(a2.2(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for its Initial Offering within ninety (90) 90 days, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective;
(v) if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.1, 2.2 a certificate signed by the Chairman of the Board of Directors of the Company (the “Board”) stating that, that in the good faith judgment of the Board, it would be seriously materially detrimental to the Company and its stockholders shareholders for such registration statement to either become effective or remain effective for as long as such registration statement otherwise would be effected at required to remain effective, because such timeaction 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, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) 120 days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than once in any 12 month period; and provided further that the Company shall not register any securities for its own account or that of any other stockholder during such ninety (90) day period;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.3 2.4 below; or
(vii) if in any particular jurisdiction in which the Company haswould be required to qualify to do business or to execute a general consent to service of process in effecting such registration, within the six month period preceding the date of such request, already effected a demand registration for the Holders pursuant to this Section 2.1 and such registration has been declared qualification or ordered effectivecompliance.
Appears in 3 contracts
Samples: Investor Rights Agreement, Investor Rights Agreement (Iterum Therapeutics LTD), Investor Rights Agreement (Iterum Therapeutics LTD)
Demand Registration. (a) Subject to At any time after Terra Silex's fully funding the conditions Third Traunche Funding, a Holder of this Section 2.1, if Registrable Securities with a market value of not less than $500,000 may notify the Company shall receive a written request from Initiating Holders in writing that it demands that the Company file a registration statement under the Securities Act covering the registration of all of the Holder's Registrable Securities resulting in net offering proceeds Securities. Within ten days of at least $20,000,000receipt of such notice, then the Company will (x) promptly shall give written notice of the requested registration such request to all Holders and (y) prepare and file of Registrable Securities, should there be more than one. The Holders shall give the Company written election of their intention to have the Registrable Securities owned by them included in such a registration statement and otherwise use its best efforts within ten (10) days of receipt of the Company's notice. The Company shall, subject to cause such sharesthe limitations of subsection 2(b), effect as soon as practicable, and in any event within 120 days of the receipt of a Holder's request, a registration of all Registrable Securities of any Holder which the Holder, or Holders joining in have requested be made part of such registration pursuant to a written request delivered to the Company within thirty statement (30) days after receipt by such Holder or Holders of initial written notice from the Company, to be registered under the Securities Act within ninety (90) days of the request"Demand Registration").
(b) If a Holder whose shares are included in the Initiating Holders intend Demand Registration intends to distribute the Registrable Securities covered by their his/her/its request by means of an underwriting, then the Initiating Holders he/she /it shall so advise the Company as a part of their written his/her/its request made pursuant to this Section 2.1 or any request pursuant to Section 2.3, and the Company shall include such information in the written notice referred to in Section 2.1(a2(a) or Section 2.3(a), as applicableabove. In such event, the right of any Holder to include his/her/its Registrable Securities in such registration shall be conditioned upon such Holder’s 's participation in such underwriting and the inclusion of such Holder’s 's Registrable Securities in the underwriting to the extent provided herein. The Company shall (together with all All Holders proposing to distribute their Registrable Securities through such underwritingunderwriting shall (together with the Company as provided in Section 6) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company (which underwriter or underwriters shall be and reasonably acceptable to a majority in interest of the Initiating Holders). Notwithstanding any other provision of this Section 2.1 or Section 2.3, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares 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), or participating in such other proportions as mutually agreed to by such selling Holders; provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registrationa Demand Registration.
(c) The Company shall not be required is obligated to effect a registration only one Demand Registration pursuant to Section 2 of this Section 2.1:
(i) prior Agreement regardless of whether the Holder has elected to exercise all of its Stock Rights. The Company agrees to include all Registrable Securities held by all Holders in such registration statement without cutback or reduction. In the earlier of September 30, 2015 or six months after the Initial Offering;
(ii) after event the Company has effected three registrations pursuant breaches its obligation of the preceding sentences, any Holder of a Registrable Security which was to this Section 2.1 and either (A) all such registrations have been declared or ordered effective or (B) the request for such registration statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have not paid the Registration Expenses of such withdrawn registration; provided, however, that for purposes of Section 2.1, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Section 2.1(b), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have requested to be included in such registration statement are actually included;
(iii) during the period starting with the date of filing of, but was not shall be entitled to a second Demand Registration for such excluded securities and ending on the date one hundred eighty (180) days following, the effective date of the registration statement pertaining to the Initial Offering; provided that the Company makes reasonable efforts to cause the registration statement for the Initial Offering to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.1(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for its Initial Offering within ninety (90) days;
(v) if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.1, a certificate signed by the Chairman of the Board of Directors of the Company (the “Board”) stating that, in the good faith judgment of the Board, it would be seriously detrimental to the Company and its stockholders for keep such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised effective as required by the Company not more than once in any 12 month period; and provided further that the Company shall not register any securities for its own account or that of any other stockholder during such ninety (90) day period;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.3 below; or
(vii) if the Company has, within the six month period preceding the date of such request, already effected a demand registration for the Holders pursuant to this Section 2.1 and such registration has been declared or ordered effectiveAgreement.
Appears in 3 contracts
Samples: Registration Rights Agreement (Daleco Resources Corp), Registration Rights Agreement (Daleco Resources Corp), Registration Rights Agreement (Daleco Resources Corp)
Demand Registration. (a) Subject to the conditions of this Section 2.12.2, if the Company shall receive a written request from the Holders holding a majority of the Registrable Securities (the “Initiating Holders Holders”) that the Company file a registration statement under the Securities Act covering the registration of at least a majority of the Registrable Securities resulting in then outstanding (or a lesser percent if the anticipated aggregate offering price, net offering proceeds of at least underwriting discounts and commissions, would exceed $20,000,00010,000,000, then the Company will (x) promptly give written notice of the requested registration to all Holders and (y) prepare and file a registration statement and otherwise use its best efforts to cause such sharesshall, and all Registrable Securities of any Holder or Holders joining in such registration pursuant to a written request delivered to the Company within thirty (30) days after of the receipt by such Holder or Holders of initial thereof, give written notice from of such request to all Holders, and subject to the Companylimitations of this Section 2.2, use its best efforts to be registered effect, as expeditiously as reasonably possible, the registration under the Securities Act within ninety (90) days of the requestall Registrable Securities that all Holders request to be registered.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, then the Initiating Holders they shall so advise the Company as a part of their written request made pursuant to this Section 2.1 2.2 or any request pursuant to Section 2.3, 2.4 and the Company shall include such information in the written notice referred to in Section 2.1(a2.2(a) or Section 2.3(a2.4(a), as applicable. In such event, the right of any Holder to include 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. The Company shall (together with all All Holders proposing to distribute their Registrable Securities securities through such underwriting) underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company Holders of a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to a majority in interest of the Initiating HoldersCompany). Notwithstanding any other provision of this Section 2.1 2.2 or Section 2.32.4, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities), ) then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares 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), or in such other proportions as mutually agreed to by such selling Holders; provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all no other securities of party other than the Company and the Holders are first entirely excluded from included in the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.12.2:
(i) prior to the earlier of September 30, 2015 (A) the fourth anniversary of the date of this Agreement or six months after (B) of the expiration of the restrictions on transfer set forth in Section 2.11 following the Initial Offering;
(ii) after the Company has effected three two (2) registrations pursuant to this Section 2.1 2.2, and either (A) all such registrations have been declared or ordered effective or (B) the request for such registration statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have not paid the Registration Expenses of such withdrawn registration; provided, however, that for purposes of Section 2.1, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Section 2.1(b), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have requested to be included in such registration statement are actually includedeffective;
(iii) during the period starting with the date of filing of, and ending on the date one hundred eighty (180) days following, following the effective date of the registration statement pertaining to the Initial Offering, other than pursuant to a Special Registration Statement; provided that the Company makes reasonable good faith efforts to cause the such registration statement for the Initial Offering to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.1(a2.2(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for its Initial Offering a public offering, other than pursuant to a Special Registration Statement within ninety (90) days;
(v) if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.1, 2.2 a certificate signed by the Chairman of the Board of Directors of the Company (the “Board”) stating that, that in the good faith judgment of the BoardBoard of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than once in any 12 twelve (12) month period; and provided further that the Company shall not register any securities for its own account or that of any other stockholder during such ninety (90) day period;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.3 2.4 below; or
(vii) if in any particular jurisdiction in which the Company haswould be required to qualify to do business or to execute a general consent to service of process in effecting such registration, within the six month period preceding the date of such request, already effected a demand registration for the Holders pursuant to this Section 2.1 and such registration has been declared qualification or ordered effectivecompliance.
Appears in 2 contracts
Samples: Investor Rights Agreement (Esperion Therapeutics, Inc.), Investor Rights Agreement (Esperion Therapeutics, Inc.)
Demand Registration. (a) Subject The Company hereby agrees to use its best efforts to register all or any portion of the conditions Registrable Shares on one (1) occasion upon receipt of this Section 2.1, if the Company shall receive a written request from Initiating Holders a holder (the "Holder" or "Holders") of record of the Registrable Shares that the Company file a registration statement under the Securities 1933 Act covering the registration of the Registrable Securities resulting in net offering proceeds Shares then outstanding. The Company shall, within twenty (20) days of at least $20,000,000its receipt thereof, then the Company will (x) promptly give written notice of the requested registration such request to all holders of record of Registrable Shares. The Holders and of said Registrable Shares shall then have fifteen (y15) prepare and file a registration statement and otherwise use its best efforts to cause days from the date of mailing of such shares, and all Registrable Securities of any Holder or Holders joining in such registration pursuant to a written request delivered to notice by the Company within thirty (30) days after receipt by such Holder to request that all or Holders a portion of initial written notice from the Company, to their respective Registrable Shares be registered under the Securities Act within ninety (90) days of the requestincluded in said registration.
(b) If the Initiating Holders intend to distribute the Registrable Securities Shares covered by their request by means of an underwriting, then the Initiating Holders they shall so advise the Company as a part of their written request made pursuant to this Section 2.1 or any request pursuant to Section 2.3Agreement, and the Company shall include such information in the written notice to the other Holders of Registrable Shares referred to in Section 2.1(a1(a) or Section 2.3(a), as applicableabove. In such event, the right of any Holder to include its Registrable Securities Shares in such registration shall be conditioned upon such Holder’s 's participation in such underwriting and the inclusion of such Holder’s 's Registrable Securities Shares in the underwriting (unless otherwise mutually agreed by the Company, the underwriter, the Initiating Holder and such Holder) is limited to the extent provided herein. The Company shall (together with all All Holders proposing to distribute their Registrable Securities securities through such underwritingunderwriting shall (together with the Company as provided in Section 3(e) below) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by mutual agreement of the Company (which underwriter or underwriters shall be reasonably acceptable to a majority in interest of and the Initiating Holders)Holder, which agreement shall not be unreasonably withheld. Notwithstanding any other provision of this Section 2.1 or Section 2.31, if the underwriter advises the Initiating Holder and the Company in writing that marketing factors require a limitation of the number of securities shares to be underwritten (including Registrable Securities)underwritten, then the Company Initiating Holder shall so advise all Holders of Registrable Securities that Shares which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Shares 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 among all such Holders (including the Initiating Holders), or that have requested to participate in such other proportions as mutually agreed to by such selling Holders; provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.1:
(i) prior to the earlier of September 30, 2015 or six months after the Initial Offering;
(ii) after the Company has effected three registrations pursuant to this Section 2.1 and either (A) all such registrations have been declared or ordered effective or (B) the request for Each such registration statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have not paid the Registration Expenses shall remain effective for a period of such withdrawn registration; provided, however, that for purposes of Section 2.1, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Section 2.1(b), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have requested to be included in such registration statement are actually included;
(iii) during the period starting with the date of filing of, and ending on the date one hundred eighty (180) days followingdays, unless the Initiating Holder requests that such registration be terminated prior to the expiration of such period.
(d) If, after a registration statement becomes effective, the effective date of Company advises the Holders that the registration statement pertaining is required to be amended under applicable federal securities laws, the Initial Offering; provided Holders shall suspend any further sales of their Registrable Shares, until the Company advises them that the Company makes reasonable efforts to cause the registration statement for the Initial Offering to become effective;
(iv) if within statements has been amended, but not more than thirty (30) days. The one hundred eighty (180)-day time period referred to in subsection (c) during which the registration statement must be kept current after its effective date shall be extended for an additional number of business days equal to the number of receipt of a written request from Initiating Holders business days during which the right to sell the Registrable Shares was suspended pursuant to Section 2.1(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for its Initial Offering within ninety (90) days;preceding sentence.
(ve) if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.1, a certificate signed by the Chairman of the Board of Directors of the Company (the “Board”) stating that, in the good faith judgment of the Board, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of exclude an underwriter not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right reasonably acceptable to delay a request shall be exercised by the Company not more than once in any 12 month period; and provided further that the Company shall not register any securities for its own account or that of any other stockholder during such ninety (90) day period;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.3 below; or
(vii) if the Company has, within the six month period preceding the date of such request, already effected a demand registration for the Holders pursuant to this Section 2.1 and such registration has been declared or ordered effectiveit.
Appears in 2 contracts
Samples: Registration Rights Agreement (Integrated Security Systems Inc), Registration Rights Agreement (Integrated Security Systems Inc)
Demand Registration. (a) Subject to the conditions of this Section 2.12.2, if the Company shall receive a written request from the Holders of more than forty percent (40%) of the Registrable Securities (the “Initiating Holders Holders”) that the Company file a registration statement under the Securities Act covering the registration of Registrable Securities, and the Registrable Securities resulting in anticipated aggregate offering price, net offering proceeds of at least underwriting discounts and commissions, would exceed five million dollars $20,000,0005,000,000 (a “Qualified Public Offering”), then the Company will shall, within ten (x10) promptly days of the receipt thereof, give written notice of the requested registration such request to all Holders and of Registrable Securities. Within fifteen (y15) prepare and file a registration statement and otherwise days after such notice has been sent by the Company, all other Holders of Registrable Securities may give written notice to the Company of such Holder’s intent to include some or all of its Registrable Securities in the registration. Subject to the limitations of this Section 2.2, the Company shall use its best efforts to cause such shareseffect, and all Registrable Securities of any Holder or Holders joining in such as expeditiously as reasonably possible, the registration pursuant to a written request delivered to the Company within thirty (30) days after receipt by such Holder or Holders of initial written notice from the Company, to be registered under the Securities Act within ninety (90) days of the requestall Registrable Securities that all Holders of Registrable Securities request to be registered.
(b) If the Initiating Holders or Requesting Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, then the Initiating Holders they shall so advise the Company as a part of their written request made pursuant to this Section 2.1 2.2 or any request pursuant to Section 2.3, 2.4 and the Company shall include such information in the written notice referred to in Section 2.1(a2.2(a) or Section 2.3(a2.4(a), as applicable. In such event, the right of any Holder of Registrable Securities to include 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. The Company shall (together with all All Holders of Registrable Securities proposing to distribute their Registrable Securities securities through such underwriting) underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by a majority in interest of the Company Initiating Holders or Requesting Holders (which underwriter or underwriters shall be reasonably acceptable to a majority in interest of the Initiating HoldersCompany). Notwithstanding any other provision of this Section 2.1 2.2 or Section 2.32.4, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities), ) then the Company shall so advise all Holders of Registrable Securities that which would otherwise be underwritten pursuant hereto, and the number of shares 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), or in such other proportions as mutually agreed to by such selling Holders; provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.1:
(i) prior to the earlier of September 30, 2015 or six months after the Initial Offering;
(ii) after the Company has effected three registrations pursuant to this Section 2.1 and either (A) all such registrations have been declared or ordered effective or (B) the request for such registration statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have not paid the Registration Expenses of such withdrawn registration; provided, however, that for purposes of Section 2.1, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Section 2.1(b), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have requested to be included in such registration statement are actually included;
(iii) during the period starting with the date of filing of, and ending on the date one hundred eighty (180) days following, the effective date of the registration statement pertaining to the Initial Offering; provided that the Company makes reasonable efforts to cause the registration statement for the Initial Offering to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.1(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for its Initial Offering within ninety (90) days;
(v) if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.1, a certificate signed by the Chairman of the Board of Directors of the Company (the “Board”) stating that, in the good faith judgment of the Board, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than once in any 12 month period; and provided further that the Company shall not register any securities for its own account or that of any other stockholder during such ninety (90) day period;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.3 below; or
(vii) if the Company has, within the six month period preceding the date of such request, already effected a demand registration for the Holders pursuant to this Section 2.1 and such registration has been declared or ordered effective.such
Appears in 2 contracts
Samples: Investor Rights Agreement (Scynexis Inc), Investor Rights Agreement (Scynexis Inc)
Demand Registration. (a) Subject to the conditions of this Section 2.1, if If the Company shall receive receive, any time and from time to time on or after the date hereof, a written request from Initiating the Holders of 25% of the Registrable Securities then outstanding that the Company file a registration statement under the Securities Act covering the registration of the Registrable Securities resulting in net offering proceeds of at least $20,000,000Act, then the Company will shall, within ten (x10) promptly days of the receipt thereof, give written notice of the requested registration such request to all Holders and (yshall, subject to the limitations of subsection 2.1(b) prepare and file a registration statement and otherwise 2.1(d), use its best efforts to cause such shareseffect as soon as practicable, and all Registrable Securities of any Holder or Holders joining in such the registration pursuant to a written request delivered to the Company within thirty (30) days after receipt by such Holder or Holders of initial written notice from the Company, to be registered under the Securities Act of all Registrable Securities which the Holders request in writing to be registered within ninety twenty (9020) days of the requestmailing of such notice by the Company.
(b) If the Initiating Holders initiating the registration request hereunder ("INITIATING HOLDERS") intend to distribute the Registrable Securities covered by their request by means of an underwriting, then the Initiating Holders they shall so advise the Company as a part of their written request made pursuant to this Section 2.1 or any request pursuant to Section 2.3, and the Company shall include such information in the written notice referred to in Section subsection 2.1(a) or Section 2.3(a), as applicable. The underwriter will be selected by a majority in interest of the Initiating Holders and reasonably approved by the Company. In such event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s 's participation in such underwriting and the inclusion of such Holder’s 's Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. The Company shall (together with all All Holders proposing to distribute their Registrable Securities securities through such underwritingunderwriting shall (together with the Company as provided in subsection 2.4(e)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company (which underwriter or underwriters shall be reasonably acceptable to a majority in interest of the Initiating Holders)underwriting. Notwithstanding any other provision of this Section 2.1 or Section 2.32.1, if the underwriter advises the Company Initiating Holders in writing that marketing factors require a limitation of the number of securities shares to be underwritten (including Registrable Securities)underwritten, then the Company Initiating Holders shall so advise all Holders of Registrable Securities that which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the underwriting shall be allocated to the among all Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (thereof, including the Initiating Holders), or in proportion (as nearly as practicable) to the amount of Registrable Securities of the Company owned by each Holder. The Company shall have the right to include securities for its own account in such other proportions as mutually agreed registration, if permitted by the registration form to by be filed and the underwriter so agrees, but only if such selling Holders; provided, however, that inclusion will not limit the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of securites offered by the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registrationHolders.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.1:
(i) prior to Notwithstanding the earlier of September 30foregoing, 2015 or six months after the Initial Offering;
(ii) after the Company has effected three registrations pursuant to this Section 2.1 and either (A) all such registrations have been declared or ordered effective or (B) the request for such registration statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have not paid the Registration Expenses of such withdrawn registration; provided, however, that for purposes of Section 2.1, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Section 2.1(b), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have requested to be included in such registration statement are actually included;
(iii) during the period starting with the date of filing of, and ending on the date one hundred eighty (180) days following, the effective date of the registration statement pertaining to the Initial Offering; provided that the Company makes reasonable efforts to cause the registration statement for the Initial Offering to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.1(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for its Initial Offering within ninety (90) days;
(v) if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.1, a certificate signed by the Chairman of the Board of Directors President or Chief Executive Officer of the Company (the “Board”) stating that, that in the good faith judgment of the Boardboard of directors of the Company, it would be seriously detrimental to the Company and its stockholders shareholders for such registration statement to be effected at filed and it is therefore essential to defer the filing of such timeregistration statement, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided provided, however, that such right to delay a request shall be exercised by the Company may not utilize this right more than once in any 12 twelve (12) month period; .
(d) In addition and provided further that without limitation of Section 2.11 hereof, the Company shall not register be obligated to effect, or to take any securities for its own account action to effect, any registration pursuant to this Section 2.1:
(i) After the Company has effected two registrations pursuant to Section 2.1 and such registrations have been declared or that of any other stockholder during such ordered effective;
(ii) During the ninety (90) day period;period prior to the Company's good faith estimate of the date of filing of a registration subject to Section 2.2 hereof; provided that the Company (i) is using its best efforts to cause such registration statement to become effective and (ii) provides written notice of such proposed filing to the Holders within thirty (30) days after receipt of the written request from the Holders pursuant to Section 2.1(a); or
(viiii) if If the Initiating Holders propose proposed to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 (or any successor form that provides for short-form registration) pursuant to a request made pursuant to Section 2.3 below; or
(viiiv) If the 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 to the public (net of any underwriters' discounts or commissions) of less than $100,000; or
(v) If the Company has, within the six (6) month period preceding the date of such request, already effected a demand registration two (2) registrations on Form S-3 for the Holders pursuant to this Section 2.1 and such registration has that have been declared or ordered effective.
Appears in 2 contracts
Samples: Registration Rights Agreement (Xata Corp /Mn/), Registration Rights Agreement (Deere & Co)
Demand Registration. (a) Subject If, on or after the earlier to occur of December 31, 2006, or the conditions expiration of this Section 2.1, if 180 days after the Company shall receive have first offered its securities pursuant to a written request from registration under the 1933 Act, Initiating Holders that shall notify the Company file a registration statement under in writing that such Holders intend to offer or cause to be offered for sale to the Securities Act covering the registration public all or any portion of the Registrable Securities resulting under such circumstances as would require registration thereof under the 1933 Act or qualification thereof under one or more state securities laws of jurisdictions in net offering proceeds of at least $20,000,000which the offer is to be made, then the Company will will, as expeditiously as possible, (xi) promptly give written notice of notify Holders other than the Initiating Holders that it has been requested registration to all Holders register Registrable Securities under the 1933 Act pursuant to this Section 8.2, and (yii) prepare and file a registration statement and otherwise use its best efforts to cause such shares, and all Registrable Securities of securities as may be requested by any Holder or Holders joining in such registration pursuant to a written request delivered to the Company within thirty (30) days after receipt by such Holder or Holders of initial written notice from the Company, thereof to be registered under the 1933 Act, if applicable, and registered or qualified under any state securities laws to the extent required (in the opinion of counsel referred to in this Section 8.2) to permit the sale or other disposition thereof in the manner described by the person requesting such registration. The Holders shall have a total of four such rights to demand registration of Registrable Securities Act within ninety (90) days under this Section 8.2. In addition to the above-described demand registration rights, the holders of Preferred Stock of the requestCompany shall have a total of two rights to demand registration of Registrable Securities held by them under this Section 8.2.
(b) If holders of securities of the Initiating Company other than Holders intend who are entitled, by contract with the Company, to distribute have such securities included in such a registration (the Registrable Securities covered by their “Other Holders”) request by means of an underwritingsuch inclusion, then the Initiating Holders shall so advise offer to include the Company as a part securities of their written request made such other Holders in any registration pursuant to this Section 2.1 or any request pursuant to Section 2.3, and the Company shall include such information in the written notice referred to in Section 2.1(a) or Section 2.3(a), as applicable. In such event, the right of any Holder to include 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 herein8.2. The Company shall (together with all Holders and Other Holders proposing to distribute include their Registrable Securities through securities in such underwritingregistration) shall enter into an underwriting agreement in customary form with the underwriter or representative of the underwriters (the “Underwriter”) selected for to underwrite such underwriting offering by the Company (which underwriter or underwriters shall be reasonably acceptable to a majority in interest of the Initiating Holders), subject to the approval of the Company, which approval shall not be unreasonably withheld. Notwithstanding any other provision of this Section 2.1 or Section 2.38.2, if the underwriter advises the Company Initiating Holders in writing that marketing factors require a limitation of on the number of securities shares to be underwritten (including Registrable Securities)underwritten, then the Company Initiating Holders shall so advise all Holders of Registrable Securities that and Other Holders whose securities would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the registration and underwriting shall be allocated among all Holders in proportion, as nearly as practicable, to the Holders of such Registrable Securities on a pro rata basis based on the number respective amounts of Registrable Securities held by all such Holders (including the Initiating Holders), or in such other proportions as mutually agreed to by such selling Holders; provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.1:
(i) prior to the earlier of September 30, 2015 or six months after the Initial Offering;
(ii) after the Company has effected three registrations pursuant to this Section 2.1 and either (A) all such registrations have been declared or ordered effective or (B) the request for such registration statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have not paid the Registration Expenses of such withdrawn registration; provided, however, that for purposes of Section 2.1, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Section 2.1(b), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have which they had requested to be included in such registration and underwriting at the time of filing the registration statement, and to the extent that additional shares may be included in the underwriting, among all Other Holders requesting such inclusion in proportion, as nearly as practicable, to the respective amount of securities which they had requested to be included in such registration and underwriting. No Registrable Securities or other securities excluded from the underwriting by reason of the Underwriter’s marketing limitations shall be included in such registration. If any Holder or Other Holder who has requested inclusion in such registration as provided herein disapproves of the terms of the underwriting, such person may elect to withdraw therefrom by written notice to the Company, the Underwriter and the Initiating Holders. The securities so withdrawn shall also be withdrawn from registration. If the Underwriter has not limited the number of Registrable Securities or other securities to be underwritten, the Company may include its securities for its own account in such registration if the Underwriter so agrees and if the number of Registrable Securities which would otherwise have been included in such registration and underwriting will not thereby be limited.
(c) The registration of Registrable Securities under this Section 8.2 shall be at the Company’s expense, except that Holders and Other Holders participating in a registration pursuant hereto shall pay their pro rata brokerage or underwriting commissions or discounts relating to the sale owned by them; and the Company shall also pay the fees and expenses of any one special counsel retained by such Holders or Other Holders and except that after the second demand registration under this Section 8.2 demand registrations shall be at the expense of the Holders participating in the registration. Initiating Holders who exercise a right to demand registration under this Section 8.2 may withdraw the exercise and cause the Company either not to file or to withdraw the filing of the registration statement are actually includedat anytime prior to the effectiveness of such statement, provided that:
(i) If the exercise is so withdrawn prior to filing of the registration statement, then the withdrawal of the exercise will not be deemed to have been the exercise of a demand registration right;
(ii) If effectiveness of the registration statement is delayed by more than 90 days by the Company and the exercise is withdrawn prior to effectiveness of the registration statement, then the withdrawal of the exercise will not be deemed to have been the exercise of a demand registration right;
(iii) during Any withdrawals other than the period starting with the date of filing of, withdrawals specified in (i) and ending on the date one hundred eighty (180ii) days following, the effective date of the registration statement pertaining above shall be deemed to the Initial Offering; provided that the Company makes reasonable efforts to cause the registration statement for the Initial Offering to become effective;
(iv) if within thirty (30) days of receipt of be a written request from Initiating Holders demand pursuant to Section 2.1(a)8.2 hereof. If the withdrawn demand registration right is not deemed to have been the exercise of a demand registration right, as provided in subparagraphs (i) and (ii) above, then the withdrawing Holder shall pay or reimburse the legal, auditing and printing expenses reasonably incurred by the Company gives notice in connection with the attempted registration; but if the withdrawn demand registration right is deemed to be an exercise as provided in subparagraph (iii) above, then the Holders of Company shall pay all expenses incurred by it in connection with the Company’s intention to file a attempted registration statement for its Initial Offering within ninety (90) days;
(v) if the Company shall furnish to would have been responsible for paying the Holders requesting a registration statement pursuant to this Section 2.1, a certificate signed by the Chairman expenses of the Board preparation of Directors of the Company (the “Board”) stating that, in the good faith judgment of the Board, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than once in any 12 month period; and provided further that the Company shall not register any securities for its own account or that of any other stockholder during such ninety (90) day period;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.3 below; or
(vii) if the Company has, within the six month period preceding the date of such request, already effected a demand registration for the Holders pursuant to this Section 2.1 and such registration has been declared or ordered effectivestatement.
Appears in 2 contracts
Samples: Note Purchase Agreement, Note Purchase Agreement (Exa Corp)
Demand Registration. (a) Subject to the conditions of this Section 2.12.2, if the Company shall receive a written request from the Holders of at least seventy-five percent (75%) of the Registrable Securities (the “Initiating Holders Holders”) that the Company file a registration statement under the Securities Act covering the registration of at least a majority of the Registrable Securities resulting in then outstanding (or a lesser percent if the anticipated aggregate offering price, net offering proceeds of at least underwriting discounts and commissions, would exceed $20,000,00010,000,000), then the Company will (x) promptly give written notice of the requested registration to all Holders and (y) prepare and file a registration statement and otherwise use its best efforts to cause such sharesshall, and all Registrable Securities of any Holder or Holders joining in such registration pursuant to a written request delivered to the Company within thirty (30) days after of the receipt by such Holder or Holders of initial thereof, give written notice from of such request to all Holders, and subject to the Companylimitations of this Section 2.2, to be registered effect, as expeditiously as reasonably possible, the registration under the Securities Act within ninety (90) days of the requestall Registrable Securities that all Holders request to be registered.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, then the Initiating Holders they shall so advise the Company as a part of their written request made pursuant to this Section 2.1 2.2(a) or any request pursuant to Section 2.3, 2.4 and the Company shall include such information in the written notice referred to in Section 2.1(a2.2(a) or Section 2.3(a2.4(a), as applicable. In such event, the right of any Holder to include 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. The Company shall (together with all All Holders proposing to distribute their Registrable Securities securities through such underwriting) underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company Holders of a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to a majority in interest of the Initiating HoldersCompany). Notwithstanding any other provision of this Section 2.1 2.2 or Section 2.32.4, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities), ) then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares 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), or in such other proportions as mutually agreed to by such selling Holders; provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.12.2:
(i) prior to the earlier second anniversary of September 30, 2015 or six months after the Initial Offeringdate of this Agreement;
(ii) after the Company has effected three registrations one (1) registration pursuant to this Section 2.1 2.2, and either (A) all such registrations have registration has been declared or ordered effective or (B) the request for such registration statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have not paid the Registration Expenses of such withdrawn registration; provided, however, that for purposes of Section 2.1, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Section 2.1(b), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have requested to be included in such registration statement are actually includedeffective;
(iii) during the period starting with the date of filing of, and ending on the date one hundred eighty (180) days following, following the effective date of the registration statement pertaining to the Initial Offeringa public offering, other than pursuant to a Special Registration Statement; provided that the Company makes reasonable good faith efforts to cause the such registration statement for the Initial Offering to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.1(a2.2(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for its Initial Offering a public offering, other than pursuant to a Special Registration Statement, within ninety (90) days;
(v) if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.1, 2.2 a certificate signed by the Chairman of the Board of Directors of the Company (the “Board”) stating that, that in the good faith judgment of the BoardBoard of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety one hundred twenty (90120) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than once twice in any 12 twelve (12) month period; and provided further that the Company shall not register any securities for its own account or that of any other stockholder during such ninety (90) day period;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.3 2.4 below; or
(vii) if in any particular jurisdiction in which the Company haswould be required to qualify to do business or to execute a general consent to service of process in effecting such registration, within the six month period preceding the date of such request, already effected a demand registration for the Holders pursuant to this Section 2.1 and such registration has been declared qualification or ordered effectivecompliance.
Appears in 2 contracts
Samples: Investor Rights Agreement (Talis Biomedical Corp), Investor Rights Agreement (Talis Biomedical Corp)
Demand Registration. (a) Subject to the conditions of this Section 2.13.4, if the Company shall receive a written request from the Holders of a majority of the Registrable Securities (the “Initiating Holders Holders”) that the Company file a registration statement under the Securities Act covering the registration of the Registrable Securities resulting in net offering then outstanding having reasonably anticipated gross proceeds of at least $20,000,00035,000,000, then the Company will (x) promptly give written notice of the requested registration to all Holders and (y) prepare and file a registration statement and otherwise use its best efforts to cause such sharesshall, and all Registrable Securities of any Holder or Holders joining in such registration pursuant to a written request delivered to the Company within thirty (30) days after the receipt by such Holder or Holders of initial thereof, give written notice from of such request to all Holders, and subject to the Companylimitations of this Section 3.4, file and use reasonable best efforts to be registered effect, as expeditiously as possible, the registration under the Securities Act within ninety (90) days and applicable state securities Laws of the requestall Registrable Securities that all Holders request to be registered.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, then the Initiating Holders they shall so advise the Company as a part of their written request made pursuant to this Section 2.1 or any request pursuant to Section 2.3, 3.4 and the Company shall include such information in the written notice referred to in Section 2.1(a) or Section 2.3(a3.4(a), as applicable. In such event, the right of any Holder to include 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. The Company shall (together with all All Holders proposing to distribute their Registrable Securities securities through such underwriting) underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company Holders of a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to a majority in interest of the Initiating HoldersCompany). Notwithstanding any other provision of this Section 2.1 or Section 2.33.4, if the managing underwriter or underwriters advises the Company and the Holders in writing that in the good faith judgment of such managing underwriter or underwriters the marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities), ) then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares 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), or in such other proportions as mutually agreed to by such selling Holders; provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.13.4:
(i) prior during any period in which the Company is eligible to use Form S-3 (in which case the Holders shall have the rights to registration and Shelf Take-Downs set forth in, and subject to the earlier of September 30limitations of, 2015 or six months after the Initial OfferingSection 3.2);
(ii) subject to Section 3.4(d), after the Company has effected three two (2) registrations pursuant to this Section 2.1 3.4, and either (A) all such registrations have been declared or ordered effective or (B) the request for such registration statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have not paid the Registration Expenses of such withdrawn registration; provided, however, that for purposes of Section 2.1, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Section 2.1(b), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have requested to be included in such registration statement are actually includedeffective;
(iii) during the period starting with the date of filing of, and ending on the date one hundred eighty (180) days following, following the effective date of the registration statement pertaining to the Initial Offeringa public offering subject to Section 3.3, other than pursuant to a Special Registration Statement; provided that the Company makes reasonable good faith efforts to cause the such registration statement for the Initial Offering to become effective;
(iv) if within thirty (30) days of after receipt of after a written request from Initiating Holders pursuant to Section 2.1(a3.4(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for its Initial Offering a public offering subject to Section 3.3, other than pursuant to a Special Registration Statement, within ninety (90) days;
(v) if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.1, 3.4 a certificate signed by the Chairman of the Board of Directors of the Company (the “Board”) stating that, that in the good faith judgment of the BoardBoard of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety sixty (9060) days after receipt of the request of the Initiating Holders; provided that such right to delay a request (together with any similar right set forth in Section 3.2 or Section 3.7(a)) shall be exercised by the Company not more than once three (3) times in any 12 twelve (12) month period; and provided further that the Company shall not register any securities for its own account or that of any other stockholder during such ninety (90) day period;or
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.3 below; or
(vii) if in any particular jurisdiction in which the Company haswould be required to qualify to do business or to execute a general consent to service of process in effecting such registration, within qualification or compliance, in each case, where the six month period preceding the date of Company would not otherwise be required to so qualify or execute a general consent, as applicable, but for such request, already effected a demand registration for the Holders pursuant to this Section 2.1 3.4.
(d) Notwithstanding any other provision of this Agreement, a registration pursuant to Section 3.2 or requested pursuant to this Section 3.4 shall not be deemed to have been effected (i) if the registration statement is withdrawn without becoming effective, (ii) if after it has become effective such registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other Governmental Authority for any reason other than a misrepresentation or an omission by an Initiating Holder and, 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; provided, that if such registration is a Shelf Registration Statement pursuant to Section 3.2, such registration shall be deemed to have been effected if such Shelf Registration Statement remains effective for the period specified in Section 3.7(a), (iii) if not a Shelf Registration Statement and the registration does not contemplate an underwritten offering, if the applicable registration statement does not remain effective for at least 180 days (or such shorter period as will terminate when all securities covered by such registration statement have been sold or withdrawn); or if not a Shelf Registration Statement and such registration has been declared statement contemplates an underwritten offering, if it does not remain effective for at least 180 days plus such longer period as, in the opinion of counsel for the underwriter or ordered effectiveunderwriters, a prospectus is required by Law to be delivered in connection with the sale of Registrable Securities by an underwriter or dealer or (iv) in the event of an underwritten offering, if the conditions to closing specified in the purchase agreement or underwriting agreement entered into in connection with such registration are not satisfied or waived other than by reason of some wrongful act or omission by the Initiating Holders.
Appears in 2 contracts
Samples: Stockholder Agreement (WEB.COM Group, Inc.), Stockholder Agreement (WEB.COM Group, Inc.)
Demand Registration. (a) Subject The Company hereby agrees to use its best efforts to register all or any portion of the conditions Registrable Shares on one (1) occasion upon receipt of this Section 2.1, if the Company shall receive a written request from Initiating Holders a holder (the “Holder” or “Holders”) of record of the Registrable Shares that the Company file a registration statement under the Securities 1933 Act covering the registration of the Registrable Securities resulting in net offering proceeds Shares then outstanding. The Company shall, within twenty (20) days of at least $20,000,000its receipt thereof, then the Company will (x) promptly give written notice of the requested registration such request to all holders of record of Registrable Shares. The Holders and of said Registrable Shares shall then have fifteen (y15) prepare and file a registration statement and otherwise use its best efforts to cause days from the date of mailing of such shares, and all Registrable Securities of any Holder or Holders joining in such registration pursuant to a written request delivered to notice by the Company within thirty (30) days after receipt by such Holder to request that all or Holders a portion of initial written notice from the Company, to their respective Registrable Shares be registered under the Securities Act within ninety (90) days of the requestincluded in said registration.
(b) If the Initiating Holders intend to distribute the Registrable Securities Shares covered by their request by means of an underwriting, then the Initiating Holders they shall so advise the Company as a part of their written request made pursuant to this Section 2.1 or any request pursuant to Section 2.3Agreement, and the Company shall include such information in the written notice to the other Holders of Registrable Shares referred to in Section 2.1(a1(a) or Section 2.3(a), as applicableabove. In such event, the right of any Holder to include its Registrable Securities Shares in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities Shares in the underwriting (unless otherwise mutually agreed by the Company, the underwriter, the Initiating Holder and such Holder) is limited to the extent provided herein. The Company shall (together with all All Holders proposing to distribute their Registrable Securities securities through such underwritingunderwriting shall (together with the Company as provided in Section 3(e) below) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by mutual agreement of the Company (which underwriter or underwriters shall be reasonably acceptable to a majority in interest of and the Initiating Holders)Holder, which agreement shall not be unreasonably withheld. Notwithstanding any other provision of this Section 2.1 or Section 2.31, if the underwriter advises the Initiating Holder and the Company in writing that marketing factors require a limitation of the number of securities shares to be underwritten (including Registrable Securities)underwritten, then the Company Initiating Holder shall so advise all Holders of Registrable Securities that Shares which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Shares 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 among all such Holders (including the Initiating Holders), or that have requested to participate in such other proportions as mutually agreed to by such selling Holders; provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.1:
(i) prior to the earlier of September 30, 2015 or six months after the Initial Offering;
(ii) after the Company has effected three registrations pursuant to this Section 2.1 and either (A) all such registrations have been declared or ordered effective or (B) the request for Each such registration statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have not paid the Registration Expenses shall remain effective for a period of such withdrawn registration; provided, however, that for purposes of Section 2.1, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Section 2.1(b), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have requested to be included in such registration statement are actually included;
(iii) during the period starting with the date of filing of, and ending on the date one hundred eighty (180) days followingdays, unless the Initiating Holder requests that such registration be terminated prior to the expiration of such period.
(d) If, after a registration statement becomes effective, the effective date of Company advises the Holders that the registration statement pertaining is required to be amended under applicable federal securities laws, the Initial Offering; provided Holders shall suspend any further sales of their Registrable Shares, until the Company advises them that the Company makes reasonable efforts to cause the registration statement for the Initial Offering to become effective;
(iv) if within statements has been amended, but not more than thirty (30) days. The one hundred eighty (180)-day time period referred to in subsection (c) during which the registration statement must be kept current after its effective date shall be extended for an additional number of business days equal to the number of receipt of a written request from Initiating Holders business days during which the right to sell the Registrable Shares was suspended pursuant to Section 2.1(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for its Initial Offering within ninety (90) days;preceding sentence.
(ve) if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.1, a certificate signed by the Chairman of the Board of Directors of the Company (the “Board”) stating that, in the good faith judgment of the Board, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of exclude an underwriter not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right reasonably acceptable to delay a request shall be exercised by the Company not more than once in any 12 month period; and provided further that the Company shall not register any securities for its own account or that of any other stockholder during such ninety (90) day period;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.3 below; or
(vii) if the Company has, within the six month period preceding the date of such request, already effected a demand registration for the Holders pursuant to this Section 2.1 and such registration has been declared or ordered effectiveit.
Appears in 2 contracts
Samples: Registration Rights Agreement (Integrated Security Systems Inc), Registration Rights Agreement (Integrated Security Systems Inc)
Demand Registration. (a) Subject to Any Purchaser or Strategic Partner may, at any time after consummation of the conditions Company's initial public offering of this Section 2.1equity securities, if the Company shall receive a written request from Initiating Holders in writing that the Company file cause a registration statement to be filed under the Securities Act covering (on any Form then available to the registration Company) with respect to such of its Eligible Securities as it shall specify in such request, provided that (i) the Registrable Securities resulting in net gross proceeds from such offering proceeds of will be or are reasonably expected to be not less than $5 million and (ii) such Purchaser or Strategic Partner includes at least $20,000,000, then the 25% of its Eligible Securities in its request. The Company will (x) shall promptly give written notice of such request to the other Holders of Eligible Securities and afford them the opportunity of including in the requested registration to all Holders and (y) prepare and file a registration statement and otherwise use its best efforts to cause such shares, and all Registrable of their Eligible Securities of any Holder or Holders joining as they shall specify in such registration pursuant to a written request delivered notice given to the Company within thirty (30) days after their receipt by such Holder or Holders of initial written notice from the Company's notice of the request for the filing of a registration statement. Following receipt of such notices, the Company shall promptly use its best efforts to cause all Eligible Securities with respect to which Holders shall have so requested registration to be registered under the Securities Act within ninety (90) days Act, all to the extent required to permit the sale or other disposition by the Holders of the requestEligible Securities so registered in the manner specified by such Holders in their notices and pursuant to this Section.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, then the Initiating Holders shall so advise the Company as a part of their written request made pursuant to this Section 2.1 or any request pursuant to Section 2.3, and the Company shall include such information in the written notice referred to in Section 2.1(a) or Section 2.3(a), as applicable. In such event, the right of any Holder to include 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. The Company shall (together with all Holders proposing to distribute their Registrable Securities through such underwriting) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company (which underwriter or underwriters shall be reasonably acceptable to a majority in interest of the Initiating Holders). Notwithstanding any other provision of this Section 2.1 or Section 2.3, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares 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), or in such other proportions as mutually agreed to by such selling Holders; provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect file and cause to become effective more than two (2) registration statements at the demand of any Purchaser or Strategic Partner made under this Section 1.2.
(c) If the Holders of the Eligible Securities making such demand propose to sell their Eligible Securities in a firm commitment underwriting and the managing underwriter advises such Holders that not all Eligible Securities of such Holders can be included in such offering, then the requisite number of Eligible Securities shall be excluded from registration on a basis pro rata among the Holders of the Eligible Securities requesting such registration on the basis of the number of Eligible Securities held by each of them. If by virtue of this Section 1.2(c), more than 50% of the Eligible Securities which a Purchaser or Strategic Partner has demanded be registered are excluded from the registration statements then such Purchaser or Strategic Partner shall not be deemed to have exercised a demand registration right under this Section 1.2.
(d) Provided the Company has honored its obligations under Section 1.1, no demand registration right granted in this Section may be exercised by any Purchaser or Strategic Partner during any period of time beginning on the date the Company (i) files a registration statement with the Securities and Exchange Commission registering any of its securities for sale to the public or (ii) files a registration statement upon the demand of any other Strategic Partner pursuant to this Section 2.1:
(i) prior to the earlier of September 30, 2015 or six months after the Initial Offering;
(ii) after the Company has effected three registrations pursuant to this Section 2.1 and either (A) all such registrations have been declared or ordered effective or (B) the request for such registration statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have not paid the Registration Expenses of such withdrawn registration; provided, however, that for purposes of Section 2.1, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Section 2.1(b), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have requested to be included in such registration statement are actually included;
(iii) during the period starting with the date of filing of1.2, and ending on the earlier to occur of (A) 90 days after the date one hundred eighty (180) days following, the effective date of the registration statement pertaining to the Initial Offering; provided that the Company makes reasonable efforts to cause the registration statement for the Initial Offering to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.1(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for its Initial Offering within ninety (90) days;
(v) if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.1, a certificate signed by the Chairman of the Board of Directors of the Company (the “Board”) stating that, in the good faith judgment of the Board, it would be seriously detrimental to the Company and its stockholders for on which such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised is declared effective by the Company not more than once in any 12 month period; Securities and provided further that Exchange Commission or otherwise becomes effective, and (B) the Company shall not register any securities for its own account or that of any other stockholder during such ninety (90) 180th day period;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.3 below; or
(vii) if the Company has, within the six month period preceding after the date of such request, already effected a filing.
(e) The demand registration for rights granted in this Section 1.2 shall expire, if not exercised prior thereto, on the date on which more than 90% of all Eligible Securities (as of the date of this Agreement) shall have been publicly sold by the Holders thereof in a public offering registered under the Securities Act of 1933 or pursuant to this Section 2.1 and such registration has been declared or ordered effectiveRule 144 thereunder.
Appears in 2 contracts
Samples: Purchase Agreement (Internet Capital Group Inc), Purchase Agreement (Internet Capital Group Inc)
Demand Registration. (a) Subject to the conditions of this Section 2.12.2, if the Company shall receive a written request from the Holders of a majority in interest of the Registrable Securities then outstanding (the “Initiating Holders Holders”) that the Company file a registration statement under the Securities Act covering the registration of at least a majority of the Registrable Securities resulting in then outstanding (or a lesser percent if the anticipated aggregate offering price, net offering proceeds of at least underwriting discounts and commissions, would exceed Cdn. $20,000,0005,000,000 (a “Qualified Public Offering”)), then the Company will (x) promptly give written notice of the requested registration to all Holders and (y) prepare and file a registration statement and otherwise use its best efforts to cause such sharesshall, and all Registrable Securities of any Holder or Holders joining in such registration pursuant to a written request delivered to the Company within thirty (30) days after of the receipt by such Holder or Holders of initial thereof, give written notice from of such request to all Holders, and subject to the Companylimitations of this Section 2.2, to be registered effect, as expeditiously as reasonably possible, the registration under the Securities Act within ninety (90) days of all Registrable Securities that the requestHolders request to be registered.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, then the Initiating Holders they shall so advise the Company as a part of their written request made pursuant to this Section 2.1 2.2 or any request pursuant to Section 2.3, 2.4 and the Company shall include such information in the written notice referred to in Section 2.1(a2.2(a) or Section 2.3(a2.4(a), as applicable. In such event, the right of any Holder to include 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. The Company shall (together with all All Holders proposing to distribute their Registrable Securities securities through such underwriting) underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by a majority in interest of the Company Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to a majority in interest of the Initiating HoldersCompany). Notwithstanding any other provision of this Section 2.1 2.2 or Section 2.32.4, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities), ) then the Company shall so advise all Holders of Registrable Securities that which would otherwise be underwritten pursuant hereto, and the number of shares 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), or in such other proportions as mutually agreed to by such selling Holders; provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.12.2:
(i) prior to the earlier of September 30, 2015 (A) the third anniversary of the date of this Agreement or six months after (B) one hundred eighty (180) days following the effective date of the registration statement pertaining to the Initial Offering;
(ii) after the Company has effected three two (2) registrations pursuant to this Section 2.1 2.2, and either (A) all such registrations have been declared or ordered effective or (B) the request for such registration statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have not paid the Registration Expenses of such withdrawn registration; provided, however, that for purposes of Section 2.1, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Section 2.1(b), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have requested to be included in such registration statement are actually includedeffective;
(iii) during the period starting with the date of filing of, and ending on the date one hundred eighty (180) days following, following the effective date of the registration statement pertaining to the Initial Offeringa public offering, other than pursuant to a Special Registration Statement; provided that the Company makes reasonable good faith efforts to cause the such registration statement for the Initial Offering to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.1(a2.2(a), the Company gives notice to the Holders of the Company’s intention to file make a registration statement for its Initial Offering public offering, other than pursuant to a Special Registration Statement, within ninety (90) days;
(v) if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.12.2, a certificate signed by the Chairman of the Board of Directors of the Company (the “Board”) stating that, that in the good faith judgment of the BoardBoard of Directors of the Company, it would be seriously detrimental to the Company and its stockholders shareholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than once in any 12 twelve (12) month period; and provided further that the Company shall not register any securities for its own account or that of any other stockholder during such ninety (90) day period;or
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 or Form F-3 pursuant to a request made pursuant to Section 2.3 2.4 below; or
(vii) if the Company has, within the six month period preceding the date of such request, already effected a demand registration for the Holders pursuant to this Section 2.1 and such registration has been declared or ordered effective.
Appears in 2 contracts
Samples: Investor Rights Agreement, Investor Rights Agreement (Xenon Pharmaceuticals Inc.)
Demand Registration. (a) Subject to the conditions of this Section 2.11.2, if the Company shall receive a written request from either the Investor or Holders of a majority of the Registrable Securities then outstanding (in either case, the "Initiating Holders Holders") that the Company file a registration statement under the Securities Act covering the registration of the Registrable Securities resulting in then outstanding such that the anticipated aggregate offering price, net offering proceeds of at least underwriting discounts and commissions, would exceed $20,000,0005,000,000 (a "Qualified Public Offering"), then the Company will shall, within ten (x10) promptly days of the receipt thereof, give written notice of the requested registration such request to all Holders Holders, and (y) prepare and file a registration statement and otherwise subject to the limitations of this Section 1.2, use its best efforts to cause such shareseffect, and as soon as practicable, the registration under the Securities Act of all Registrable Securities of any Holder or that the Holders joining in such registration pursuant request to a written request delivered to be registered; provided that the Company within shall file the registration statement no later than thirty (30) days after following receipt by of such Holder or Holders of initial written notice from notice. Such registration statement may be filed on any appropriate registration form for which the Company, to be registered under the Securities Act within ninety Company is then eligible (90including Form S-3) days that contemplated an offering of the requesttype proposed by the Initiating Holders in the request made pursuant to the Section 1.2.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, then the Initiating Holders they shall so advise the Company as a part of their written request made pursuant to this Section 2.1 1.2 or any request pursuant to Section 2.3, 1.4 and the Company shall include such information in the written notice referred to in Section 2.1(a1.2(a) or Section 2.3(a1.4(a), as applicable. In such event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s 's participation in such underwriting and the inclusion of such Holder’s 's Registrable Securities in the underwriting to the extent provided herein. The Company shall (together with and all Holders proposing to distribute their Registrable Securities securities through such underwriting) underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by a majority in interest of the Company Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to a majority in interest of the Initiating HoldersCompany). Notwithstanding any other provision of this Section 2.1 1.2 or Section 2.31.4, if the underwriter advises the Company that marketing factors require a limitation of the number of securities shares to be underwritten (including Registrable Securities), ) then the Company shall so advise all Holders of Registrable Securities that which would otherwise be underwritten pursuant hereto, and the number of shares 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 total number of Registrable Securities held by all such Holders (including the Initiating Holders), or in such other proportions as mutually agreed to by such selling Holders; provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.11.2:
(i) prior to the earlier of September 30December 31, 2015 or six months after the Initial Offering2001;
(ii) after the Company has effected three (3) registrations pursuant to this Section 2.1 1.2, and either (A) all such registrations have been declared or ordered effective or (B) the request for such registration statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have not paid the Registration Expenses of such withdrawn registration; provided, however, that for purposes of Section 2.1, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Section 2.1(b), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have requested to be included in such registration statement are actually includedeffective;
(iii) during the period starting with 30 days prior to the date of filing of, and ending on the date one hundred eighty ninety (18090) days following, following the effective date of the registration statement pertaining to a public offering of securities by the Initial OfferingCompany; provided that the Company makes reasonable good faith efforts to cause the such registration statement for the Initial Offering to become effective;; or
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.1(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for its Initial Offering within ninety (90) days;
(v) if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.11.2, a certificate signed by the Chairman of the Board of Directors or Chief Executive Officer of the Company (the “Board”) stating that, that in the good faith judgment of the BoardBoard of Directors of the Company, it would be seriously detrimental to the Company and its stockholders shareholders for such registration statement to be effected at such timetime (it being acknowledged that the Investor's decision to sell or any direct or perceived impact of that decision on any related business or commercial relationships between the Investor and the Company shall not be deemed seriously detrimental within the meaning of this provision), in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided provided, however, that such right to delay a request shall not be exercised by the Company not more than once in any 12 twelve (12) month period; and provided further that the Company shall not register any securities for its own account or that of any other stockholder during such ninety (90) day period;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.3 below; or
(vii) if the Company has, within the six month period preceding the date of such request, already effected a demand registration for the Holders pursuant to this Section 2.1 and such registration has been declared or ordered effective.
Appears in 2 contracts
Samples: Investor's Rights Agreement (Nokia Finance International B V), Investor's Rights Agreement (F5 Networks Inc)
Demand Registration. (a) Subject to the conditions of this Section 2.1, if the Company shall receive a written request from the Holders who together hold in aggregate not less than 25% of the Registrable Securities then outstanding (the “Initiating Holders Holders”) that the Company file a registration statement under the Securities Act covering the registration of at least 25% of the Registrable Securities resulting in then outstanding (or a lesser percent if the anticipated aggregate offering price, net offering proceeds of at least underwriting discounts and commissions, would exceed $20,000,00010,000,000), then the Company will (x) promptly give written notice of the requested registration to all Holders and (y) prepare and file a registration statement and otherwise use its best efforts to cause such sharesshall, and all Registrable Securities of any Holder or Holders joining in such registration pursuant to a written request delivered to the Company within thirty (30) days after of the receipt by such Holder or Holders of initial thereof, give written notice from of such request to all Holders, and subject to the Companylimitations of this Section 2.1, to be registered effect, as expeditiously as reasonably possible, the registration under the Securities Act within ninety (90) days of the requestall Registrable Securities that all Holders request to be registered.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, then the Initiating Holders they shall so advise the Company as a part of their written request made pursuant to this Section 2.1 or any request pursuant to Section 2.3, 2.3 and the Company shall include such information in the written notice referred to in Section 2.1(a) or Section 2.3(a), as applicable. In such event, the right of any Holder to include 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. The Company shall (together with all All Holders proposing to distribute their Registrable Securities securities through such underwriting) underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company Holders of a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to a majority in interest of the Initiating HoldersCompany). Notwithstanding any other provision of this Section 2.1 or Section 2.3, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities), ) then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares 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), or in such other proportions as mutually agreed to by such selling Holders; provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.1:
(i) prior to the earlier date one hundred eighty (180) days following the effective date of September 30, 2015 the registration statement pertaining to the IPO (or six months after the Initial Offeringsuch longer period as may be determined pursuant to Section 2.9 hereof);
(ii) after the Company has effected three two (2) registrations pursuant to this Section 2.1 2.1, and either (A) all such registrations have been declared or ordered effective or (B) the request for such registration statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have not paid the Registration Expenses of such withdrawn registration; provided, however, that for purposes of Section 2.1, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Section 2.1(b), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have requested to be included in such registration statement are actually includedeffective;
(iii) during the period starting with the date of filing ofif, and ending on the date one hundred eighty (180) days following, the effective date of the registration statement pertaining to the Initial Offering; provided that the Company makes reasonable efforts to cause the registration statement for the Initial Offering to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.1(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for its Initial Offering a public offering, other than pursuant to a Special Registration Statement, within ninety (90) days;
(viv) if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.1, 2.1 a certificate signed by the Chairman of the Board (or, in the absence of Directors a Chairman of the Company (the “Board”, a lead independent director or director exercising a similar function) stating that, that in the good faith judgment of the BoardBoard of Directors of the Company, it would be seriously detrimental to the Company and its stockholders shareholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety one hundred twenty (90120) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than once in any 12 month period; and provided further that the Company shall not register any securities for its own account or that of any other stockholder during such ninety (90) day period;
(viv) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 F-3 pursuant to a request made pursuant to Section 2.3 below; or
(viivi) if in any particular jurisdiction in which the Company haswould be required to qualify to do business or to execute a general consent to service of process in effecting such registration, within the six month period preceding the date of such request, already effected a demand registration for the Holders pursuant to this Section 2.1 and such registration has been declared qualification or ordered effectivecompliance.
Appears in 2 contracts
Samples: Registration Rights Agreement (Autolus Therapeutics PLC), Registration Rights Agreement (Arix Bioscience PLC)
Demand Registration. (a) Subject to the conditions of this Section 2.1, if the Company shall receive a written request from the Holders of a majority of the Series D Preferred Stock (including holders of a majority of Common Stock issued upon conversion of the Series D Preferred Stock) Then Outstanding (the "Initiating Holders Holders") that the Company file a registration statement under the Securities Act covering the registration of all or a portion of the Registrable Securities resulting in net offering proceeds of at least $20,000,000any time after six months following the date hereof, then the Company will (x) promptly give written notice of the requested registration to all Holders and (y) prepare and file a registration statement and otherwise use its best efforts to cause such sharesshall, and all Registrable Securities of any Holder or Holders joining in such registration pursuant to a written request delivered to the Company within thirty (30) days after of the receipt by such Holder or Holders of initial thereof, give written notice from of such request to all Holders, and subject to the Companylimitations of this Section 2.1, use its best efforts to be registered effect, as soon as practicable, the registration under the Securities Act within ninety (90) days of all Registrable Securities that the requestHolders request to be registered.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, then the Initiating Holders they shall so advise the Company as a part of their written request made pursuant to this Section 2.1 or any request pursuant to Section 2.3, and the Company shall include such information in the written notice referred to in Section 2.1(a) or Section 2.3(a), as applicable. In such event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s 's participation in such underwriting and the inclusion of such Holder’s 's Registrable Securities in the underwriting to the extent provided herein. The Company shall (together with all All Holders proposing to distribute their Registrable Securities securities through such underwriting) underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by a majority in interest of the Company Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to a majority in interest of the Initiating HoldersCompany). Notwithstanding any other provision of this Section of
2.1 or Section 2.3, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities), ) then the Company shall so advise all Holders of Registrable Securities that which would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata PRO RATA basis based on the number of Registrable Securities held by all such Holders (including the Initiating Holders); PROVIDED, or in such other proportions as mutually agreed to by such selling Holders; provided, howeverHOWEVER, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company Holders shall not be required to effect a registration pursuant to have no more than two demand registrations under this Section 2.1:
(i) prior to the earlier of September 30, 2015 or six months after the Initial Offering;
(ii) after the Company has effected three registrations pursuant to this Section 2.1 and either (A) all such registrations have been declared or ordered effective or (B) the request for such registration statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have not paid the Registration Expenses of such withdrawn registration; provided, however, that for purposes of Section 2.1, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Section 2.1(b), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have requested to be included in such registration statement are actually included;
(iii) during the period starting with the date of filing of, and ending on the date one hundred eighty (180) days following, the effective date of the registration statement pertaining to the Initial Offering; provided that the Company makes reasonable efforts to cause the registration statement for the Initial Offering to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.1(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for its Initial Offering within ninety (90) days;
(v) if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.1, a certificate signed by the Chairman of the Board of Directors of the Company (the “Board”) stating that, in the good faith judgment of the Board, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than once in any 12 month period; and provided further that the Company shall not register any securities for its own account or that of any other stockholder during such ninety (90) day period;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.3 below; or
(vii) if the Company has, within the six month period preceding the date of such request, already effected a demand registration for the Holders pursuant to this Section 2.1 and such registration has been declared or ordered effective.
Appears in 2 contracts
Samples: Registration Rights Agreement (I Storm Inc), Registration Rights Agreement (I Storm Inc)
Demand Registration. (a) Subject to the conditions of this Section 2.12.2, if the Company shall receive a written request from the Holders of at least 25% of the Registrable Securities (the “Initiating Holders Holders”) that the Company file a registration statement under the Securities Act covering the registration of at least 25% of the Registrable Securities resulting in net offering proceeds of at least $20,000,000then outstanding, then the Company will (x) promptly shall, within 10 business days of the receipt thereof, give written notice of the requested registration such request to all Holders and (y) prepare and file a registration statement and otherwise use its best efforts to cause such sharesHolders, and all Registrable Securities of any Holder or Holders joining in such registration pursuant to a written request delivered subject to the Company within thirty (30) days after receipt by such Holder or Holders limitations of initial written notice from this Section 2.2, effect, as expeditiously as reasonably possible, the Company, to be registered registration under the Securities Act within ninety (90) days of all Registrable Securities that all Holders request to be registered in the requestmanner specified by the Initiating Holders.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request (the “Covered Registrable Securities”) by means of an underwriting, then the Initiating Holders they shall so advise the Company as a part of their written request made pursuant to this Section 2.1 2.2 or any request pursuant to Section 2.3, 2.4 and the Company shall include such information in the written notice referred to in Section 2.1(a2.2(a) or Section 2.3(a2.4(a), as applicable. In such event, the right of any Holder to include its Covered Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Covered Registrable Securities in the underwriting to the extent provided herein. The Company shall (together with all All Holders proposing to distribute their Covered Registrable Securities through such underwriting) underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company Holders of a majority of the Covered Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to a majority in interest of the Initiating HoldersCompany). Notwithstanding any other provision of this Section 2.1 2.2 or Section 2.32.4, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities), ) then the Company shall so advise all Holders of Covered Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Covered Registrable Securities on a pro rata basis based on the number of Covered Registrable Securities held by all such Holders (including the Initiating Holders), or in such other proportions as mutually agreed to by such selling Holders; provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Covered Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.12.2:
(i) prior In any jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, qualification, or compliance unless the earlier of September 30, 2015 or six months after Company is already subject to service in such jurisdiction and except as may be required by the Initial OfferingSecurities Act;
(ii) after the Company has effected three registrations pursuant to this Section 2.1 and either (A) all such registrations have been declared or ordered effective or (B) the request for such registration statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have not paid the Registration Expenses of such withdrawn registration; provided, however, that for purposes of Section 2.1, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Section 2.1(b), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have requested to be included in such registration statement are actually included;
(iii) during During the period starting with the date 60 days prior to the Company’s good faith estimated date of filing of, and ending on the date one hundred eighty (180) 180 days following, immediately following the effective date of the any registration statement pertaining to securities of the Initial OfferingCompany (other than a registration of securities pursuant to a Special Registration Statement); provided that the Company makes reasonable is actively employing its best efforts to cause the such registration statement for the Initial Offering to become effective;
(iviii) After the Company has effected two such registrations pursuant to this Section 2.2, and such registrations have been declared or ordered effective and pursuant to which at least 51% of the Covered Registrable Securities have been sold or remain sellable; provided, however, that if within thirty (30) days any such registration statement is terminated or withdrawn at the request of receipt the Holders holding a majority of the outstanding Registrable Securities pursuant to a written request from Initiating Holders registration initiated under Section 2.2(a), prior to such registration statement being declared or ordered effective, then the Company shall have been deemed to have effected a registration pursuant to Section 2.1(a2.2(a); provided further, the Company gives notice to however, that if the Holders holding a majority of the outstanding Registrable Securities elect to withdraw a registration statement pursuant to Section 2.2(a) as a result of the material adverse change in the business, assets, prospects, or operations of the Company’s intention to file , such registration shall not be counted as a registration statement demand for its Initial Offering within ninety (90) days;purposes of Section 2.2(a); or
(viv) if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.1Initiating Holders, a certificate signed on behalf of the Board by the Chairman of the Board of Directors of the Company (the “Board”) stating that, that in the good faith judgment of the Board, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at filed and it is therefore essential to defer the filing of such timeregistration statement, in which event the Company shall have the right to defer such filing for a period of not more than ninety 90 days (90the “Delay Period”) days after receipt of the request of the Initiating Holders; provided that that, such right to delay a request shall be exercised by the Company not no more than once twice as to a registration demand under this Section 2.2 in any 12 month rolling one-year period; and provided further further, that the Company shall may delay any such additional requests pursuant to Section 2.2 received during the Delay Period until the termination of the Delay Period.
(d) Except for registration statements on Form S-4 or registrations relating solely to employee benefit plans on Forms S-1 or S-8 or any successors thereto, the Company will not register file with the Commission any securities other registration statement with respect to its Common Stock, whether for its own account or that of any other stockholder during such ninety (90) day period;
(vi) if stockholders, from the date of receipt of a notice from the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 requesting sale pursuant to a request made pursuant to Section 2.3 below; or
(vii) if the Company has, within the six month period preceding the date of such request, already effected a demand registration for the Holders an underwritten offering pursuant to this Section 2.1 and 2.2 until the earlier to occur of (i) 90 days following the effectiveness of such registration has been declared statement or ordered effective(ii) the completion of the Period of Distribution of the registration contemplated thereby.
Appears in 2 contracts
Samples: Investor Rights Agreement (Xencor Inc), Investor Rights Agreement (Xencor Inc)
Demand Registration. (a) Subject to the conditions of this Section 2.12.2, if the Company shall receive a written request from the Holders of a majority of the Registrable Securities (the “Initiating Holders Holders”) that the Company file a registration statement under the Securities Act covering the registration of at least a majority of the Registrable Securities resulting in then outstanding (or a lesser percent if the anticipated aggregate offering price, net offering proceeds of at least underwriting discounts and commissions, would exceed Five Million Dollars ($20,000,0005,000,000)), then the Company will (x) promptly give written notice of the requested registration to all Holders and (y) prepare and file a registration statement and otherwise use its best efforts to cause such sharesshall, and all Registrable Securities of any Holder or Holders joining in such registration pursuant to a written request delivered to the Company within thirty (30) days after the receipt by such Holder or Holders of initial thereof, give written notice from of such request to all Holders, and subject to the Companylimitations of this Section 2.2, to be registered effect, as expeditiously as reasonably possible, the registration under the Securities Act within ninety (90) days of the requestall Registrable Securities that all Holders request to be registered.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, then the Initiating Holders they shall so advise the Company as a part of their written request made pursuant to this Section 2.1 or any request pursuant to Section 2.3, 2.2 and the Company shall include such information in the written notice referred to in Section 2.1(a) or Section 2.3(a2.2(a), as applicable. In such event, the right of any Holder to include 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. The Company shall (together with all All Holders proposing to distribute their Registrable Securities securities through such underwriting) underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by a majority in interest of the Company Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to a majority in interest of the Initiating HoldersCompany). Notwithstanding any other provision of this Section 2.1 or Section 2.32.2, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities), ) then the Company shall so advise all Holders of Registrable Securities that which would otherwise be underwritten pursuant hereto, and the number of shares 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), or in such other proportions as mutually agreed to by such selling Holders; provided, however, that the number of shares of no Registrable Securities to shall be included in such underwriting excluded unless and registration shall not be reduced unless until all other securities of the Company are first entirely excluded from the underwriting and registrationhave been excluded. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.12.2:
(i) prior to the earlier of September 30, 2015 or six months two hundred and seventy (270) days after the Initial Offeringdate of this Agreement;
(ii) after the Company has effected three registrations one (1) registration pursuant to this Section 2.1 2.2, and either (A) all such registrations have registration has been declared or ordered effective or (B) the request for such registration statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have not paid the Registration Expenses of such withdrawn registration; provided, however, that for purposes of Section 2.1, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Section 2.1(b), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have requested to be included in such registration statement are actually includedeffective;
(iii) during the period starting with the date of filing of, and ending on the date one hundred eighty (180) days following, the effective date of the registration statement pertaining to the Initial Offering; provided that the Company makes reasonable efforts to cause the registration statement for the Initial Offering to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.1(a2.2(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for its Initial Offering a public offering, other than pursuant to a Special Registration Statement within ninety (90) days;
(viv) if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.12.2, a certificate signed by the Chairman of the Board of Directors of the Company (the “Board”) stating that, that in the good faith judgment of the BoardBoard of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety one hundred twenty (90120) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by and
(v) in any particular jurisdiction in which the Company not more than once would be required to qualify to do business or to execute a general consent to service of process in any 12 month period; and provided further that effecting such registration, qualification or compliance unless the Company shall not register any securities for its own account or that of any other stockholder during is already subject to service in such ninety (90) day period;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that jurisdiction and except as may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.3 below; or
(vii) if required under the Company has, within the six month period preceding the date of such request, already effected a demand registration for the Holders pursuant to this Section 2.1 and such registration has been declared or ordered effectiveSecurities Act.
Appears in 2 contracts
Samples: Registration Rights Agreement (It&e International Group), Registration Rights Agreement (Lavin Philip T)
Demand Registration. (a) Subject to the conditions of this Section 2.1, if the Company 2.1 If Newco shall receive a written request from Sprint, or if Sprint is not a Holder at such time, from Holders who in the aggregate hold a majority of the Registrable Securities (in either case, collectively, the "Initiating Holders Holders") that the Company Newco file a registration statement Registration Statement under the Securities Act covering the registration of the any or all of such Holder's Registrable Securities resulting in net offering proceeds of at least $20,000,000Securities, then Newco shall (i) within 10 days of the Company will (x) promptly receipt thereof, give written notice of the requested registration such request to all Holders of outstanding Registrable Securities known to Newco and to any additional addressees provided to Newco by any transferee of any Holder, and (yii) prepare and file a registration statement and otherwise use its best efforts to cause such shares, and all Registrable Securities of any Holder or Holders joining in such registration pursuant to a written request delivered subject to the Company limitations contained in this Article 2, as soon as practicable and in any event within thirty (30) 45 days after of the receipt by of such Holder or Holders of initial written notice from request, file the Company, Registration Statement to be registered effect registration under the Securities Act covering all Registrable Securities for which Newco receives a request from the Holders and transferees thereof within ninety (90) 30 days of the requestdelivery of the notice by Newco as required in clause (i) above. Newco, however, shall not be required to file a Registration Statement pursuant to this Article 2 unless the aggregate number of Registrable Securities requested to be registered is greater than 750,000 (as adjusted to reflect stock splits, reverse stock splits, stock dividends and similar actions).
(b) Section 2.2 If the an Initiating Holders intend Holder intends to distribute the Registrable Securities covered by their its request by means of an underwriting, then the Initiating Holders it shall so advise the Company Newco as a part of their written its request made pursuant to this Section 2.1 or any request pursuant to Section 2.3, and the Company Newco shall include such information in the written notice to the Holders referred to in Section 2.1(a) or Section 2.3(a), as applicable2.1. In such event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s 's participation in such the underwriting and the inclusion of such Holder’s 's Registrable Securities in the underwriting to the extent provided herein. The Company shall (together with all All Holders proposing to distribute their sell Registrable Securities through such underwritingunderwriting (together with Newco as provided in Section 4.1(ix) of this Agreement and any other holder of shares of Common Stock permitted to participate in such registration pursuant to this Section 2.2) shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company Initiating Holder(s) (provided the same are underwriters of recognized national standing, and provided that such selection is subject to the approval of Newco, which underwriter or underwriters shall not be reasonably acceptable to a majority in interest of unreasonably withheld) upon the terms and conditions agreed upon among Newco, the Initiating HoldersHolder(s) and such underwriter(s). Notwithstanding any other provision of this Section 2.1 or Section 2.3Article 2, if the underwriter advises underwriter(s) advise the Company Initiating Holder(s) and Newco in writing that marketing or other factors require a limitation of the number of securities Registrable Securities to be underwritten (including Registrable Securities)underwritten, then the Company Newco shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares Registrable Securities that may be included in the underwriting shall be allocated among all Holders thereof, including the Initiating Holder(s), in proportion (as nearly as practicable) 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), or in such other proportions as mutually agreed to by such selling Holders; provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.1:
(i) prior to the earlier of September 30, 2015 or six months after the Initial Offering;
(ii) after the Company has effected three registrations pursuant to this Section 2.1 and either (A) all such registrations have been declared or ordered effective or (B) the request for such registration statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have not paid the Registration Expenses of such withdrawn registration; provided, however, that for purposes of Section 2.1, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Section 2.1(b), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have which each Holder requested to be included in such registration statement are actually included;
(iii) during registration; provided, that there shall be no reduction in the period starting with the date number of filing of, and ending on the date one hundred eighty (180) days following, the effective date of shares included in the registration statement pertaining by Sprint or its successor until all shares of Holders other than Sprint or its successor have been excluded from such registration. If the number of Registrable Securities to be underwritten has not been so limited, Newco may include shares of Common Stock for its own account (or for the account of other shareholders) in such registration if the underwriter(s) so agree and to the Initial Offering; provided that the Company makes reasonable efforts to cause the registration statement for the Initial Offering to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.1(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for its Initial Offering within ninety (90) days;
(v) if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.1, a certificate signed by the Chairman of the Board of Directors of the Company (the “Board”) stating extent that, in the good faith judgment opinion of such underwriter(s), the inclusion of such additional shares will not adversely affect the offering and successful marketing of the Board, it would be seriously detrimental to the Company and its stockholders for Registrable Securities included in such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than once in any 12 month period; and provided further that the Company shall not register any securities for its own account or that of any other stockholder during such ninety (90) day period;
(vi) if the Initiating Holders propose to dispose of shares number of Registrable Securities that may would otherwise have been included in such registration and underwriting will not thereby be immediately registered on Form S-3 pursuant to a request made pursuant to limited.
Section 2.3 below; or
Newco shall not be obligated to effect a total of more than four (vii4) if the Company has, within the six month period preceding the date of such request, already effected a demand registrations and shall not be obligated to cause any registration for the Holders pursuant to this Section 2.1 and such registration has been Article 2 to be declared or ordered effective unless at least nine months have elapsed since the prior Registration Statement filed pursuant to Article II ceased to be effective.
Appears in 2 contracts
Samples: Registration Rights Agreement (Sprint Corp), Registration Rights Agreement (Earthlink Network Inc)
Demand Registration. (a) Subject to the conditions of this Section 2.1, if If at any time the Company shall receive (i) a written request from Initiating Purchaser Request, so long as the Purchaser Holders hold at least 30% of the Registrable Securities acquired by them on the date hereof, or (ii) a written Registration Request after the Purchaser Holders no longer hold at least 30% of the Registrable Securities acquired by them on the date hereof, that the Company file a registration statement Registration Statement under the Securities Act, then the Company shall, within ten (10) days of the receipt thereof, give written notice of such request to all Holders and, subject to the limitations of Section 3(b) below, shall use its reasonable best efforts to prepare and file a Registration Statement under the Securities Act covering with respect to all Registrable Securities which the registration applicable Holders request to be registered within ten (10) days of the Registrable Securities resulting mailing of such notice by the Company, in net offering proceeds of at least $20,000,000accordance with Section 9(g) below (as expeditiously as practicable), then the Company will (x) promptly give written notice of the requested registration to all Holders and (y) prepare and file a registration statement and otherwise use its best commercially reasonable efforts to cause such shares, and all Registrable Securities of any Holder or Holders joining in such registration pursuant to a written request delivered to the Company within thirty (30) days after receipt by such Holder or Holders of initial written notice from the Company, Registration Statement to be registered declared effective under the Securities Act within ninety (90) days of as promptly as possible after the requestfiling thereof.
(b) If the Initiating applicable Holders intend to distribute the Registrable Securities covered by their request by means of an underwritingunderwriting (whether it is on a firm commitment or best efforts (i.e., then the Initiating Holders registered direct) basis), they shall so advise the Company as a part of their written request made pursuant to this Section 2.1 or any request pursuant to Section 2.3, 3 and the Company shall include such information in the written notice referred to in Section 2.1(a) or Section 2.3(a3(a), as applicable. In such event, the right of any Holder to include its such Holder’s 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 a majority in interest of the Holders participating in the underwriting and such Holder) to the extent provided herein. The Company A majority in interest of the Holders of Registrable Securities participating in the underwriting, in consultation with the Company, shall (together with all select the managing underwriter or underwriters in such underwriting. All Holders proposing to distribute their Registrable Securities securities through such underwritingunderwriting shall (together with the Company as provided in Section 5(l)) enter into an underwriting agreement in customary form with the underwriter or underwriters so selected for such underwriting by the Company (which underwriter or underwriters shall be reasonably acceptable to a majority in interest of such Holders; provided, however, that no Holder (or any of their assignees) shall be required to make any representations, warranties or indemnities except as they relate to such Holder’s ownership of shares and authority to enter into the Initiating Holders)underwriting agreement and to such Holder’s intended method of distribution, and the liability of such Holder shall be limited to an amount equal to the net proceeds from the offering received by such Holder. Notwithstanding any other provision of this Section 2.1 or Section 2.33, if the underwriter advises the Company a Holder that marketing factors require a limitation of the number of securities shares to be underwritten (including Registrable Securities)underwritten, then the Holder shall so advise the Company and the Company shall so advise all Holders of Registrable Securities that which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the underwriting shall be allocated as follows: (i) first, so long as the Purchaser Holders hold at least 30% of the Registrable Securities acquired by them on the date hereof, among the Purchaser Holders that have elected to participate in such underwritten offering, in proportion (as nearly as practicable) to the Holders of such Registrable Securities on a pro rata basis based on the number aggregate amount of Registrable Securities held by all such Purchaser Holders, until such Purchaser Holders have included in the underwriting all shares requested by such Purchaser Holders to be included, (including ii) then, among Holders of Registrable Securities that have elected to participate in such underwritten offering, in proportion (as nearly as practicable) to the Initiating aggregate amount of Registrable Securities held by all such Holders, until such Holders have included in the underwriting all shares requested by such Holders to be included, and (iii) thereafter, among all other holders of Common Stock, if any, that have the right and have elected to participate in such underwritten offering, in proportion (as nearly as practicable) to the amount of shares of Common Stock owned by such holders. Without the consent of a majority in interest of the Holders of Registrable Securities participating in a registration referred to in Section 3(a), or in no securities other than Registrable Securities shall be covered by such registration if the inclusion of such other proportions as mutually agreed to by such selling Holders; provided, however, that securities would result in a reduction of the number of shares of Registrable Securities to be covered by such registration or included in any underwriting or if, in the opinion of the managing underwriter, the inclusion of such underwriting and registration shall not be reduced unless all other securities would adversely impact the marketing of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registrationoffering.
(c) The Company shall be obligated to effect only four (4) registrations (and only if such registration would include Registrable Securities with an aggregate value of at least ten million dollars ($10,000,000), calculated using the closing price of the Common Stock on the Trading Market on the date preceding the date of the Purchaser Request) pursuant to Purchaser Requests under this Section 3 (an offering which is not consummated shall not be required counted for this purpose).
(d) Notwithstanding the foregoing, the Company shall not be obligated to effect file a registration Registration Statement pursuant to this Section 2.1:
3, (i) prior to the earlier of September 30, 2015 or six months after the Initial Offering;
(ii) after the Company has effected three registrations pursuant to this Section 2.1 and either (A) all such registrations have been declared or ordered effective or (B) the request for such registration statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have not paid the Registration Expenses of such withdrawn registration; provided, however, that for purposes of Section 2.1, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Section 2.1(b), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have requested to be included in such registration statement are actually included;
(iii) during the 90 day period starting with the date of filing of, and ending commencing on the date one hundred eighty (180) days following, the effective date of the any other registration statement pertaining filed by the Company relating to the Initial Offering; provided that the Company makes reasonable efforts to cause the registration statement for the Initial Offering to become effective;
public offering of its Common Stock or securities convertible into Common Stock (ivother than on Forms S-4 or S-8 or any successor thereto) if within thirty or (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.1(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for its Initial Offering within ninety (90) days;
(vii) if the Company shall furnish to the applicable Holders requesting a registration statement pursuant to this Section 2.1, a certificate signed by the Chairman of the Board of Directors chief executive officer of the Company (the “Board”) stating that, in the good faith judgment of the BoardBoard of Directors of the Company, it the Board has determined to file a registration statement relating to the public offering of its Common Stock or securities convertible into Common Stock (other than on Forms S-4 or S-8 or any successor thereto) within 30 days of the Purchaser Request or the Registration Request, during the period commencing on the date of such notice and ending upon the earliest of (A) effectiveness of such registration statement, (B) a decision by the Company not to pursue effectiveness of such registration statement or (C) 90 days after the filing of such registration statement; provided, however, that in the case of clause (ii) the Company may not utilize this right more than once in any twelve (12) month period; provided, further, that, for the avoidance of doubt, this clause (ii) shall be incremental to, and not in lieu of, the Company’s relief from its demand registration obligation under clause (i) above.
(e) Notwithstanding the foregoing, if the Company shall furnish to the applicable 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, maintaining a Registration Statement’s effectiveness would be seriously materially detrimental to the Company and its stockholders for such registration statement Registration Statement to be effected at remain effective by reason of a material pending or imminently prospective transaction or development and it is therefore essential to suspend such timeRegistration Statement’s effectiveness, in which event the Company shall have the right to defer suspend such filing effectiveness for a period of not more than ninety sixty (9060) days in the aggregate after receipt of the request of Purchaser Request or the Initiating HoldersRegistration Request; provided that such right to delay a request shall be exercised by the Company not more than once in any 12 month period; and provided further provided, however, that the Company shall may not register utilize this right more than twice in any securities for its own account or that of any other stockholder during such ninety twelve (9012) day month period;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.3 below; or
(vii) if the Company has, within the six month period preceding the date of such request, already effected a demand registration for the Holders pursuant to this Section 2.1 and such registration has been declared or ordered effective.
Appears in 2 contracts
Samples: Registration Rights Agreement (Stream Global Services, Inc.), Registration Rights Agreement (Global BPO Services Corp)
Demand Registration. (a) Subject to the conditions of this Section 2.1, if the Company shall receive a written request from the Holders who together hold in aggregate not less than 50% of the Registrable Securities then outstanding (the “Initiating Holders Holders”) that the Company file a registration statement under the Securities Act covering the registration of at least 50% of the Registrable Securities resulting in then outstanding (or a lesser percent if the anticipated aggregate offering price, net offering proceeds of at least underwriting discounts and commissions, would exceed $20,000,00010,000,000), then the Company will (x) promptly give written notice of the requested registration to all Holders and (y) prepare and file a registration statement and otherwise use its best efforts to cause such sharesshall, and all Registrable Securities of any Holder or Holders joining in such registration pursuant to a written request delivered to the Company within thirty (30) days after of the receipt by such Holder or Holders of initial thereof, give written notice from of such request to all Holders, and subject to the Companylimitations of this Section 2.1, to be registered effect, as expeditiously as reasonably possible, the registration under the Securities Act within ninety (90) days of the requestall Registrable Securities that all Holders request to be registered.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, then the Initiating Holders they shall so advise the Company as a part of their written request made pursuant to this Section 2.1 or any request pursuant to Section 2.3, 2.3 and the Company shall include such information in the written notice referred to in Section 2.1(a) or Section 2.3(a), as applicable. In such event, the right of any Holder to include 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. The Company shall (together with all All Holders proposing to distribute their Registrable Securities securities through such underwriting) underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company Holders of a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to a majority in interest of the Initiating HoldersCompany). Notwithstanding any other provision of this Section 2.1 or Section 2.3, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities), ) then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares 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), or in such other proportions as mutually agreed to by such selling Holders; provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.1:
(i) prior to the earlier date one hundred eighty (180) days following the effective date of September 30, 2015 the registration statement pertaining to the IPO or six months after five (5) years after the Initial Offeringdate of this Agreement;
(ii) after the Company has effected three two (2) registrations pursuant to this Section 2.1 2.1, and either (A) all such registrations have been declared or ordered effective or (B) the request for such registration statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have not paid the Registration Expenses of such withdrawn registration; provided, however, that for purposes of Section 2.1, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Section 2.1(b), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have requested to be included in such registration statement are actually includedeffective;
(iii) during the period starting with the date of filing ofif, and ending on the date one hundred eighty (180) days following, the effective date of the registration statement pertaining to the Initial Offering; provided that the Company makes reasonable efforts to cause the registration statement for the Initial Offering to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.1(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for its Initial Offering a public offering, other than pursuant to a Special Registration Statement, within ninety (90) days;
(viv) if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.1, 2.1 a certificate signed by the Chairman of the Board (or, in the absence of Directors a Chairman of the Company (the “Board”, a lead independent director or director exercising a similar function) stating that, that in the good faith judgment of the BoardBoard of Directors of the Company, it would be seriously detrimental to the Company and its stockholders shareholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety one hundred twenty (90120) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than once in any 12 month period; and provided further that the Company shall not register any securities for its own account or that of any other stockholder during such ninety (90) day period;
(viv) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 F-3 pursuant to a request made pursuant to Section 2.3 below; or
(viivi) if in any particular jurisdiction in which the Company haswould be required to qualify to do business or to execute a general consent to service of process in effecting such registration, within the six month period preceding the date of such request, already effected a demand registration for the Holders pursuant to this Section 2.1 and such registration has been declared qualification or ordered effectivecompliance.
Appears in 2 contracts
Samples: Registration Rights Agreement (SB Global Advisers LTD), Registration Rights Agreement (Exscientia LTD)
Demand Registration. (a) Subject At any time after the 180 day period following the effective date of a Registration Statement filed in connection with the Company’s initial public offering of its equity securities, the Requesting Holders may request, in writing, on up to two (2) separate occasions, that the conditions Company effect a registration on Form S-1 (or any successor form) of this Section 2.1Registrable Securities owned by one or more Holders. If the Requesting Holders intend to distribute the Registrable Securities by means of an underwriting, if they shall so advise the Company in their request. In the event such registration is underwritten, the right of other Holders to participate in such registration shall be conditioned on such Holders’ participation in such underwriting. Upon receipt of any such request from the Requesting Holders, the Company shall receive a written request from Initiating Holders that the Company file a registration statement under the Securities Act covering the registration of the Registrable Securities resulting in net offering proceeds of at least $20,000,000, then the Company will (x) promptly give written notice of the requested such proposed registration to all other Holders. Such other Holders and (y) prepare and file a registration statement and otherwise use its best efforts to cause such sharesshall have the right, and all Registrable Securities of any Holder or Holders joining in such registration pursuant to a by giving written request delivered notice to the Company within thirty (30) days after receipt by such Holder or Holders of initial written notice from the CompanyCompany provides its notice, to be registered under the Securities Act within ninety (90) days of the request.
(b) If the Initiating Holders intend elect to distribute the Registrable Securities covered by their request by means of an underwriting, then the Initiating Holders shall so advise the Company as a part of their written request made pursuant to this Section 2.1 or any request pursuant to Section 2.3, and the Company shall include such information in the written notice referred to in Section 2.1(a) or Section 2.3(a), as applicable. In such event, the right of any Holder to include its Registrable Securities have included in such registration shall be conditioned upon such Holder’s participation of their Registrable Securities as such Holders may request in such underwriting and the inclusion notice of such Holder’s Registrable Securities in the underwriting to the extent provided hereinelection. The Company shall (together with all All Holders proposing to distribute their Registrable Securities through such underwriting) underwriting shall enter into an underwriting agreement in customary form with the an underwriter or underwriters selected for such underwriting by that is mutually agreeable to the Company (which underwriter or underwriters shall be reasonably acceptable to and the Holders holding a majority in majority-in-interest of the Initiating Registrable Securities that the Holders requested for inclusion in such registration. The Company shall, at its own expense and as expeditiously as possible, and in any event within ninety (90) days after the date such request is given by the Requesting Holders), file a Form S-1 (or any successor form) for all Registrable Securities that the Company has been requested to so register. Notwithstanding any other provision of this Section 2.1 or Section 2.3, if If the underwriter advises the Company that or the Holders of Registrable Securities requesting registration hereunder that, in its good faith view, marketing factors require a limitation of the number of securities Registrable Securities to be underwritten (including Registrable Securities)underwritten, then the Company Requesting Holders shall so advise all Holders of Registrable Securities that otherwise would otherwise be underwritten pursuant hereto, and the number of shares Registrable Securities that may be included in the underwriting shall be allocated to the among such Holders of such Registrable Securities on a pro rata basis based on Securities, including the Requesting Holders, in proportion (as nearly as practicable) to the number of Registrable Securities held owned by all such Holders (including the Initiating Holders), each Holder or in such other proportions proportion as shall mutually be agreed to by all such selling Holders; provided, however, that the number of shares of Registrable Securities held by the Holders to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registrationunderwriting. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to For purposes of this Section 2.1:
(i) prior to the earlier of September 30, 2015 or six months after the Initial Offering;
(ii) after the Company has effected three registrations pursuant to this Section 2.1 and either (A) all such registrations have been declared or ordered effective or (B) the request for such registration statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have not paid the Registration Expenses of such withdrawn registration; provided, however, that for purposes of Section 2.12.1(a), a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in this Section 2.1(b2.1(a), fewer than fifty percent (50%) of the total number of Registrable Securities that the Requesting Holders have requested to be included in such registration statement are actually included;.
(iiib) during At any time after the period starting with the date of filing ofCompany becomes eligible to file a Registration Statement on Form S-3 (or any successor form relating to secondary offerings, and ending on the date one hundred eighty (180) days followinghereinafter, “Form S-3”), the effective date Holders will have the right to require the Company to effect Registration Statements on Form S-3 of Registrable Securities having a minimum gross proceeds in each registration on Form S-3 of at least $2,500,000. Upon receipt of any such request, the Company shall promptly give written notice of such proposed registration statement pertaining to all other Holders. Such other Holders shall have the right, by giving written notice to the Initial Offering; provided that the Company makes reasonable efforts to cause the registration statement for the Initial Offering to become effective;
(iv) if within thirty (30) days after the Company provides its notice, to elect to have included in such registration such of receipt their Registrable Securities as such Holders may request in such notice of a written request from Initiating Holders pursuant to Section 2.1(a)election. Thereupon, the Company gives notice to shall, as expeditiously as possible, and in any event within forty-five (45) days after the Holders of the Company’s intention to date such initial request is given, file a registration statement Form S-3 for its Initial Offering within ninety (90) days;all Registrable Securities that the Company has been requested to so register.
(vc) Notwithstanding the foregoing obligations, if the Company shall furnish furnishes to the Holders requesting a registration statement pursuant to this Section 2.1, 2.1 a certificate signed by the Chairman of the Board of Directors of the Company (the “Board”) Company’s president stating that, that in the good faith judgment of the Board, Board it would be seriously 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 would otherwise be effected at required to remain effective, because such timeaction would (i) materially interfere with a significant acquisition, in which event 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 defer taking action with respect to such filing, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for a period of not more than ninety (90) days after receipt of the request of the Initiating HoldersHolders is given; provided provided, however, that such right to delay a request shall be exercised by the Company may not invoke this right more than once in any 12 twelve (12) month period; and provided further that the Company shall not register any securities for its own account or that of any other stockholder during such ninety (90) -day period;period other than an Excluded Registration.
(vid) The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Subsection 2.1(a) (i) during the period that is sixty (60) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is one hundred eighty (180) days after the effective date 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; (ii) after the Company has effected [two] registrations pursuant to Subsection 2.1(a); or (iii) if the Initiating Requesting Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.3 belowSubsection 2.1(b). The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Subsection 2.1(b) (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 efforts to cause such registration statement to become effective; or
or (viiii) if the Company has, has effected [two] registrations pursuant to Subsection 2.1(b) within the six twelve (12) month period immediately preceding the date of such request. A registration shall not be counted as “effected” for purposes of this Subsection 2.1(d) until such time as the applicable registration statement has been declared effective by the SEC, already effected a unless the Requesting Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration for the Holders statement pursuant to Subsection 2.4, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1 Subsection 2.1(d); provided, that if such withdrawal is during a period the Company has deferred taking action pursuant to Subsection 2.1(c), then the Requesting Holders may withdraw their request for registration and such registration has been declared or ordered effectivewill not be counted as “effected” for purposes of this Subsection 2.1(d).
Appears in 2 contracts
Samples: Registration Rights Agreement (Arvinas, Inc.), Registration Rights Agreement (Arvinas Holding Company, LLC)
Demand Registration. (a) Subject to Commencing immediately upon the conditions date of this Section 2.1Closing (as defined in the Placement Agreement), if the Company shall receive any Requesting Holders may make a written request from Initiating Holders to the Company (specifying that it is being made pursuant to this Section 2) that the Company file a registration statement under the Securities 1933 Act covering (or a similar document pursuant to any other statute then in effect corresponding to the 1933 Xxx) xxvering the registration of the Registrable Securities resulting in net offering proceeds of at least $20,000,000Stock. In such event, then the Company will shall (x) promptly give written notice within ten (10) days thereafter notify in writing all other Holders of the requested registration to all Holders Registrable Stock of such request, and (y) prepare and file a registration statement and otherwise use its best efforts to cause such shares, and all Registrable Securities of any Holder or Holders joining in such registration pursuant to a written request delivered to the Company within thirty (30) days after receipt by such Holder or Holders of initial written notice from the Company, to be registered under the Securities 1933 Act all Registrable Stock that the Requesting Holders and such other Holders have, within ninety forty-five (9045) days of after the requestCompany has given such notice, requested be registered.
(b) If the Initiating Requesting Holders intend to distribute the Registrable Securities Stock covered by their request by means of an underwritingunderwritten offering, then the Initiating Holders they shall so advise the Company as a part of their written request made pursuant to this Section 2.1 or any request pursuant to Section 2.32.(a) above, and the Company shall include such information in the written notice referred to in clause (x) of Section 2.1(a2.(a) or Section 2.3(a), as applicableabove. In such event, the Holder's right of any Holder to include its Registrable Securities Stock in such registration shall be conditioned upon such Holder’s 's participation in such underwriting underwritten offering and the inclusion of such Holder’s 's Registrable Securities Stock in the underwriting underwritten offering to the extent provided hereinin this Section 2. The Company shall (together with all All Holders proposing to distribute their Registrable Securities Stock through such underwriting) underwritten offering shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company (which underwriters. Such underwriter or underwriters shall be reasonably acceptable to selected by a majority in interest of the Initiating Requesting Holders and shall be approved by the Company, which approval shall not be unreasonably withheld; provided, that all of the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of such underwriters shall also be made to and for the benefit of such Holders and that any or all of the conditions precedent to the obligations of such underwriters under such underwriting agreement shall be conditions precedent to the obligations of such Holders). ; and provided further, that no Holder shall be required to make any representations or warranties to or agreements with the Company or the underwriters other than representations, warranties or agreements regarding such Holder, the Registrable Stock of such Holder and such Holder's intended method of distribution and any other representation required by law or reasonably required by the underwriter.
(c) Notwithstanding any other provision of this Section 2.1 or Section 2.32 to the contrary, if the managing underwriter of an underwritten offering of the Registrable Stock requested to be registered pursuant to this Section 2 advises the Company Requesting Holders in writing that in its opinion marketing factors require a limitation of the number of securities shares to be underwritten (including Registrable Securities)underwritten, then the Company Requesting Holders shall so advise all Holders of Registrable Securities Stock that would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Stock that may be included in the underwriting such underwritten offering shall be allocated among all such Holders, including the Requesting Holders, in proportion (as nearly as practicable) to the Holders of such Registrable Securities on a pro rata basis based on the number amount of Registrable Securities held by all such Holders (including the Initiating Holders), or Stock requested to be included in such other proportions as mutually agreed to registration by such selling Holderseach Holder at the time of filing the registration statement; provided, however, that in the event of such limitation of the number of shares of Registrable Securities Stock to be included in such underwriting and underwritten, the Holders shall be entitled to an additional demand registration shall not be reduced unless all other securities pursuant to this Section 2. If any Holder of Registrable Stock disapproves of the Company are first entirely excluded from terms of the underwriting underwriting, such Holder may elect to withdraw by written notice to the Company, the managing underwriter and registrationthe Requesting Holders. Any Registrable Securities excluded or The securities so withdrawn from such underwriting shall also be withdrawn from the registration.
(cd) The Notwithstanding any provision of this Agreement to the contrary, the Company shall not be required to effect a registration pursuant to this Section 2.1:
(i) prior to the earlier of September 30, 2015 or six months after the Initial Offering;
(ii) after the Company has effected three registrations pursuant to this Section 2.1 and either (A) all such registrations have been declared or ordered effective or (B) the request for such registration statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have not paid the Registration Expenses of such withdrawn registration; provided, however, that for purposes of Section 2.1, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Section 2.1(b), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have requested to be included in such registration statement are actually included;
(iii) 2 during the period starting with the fourteenth (14th) day immediately preceding the date of an anticipated filing by the Company of, and ending on the a date one hundred eighty (180) days following, the effective date of the registration statement pertaining to the Initial Offering; provided that the Company makes reasonable efforts to cause the registration statement for the Initial Offering to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.1(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for its Initial Offering within ninety (90) days;
(v) if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.1, a certificate signed by the Chairman of the Board of Directors of the Company (the “Board”) stating that, in the good faith judgment of the Board, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt following the effective date of, a registration statement pertaining to a public offering of securities for the account of the request of the Initiating HoldersCompany; provided that such right to delay a request shall be exercised by the Company not more than once in any 12 month period; and provided further provided, that the Company shall not register any securities for its own account or actively employ in good faith all reasonable efforts to cause such registration statement to become effective; and provided further, that the Company's estimate of any other stockholder during the date of filing such ninety (90) day period;registration statement shall be made in good faith.
(vie) The Company shall be obligated to effect and pay for a total of only two (2) registrations pursuant to this Section 2, unless increased pursuant to Section 2.(c) hereof; provided, that a registration requested pursuant to this Section 2 shall not be deemed to have been effected for purposes of this Section 2.(e), unless (i) it has been declared effective by the Commission, (ii) if it is a shelf registration, it has remained effective for the Initiating Holders propose period set forth in Section 3.(b), (iii) the offering of Registrable Stock pursuant to dispose such registration is not subject to any stop order, injunction or other order or requirement of the Commission (other than any such action prompted by any act or omission of the Holders), and (iv) no limitation of the number of shares of Registrable Securities that may Stock to be immediately registered on Form S-3 pursuant to a request made underwritten has been required pursuant to Section 2.3 below; or
(vii2.(c) if the Company has, within the six month period preceding the date of such request, already effected a demand registration for the Holders pursuant to this Section 2.1 and such registration has been declared or ordered effectivehereof.
Appears in 2 contracts
Samples: Placement Agreement (Micro Media Solutions Inc), Placement Agreement (Micro Media Solutions Inc)
Demand Registration. (a) Subject to the conditions last sentence of this Section 2.12(a), if the Company shall receive a written request from Initiating Holders that the Company file a registration statement under the Securities Act covering the registration of the Registrable Securities resulting in net offering proceeds of at least $20,000,000, then the Company will (x) promptly give written notice of the requested registration to all Holders and (y) prepare and file a registration statement and otherwise use its best efforts to cause such shares, and all Registrable Securities of any Holder or Holders joining in such registration pursuant to a written request delivered to shall have the Company within thirty (30) days after receipt right during the Registration Period, by such Holder or Holders of initial written notice from (the "DEMAND NOTICE") given to the Company, to be registered request the Company to register under and in accordance with the provisions of the Securities Act within ninety (90) days all or any portion of the requestRegistrable Shares designated by such Holders; PROVIDED, HOWEVER, that the aggregate value (based on the closing price per share of Common Stock at the respective dates of such notices) of Registrable Shares requested to be registered pursuant to any Demand Notice and pursuant to any related Inclusion Notices received pursuant to the following sentence shall be at least $ 20 million. Upon receipt of any such Demand Notice, the Company shall promptly (and in no event later than 15 days after receipt of such Demand Notice) notify all other Holders of the receipt of such Demand Notice and allow them the opportunity to include Registrable Shares held by them in the proposed registration by submitting their own written notice to the Company no later than 15 days after receipt of the notice from the Company of the Demand Notice requesting inclusion of a specified number of such Holders' Registrable Securities (the "INCLUSION NOTICE"). In connection with any Demand Registration in which more than one Holder participates, in the event that such Demand Registration involves an Underwritten Offering and the managing underwriter or underwriters participating in such offering advise in writing the Holders of Registrable Shares to be included in such offering that the total number of Registrable Shares to be included in such offering exceeds the amount that can be sold in (or during the time of) such offering without delaying or jeopardizing the success of such offering (including the price per share of the Registrable Shares to be sold), then the amount of Registrable Shares to be offered for the account of such Holders shall be reduced pro rata on the basis of the number of Registrable Shares to be registered by each such Holder. The Holders as a group shall be entitled to three Demand Registrations pursuant to this Section 2. If any such Demand Registration does not become effective or is not maintained for a period (whether or not continuous) of at least 120 days (or such shorter period as shall terminate when all the Registrable Shares covered by such Demand Registration (other than any shares reserved for issuance upon exercise of the underwriters' overallotment option) have been sold pursuant thereto), the affected Holders will be entitled to an additional Demand Registration pursuant hereto. For purposes of the foregoing, the 120-day period does not have to be consecutive and may be interrupted by Delay Periods or Interruption Periods as set forth herein. It is agreed that the registration of Registrable Shares pursuant to an Inclusion Notice shall not be deemed to be a separate Demand Registration. Nothing in this Section 2(a) shall limit any rights pursuant to Section 3 hereof.
(b) If The Company, within 45 days of the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, then the Initiating Holders shall so advise date on which the Company as receives a part of their written request made pursuant to this Demand Notice given by Holders in accordance with Section 2.1 or any request pursuant to Section 2.32(a) hereof, shall file with the SEC, and the Company shall include such information thereafter use commercially reasonable efforts to cause to be declared effective, a Registration Statement on the appropriate form for the registration and sale, in the written notice referred to in Section 2.1(a) or Section 2.3(a), as applicable. In such event, the right of any Holder to include 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. The Company shall (together with all Holders proposing to distribute their Registrable Securities through such underwriting) enter into an underwriting agreement in customary form accordance with the underwriter intended method or underwriters selected for such underwriting by the Company (which underwriter or underwriters shall be reasonably acceptable to a majority in interest methods of distribution, of the Initiating Holders). Notwithstanding any other provision of this Section 2.1 or Section 2.3, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares 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 total number of Registrable Securities held Shares specified by all such the Holders (including the Initiating Holders), or in such other proportions as mutually agreed to by such selling Holders; provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registrationDemand Notice (a "DEMAND REGISTRATION").
(c) The Company shall not be required to effect a registration pursuant to this Section 2.1:
(i) prior to the earlier of September 30, 2015 or six months after the Initial Offering;
(ii) after the Company has effected three registrations pursuant to this Section 2.1 and either (A) all such registrations have been declared or ordered effective or (B) the request for such registration statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have not paid the Registration Expenses of such withdrawn registration; provided, however, that for purposes of Section 2.1, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Section 2.1(b), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have requested to be included in such registration statement are actually included;
(iii) during the period starting with the date of filing of, and ending on the date one hundred eighty (180) days following, the effective date of the registration statement pertaining to the Initial Offering; provided that the Company makes use commercially reasonable efforts to cause the registration statement for the Initial Offering Registration Statement to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant be declared effective and to Section 2.1(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for its Initial Offering within ninety (90) days;
(v) if the Company shall furnish to the Holders requesting a registration statement keep each Registration Statement filed pursuant to this Section 2.12 continuously effective and usable for the resale of the Registrable Shares covered thereby until the earlier of (i) 120 days from the date on which the SEC declares such Registration Statement effective (as such period may be extended pursuant to this Section 2) and (ii) the date on which all the Registrable Shares covered by such Registration Statement (other than any shares reserved for issuance upon exercise of the underwriters' overallotment option) have been sold pursuant to such Registration Statement.
(d) Except with respect to the first Demand Notice contemplated by Section 2(g) hereof, a certificate signed the Company shall be entitled to postpone the filing of any Registration Statement otherwise required to be prepared and filed by the Chairman Company pursuant to this Section 2 for a reasonable period of time, but not in excess of 90 days (a "DELAY PERIOD"), if the Board of Directors of the Company (the “Board”) stating that, determines in the good faith judgment that the registration and distribution of the BoardRegistrable Shares covered or to be covered by such Registration Statement would materially interfere with any pending material financing, it would be seriously detrimental to acquisition or corporate reorganization or other material corporate development involving the Company or any of its subsidiaries or would require premature disclosure thereof and its stockholders promptly gives the Holders written notice of such determination, containing a general statement of the reasons for such registration statement postponement and an approximation of the period of the anticipated delay; PROVIDED, HOWEVER, that (i) the aggregate number of days included in all Delay Periods during any consecutive 12 months shall not exceed the aggregate of (x) 120 days minus (y) the number of days occurring during all Interruption Periods during such consecutive 12 months and (ii) a period of at least 60 days shall elapse between the termination of any Delay Period or Interruption Period and the commencement of the immediately succeeding Delay Period. If the Company shall so postpone the filing of a Registration Statement, the Holders of Registrable Shares to be effected at such time, in which event the Company registered shall have the right to defer such filing withdraw the request for registration by giving written notice from the Holders of a period majority of not more than ninety (90) the Registrable Shares that were to be registered to the Company within 30 days after receipt of the notice of postponement or, if earlier, the termination of such Delay Period (and, in the event of such withdrawal, such request shall not be counted for purposes of determining the number of requests for registration to which the Holders of Registrable Shares are entitled pursuant to this Section 2). The time period for which the Company is required to maintain the effectiveness of any Registration Statement shall be extended by the aggregate number of days of all Delay Periods and all Interruption Periods occurring during such Registration and such period and any extension thereof is hereinafter referred to as the "EFFECTIVENESS PERIOD." The Company shall not be entitled to initiate a Delay Period or an Interruption Period unless it shall (A) concurrently prohibit sales by all other security holders under registration statements covering securities held by such other security holders (excluding exercise of options pursuant to a Form S-8) and (B) forbid purchases and sales in the open market by senior executives of the Initiating Holders; provided that such right Company.
(e) Except with respect to delay a request shall be exercised the first Demand Registration contemplated by the Company not more than once in any 12 month period; and provided further that Section 2(g) hereof, the Company shall not register include any securities for its own account or that of are not Registrable Shares in any other stockholder during such ninety (90) day period;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.3 below; or
(vii) if the Company has, within the six month period preceding the date of such request, already effected a demand registration for the Holders Registration Statement filed pursuant to this Section 2.1 2 without the prior written consent of the Holders of a majority in number of the Registrable Shares held by Holders covered by such Registration Statement, which consent shall not be unreasonably withheld.
(f) Holders of a majority in number of the Registrable Shares to be included in a Registration Statement pursuant to this Section 2 may, at any time prior to the effective date of the Registration Statement relating to such Registration, revoke such request by providing a written notice to the Company revoking such request. The Holders of Registrable Shares who revoke such request shall reimburse the Company for all its out-of-pocket expenses incurred in the preparation, filing and processing of the Registration Statement; PROVIDED, HOWEVER, that, if such revocation was pursuant to Section 2(d) (for a postponement) or was based on the Company's failure to comply in any material respect with its obligations hereunder, such reimbursement shall not be required, and such registration has shall not count against the maximum number of Demand Registrations to which the applicable Holders are entitled under Section 2(a). In addition, if pursuant to the terms of this Section 2(f), the Holders reimburse the Company for its out-of-pocket expenses incurred in the preparation, filing and processing of any Registration Statement requested, and subsequently revoked by such Holder(s), such registration shall not count against the maximum number of Demand Registrations to which the applicable Holder(s) are entitled under Section 2(a).
(g) Notwithstanding anything herein to the contrary, the Stockholders hereby give their first Demand Notice to the Company as set forth on Schedule I hereto, subject to their right to revoke such request pursuant to Section 2(f), and understand and agree that the Company intends to include authorized but unissued Company Common Stock for sale in such Registration pursuant to a firm commitment Underwritten Offering. In the event the managing underwriter or underwriters participating in such offering advise in writing the Company and the Holders of Registrable Shares to be included in such offering that the total number of Registrable Shares and shares of Company Common Stock to be sold by the Company to be included in such offering exceeds the amount that can be sold in (or during the time of) such offering without delaying or jeopardizing the success of such offering (including the price per share of the Registrable Shares and other shares of Company Common Stock to be sold), then the amount of shares to be offered shall be reduced in the following order of priority: (i) first, the amount of Company Common Stock to be sold by the Company shall be reduced, to the extent necessary, until such amount equals zero, and (ii) second, to the extent necessary, the amount of Registrable Shares shall be reduced pro rata on the basis of the number of Registrable Shares to be registered by each such Holder. It is understood that the second Demand Notice may not be given for a period of at least six months after the completion of the sale of Registrable Shares effected pursuant to the first Demand Registration, and that the third Demand Notice may not be given for a period of at least twelve months after the completion of the sale of Registrable Shares effected pursuant to the second Demand Registration, and that no Demand Notice will be given for a period of 120 days after the sale of any shares of Company Common Stock pursuant to a Registration Statement in which the Holders have been declared given an opportunity to participate as provided in Section 3(a) hereof and have either sold any shares as part of such offering or ordered effectivehave elected not to participate.
Appears in 2 contracts
Samples: Registration Rights Agreement (H & F Investors Iii Inc), Registration Rights Agreement (H & F Investors Iii Inc)
Demand Registration. (a) Subject to the conditions of this Section 2.1, if the Company shall receive a written request from the Initiating Holders that the Company file a registration statement under the Securities Act covering the registration of the Registrable Securities resulting in net offering proceeds of at least $20,000,00035,000,000, then the Company will (x) promptly give written notice of the requested registration to all Holders and (y) prepare as soon as practicable, file and file a registration statement and otherwise use its reasonable best efforts to cause effect such sharesregistration under the Securities Act (including, without limitation, filing post-effective amendments, appropriate qualifications under applicable blue sky or other state securities laws, and appropriate compliance with the Securities Act) and to permit or facilitate the sale and distribution of all or such portion of such Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any Holder or Holders joining in such registration pursuant to request as are specified in a written request delivered to received by the Company within thirty (30) days after receipt by such Holder or Holders of initial written notice from the Company, to be registered under the Securities Act within ninety (90) days Company is mailed or delivered. Such written request may specify all or a part of the requesta Holder’s Registrable Securities.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, then the Initiating Holders shall so advise the Company as a part of their written request made pursuant to this Section 2.1 or any request pursuant to Section 2.3, and the Company shall include such information in the written notice referred to in Section 2.1(a) or Section 2.3(a), as applicable. In such event, the right of any Holder to include 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. The Company shall (together with all Holders proposing to distribute their Registrable Securities through such underwriting) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company (which underwriter or underwriters shall be reasonably acceptable to a majority in interest of the Initiating Holders). Notwithstanding any other provision of this Section 2.1 or Section 2.3, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares 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 initiating Holders), or in such other proportions as mutually agreed to by such selling Holders; provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.1:
(i) prior to the earlier of September June 30, 2015 2014, or six months after the Initial Offering;
(ii) after the Company has effected three registrations pursuant to this Section 2.1 and either (A) all such registrations have been declared or ordered effective or (B) the request for such registration statements Registration Statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have has not paid the Registration Expenses of such withdrawn registration; provided, however, that for purposes of Section 2.1, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Section 2.1(b), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have requested to be included in such registration statement are actually included;
(iii) during the period starting with the date of filing of, and ending on the date one hundred eighty (180) 180 days following, the effective date of the registration statement pertaining to the Initial Offering; provided that the Company makes reasonable efforts to cause the registration statement for the Initial Offering to become effective;
(iv) if within thirty (30) 30 days of receipt of a written request from the Initiating Holders pursuant to Section 2.1(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for its Initial Offering within ninety (90) 90 days;
(v) if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.1, a certificate signed by the Chairman of the Board of Directors of the Company (the “Board”) stating that, that in the good faith judgment of the Board, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) 90 days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than once twice in any 12 month period; and provided further that the Company shall not register any securities for its own account or that of any other stockholder during such ninety (90) day period;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.3 below; or
(vii) if the Company has, within the six month period preceding the date of such request, already effected a demand registration for the Holders pursuant to this Section 2.1 and such registration has been declared or ordered effective.
Appears in 2 contracts
Samples: Investor Rights Agreement (Sientra, Inc.), Investor Rights Agreement (Sientra, Inc.)
Demand Registration. (a) Subject to the conditions of this Section 2.12.2, if the Company shall receive a written request from the Investors holding at least thirty percent (30%) of the Registrable Securities then outstanding and held by the Investors (the “Initiating Holders Holders”), that the Company file a registration statement under the Securities Act covering the registration of all or any portion of the Registrable Securities resulting in net then outstanding having an aggregate offering proceeds price, after deduction of underwriting discounts and commissions, of at least $20,000,00010,000,000, then the Company will shall, within ten (x10) promptly days of the receipt thereof, give written notice of the requested registration such request to all Holders and (y) prepare and file a registration statement and otherwise use its best efforts to cause such sharesHolders, and all Registrable Securities of any Holder or Holders joining in such registration pursuant to a written request delivered subject to the Company within thirty (30) days after receipt by such Holder or Holders limitations of initial written notice from this Section 2.2, effect, as expeditiously as reasonably possible, the Company, to be registered registration under the Securities Act within ninety (90) days of the requestall Registrable Securities that all Holders request to be registered.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, then the Initiating Holders they shall so advise the Company as a part of their written request made pursuant to this Section 2.1 2.2 or any request pursuant to Section 2.3, 2.4 and the Company shall include such information in the written notice referred to in Section 2.1(a2.2(a) or Section 2.3(a2.4(a), as applicable. In such event, the right of any Holder to include 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. The Company shall (together with all All Holders proposing to distribute their Registrable Securities securities through such underwriting) underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company (which underwriter or underwriters shall be reasonably acceptable to the Holders of a majority in interest of the Registrable Securities held by all Initiating Holders). Notwithstanding any other provision of this Section 2.1 or Section 2.3, if If the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities), ) then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares 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), ) or in such other proportions proportion as shall mutually be agreed to by all such selling Holders; provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration by the Investors shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.12.2:
(i) prior to the earlier of September 30(A) the five year anniversary of the date of this Agreement, 2015 or (B) six (6) months after following the Initial effective date of the registration statement of the Qualified Offering;
(ii) after the Company has effected three two (2) registrations pursuant to this Section 2.1 2.2, and either (A) all such registrations have been declared or ordered effective or (B) the request for such registration statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have not paid the Registration Expenses of such withdrawn registration; provided, however, that for purposes of Section 2.1, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Section 2.1(b), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have requested to be included in such registration statement are actually includedeffective;
(iii) during the period starting with the date of filing of, and ending on the date one hundred eighty (180) days following, following the effective date of the registration statement pertaining to the Initial OfferingCompany-initiated registration (or such longer period as may be determined pursuant to Section 2.11 hereof); provided provided, that the Company makes reasonable good faith efforts to cause the such registration statement for the Initial Offering to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.1(a2.2(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for its Initial Qualified Offering within ninety (90) days, provided, that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective;
(v) if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.1, 2.2 a certificate signed by the Chairman of the Board of Directors of the Company (the “Board”) stating that, that in the good faith judgment of the Board, it would be seriously materially detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event 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 defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than once in any 12 twelve (12) month period; and provided further that the Company shall not register any securities for its own account or that of any other stockholder during such ninety (90) day period;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.3 2.4 below;
(vii) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, qualification, or compliance, unless the Company is already subject to service in such jurisdiction and except as may be required by the Securities Act;
(viii) if the Initiating Holders do not request that such offering be firmly underwritten by underwriters selected by the Initiating Holders (subject to the consent of the Company); or
(viiix) if the Company has, within and the six month period preceding Initiating Holders are unable to obtain the date commitment of such request, already effected a demand registration for the Holders pursuant underwriter described in clause (c)(viii) above to this Section 2.1 and such registration has been declared or ordered effectivefirmly underwrite the offer.
Appears in 2 contracts
Samples: Investor Rights Agreement (Udemy, Inc.), Investor Rights Agreement (Udemy, Inc.)
Demand Registration. (a) Subject to the conditions of this Section 2.12.2, if the Company shall receive a written request from the Holders of a majority of the Registrable Securities then outstanding (the “Initiating Holders Holders”) that the Company file a registration statement under the Securities Act covering the registration of at least a majority of the Registrable Securities resulting in then outstanding (or a lesser percent if the anticipated aggregate offering price, net offering proceeds of at least underwriting discounts and commissions, would exceed $20,000,0007,500,000), then the Company will (x) promptly give written notice of the requested registration to all Holders and (y) prepare and file a registration statement and otherwise use its best efforts to cause such sharesshall, and all Registrable Securities of any Holder or Holders joining in such registration pursuant to a written request delivered to the Company within thirty (30) days after of the receipt by such Holder or Holders of initial thereof, give written notice from of such request to all Holders, and subject to the Companylimitations of this Section 2.2, to be registered effect, as expeditiously as reasonably possible, the registration under the Securities Act within ninety (90) days of the requestall Registrable Securities that all Holders request to be registered.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, then the Initiating Holders they shall so advise the Company as a part of their written request made pursuant to this Section 2.1 2.2 or any request pursuant to Section 2.3, 2.4 and the Company shall include such information in the written notice referred to in Section 2.1(a2.2(a) or Section 2.3(a2.4(a), as applicable. In such event, the right of any Holder to include 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. The Company shall (together with all All Holders proposing to distribute their Registrable Securities securities through such underwriting) underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company Holders of a majority of the Registrable Securities then held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to a majority in interest of the Initiating HoldersCompany). Notwithstanding any other provision of this Section 2.1 2.2 or Section 2.32.4, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities), ) then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares 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), or in such other proportions as mutually agreed to by such selling Holders; provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.12.2:
(i) prior to the earlier of September 30, 2015 (A) the fifth anniversary of the date of this Agreement or six months after (B) of the expiration of the restrictions on transfer set forth in Section 2.11 following the Initial Offering;
(ii) after the Company has effected three two (2) registrations pursuant to this Section 2.1 2.2, and either (A) all such registrations have been declared or ordered effective or (B) the request for such registration statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have not paid the Registration Expenses of such withdrawn registration; provided, however, that for purposes of Section 2.1, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Section 2.1(b), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have requested to be included in such registration statement are actually includedeffective;
(iii) during the period starting with the date of filing or confidential draft submission of, and ending on the date one hundred eighty (180) days following, following the effective date of the registration statement pertaining to the Initial Offering, other than pursuant to a Special Registration Statement; provided that the Company makes reasonable good faith efforts to cause the such registration statement for the Initial Offering to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.1(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for its Initial Offering within ninety (90) days;
(v) if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.1, 2.2 a certificate signed by the Chairman of the Board of Directors Managers of the Company (the “Board”) stating that, that in the good faith judgment of the Board, it would be seriously detrimental to the Company and its stockholders securityholders for such registration statement to be effected at such timetime 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, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than once in any 12 twelve (12) month period; and provided further that the Company shall not register any securities for its own account or that of any other stockholder during such ninety (90) day period;
(viv) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.3 2.4 below; or
(viivi) if in any particular jurisdiction in which the Company haswould be required to qualify to do business or to execute a general consent to service of process in effecting such registration, within the six month period preceding the date of such request, qualification or compliance unless already effected a demand registration for the Holders pursuant to this Section 2.1 and such registration has been declared so qualified or ordered effectiveconsented to.
Appears in 2 contracts
Samples: Investor Rights Agreement (DiCE MOLECULES HOLDINGS, LLC), Investor Rights Agreement (DiCE MOLECULES HOLDINGS, LLC)
Demand Registration. (a) Subject to the conditions of this Section 2.12.2, if the Company shall receive a written request from the Holders of at least seventy-five percent (75%) of the Registrable Securities (the “Initiating Holders Holders”) that the Company file a registration statement under the Securities Act covering the registration of the Registrable Securities resulting in then outstanding with an anticipated aggregate offering price, net offering proceeds of at least underwriting discounts and commissions, would exceed $20,000,00010,000,000 (a “Demand Offering”)), then the Company will (x) promptly give written notice of the requested registration to all Holders and (y) prepare and file a registration statement and otherwise use its best efforts to cause such sharesshall, and all Registrable Securities of any Holder or Holders joining in such registration pursuant to a written request delivered to the Company within thirty (30) days after of the receipt by such Holder or Holders of initial thereof, give written notice from of such request to all Holders, and subject to the Companylimitations of this Section 2.2, to be registered effect, as expeditiously as reasonably possible, the registration under the Securities Act within ninety (90) days of the requestall Registrable Securities that all Holders request to be registered.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, then the Initiating Holders they shall so advise the Company as a part of their written request made pursuant to this Section 2.1 2.2 or any request pursuant to Section 2.3, 2.4 and the Company shall include such information in the written notice referred to in Section 2.1(a2.2(a) or Section 2.3(a2.4(a), as applicable. In such event, the right of any Holder to include 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. The Company shall (together with all All Holders proposing to distribute their Registrable Securities securities through such underwriting) underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company Holders of a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to a majority in interest of the Initiating HoldersCompany). Notwithstanding any other provision of this Section 2.1 2.2 or Section 2.32.4, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities), ) then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares 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), or in such other proportions as mutually agreed to by such selling Holders; provided, however, provided that the number of shares of Registrable Securities held by the Holders to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registrationunderwriting. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.12.2:
(i) prior to the earlier of September 30, 2015 (A) the third anniversary of the date of this Agreement or six months after (B) the Initial expiration of the restrictions on transfer set forth in Section 2.11 following a Demand Offering;
(ii) after the Company has effected three two (2) registrations pursuant to this Section 2.1 2.2, and either (A) all such registrations have been declared or ordered effective or (B) the request for such registration statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have not paid the Registration Expenses of such withdrawn registrationeffective; provided, however, that for purposes of Section 2.1provided that, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Section 2.1(b), hereunder fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have requested to be included in such registration statement are actually included;
(iii) during the period starting with the date of filing of, and ending on the date one hundred eighty (180) days following, following the effective date of the registration statement pertaining to the Initial Offeringa public offering, other than pursuant to a Special Registration Statement; provided that the Company makes reasonable good faith efforts to cause the such registration statement for the Initial Offering to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.1(a2.2(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for its Initial Offering a public offering, other than pursuant to a Special Registration Statement, within ninety (90) daysdays of receipt of such written request and 90 days after the effective date of such registration statement, provided that the Company makes reasonable good faith efforts to cause such registration statement to become effective;
(v) if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.1, 2.2 a certificate signed by the Chairman of the Board of Directors of the Company (the “Board”) stating that, that in the good faith judgment of the BoardBoard of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety sixty (9060) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than once in any 12 twelve (12) month period; and provided further that the Company shall not register any securities for its own account or that of any other stockholder during such ninety (90) day period;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.3 2.4 below; or
(vii) if in any particular jurisdiction in which the Company haswould be required to qualify to do business or to execute a general consent to service of process in effecting such registration, within the six month period preceding the date of such request, already effected a demand registration for the Holders pursuant to this Section 2.1 and such registration has been declared qualification or ordered effectivecompliance.
Appears in 2 contracts
Samples: Investor Rights Agreement (Instructure Inc), Investor Rights Agreement (Instructure Inc)
Demand Registration. (a) Subject to the conditions of this Section 2.12.2, if the Company shall receive at any time after April 1, 1998, a written request from the Initiating Holders that the Company file a registration statement under the Securities Act covering the registration of the Registrable Securities resulting in net offering proceeds of at least $20,000,000Securities, then the Company will (x) promptly give written notice of the requested registration to all Holders and (y) prepare and file a registration statement and otherwise use its best efforts to cause such sharesshall, and all Registrable Securities of any Holder or Holders joining in such registration pursuant to a written request delivered to the Company within thirty (30) days after of the receipt by such Holder or Holders of initial thereof, give written notice from of such request to all Holders, and subject to the Companylimitations of Section 2.2(b), to be registered effect, as soon as practicable, the registration under the Securities Act within ninety (90) days of at least 25% of the requestRegistrable Securities held by such Initiating Holder on a pro rata basis; provided, however, that the Company may register less than 25% of such Registrable Securities if the anticipated aggregate offering price, net of underwriting discounts and commissions, exceeds $5,000,000.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, then the Initiating Holders they shall so advise the Company as a part of their written request made pursuant to this Section 2.1 or any request pursuant to Section 2.3, 2.2 and the Company shall include such information in the written notice referred to in Section 2.1(a) or Section 2.3(a2.2(a), as applicable. In such event, the right of any Holder to include its his Registrable Securities in such registration shall be conditioned upon such Holder’s 's participation in such underwriting and the inclusion of such Holder’s 's Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. The Company shall (together with all All Holders proposing to distribute their Registrable Securities securities through such underwriting) underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by a majority in interest of the Company Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to a majority in interest of the Initiating HoldersCompany). Notwithstanding any other provision of this Section 2.1 or Section 2.32.2, if the underwriter advises the Company in writing that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities), ) then the Company shall so advise all Holders of Registrable Securities that which would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders holders of such Registrable Securities registrable securities on a pro rata basis based on the number of Registrable Securities registrable securities held by all such Holders holders (including the Initiating Holders), or in such other proportions as mutually agreed to by such selling Holders; provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required obligated to effect a registration pursuant to this Section 2.1:
more than two (i2) prior to the earlier of September 30, 2015 or six months after the Initial Offering;
(ii) after the Company has effected three registrations pursuant to this Section 2.1 and either (A) all such registrations have been declared or ordered effective or (B) the request for such registration statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have not paid the Registration Expenses of such withdrawn registration; provided, however, that for purposes of Section 2.1, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Section 2.1(b), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have requested to be included in such registration statement are actually included;2.2.
(iiid) during Notwithstanding the period starting with the date of filing offoregoing, and ending on the date one hundred eighty (180) days following, the effective date of the registration statement pertaining to the Initial Offering; provided that the Company makes reasonable efforts to cause the registration statement for the Initial Offering to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.1(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for its Initial Offering within ninety (90) days;
(v) if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.12.2, a certificate signed by the Chairman of the Board of Directors of the Company (the “Board”) stating that, that in the good faith judgment of the BoardBoard of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at filed and it is therefore essential to defer the filing of such timeregistration statement, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not no more than once in any 12 month one-year period.
(e) All expenses incurred in connection with a registration pursuant to this Section 2.2 (excluding underwriters' discounts and commissions, which shall be paid by the selling Holders pro rata with respect to their included shares), including without limitation all registration, filing, qualification, printers' and accounting fees, fees and disbursements of counsel for the Company, and the reasonable fees and disbursements of a single counsel for the selling Holders, shall be borne by the Company; and provided further provided, however, that the Company shall not register be required to pay for any securities for its own account or that expenses of any other stockholder during such ninety (90) day period;
(vi) registration proceeding begun pursuant to Section 2.2 if the registration request is subsequently withdrawn, unless the withdrawal of the registration request results from either (a) intentional actions by the Company outside the normal course of business that materially reduce the feasibility of the registration proceeding, or (b) the discovery of information about the Company that was not known at the time of the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a Holders' request made pursuant to Section 2.3 below; or
(vii) if 2.2(a), and such information materially reduces the feasibility of the registration proceeding. If the Company has, within is required to pay the six month period preceding the date of such request, already effected a demand registration for the Holders expenses pursuant to this Section 2.1 and such registration has been declared 2.2(e)(a) or ordered effective(b), then the Holders shall not forfeit their rights pursuant to this Section 2.2 to a demand registration.
Appears in 2 contracts
Samples: Registration Rights Agreement (Vanguard Airlines Inc \De\), Warrant Agreement (Vanguard Airlines Inc \De\)
Demand Registration. (a) Subject Commencing on the date six months after the closing of the Company's initial public offering of Common Stock, upon receipt of a written request (the "Registration Request"), which shall include a description of such Holders' proposed method of distribution (which method may also include an underwritten offering by a nationally recognized underwriter selected by the Company and reasonably acceptable to the conditions Registering Holders) from Holders holding Registrable Shares having an aggregate expected offering price of this Section 2.1at least $1,000,000 (or, if the expected offering price of all remaining Registrable Shares should be less than $1,000,000, such lesser amount), the Company shall receive (i) promptly give notice of the Registration Request to all non-requesting Holders and (ii) prepare and file with the SEC a registration statement for the sale of all Registrable Shares held by the requesting Holders and any other Holder who makes a written request from Initiating Holders that of the Company file a to have her or his Registrable Shares included in such Registration Statement, which such written request must be received by the Company within ten (10) days after such Holder receives the notice of the Registration Request (all of such Holders, collectively, the "Registering Holders"). The Company shall use all commercially reasonable efforts to effect the registration statement under the Securities Act covering of such Registrable Shares in accordance with the registration intended method of the Registrable Securities resulting in net offering proceeds of at least $20,000,000, then the Company will (x) promptly give written notice of the requested registration to all Holders and (y) prepare and file a registration statement and otherwise use its best efforts to cause such shares, and all Registrable Securities of any Holder or Holders joining in such registration pursuant to a written request delivered to the Company within thirty (30) days after receipt by such Holder or Holders of initial written notice from the Company, to be registered under the Securities Act within ninety (90) days of the requestdistribution thereof.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, then the Initiating Holders shall so advise the Company as a part of their written request made pursuant to this Section 2.1 or any request pursuant to Section 2.3, and the Company shall include such information in the written notice referred to in Section 2.1(a) or Section 2.3(a), as applicable. In such event, the right of any Holder to include 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. The Company shall (together with all Holders proposing to distribute their Registrable Securities through such underwriting) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company (which underwriter or underwriters shall be reasonably acceptable to a majority in interest of the Initiating Holders). Notwithstanding any other provision of this Section 2.1 or Section 2.3, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares 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), or in such other proportions as mutually agreed to by such selling Holders; provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.1:
more than three (i3) prior to the earlier of September 30, 2015 or six months after the Initial Offering;
(ii) after the Company has effected three registrations pursuant to this Section 2.1 2 and either not more than one (A1) all such registrations have been declared or ordered effective or (B) the request for such registration statements has been subsequently withdrawn within any nine month period.
(c) Any registration statement filed pursuant to a Registration Request may, subject to the provisions of Section 2(d), include securities of the Company other than Registration Shares.
(d) If a registration pursuant to Section 2 is an underwritten offering and the managing underwriters advise the Company in writing that in their opinion the number of Registrable Shares and, if permitted under this Agreement, other securities requested to be included in such offering exceeds the number of Registrable Shares and other securities, if any, that can be sold in an orderly manner in such offering within a price range acceptable to the holders of a majority of the Registrable Shares initially requesting registration, the Company shall include in the registration, prior to the inclusion of any securities which are not Registrable Shares, the number of Registrable Shares requested to be included which, in the written opinion of the underwriters, can be sold in an orderly manner within the price range of the offering, pro rata among the respective Holders thereof on the basis of the amount of Registrable Shares owned by each such Holder requesting inclusing in such registration (it being understood that such managing underwriters shall have the right to eliminate entirely the participation in such registration of any securities which are not Registrable Shares).
(e) The Company shall be entitled to postpone, for a reasonable period of time not in excess of ninety (90) days, the filing or effectiveness of a registration statement if the Company determines, in the good faith exercise of its reasonable business judgment, as evidenced by a certificate signed by the Initiating Holders President and CEO of the Initiating Holders have not paid Company in a form reasonably satisfactory to the Registration Expenses Registering Holders, that such registration and offering could materially adversely affect the bonafide financing plans of such withdrawn registrationthe Company or would require the disclosure of information, the premature disclosure of which could materially adversely affect the Company or any transaction under consideration by the Company; provided, however, that for purposes of Section 2.1, a registration the Company shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions entitled to such postponement more than once in Section 2.1(b), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have requested to be included in such registration statement are actually included;any 360-day period.
(iiif) during the period starting with the date of filing of, and ending on the date one hundred eighty (180) days following, the effective date of the registration statement pertaining to the Initial Offering; provided that the The Company makes reasonable efforts to cause the registration statement for the Initial Offering to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.1(a), the Company gives notice to the Holders of the Company’s intention shall not be obligated to file a registration statement for its Initial Offering within ninety (90) days;
(v) if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.12 if the Company, a certificate signed by the Chairman within ten (10) days of the receipt of the Registration Request gives notice of its bona fide intention to effect the filing of a registration statement with the SEC within 90 days of receipt of such Registration Request (other than with respect to a registration statement relating to a Rule 145 transaction or an offering solely to employees), provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective.
(g) The Company shall not be obligated to file a registration statement pursuant to this Section 2 within six (6) months immediately following the effective date of any registration statement pertaining to the securities of the Company (other than a registration of securities in a Rule 145 transaction or with respect to an employee benefit plan).
(h) The Board of Directors of the Company (may select the “Board”investment banker(s) stating that, in the good faith judgment of the Board, it would be seriously detrimental and manager(s) to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than once in administer any 12 month period; and provided further that the Company shall not register any securities for its own account or that of any other stockholder during such ninety (90) day period;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.3 below; or
(vii) if the Company has, within the six month period preceding the date of such request, already effected a demand registration for the Holders offering initiated pursuant to this Section 2.1 and 2, subject to the approval of the holders of a majority of the Registrable Shares initially requesting such registration has been declared or ordered effectiveregistration.
Appears in 2 contracts
Samples: Registration Rights Agreement (Hostopia.com Inc.), Registration Rights Agreement (Hostopia.com Inc.)
Demand Registration. (a) Subject to Commencing on the conditions of this Section 2.1date hereof, if the Company shall receive any Requesting Holders may make a written request from Initiating Holders to the Company (specifying that it is being made pursuant to this Section 2) that the Company file a registration statement under the Securities 1933 Act (or a similar document pursuant to any other statute then in effect corresponding to the 0000 Xxx) covering the registration of the Registrable Securities resulting in net offering proceeds of at least $20,000,000Stock. In such event, then the Company will shall (x) promptly give written notice within ten (10) days thereafter notify in writing all other Holders of the requested registration to all Holders Registrable Stock of such request, and (y) prepare and file a registration statement and otherwise use its best efforts to cause such shares, and all Registrable Securities of any Holder or Holders joining in such registration pursuant to a written request delivered to the Company within thirty (30) days after receipt by such Holder or Holders of initial written notice from the Company, to be registered under the Securities 1933 Act all Registrable Stock that the Requesting Holders and such other Holders have, within ninety forty-five (9045) days of after the requestCompany has given such notice, requested be registered.
(b) If the Initiating Requesting Holders intend to distribute the Registrable Securities Stock covered by their request by means of an underwritingunderwritten offering, then the Initiating Holders they shall so advise the Company as a part of their written request made pursuant to this Section 2.1 or any request pursuant to Section 2.32(a) above, and the Company shall include such information in the written notice referred to in clause (x) of Section 2.1(a2(a) or Section 2.3(a), as applicableabove. In such event, the Holder's right of any Holder to include its Registrable Securities Stock in such registration shall be conditioned upon such Holder’s 's participation in such underwriting underwritten offering and the inclusion of such Holder’s 's Registrable Securities Stock in the underwriting underwritten offering to the extent provided hereinin this Section 2. The Company shall (together with all All Holders proposing to distribute their Registrable Securities Stock through such underwriting) underwritten offering shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company (which underwriters. Such underwriter or underwriters shall be reasonably acceptable to selected by a majority in interest of the Initiating Requesting Holders and shall be approved by the Company, which approval shall not be unreasonably withheld; PROVIDED, that all of the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of such underwriters shall also be made to and for the benefit of such Holders and that any or all of the conditions precedent to the obligations of such underwriters under such underwriting agreement shall be conditions precedent to the obligations of such Holders). ; and PROVIDED FURTHER, that no Holder shall be required to make any representations or warranties to or agreements with the Company or the underwriters other than representations, warranties or agreements regarding such Holder, the Registrable Stock of such Holder and such Holder's intended method of distribution and any other representation required by law or reasonably required by the underwriter.
(c) Notwithstanding any other provision of this Section 2.1 or Section 2.32 to the contrary, if the managing underwriter of an underwritten offering of the Registrable Stock requested to be registered pursuant to this Section 2 advises the Company Requesting Holders in writing that in its opinion marketing factors require a limitation of the number of securities shares to be underwritten (including Registrable Securities)underwritten, then the Company Requesting Holders shall so advise all Holders of Registrable Securities Stock that would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Stock that may be included in the underwriting such underwritten offering shall be allocated among all such Holders, including the Requesting Holders, in proportion (as nearly as practicable) to the Holders amount of Registrable Stock requested to be included in such registration by each Holder at the time of filing the registration statement; PROVIDED, that in the event of such Registrable Securities on a pro rata basis based on the number limitation of Registrable Securities held by all such Holders (including the Initiating Holders), or in such other proportions as mutually agreed to by such selling Holders; provided, however, that the number of shares of Registrable Securities Stock to be included in such underwriting and underwritten, the Holders shall be entitled to an additional demand registration shall not be reduced unless all other securities pursuant to this Section 2. If any Holder of Registrable Stock disapproves of the Company are first entirely excluded from terms of the underwriting underwriting, such Holder may elect to withdraw by written notice to the Company, the managing underwriter and registrationthe Requesting Holders. Any Registrable Securities excluded or The securities so withdrawn from such underwriting shall also be withdrawn from the registration.
(cd) The Notwithstanding any provision of this Agreement to the contrary, the Company shall not be required to effect a registration pursuant to this Section 2.1:
(i) prior to the earlier of September 30, 2015 or six months after the Initial Offering;
(ii) after the Company has effected three registrations pursuant to this Section 2.1 and either (A) all such registrations have been declared or ordered effective or (B) the request for such registration statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have not paid the Registration Expenses of such withdrawn registration; provided, however, that for purposes of Section 2.1, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Section 2.1(b), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have requested to be included in such registration statement are actually included;
(iii) 2 during the period starting with the fourteenth (14th) day immediately preceding the date of an anticipated filing by the Company of, and ending on the a date one hundred eighty (180) days following, the effective date of the registration statement pertaining to the Initial Offering; provided that the Company makes reasonable efforts to cause the registration statement for the Initial Offering to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.1(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for its Initial Offering within ninety (90) days;
(v) if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.1, a certificate signed by the Chairman of the Board of Directors of the Company (the “Board”) stating that, in the good faith judgment of the Board, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt following the effective date of, a registration statement pertaining to a public offering of securities for account of the request of the Initiating HoldersCompany; provided that such right to delay a request shall be exercised by the Company not more than once in any 12 month period; and provided further PROVIDED, that the Company shall not register any securities for its own account or actively employ in good faith all reasonable efforts to cause such registration statement to become effective; and PROVIDED FURTHER, that the Company's estimate of any other stockholder during the date of filing such ninety (90) day period;registration statement shall be made in good faith.
(vie) The Company shall be obligated to effect and pay for a total of only one (1) registration pursuant to this Section 2, unless the number of demand registrations permitted shall be increased as provided in Section 2(c) hereof; PROVIDED, that a registration requested pursuant to this Section 2 shall not be deemed to have been effected for purposes of this Section 2(e), unless (i) it has been declared effective by the Commission, (ii) if it is a shelf registration, it has remained effective for the Initiating Holders propose period set forth in Section 3(b), (iii) the offering of Registrable Stock pursuant to dispose such registration is not subject to any stop order, injunction or other order or requirement of the Commission (other than any such action prompted by any act or omission of the Holders), and (iv) no limitation of the number of shares of Registrable Securities that may Stock to be immediately registered on Form S-3 pursuant to a request made underwritten has been required pursuant to Section 2.3 below; or
(vii2(c) if the Company has, within the six month period preceding the date of such request, already effected a demand registration for the Holders pursuant to this Section 2.1 and such registration has been declared or ordered effectivehereof.
Appears in 2 contracts
Samples: Registration Rights Agreement (Beaulieu Group LLC), Registration Rights Agreement (Venturi Technologies Inc)
Demand Registration. (a) Subject to If, at any time more than one (1) year after the conditions date of this Section 2.1Agreement, if the Company shall receive a receives written request notice from Initiating Holders Investor requesting that the Company file a registration statement under the Securities Act covering the registration of the Registrable Securities resulting in net offering proceeds of at least $20,000,000fifty percent (50%) of the Shares then owned by Investor, then the Company will (x) promptly give written notice of the requested registration to all Holders and (y) prepare and file a registration statement and otherwise use its best efforts to cause such shareseffect the registration under the Act of all Shares which investor requests to be registered, and all Registrable Securities of any Holder or Holders joining in such registration pursuant to a written request delivered to the Company within thirty (30) days after receipt extent necessary to permit the legally permissible sale or other disposition by such Holder or Holders of initial written notice from the Company, Investor to be registered under the Securities Act within ninety (90) days of the requestso registered.
(b) If the Initiating Holders intend Investor intends to distribute the Registrable Securities Shares covered by their its request by means of an underwriting, then the Initiating Holders shall it will so advise the Company as a part of their written the request made pursuant to this Section 2.1 or any request pursuant 2. The underwriter selected by Investor shall be reasonably acceptable to Section 2.3, and the Company shall include such information in the written notice referred to in Section 2.1(a) or Section 2.3(a), as applicableCompany. In such event, the right of any Holder Investor to include its Registrable Securities Shares in such the registration shall be conditioned upon such Holder’s Investor's participation in such underwriting and the inclusion of such Holder’s Registrable Securities the Shares in the underwriting to the extent provided hereinunderwriting. The Company shall will enter into (together with all Holders proposing to distribute Investor and the other shareholders distributing their Registrable Securities securities through such the underwriting) enter into an underwriting agreement in customary form with the underwriter or underwriters selected by Investor for such the underwriting, provided that the underwriting by the Company (which underwriter or underwriters shall be agreement is in customary form and is reasonably acceptable to a majority in interest of the Initiating Holders). Notwithstanding any other provision of this Section 2.1 or Section 2.3, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares 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), or in such other proportions as mutually agreed to by such selling Holders; provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registrationCompany.
(c) The Notwithstanding the foregoing, if Company shall not be required furnishes to effect a registration pursuant to this Section 2.1:
(i) prior to the earlier of September 30, 2015 or six months after the Initial Offering;
(ii) after the Company has effected three registrations pursuant to this Section 2.1 and either (A) all such registrations have been declared or ordered effective or (B) the request for such registration statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have not paid the Registration Expenses of such withdrawn registration; provided, however, that for purposes of Section 2.1, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Section 2.1(b), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have requested to be included in such registration statement are actually included;
(iii) during the period starting with the date of filing of, and ending on the date one hundred eighty (180) days following, the effective date of the registration statement pertaining to the Initial Offering; provided that the Company makes reasonable efforts to cause the registration statement for the Initial Offering to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.1(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for its Initial Offering within ninety (90) days;
(v) if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.1, Investor a certificate signed by the Chairman President of the Board of Directors of the Company (the “Board”) stating that, that in the good faith judgment of the BoardBoard of Directors of Company, it would be seriously detrimental to the Company and its stockholders shareholders for such the registration statement to be effected at such timefiled and it is therefore essential to defer the filing of the registration statement, in which event the Company shall will have the right to defer such the filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holdersinvestor; provided provided, however, that such Company may not utilize this right to delay a request shall be exercised by the Company not more than once in any 12 twelve-month period; and provided further that the Company shall not register any securities for its own account or that of any other stockholder during such ninety (90) day period;.
(vid) if the Initiating Holders propose Company will not be obligated to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant prepare, file or to a request made pursuant take any action to Section 2.3 below; or
(vii) if the Company has, within the six month period preceding the date of such request, already effected a demand effect any registration for the Holders pursuant to this Section 2.1 2:
(i) Within one year from the date hereof;
(ii) After Company has effected a prior registration pursuant to this Agreement and such registration has been declared or ordered effective; or
(iii) During the period starting with the date ninety (90) days prior to Company's good faith estimate of the date of filing of, and ending on a date one hundred eighty (180) days after the effective date of, a registration subject to Sections 1 or 2 hereof; provided that Company is using reasonable efforts to cause such registration statement to become effective.
Appears in 2 contracts
Samples: Registration Rights Agreement (Image Entertainment Inc), Registration Rights Agreement (Image Entertainment Inc)
Demand Registration. (a) Subject to the conditions of this Section 2.12.2, if the Company shall receive a written request from the Holders of at least twenty five percent (25%) of the Registrable Securities (the “Initiating Holders Holders”) that the Company file a registration statement under the Securities Act covering the registration of at least twenty five percent (25%) of the Registrable Securities resulting in then outstanding (or a lesser percent if the anticipated aggregate offering price, net offering proceeds of at least underwriting discounts and commissions, would exceed $20,000,0007,500,000), then the Company will (x) promptly give written notice of the requested registration to all Holders and (y) prepare and file a registration statement and otherwise use its best efforts to cause such sharesshall, and all Registrable Securities of any Holder or Holders joining in such registration pursuant to a written request delivered to the Company within thirty (30) days after of the receipt by such Holder or Holders of initial thereof, give written notice from of such request to all Holders, and subject to the Companylimitations of this Section 2.2, (i) file, as expeditiously as reasonably possible, and in any event no later than one hundred (100) days following the receipt of such written request, a registration statement pursuant to the Securities Act covering all Registrable Securities that all Holders request to be registered registered, and (ii) effect, as expeditiously as reasonably possible, the registration under the Securities Act within ninety (90) days of the requestall Registrable Securities that all Holders request to be registered.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, then the Initiating Holders they shall so advise the Company as a part of their written request made pursuant to this Section 2.1 2.2 or any request pursuant to Section 2.3, 2.4 and the Company shall include such information in the written notice referred to in Section 2.1(a2.2(a) or Section 2.3(a2.4(a), as applicable. In such event, the right of any Holder to include 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. The Company shall (together with all All Holders proposing to distribute their Registrable Securities securities through such underwriting) underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company Holders of a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to a majority in interest of the Initiating HoldersCompany). Notwithstanding any other provision of this Section 2.1 2.2 or Section 2.32.4, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities), ) then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares 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), or in such other proportions as mutually agreed to by such selling Holders; provided, however, that in any offering other than the Initial Offering or a SPAC Transaction, the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.12.2:
(i) prior to the earlier of September 30, 2015 (A) the third anniversary of the date of this Agreement or six months after (B) of the expiration of the restrictions on transfer set forth in Section 2.11 following the Initial OfferingOffering or SPAC Transaction;
(ii) after the Company has effected three two (2) registrations pursuant to this Section 2.1 2.2, and either (A) all such registrations have been declared or ordered effective or (B) the request for such registration statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have not paid the Registration Expenses of such withdrawn registration; provided, however, that for purposes of Section 2.1, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Section 2.1(b), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have requested to be included in such registration statement are actually includedeffective;
(iii) during the period starting with the date of filing of, and ending on the date one hundred eighty (180) days following, following the effective date of the registration statement pertaining to the Initial Offeringa public offering, other than pursuant to a Special Registration Statement; provided that the Company makes reasonable good faith efforts to cause the such registration statement for the Initial Offering to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.1(a2.2(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for its Initial Offering a public offering, other than pursuant to a Special Registration Statement, within ninety (90) days;
(v) if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.1, 2.2 a certificate signed by the Chairman of the Board of Directors of the Company (the “Board”) stating that, that in the good faith judgment of the Board, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety one hundred twenty (90120) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than once twice in any 12 twelve (12) month period; and provided further that the Company shall not register any securities for its own account or that of any other stockholder during such ninety one hundred twenty (90120) day periodperiod other than pursuant to a Special Registration Statement;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.3 2.4 below; or
(vii) if in any particular jurisdiction in which the Company haswould be required to qualify to do business or to execute a general consent to service of process in effecting such registration, within the six month period preceding the date of such request, already effected a demand registration for the Holders pursuant to this Section 2.1 and such registration has been declared qualification or ordered effectivecompliance.
Appears in 2 contracts
Samples: Investor Rights Agreement (PROCEPT BioRobotics Corp), Investor Rights Agreement (PROCEPT BioRobotics Corp)
Demand Registration. (aA) Subject to Upon the conditions of this Section 2.1, if the Company shall receive a written request from Initiating Holders time to time (a "Request") of any Stockholder or any Affiliate of a Stockholder that holds Registrable Securities that the Company file a effect the registration statement under the Securities Act covering the registration of all or part of the Registrable Securities resulting in net offering proceeds of at least $20,000,000owned by such Stockholder and Affiliates, then the Company will (x) promptly give written notice of the requested registration to all Holders and (y) prepare and file a registration statement and otherwise as expeditiously as possible use its best efforts to cause such shares, and all Registrable Securities of any Holder or Holders joining in such effect the registration pursuant to a written request delivered to the Company within thirty (30) days after receipt by such Holder or Holders of initial written notice from the Company, to be registered under the Securities Act within ninety (90) days of the request.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, then the Initiating Holders shall so advise the Company as a part of their written request made pursuant to this Section 2.1 or any request pursuant to Section 2.3, and the Company shall include such information in the written notice referred to in Section 2.1(a) or Section 2.3(a), as applicable. In such event, the right of any Holder to include 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. The Company shall (together with all Holders proposing to distribute their Registrable Securities through such underwriting) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company (which underwriter or underwriters shall be reasonably acceptable to a majority in interest of the Initiating Holders). Notwithstanding any other provision of this Section 2.1 or Section 2.3, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares 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), or in such other proportions as mutually agreed to by such selling HoldersSecurities; provided, however, provided that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.1:
(i) prior to the earlier of September 30, 2015 or six months after the Initial Offering;
(ii) after the Company has effected more than three registrations pursuant to this Section 2.1 2.2. The Stockholders shall have the right to select the managing underwriter or underwriters to administer the offerings covered by its Requests. The Stockholders and either (A) all such registrations have been declared or ordered effective or the Company shall consult with one another at the beginning of, and throughout, the registration process to coordinate the timing of the proposed offering, among other things with respect to the existence of any material business combination discussions that may be ongoing.
(B) the request for such A registration statements has requested pursuant to this Section 2.2 shall not be deemed to have been subsequently withdrawn by the Initiating Holders and the Initiating Holders have not paid the Registration Expenses of such withdrawn registration; provided, however, that effected for purposes of Section 2.1, a 2.2(a) (i) unless it has become effective and remains effective in compliance with the provisions of the Securities Act and at least 75% of all Registrable Securities listed in the Request to be included in such registration shall not be counted as “effected” if, statement have been disposed of in accordance with the intended methods of disposition thereof set forth in such registration statement (other than primarily as a result of an exercise acts or omissions of any Stockholder or any authorized agent thereof), (ii) if, after it has become effective, the offering of the underwriter’s cutback provisions in Section 2.1(b)Registrable Securities pursuant to such registration is interfered with by any stop order, fewer than fifty percent (50%) injunction or other order or requirement of the total SEC or other governmental agency or court (for any reason not attributable to any Stockholder or any of its Affiliates) 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.
(C) If a requested registration pursuant to this Section 2.2 involves an underwritten offering and the managing underwriter advises the Company in writing that, in its opinion, the number of securities requested to be included in such registration by the Stockholders should be limited because the inclusion of all of such securities is likely to adversely impact such offering (including the price at which the securities can be sold) the Company shall include in such registration securities in the following order of priority: (i) first, Registrable Securities that Holders have requested to be included in such registration statement are actually included;
(iii) during by the period starting with the date of filing of, and ending on the date one hundred eighty (180) days following, the effective date of the registration statement pertaining to the Initial Offering; provided that the Company makes reasonable efforts to cause the registration statement for the Initial Offering to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.1(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for its Initial Offering within ninety (90) days;
(v) if the Company shall furnish to the Holders requesting a registration statement Stockholders pursuant to this Section 2.12.2 and (ii) second, a certificate signed by to the Chairman extent that the number of Registrable Securities which the Board Stockholders have requested to include is less than the number of Directors of securities which the Company (has been advised can be sold in such offering without having the “Board”) stating thatadverse effect referred to above, in the good faith judgment of the Board, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event then the Company shall have be entitled to include that number of securities which result in the right offering not exceeding the maximum amount of securities that would cause the effect referred to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than once in any 12 month period; and provided further that the Company shall not register any securities for its own account or that of any other stockholder during such ninety (90) day period;above.
(viD) if the Initiating Holders propose to dispose of shares The Company will pay all Registration Expenses in connection with each registration of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.3 below; or
(vii) if the Company has, within the six month period preceding the date of such request, already effected a demand registration for the Holders pursuant to this Section 2.1 and such registration has been declared or ordered effective2.2.
Appears in 1 contract
Demand Registration. (a) Subject to From and after the conditions earlier of this Section 2.1the sixth anniversary of the Closing, if or 90 days after the Company date Holdings shall receive have first sold equity securities in a written request from Initiating Holders that the Company file a registration statement public offering registered under the Securities Act covering the Act, upon a request in writing by an Initiating Holder that Holdings effect a registration of the Registrable Securities resulting in net offering proceeds of at least $20,000,000100.000 Purchaser Common Shares, then the Company will Holdings shall:
(xi) promptly give given written notice of the requested proposed registration to all Holders and other Holders; and
(yii) prepare and file a registration statement and otherwise use its best efforts to cause such shares, and all Registrable Securities effect the registration as soon as practical of any the Common Shares which (x) the Initiating Holder or Holders joining in such registration pursuant to a written request delivered to the Company within thirty (30) days after receipt by such Holder or Holders of initial written notice from the Company, has requested to be registered under and (y) the Securities Act other Holders have, within ninety (90) 20 days of the requestsuch notice, requested in writing to be registered.
(b) Notwithstanding Section 9.2(a) hereof, Holdings shall not be required to file a registration statement pursuant to Section 9.2(a) if Holdings has already effected two or more registrations pursuant to Section 9.2(a) hereof unless the Initiating Holder requesting such registration shall have agreed to pay the expenses of such registration.
(c) If the registration of which the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of Holder gives notice is for a public offering involving an underwriting, then the Initiating Holders Holdings shall so advise the Company Holders as a part of their the written request made pursuant to this Section 2.1 or any request notice given pursuant to Section 2.3, and the Company shall include such information in the written notice referred to in Section 2.1(a9.2(a) or Section 2.3(a), as applicablehereof. In such event, the right of any Holder desiring to exercise its right to registration pursuant to this Section 9.2 shall include within its Registrable Securities in registration request a statement as to whether such registration shall be conditioned upon such Holder’s participation Holder desires to (i) participate in such underwriting and or (ii) register Common Shares without participating in such underwriting (in which event the inclusion Holder shall inform Holdings, as part of such Holder’s Registrable Securities in request, of the underwriting method by which the Holder intends to the extent provided hereindistribute such shares). The Company shall (together with all All Holders proposing to distribute their Registrable Securities Common Shares through such underwriting shall (together with Holdings and any Other Shareholders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by Holdings with the Company consent of the Initiating Holder, which consent shall not be unreasonably withheld. All Holders proposing to distribute their Common Shares other than through such underwriting shall, if the underwriter determines that marketing factors so require and advises Holdings in writing, agree to refrain from distributing such shares for 90 days after the effective date of the applicable registration statement, on the condition that all Other Shareholders proposing to distribute their Common Shares other than through such underwriting who own or have rights to acquire a number of Common Shares equal to five percent or more of the outstanding Common Shares also agree to so refrain.
(which d) Notwithstanding any other provisions of this Section 9.2, if the managing underwriter or underwriters determine that marketing factors require a limitation on the number of shares to be underwritten and so advise Holdings in writing, and if, as a result of such limitation, the number of the Common Shares included in the underwriting must be limited, the Holders' right to participate in the underwriting shall be reasonably acceptable limited in proportion to a majority in interest the number of Common Shares requested to be registered by each Holder and Holdings. Any Common Shares excluded from the underwriting by reason of the Initiating Holders)underwriter's marketing limitation may nonetheless, at the option of the Holder, be included in the registration. If any Holder disapproves of the terms of any such underwriting, it may elect to withdraw therefrom by written notice to Holdings and the managing underwriter or underwriters, in which event the Common Shares so withdrawn from the underwriting may nonetheless, at the option of the Holder, be included in the registration.
(e) Notwithstanding any other provision of this Section 2.1 or Section 2.39.2, if the managing underwriter advises the Company or underwriters determine that marketing factors require a limitation of that the number of securities registration be limited to be underwritten (including Registrable Securities), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to and so advise Holdings in writing, the Holders of will have no right to register Common Shares without participating in the underwriting. In such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders event, (including the Initiating Holders), or in such other proportions as mutually agreed to by such selling Holders; provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely i) Common Shares excluded from the underwriting by reason of Section 9.2(d) hereof shall also be excluded from the registration, and registration. Any Registrable Securities excluded or (ii) any Common Shares withdrawn from such the underwriting as provided in Section 9.2(d) hereof shall also be withdrawn from the registration.
(cf) The Company Holdings may include Common Shares for its own account, or Common Shares for the account of Other Shareholders having rights to participate in registrations of Holdings, in any registration and underwriting pursuant to this Section 9.2; provided, however, that Holdings include shares for its own account or for the account of such Other Shareholders only if the managing underwriter or underwriters so agree and if the number of Common Shares which would otherwise have been included in the underwriting will not thereby be limited.
(g) Except as otherwise provided in Section 9.2(b), Holdings shall not be required pay all expenses in connection with each registration pursuant to effect this Section 9.2; provided, however, that the Holders who include Common Shares in a registration pursuant to this Section 2.1:
(i) prior 9.2 shall bear the cost of any underwriters' discount or commission relating to the earlier their Common Shares which are sold and of September 30, 2015 any incremental filing or six months after the Initial Offering;
(ii) after the Company has effected three registrations pursuant similar fees relating to this Section 2.1 and either (A) all such registrations have been declared or ordered effective or (B) the request for such registration statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have not paid the Registration Expenses of such withdrawn registration; provided, however, that for purposes of Section 2.1, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Section 2.1(b), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have requested to be included in such registration statement their Common Shares which are actually included;
(iii) during the period starting with the date of filing ofregistered, and ending on shall bear the date one hundred eighty (180) days following, the effective date of the registration statement pertaining to the Initial Offering; provided that the Company makes reasonable efforts to cause the registration statement for the Initial Offering to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.1(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for its Initial Offering within ninety (90) days;
(v) if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.1, a certificate signed by the Chairman of the Board of Directors of the Company (the “Board”) stating that, in the good faith judgment of the Board, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than once in any 12 month period; and provided further that the Company shall not register any securities for its own account or that costs of any other stockholder during such ninety (90) day period;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.3 below; or
(vii) if the Company has, within the six month period preceding the date of such request, already effected a demand registration legal counsel they retain for the Holders pursuant to this Section 2.1 and such registration has been declared or ordered effectivethemselves.
Appears in 1 contract
Samples: Securities Purchase Agreement (Archibald Candy Corp)
Demand Registration. (a) Subject to the conditions of this Section 2.12.2, if the Company shall receive a written request from a Holder or Holders of at least 50% of the Registrable Securities then outstanding (the "Initiating Holders Holders") that the Company file a registration statement under the Securities Act covering the registration of a majority of the Registrable Securities resulting in net offering proceeds of at least $20,000,000owned by such Initiating Holders, then the Company will (x) promptly shall, within 30 days of receipt thereof, give written notice of the requested registration such request to all Holders and (y) prepare and and, subject to the limitations of this Section 2.2, use its commercially reasonable efforts to file a registration statement and otherwise use its best efforts to cause such shares, and all Registrable Securities of any Holder or Holders joining in such registration pursuant to a written request delivered to the Company within thirty (30) days after receipt by such Holder or Holders of initial written notice from the Company, to be registered under the Securities Act within ninety (90) days of with the requestCommission covering all Registrable Securities that the Holders request to be registered.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, then the Initiating Holders they shall so advise the Company as a part of their written request made pursuant to this Section 2.1 or any request pursuant to Section 2.3, 2.2 and the Company shall include such information in the written notice referred to in Section 2.1(a) or Section 2.3(a2.2(a), as applicable. In such event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s 's participation in such underwriting and the inclusion of such Holder’s 's Registrable Securities in the underwriting to the extent provided herein. The Company shall (together with all All Holders proposing to distribute their Registrable Securities securities through such underwriting) underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company (which underwriter or underwriters shall be reasonably acceptable to a majority in interest of the Initiating Holders). Notwithstanding any other provision of this Section 2.1 or Section 2.32.2, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities), ) then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated first to the Holders who are holders of such Registrable Securities Series A Convertible Preferred Stock (or shares of Common Stock issued upon conversion thereof) on a pro rata basis based on the total number of Registrable Securities held by all such Holders (including the Initiating Holders), or in such other proportions as mutually agreed to by such selling Holders; provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.12.2:
(i1) prior to the earlier of September 30, 2015 or (A) six months after following the Initial Offering, and (B) December 31, 2004;
(ii2) after the Company has effected three two (2) registrations pursuant to this Section 2.1 2.2(a), and either (A) all such registrations have been declared or ordered effective or (B) the request for such registration statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have not paid the Registration Expenses of such withdrawn registration; provided, however, that for purposes of Section 2.1, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Section 2.1(b), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have requested to be included in such registration statement are actually includedeffective;
(iii3) during the period starting with the date of filing of, and ending on the date one hundred eighty (180) 90 days following, following the effective date of, any registration statement (other than a Special Registration Statement) of the registration statement pertaining to the Initial Offering; provided that the Company makes reasonable efforts to cause the registration statement for the Initial Offering to become effectiveCompany;
(iv4) if within thirty (30) 30 days of receipt of a written request from Initiating Holders pursuant to Section 2.1(a2.2(a), the Company gives notice to the Holders of the Company’s 's intention to file a registration statement for make its Initial Offering within ninety (90) 90 days;
(v5) if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.1Initiating Holders, a certificate signed by the Chairman of the Board of Directors of the Company (the “Board”) stating that, that in the good faith judgment of the BoardBoard of Directors, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) 120 days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than once in any 12 twelve-month period; and provided further that the Company shall not register any securities for its own account or that of any other stockholder during such ninety (90) day period;or
(vi6) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.3 2.4 below; or
(vii) if the Company has, within the six month period preceding the date of such request, already effected a demand registration for the Holders pursuant to this Section 2.1 and such registration has been declared or ordered effective.
Appears in 1 contract
Demand Registration. (a) Subject The Investor shall have the opportunity on three (3) occasions to have ACTV register such of (i) the conditions Shares , (ii) the Warrant Stock (as defined in the Warrant) and (iii) any other Common Stock held by the Investor (collectively the "Registrable Securities") as are specified in the demand for registration delivered by the Investor to ACTV (the "Demand"), and ACTV shall, as soon as practicable, but not later than 30 days after the date of this Section 2.1the Demand, if file with the Company shall receive a written request from Initiating Holders that Securities and Exchange Commission (the Company file "Commission") a registration statement under the Securities 1933 Act covering the registration thereunder of the Registrable Securities resulting specified in net offering proceeds of at least $20,000,000, then the Company will Demand (x) promptly give written notice of the requested registration "Registration Statement"). ACTV is required to all Holders and (y) prepare and file a registration statement and otherwise use its best exercise commercially reasonable efforts to cause such shares, and all Registrable Securities of any Holder or Holders joining Registration Statement to become effective. No securities other than those specified in the Demand shall be included in such registration pursuant to a written request delivered to the Company within thirty (30) days after receipt by such Holder or Holders of initial written notice from the Company, to be registered under the Securities Act within ninety (90) days of the requestregistration.
(b) If so requested by the Initiating Holders intend Investor, the Registration Statement shall provide for a delayed or continuous offering of Registrable Securities pursuant to distribute Rule 415 promulgated under the 1993 Act or any similar rule then in effect. If so requested by the Investor, the public offering or distribution of Registrable Securities under this Agreement shall be pursuant to a firm commitment underwriting, the managing underwriter of which shall be a recognized investment banking firm selected and engaged by the Investor and approved by ACTV, which approval shall not be unreasonably withheld. ACTV shall enter into the same underwriting agreement as shall the Investor, containing representations, warranties and agreements not substantially different from those customarily made by an issuer in underwriting agreements with respect to secondary distributions. ACTV, as a condition to fulfilling its obligations under this Section 6 may require the underwriters to enter into an agreement in customary form indemnifying ACTV against any Losses (as defined in Section 6.2 hereof) that arise out of or are based upon an untrue statement or an alleged untrue statement or omission or alleged omission in the Disclosure Documents (as defined in Section 6.2 hereof) made in reliance upon and in conformity with written information furnished to ACTV by the underwriters specifically for use in the preparation thereof.
(c) The Investor may, before such a Registration Statement becomes effective, withdraw its Registrable Securities from sale, should the terms of sale not be reasonably satisfactory to such Investor; however, such registration shall be deemed to have occurred for the purposes of Section 6.1(a) hereof, unless the Investor pays within 20 days after any such withdrawal, all of the out-of-pocket expenses of ACTV incurred in connection with such registration.
(d) If and whenever ACTV is obligated by the provisions of this Section 6 to effect the registration of any Registrable Securities under the 1993 Act, ACTV shall:
(i) prepare and file with the Commission any amendments and supplements to the Registration Statement and to the prospectus used in connection therewith as may be necessary to keep the Registration Statement effective and to comply with the provisions of the 1933 Act and the rules and regulations promulgated thereunder with respect to the disposition of all Registrable Securities covered by the Registration Statement for the period required to effect the distribution of such Securities, but in no event shall ACTV be required to do so for a period of more than 180 days following the effective date of the Registration Statement;
(ii) notify the Investor and its underwriter, and confirm such advice in writing, (A) when a Registration Statement becomes effective, (B) when any post-effective amendment to a Registration Statement becomes effective, and (C) of any request by the Commission for any amendment of or supplement to a Registration Statement or any prospectus relating thereto or for additional information:
(iii) furnish at ACTV's expense to the Investor such number of copies of a preliminary, final, supplemental or amended prospectus, in conformity with the requirements of the 1993 Act and the rules and regulations promulgated thereunder, as may reasonably be required in order to facilitate the disposition of the Registrable Securities covered by their request a Registration Statement, but only while ACTV is required under the provisions hereof to cause a Registration Statement to remain effective;
(iv) register or qualify the Registrable Securities covered by means a Registration Statement under such other securities or blue sky laws of an underwriting, then such jurisdictions in the Initiating Holders United States as the Investor shall so advise the Company as a part of their written request made pursuant to this Section 2.1 or any request pursuant to Section 2.3reasonably request, and do any and all other acts and things which may be necessary to enable the Company shall include such information in Investor to consummate the written notice referred to in Section 2.1(a) or Section 2.3(a), as applicable. In such event, the right of any Holder to include its Registrable Securities disposition in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion jurisdictions of such Holder’s Registrable Securities in the underwriting to the extent provided herein. The Company shall (together with all Holders proposing to distribute their Registrable Securities through such underwriting) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company (which underwriter or underwriters shall be reasonably acceptable to a majority in interest of the Initiating Holders). Notwithstanding any other provision of this Section 2.1 or Section 2.3, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares 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), or in such other proportions as mutually agreed to by such selling Holders; provided, however, that ACTV shall in no event be required to qualify to do business as a foreign corporation or a dealer in any jurisdiction where it is not so qualified, to conform the number composition of shares its assets at the time to the securities or blue sky laws of such jurisdiction, to execute or file any general consent to service of process under the laws of any jurisdiction, to take any action that would subject it to service of process in suits other than those arising out of the offer and sale of the Registrable Securities covered by the Registration Statement, or to be included subject itself to taxation in such underwriting and registration shall any jurisdiction where it has not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registrationtheretofore done so.
(ce) The Company shall not be required to effect a registration pursuant to ACTV's obligations under this Section 2.16.1 shall be conditioned upon the Investor's compliance with the following:
(i) prior The Investor shall cooperate with ACTV in connection with the preparation of the Registration Statement, and for so long as ACTV is obligated to file and keep effective the earlier Registration Statement, shall provide to ACTV, in writing, for use in the Registration Statement, all such information regarding the Investor and its plan of September 30distribution of the Registrable Securities as may be necessary to enable ACTV to prepare the Registration Statement and prospectus covering the Registrable Securities, 2015 or six months after to maintain the Initial Offering;currency and effectiveness thereof and otherwise to comply with all applicable requirements of law in connection therewith.
(ii) after During such time as the Company has effected three registrations pursuant Investor may be engaged in a distribution of the Registrable Securities, the Investor will comply with all applicable provisions of state and federal securities laws, including Regulation M promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange Act").
(f) The Investor shall have no right to demand registration under this Section 2.1 and either 6 if all of the Registrable Securities are (Ai) all such registrations have been declared or ordered effective freely tradable in a single transaction under Rule 144(k) promulgated under the 1933 Act, as determined by an opinion of counsel reasonably satisfactory to the Investor, or (Bii) are then subject to an effective Registration Statement on Form S-3 (or other applicable form) which ACTV may file at any time and which may include securities other than the request Registrable Securities.
(g) All expenses incurred in any registration of the Registrable Securities under this Agreement shall be paid by ACTV, including, without limitation, printing expenses, fees and disbursements of counsel for ACTV, expenses of any audits which shall be necessary to comply with governmental requirements in connection with any such registration, all registration statements has been subsequently withdrawn by and filing fees for the Initiating Holders Registrable Securities under federal and state securities laws, and expenses of complying with the Initiating Holders have not paid the Registration Expenses securities or blue sky laws of such withdrawn registrationany jurisdictions; provided, however, that for purposes of Section 2.1, a registration ACTV shall not be counted as “effected” if, as a result of an exercise of liable for (i) any discounts or commissions to any underwriter with respect to the underwriter’s cutback provisions in Section 2.1(b), fewer than fifty percent Registrable Securities; (50%ii) of the total number of any stock transfer taxes incurred with respect to Registrable Securities that Holders have requested to be included sold in such registration statement are actually included;
offering or (iii) during the period starting with the date fees and expenses of filing of, and ending on the date one hundred eighty (180) days following, the effective date of the registration statement pertaining to the Initial Offering; provided that the Company makes reasonable efforts to cause the registration statement counsel for the Initial Offering to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.1(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for its Initial Offering within ninety (90) days;
(v) if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.1, a certificate signed by the Chairman of the Board of Directors of the Company (the “Board”) stating that, in the good faith judgment of the Board, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than once in any 12 month period; and provided further that the Company shall not register any securities for its own account or that of any other stockholder during such ninety (90) day period;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.3 below; or
(vii) if the Company has, within the six month period preceding the date of such request, already effected a demand registration for the Holders pursuant to this Section 2.1 and such registration has been declared or ordered effectiveInvestor.
Appears in 1 contract
Samples: Securities Purchase Agreement (Tele Communications Inc /Co/)
Demand Registration. (a) Subject If at any time and from time to time on or after the conditions of this Section 2.1date hereof, if the Company shall receive a written request from Initiating Holders one or more Legato Founders or Key Shareholders (such Legato Founders or Key Shareholders, collectively, the “Requesting Shareholders”) that the Company file Company, (i) effect a registration statement under the Securities Act covering if any Registrable Securities are listed on a U.S. National Securities Exchange or the registration Company is otherwise subject to Section 13 or 15(d) of the Exchange Act, or (ii) effect a qualification for distribution by prospectus under Canada Securities Laws if any Registrable Securities are listed on a Canada National Securities Exchange or the Company is a reporting issuer in any province or territory of Canada under Canada Securities Laws, of all or any portion of the Requesting Shareholder’s Registrable Securities, specifying the intended method of disposition thereof, including whether to be conducted via an underwritten offering (each such request shall be referred to herein as a “Demand Registration”). The Company shall use its commercially reasonable efforts to effect, as expeditiously as possible, the filing of a Registration Filing and the effectiveness of the Demand Registration, or the filing of a prospectus under Canada Securities Laws and the issuance of a final receipt for such prospectus, or both, subject to the restrictions set forth in this ARTICLE III. The Company shall give reasonably prompt notice of a Demand Registration (and in no event later than 15 Business Days or 4 Business Days in the case of a Bought Deal prior to the anticipated filing date of the Registration Filing relating to such Demand Registration) to the other Legato Founders and Key Shareholders with respect to all other Registrable Securities of the same class as those requested to be registered by the Requesting Shareholders (all such Legato Founders and Key Shareholders, together with the Requesting Shareholders, and any other Shareholders participating in a Demand Registration or Piggyback Registration, the “Registering Shareholders”) that such Shareholders 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 commercially reasonable efforts to include all Registrable Securities requested to be registered by the Registering Shareholders in such Registration Filing. Notwithstanding the foregoing, the Company shall not be obligated to effect a Demand Registration (i) unless the aggregate proceeds expected to be received from the sale of the Registrable Securities resulting requested to be included in net offering proceeds of at least $20,000,000, then such Demand Registration equals or exceeds C$50,000,000 and (ii) if the Company will (x) promptly give written notice shall have effected a Demand Registration or Piggyback Registration in which Legato Founders and Key Shareholders had the opportunity to sell Registrable Securities within the six-month period prior to receipt of the requested registration to all Holders and (y) prepare and file a registration statement and otherwise use its best efforts to cause such shares, and all Registrable Securities of any Holder or Holders joining in such registration pursuant to a written request delivered to the Company within thirty (30) days after receipt by such Holder or Holders of initial written notice from the Company, to be registered under the Securities Act within ninety (90) days of the requestDemand Registration.
(b) If At any time prior to the Initiating Holders intend Public Offering Launch of a Demand Registration, the Requesting Shareholders may revoke such request, without liability to distribute any of the Registrable Securities covered other Registering Shareholders, by their request by means of an underwriting, then the Initiating Holders shall so advise providing a notice to the Company as a part of their written request made pursuant to this Section 2.1 or any request pursuant to Section 2.3, and the Company shall include revoking such information in the written notice referred to in Section 2.1(a) or Section 2.3(a), as applicable. In such event, the right of any Holder to include 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. The Company shall (together with all Holders proposing to distribute their Registrable Securities through such underwriting) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company (which underwriter or underwriters shall be reasonably acceptable to a majority in interest of the Initiating Holders). Notwithstanding any other provision of this Section 2.1 or Section 2.3, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares 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), or in such other proportions as mutually agreed to by such selling Holders; provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registrationrequest.
(c) The Company shall be liable for and pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Demand Registration is completed.
(d) A Demand Registration shall be deemed not be required to effect a registration pursuant to this Section 2.1have occurred:
(i) prior unless the Public Offering Pricing has been completed and a final Prospectus or Shelf Prospectus Supplement relating to the earlier applicable Registration Filing containing pricing information has been filed with the SEC or one or more Canada Securities Authorities; provided that a Demand Registration shall be deemed not to have occurred if either (1) such Registration Filing is interfered with by any cease trade or stop order, injunction or other order or requirement of September 30the SEC, 2015 a Canada Securities Authority or six months after any other governmental agency or court or (2) less than 75% of the Initial Offering;Registrable Securities included in such Registration Filing have been sold thereunder; or
(ii) after if the Maximum Offering Size is reduced in accordance with Section 3.1(e) such that less than 75% 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 underwriters advise the Company has effected three registrations pursuant to this Section 2.1 and either (A) all such registrations have been declared or ordered effective or (B) the request for such registration statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have not paid Registering Shareholders that, in their view, the Registration Expenses of such withdrawn registration; provided, however, that for purposes of Section 2.1, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Section 2.1(b), fewer than fifty percent (50%) of the total number amount of Registrable Securities that Holders have requested to be included in such registration statement are actually included;
Demand Registration (iii) during the period starting with the date of filing of, and ending on the date one hundred eighty (180) days following, the effective date of the registration statement pertaining to the Initial Offering; provided including any securities that the Company makes reasonable efforts proposes to cause include) exceeds the registration statement for largest amount of Registrable Securities that can be sold without having an adverse effect on such offering, including the Initial price at which such Registrable Securities can be sold (the “Maximum Offering to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.1(aSize”), the Company gives notice shall include in such registration, in the priority listed below, up to the Holders Maximum Offering Size:
(i) 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 Company’s intention to file a registration statement for its Initial Offering within ninety (90) days;relative number of Registrable Securities beneficially owned by such Registering Shareholders); and
(vii) second, any securities proposed to be registered by any other Persons (including the Company), with such priorities among them as the Company shall determine.
(f) 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 120 days (which period may not be extended or renewed), if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.1, provides a certificate signed by the Chairman of the Board of Directors principal executive officer of the Company (the “Board”) stating that, that in the good faith judgment judgement of the Board, Board that (A) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company reasonably believes would not be in the best interests of the Company or (B) that it would otherwise be seriously detrimental to the Company and its stockholders shareholders for such registration statement Demand Registration to be effected at such time. It is agreed that the existence or anticipation of a material acquisition or financing activity will be sufficient reason for the Company to postpone a Demand Registration.
(g) At any time that Legato Founders or Key Shareholders may request a Demand Registration, in which event upon the request of one or more Legato Founders or Key Shareholders that satisfy the Registration Requirements, the Company shall have the right use its commercially reasonable efforts to defer such filing file a Registration Filing for a period Shelf Registration with respect to the Registrable Securities and to cause such Shelf Registration to become effective. 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 a Demand Registration subject to the provisions of not more than ninety (90) days after receipt of the request of the Initiating HoldersSection 3.1(a); provided that such right none of (x) the filing of a Shelf Base Prospectus or (y) the filing of Shelf Prospectus Supplement that does not relate to delay an underwritten Public Offering and is only for the purpose of updating a request shall Shelf Base Prospectus with the identities of any selling shareholders, the amounts of securities to be exercised sold and any related information required by the Company not more than once in any 12 month period; and provided further that the applicable Registration Filing, shall constitute a Demand Registration. The Company shall not register any securities for its own account or that give notice of any other stockholder during such ninety (90) day period;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 Shelf Registration pursuant to a request made pursuant to the procedures in Section 2.3 below; or
(vii) if the Company has, within the six month period preceding the date of such request, already effected a demand registration for the Holders pursuant to this Section 2.1 and such registration has been declared or ordered effective3.1(a).
Appears in 1 contract
Samples: Investor Rights Agreement (Algoma Steel Group Inc.)
Demand Registration. (a) Subject Seller, at any time or from time to time following the conditions of this Section 2.1Closing, if the Company shall receive may make a written request from Initiating Holders that to the Company file a Buyer for registration statement under and in accordance with the provisions of the Securities Act covering of all if its Registrable Securities (the registration "Demand Registration").
(b) The Buyer and its security holders shall have the right to include any shares of Common Stock in any Demand Registration, subject to subparagraph (c) hereof.
(c) If any of the Registrable Securities resulting registered pursuant to any Demand Registration are to be sold in net one or more firm commitment underwritten offerings, and the managing underwriters advise in writing the Seller that in their opinion the number of shares of Common Stock proposed to be sold in such offering proceeds exceeds the maximum number of at least $20,000,000shares of Common Stock which can be sold on the basis and price contemplated in such offering, then there shall be included in such firm commitment underwritten offering the Company will (x) promptly give written notice number of shares of Common Stock which in the opinion of such underwriters can be sold. If shares of Common Stock are being offered for the account of the requested Buyer or persons or entities other than Seller, such reduction shall first be made from the shares of Common Stock intended to be offered by the Seller or such other persons or entities, but only to the extent that such a reduction is permitted in any agreement pursuant to which such other persons or entities are seeking registration to all Holders and of their shares.
(yd) prepare and file a registration statement and otherwise The Buyer will use its reasonable best efforts to cause such shares, and all Registrable Securities of any Holder or Holders joining in such registration pursuant to a written request delivered to the Company within thirty (30) days after receipt by such Holder or Holders of initial written notice from the Company, Seller's Shares to be registered under the Securities Act within ninety (90) days of the request.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwritingAct, then the Initiating Holders shall so advise the Company as a part of their written request made pursuant to this Section 2.1 or any request pursuant to Section 2.3, and the Company shall include such information in the written notice referred to in Section 2.1(a) or Section 2.3(a), as applicable. In such event, the right of any Holder to include 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 all to the extent provided herein. The Company shall (together with all Holders proposing requisite to distribute their Registrable Securities through such underwriting) enter into an underwriting agreement in customary form with permit the underwriter sale or underwriters selected for such underwriting other disposition by the Company (which underwriter or underwriters shall be reasonably acceptable to a majority in interest Seller of the Initiating Holders). Notwithstanding any other provision of this Section 2.1 or Section 2.3, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares 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), or in such other proportions as mutually agreed to by such selling HoldersSeller's Shares; provided, however, that the number Buyer may at any time withdraw or cease proceeding with any such registration if it shall at the same time withdraw or cease proceeding with the registration of shares of Registrable Securities such other Common Stock originally proposed to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.1:
(i) prior to the earlier of September 30, 2015 or six months after the Initial Offering;
(ii) after the Company has effected three registrations pursuant to this Section 2.1 and either (A) all such registrations have been declared or ordered effective or (B) the request for such registration statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have not paid the Registration Expenses of such withdrawn registration; provided, however, that for purposes of Section 2.1, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Section 2.1(b), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have requested to be included in such registration statement are actually included;
(iii) during the period starting with the date of filing of, and ending on the date one hundred eighty (180) days following, the effective date of the registration statement pertaining to the Initial Offering; provided that the Company makes reasonable efforts to cause the registration statement for the Initial Offering to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.1(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for its Initial Offering within ninety (90) days;
(v) if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.1, a certificate signed by the Chairman of the Board of Directors of the Company (the “Board”) stating that, in the good faith judgment of the Board, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than once in any 12 month period; and provided further that the Company shall not register any securities for its own account or that of any other stockholder during such ninety (90) day period;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.3 below; or
(vii) if the Company has, within the six month period preceding the date of such request, already effected a demand registration for the Holders pursuant to this Section 2.1 and such registration has been declared or ordered effective.registered
Appears in 1 contract
Samples: Registration Rights Agreement (American Banknote Corp)
Demand Registration. (a) Subject to Commencing six (6) months following the conditions consummation of this Section 2.1the Merger, if any Holder or group of Holders holding, in the Company shall receive a written request from Initiating Holders that the Company file a registration statement under the Securities Act covering the registration aggregate, thirty-five percent (35%) or more of the Registrable Securities resulting then issued and outstanding (the “Outstanding Amount”) shall have the right, by written notice given to the Company (a “Demand Notice”), to request the Company to register under and in net offering proceeds accordance with the provisions of the Securities Act all or any portion of the Registrable Securities designated by such Holder(s). Each request for a Demand Registration shall be in writing and shall specify the approximate aggregate number of Registrable Securities requested to be registered (which aggregate number of Registrable Securities must have a value equal to at least $20,000,00010,000,000 based on the closing price of such securities on the last trading day prior to the date of such request or, then in the case no closing price is available, at the anticipated price offered to the public and the intended method of distribution. In no event shall the Company will be obligated to effectuate more than two (x2) promptly give written notice of the requested registration to all Holders and Demand Registrations nor more than one (y1) prepare and file a registration statement and otherwise use its best efforts to cause such shares, and all Registrable Securities of in any Holder or Holders joining in such registration pursuant to a written request delivered to the Company within thirty (30) days after receipt by such Holder or Holders of initial written notice from the Company, to be registered under the Securities Act within ninety (90) days of the requesttwelve month period.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means Upon receipt of an underwritinga Demand Notice, then the Initiating Holders shall so advise the Company as a part of their written request made pursuant to this Section 2.1 or any request pursuant to Section 2.3, and the Company shall include promptly (and in any event within ten (10) Business Days from the date of receipt of such information in the written notice referred to in Section 2.1(a) or Section 2.3(aDemand Notice), as applicable. In notify all other Holders, if any, of the receipt of such event, Demand Notice and allow them the right of any Holder opportunity to include 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. The Company shall (together with all Holders proposing to distribute their Registrable Securities through such underwriting) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company (which underwriter or underwriters shall be reasonably acceptable to a majority in interest of the Initiating Holders). Notwithstanding any other provision of this Section 2.1 or Section 2.3, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares 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 them in the proposed registration by submitting their own Demand Notice. In connection with any Demand Registration in which more than one Holder participates, in the event that such Holders (Demand Registration, including any Shelf Takedown thereunder, involves an underwritten offering and the Initiating Holders), managing underwriter or underwriters participating in such other proportions as mutually agreed to by such selling Holders; provided, however, that offering advise in writing the number of shares Holders of Registrable Securities to be included in such underwriting and registration shall not offering that the total number of Registrable Securities to be reduced unless all other securities included in such offering exceeds the amount that can be sold in (or during the time of) such offering without delaying or jeopardizing the success of such offering (including the price per share of the Company are first entirely excluded Registrable Securities to be sold), then the Registrable Securities to be offered shall be distributed amongst the participating Holders according to each Holder’s overall percentage of ownership in the Company. In the event of such a pro-rata distribution, to the extent that any Holder (or Holders) has not submitted a Demand Notice, or withdraws from the underwriting and registration. Any underwriting, then those Registrable Securities excluded or withdrawn from such underwriting that would have been allocated pro-rata to the non-participating Holder if they had participated shall be withdrawn from distributed amongst the registrationparticipating Holders, pro rata according to each participating Holder’s overall percentage of ownership in the Company.
(c) The Company, within sixty (60) days of the date on which the Company receives a Demand Notice given by Holders in accordance with Section 3(a), shall file with the SEC, and the Company shall not thereafter use its reasonable best efforts to cause to be required to effect a registration pursuant to this Section 2.1:
(i) prior to the earlier of September 30, 2015 or six months after the Initial Offering;
(ii) after the Company has effected three registrations pursuant to this Section 2.1 and either (A) all such registrations have been declared or ordered effective or (B) the request for such registration statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have not paid the Registration Expenses of such withdrawn registration; provided, however, that for purposes of Section 2.1as promptly as practicable, a Registration Statement on the appropriate form for the registration shall not be counted as “effected” ifand sale, as a result in accordance with the intended method or methods of an exercise of the underwriter’s cutback provisions in Section 2.1(b)distribution, fewer than fifty percent (50%) of the total number of Registrable Securities that specified by the Holders have requested to be included in such registration statement are actually included;Demand Notice (a “Demand Registration”). Any Demand Registration may, at the request of the Holders submitting the Demand Notice, be a Shelf Registration to the extent the Company is eligible to use the relevant form for a Shelf Registration.
(iiid) during The Company shall use its commercially reasonable efforts to keep each Registration Statement filed pursuant to this Section 3 continuously effective and usable for the resale of the Registrable Securities covered thereby (i) in the case of a Registration that is not a Shelf Registration, for a period starting with of one hundred twenty (120) days from the date on which the SEC declares such Registration Statement effective and (ii) in the case of filing ofa Shelf Registration, for a period of three (3) years from the date on which the SEC declares such Registration Statement effective, or, in either case (x) until such earlier date as all of the Registrable Securities covered by such Registration Statement have been sold pursuant to such Registration Statement, and ending on (y) as such period may be extended pursuant to this Section 3. The time period for which the date one hundred eighty Company is required to maintain the effectiveness of any Registration Statement shall be extended by the aggregate number of days of all Delay Periods and all Interruption Periods occurring with respect to such Registration and such period and any extension thereof is hereinafter referred to as the “Effectiveness Period”. If any Registrable Securities remain issued and outstanding after thirty (18030) days following, full months following the initial effective date of a Shelf Registration filed pursuant to this Section 3, upon the registration statement pertaining to request of Holder(s) of at least ten percent (10%) of the Initial Offering; provided that Registrable Securities then issued and outstanding, the Company makes reasonable efforts to cause the registration statement for the Initial Offering to become effective;
(iv) if shall, within thirty (30) days of receipt such request, file a new Shelf Registration and shall thereafter use its reasonable best efforts to cause to be declared effective as promptly as practical, such new Shelf Registration; any such new Shelf Registration shall not be deemed a new Demand Registration for purposes of a written request from Initiating Holders pursuant the limitation set forth in the final sentence of Section 3(a).
(e) The Company shall be entitled to Section 2.1(a), postpone the filing of any Registration Statement otherwise required to be prepared and filed by the Company gives notice to the Holders of the Company’s intention to file a registration statement for its Initial Offering within ninety (90) days;
(v) if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.13, or suspend the use of any effective Registration Statement under this Section 3, for a certificate signed by the Chairman reasonable period of time, if the Board of Directors of the Company (the “Board”) stating that, determines in the Board of Directors’ reasonable good faith judgment that the registration and distribution of the BoardRegistrable Securities covered or to be covered by such Registration Statement would (i) materially interfere with any pending material financing, it would acquisition, disposition, or corporate reorganization involving the Company or any of its subsidiaries, taken as a whole, (ii) require premature disclosure thereof, or (iii) be seriously detrimental to the Company and its stockholders for shareholders, which such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than once in any 12 month period; and provided further that the Company shall not register any securities for its own account or that of any other stockholder during such ninety (90) day period;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.3 below; or
(vii) if the Company has, within the six month period preceding the date of such request, already effected a demand registration for the Holders pursuant to this Section 2.1 and such registration has been declared or ordered effective.determination
Appears in 1 contract
Samples: Registration Rights and Lock Up Agreement (Stratasys Ltd.)
Demand Registration. (a) Subject to the conditions of this Section 2.12.2, if the Company shall receive a written request from Holders of at least 10% in the aggregate of then-outstanding Registrable Securities (collectively, the “Initiating Holders Holders”) that the Company file a registration statement under the Securities Act covering the registration of the their Registrable Securities resulting in net offering proceeds of at least $20,000,000Securities, then the Company will (x) promptly give written notice of the requested registration to all Holders and (y) prepare and file a registration statement and otherwise use its best efforts to cause such sharesshall, and all Registrable Securities of any Holder or Holders joining in such registration pursuant to a written request delivered to the Company within thirty (30) days after of the receipt by such Holder or Holders of initial thereof, give written notice from of such request to all Holders, and subject to the Companylimitations of this Section 2.2, to be registered effect, as expeditiously as reasonably possible, the registration under the Securities Act within ninety (90) days of the requestall Registrable Securities that all Holders request to be registered.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, then the Initiating Holders they shall so advise the Company as a part of their written request made pursuant to this Section 2.1 or any request pursuant to Section 2.3, 2.2 and the Company shall include such information in the written notice referred to in Section 2.1(a) or Section 2.3(a2.2(a), as applicable. In such event, the right of any Holder to include 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. The Company shall (together with all All Holders proposing to distribute their Registrable Securities securities through such underwriting) underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company Holders of a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to a majority in interest of the Initiating HoldersCompany). Notwithstanding any other provision of this Section 2.1 or Section 2.32.2, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities), ) then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares 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), or in such other proportions as mutually agreed to by such selling Holders; provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.12.2:
(i) prior to the earlier sixth anniversary of September 30, 2015 or six months after the Initial Offeringdate of this Agreement;
(ii) after the Company has effected three registrations one registration pursuant to this Section 2.1 2.2, and either (A) all such registrations have registration has been declared or ordered effective or (B) the request for such registration statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have not paid the Registration Expenses of such withdrawn registration; provided, however, that for purposes of Section 2.1, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Section 2.1(b), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have requested to be included in such registration statement are actually includedeffective;
(iii) during the period starting with the date of filing of, and ending on the date one hundred eighty (180) days following, the effective date of the registration statement pertaining to the Initial Offering; provided that the Company makes reasonable efforts to cause the registration statement for the Initial Offering to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.1(a2.2(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for its Qualified Initial Offering within ninety (90) days;
(viv) if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.1, 2.2 a certificate signed by the Chairman of the Board of Directors of the Company (the “Board”) stating that, that in the good faith judgment of the BoardBoard of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety one hundred twenty (90120) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than once in any 12 twelve (12) month period; and provided further that the Company shall not register any securities for its own account or that of any other stockholder during such ninety (90) day period;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.3 below; or
(viiv) if in any particular jurisdiction in which the Company haswould be required to qualify to do business or to execute a general consent to service of process in effecting such registration, within the six month period preceding the date of such request, already effected a demand registration for the Holders pursuant to this Section 2.1 and such registration has been declared qualification or ordered effectivecompliance.
Appears in 1 contract
Samples: Investor Rights Agreement (U.S. Auto Parts Network, Inc.)
Demand Registration. (a) Subject to the conditions of this Section 2.1, if the Company 2.2.1 If Republic shall receive a written request from Initiating Holders AWA that the Company Republic file a registration statement under the Securities Act of 1933, as amended (the "Securities Act"), covering the registration of the Registrable Securities resulting in net offering proceeds of at least a majority of the Warrant Shares then outstanding (or a lesser percent if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed five million dollars ($20,000,0005,000,000)), then Republic shall expeditiously effect the Company will (x) promptly give written notice of the requested registration to all Holders and (y) prepare and file a registration statement and otherwise use its best efforts to cause such shares, and all Registrable Securities of any Holder or Holders joining in such registration pursuant to a written request delivered to the Company within thirty (30) days after receipt by such Holder or Holders of initial written notice from the Company, to be registered under the Securities Act within ninety of all shares of Common Stock (90including any Warrant Shares) days of that AWA has requested to be registered (the request"Registrable Securities").
(b) 2.2.2 If the Initiating Holders intend AWA intends to distribute the Registrable Securities covered by their its request by means of an underwriting, then the Initiating Holders it shall so advise the Company Republic as a part of their written its request made pursuant to this Section 2.1 or any request pursuant to Section 2.3, 2.2 and the Company Republic shall include such information in the written notice referred to in Section 2.1(a) or Section 2.3(a), as applicable. In such event, the right of any Holder to include 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. The Company shall (together with all Holders proposing to distribute their Registrable Securities through such underwriting) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company AWA (which underwriter or underwriters shall be reasonably acceptable to a majority in interest of the Initiating HoldersRepublic). Notwithstanding any other provision of this Section 2.1 or Section 2.32.2, if the underwriter advises the Company Republic that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities), ) then the Company Republic shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant heretoAWA, and the number of shares Registrable Securities that may be included in the underwriting shall be allocated to the Holders among AWA, Republic and any other stockholders including shares of Common Stock in such Registrable Securities registration on a pro rata PRO RATA basis based on the number of Registrable Securities shares of Common Stock held by all such Holders (including the Initiating Holders), or in such other proportions as mutually agreed to by such selling Holders; provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registrationholders.
(ca) The Company Republic shall not be required to effect a registration pursuant to this Section 2.12.2:
(ib) prior to the earlier of September 30, 2015 or six months after (i) the Initial Offering;
third anniversary of Issuance Date and (ii) after the Company has effected three registrations pursuant to this Section 2.1 and either (A) all such registrations have been declared or ordered effective or (B) the request for such registration statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have not paid the Registration Expenses of such withdrawn registration; provided, however, that for purposes of Section 2.1, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Section 2.1(b), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have requested to be included in such registration statement are actually included;
(iii) during the period starting with the date of filing of, and ending on the date one hundred eighty (180) days following, following the effective date of the registration statement pertaining to the Initial OfferingIPO; provided that the Company makes reasonable efforts to cause the registration statement for the Initial Offering to become effective;and
(ivc) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.1(a), the Company gives notice to the Holders of the Company’s intention to file a after Republic has effected one registration statement for its Initial Offering within ninety (90) days;
(v) if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.12.2, a certificate signed by the Chairman of the Board of Directors of the Company (the “Board”) stating that, in the good faith judgment of the Board, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than once in any 12 month period; and provided further that the Company shall not register any securities for its own account or that of any other stockholder during such ninety (90) day period;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.3 below; or
(vii) if the Company has, within the six month period preceding the date of such request, already effected a demand registration for the Holders pursuant to this Section 2.1 and such registration has been declared or ordered effective.
Appears in 1 contract
Samples: Warrant Issuance Agreement (Republic Airways Holdings Inc)
Demand Registration. (a) Subject to SECTION 2.1. Commencing on the conditions first anniversary of this Section 2.1the date hereof, if the Company shall receive a written request in the manner provided in Section 16.2 hereof from one or more Holders (collectively, the "Initiating Holders Holders") that the Company file a registration statement Registration Statement under the Securities Act covering the registration of any or all of such Holder's Registrable Securities, whether issued or issuable pursuant to the Registrable Securities resulting in net offering proceeds of at least $20,000,000, LLC Agreement) then the Company will shall (xa) promptly within 10 days of the receipt thereof, give written notice notice, in the manner provided in Section 16.2 hereof, of the requested registration such request to all Holders and (y) prepare and file a registration statement and otherwise use its best efforts to cause such shares, and all of outstanding Registrable Securities of any Holder or Holders joining in such registration pursuant known to a written request delivered to the Company within thirty (30) days after receipt by such Holder or Holders of initial written notice from the Company, and (b) subject to be registered the limitations contained in this Article II, file, as soon as practicable and in any event within 30 days after the beginning of such fiscal quarter, the Registration Statement to effect registration under the Securities Act covering all Registrable Securities for which the Company receives a request from the Holder thereof in the manner provided in Section 16.2 hereof, within ninety (90) 10 days of the requestmailing of such notice by the Company. The Company, however, shall not be required to file a Registration Statement pursuant to this Article II unless the aggregate number of Registrable Securities requested to be registered represents a total of 50,000 Common Shares.
(b) SECTION 2.2. If the an Initiating Holders intend Holder intends to distribute the Registrable Securities covered by their its request by means of an underwriting, then the Initiating Holders it shall so advise the Company as a part of their written its request made pursuant to this Section 2.1 or any request pursuant to Section 2.3, hereof and the Company shall include such information in the written notice to the Holders referred to in Section 2.1(a) or Section 2.3(a), as applicable2.1. In such event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s 's participation in such underwriting and the inclusion of such Holder’s 's Registrable Securities in the underwriting to the extent provided herein. The Company shall (together with all All Holders proposing to distribute their sell Registrable Securities through such underwritingunderwriting (together with the Company as provided in Section 5.1(g) of this Agreement and any other holder of shares of Common Shares permitted to participate in such registration pursuant to this Section 2.2) shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company Initiating Holder(s) (which underwriter or provided the same are underwriters shall be of recognized nationals standing reasonably acceptable to a majority in interest of the Initiating HoldersCompany) upon the terms and conditions agreed upon between the Company and such underwriter(s). Notwithstanding any other provision of this Section 2.1 or Section 2.3Article II, if the underwriter advises underwriter(s) advise the Company Initiating Holder(s) in writing that marketing or other factors require a limitation of the number of securities Registrable Securities to be underwritten (including Registrable Securities)underwritten, then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares Registrable Securities that may be included in the underwriting shall be allocated among all Holders thereof, including the Initiating Holder(s), in proportion (as nearly as practicable) 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), or which each Holder requested be included in such other proportions as mutually agreed to by such selling Holders; provided, however, that registration. If the number of shares of Registrable Securities to be underwritten has not been so limited, the Company may include shares of Common Shares for its own account (or for the account of other shareholders) in such registration if the underwriter(s) so agree and to the extent that, in the opinion of such underwriter(s), the inclusion of such additional shares will not adversely effect the offering of the Registrable Securities included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) SECTION 2.3. The Company shall not be required obligated to effect a registration total of more than two (2) registrations in any twelve-month period pursuant to this Section 2.1:
(i) prior to the earlier of September 30, 2015 or six months after the Initial Offering;
(ii) after the Company has effected three registrations pursuant to this Section 2.1 and either (A) all such registrations have been declared or ordered effective or (B) the request for such registration statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have not paid the Registration Expenses of such withdrawn registration; provided, however, that for purposes of Section 2.1, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Section 2.1(b), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have requested to be included in such registration statement are actually included;
(iii) during the period starting with the date of filing of, and ending on the date one hundred eighty (180) days following, the effective date of the registration statement pertaining to the Initial Offering; provided that the Company makes reasonable efforts to cause the registration statement for the Initial Offering to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.1(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for its Initial Offering within ninety (90) days;
(v) if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.1, a certificate signed by the Chairman of the Board of Directors of the Company (the “Board”) stating that, in the good faith judgment of the Board, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than once in any 12 month period; and provided further that the Company shall not register any securities for its own account or that of any other stockholder during such ninety (90) day period;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.3 below; or
(vii) if the Company has, within the six month period preceding the date of such request, already effected a demand registration for the Holders pursuant to this Section 2.1 and such registration has been declared or ordered effectiveArticle II hereof.'
Appears in 1 contract
Samples: Registration Rights Agreement (Entertainment Properties Trust)
Demand Registration. (a) Subject Following the expiration of a one hundred eighty (180) day "stand still period" after the date hereof and then only if required to permit resales of the Registrable Shares by Holders, Holders shall at any time and from time to time, have the right to require registration under the Securities Act of 1933, as amended ("Securities Act"), of all or any portion of the Registrable Shares on the terms and subject to the conditions set forth in this Agreement.
(b) Upon receipt by GCI of this Section 2.1, if the Company shall receive a Holder's written request from Initiating Holders that for registration, GCI shall (i) promptly notify each other Holder in writing of its receipt of such initial written request for registration, and (ii) as soon as is practicable, but in no event more than sixty (60) days after receipt of such written request, file with the Company file Securities and Exchange Commission ("Commission"), and use its best efforts to cause to become effective, a registration statement under the Securities Act covering the registration of ("Registration Statement") which shall cover the Registrable Securities resulting Shares specified in net offering proceeds of at least $20,000,000, then the Company will (x) promptly give written notice of the requested registration to all Holders and (y) prepare and file a registration statement and otherwise use its best efforts to cause such shares, and all Registrable Securities of any Holder or Holders joining in such registration pursuant to a initial written request delivered to the Company and any other written request from any other Holder received by GCI within thirty twenty (30) days after receipt by such Holder or Holders of initial written notice from the Company, to be registered under the Securities Act within ninety (9020) days of GCI giving the request.
notice specified in clause (bi) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, then the Initiating Holders shall so advise the Company as a part of their written request made pursuant to this Section 2.1 or any request pursuant to Section 2.3, and the Company shall include such information in the written notice referred to in Section 2.1(a) or Section 2.3(a), as applicable. In such event, the right of any Holder to include 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. The Company shall (together with all Holders proposing to distribute their Registrable Securities through such underwriting) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company (which underwriter or underwriters shall be reasonably acceptable to a majority in interest of the Initiating Holders). Notwithstanding any other provision of this Section 2.1 or Section 2.3, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares 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), or in such other proportions as mutually agreed to by such selling Holders; provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registrationhereof.
(c) The Company If so requested by any Holder requesting participation in a public offering or distribution of Registrable Shares pursuant to this Section 1 or Section 2 of this Agreement ("Selling Holder"), the Registration Statement shall provide for delayed or continuous offering of the Registrable Shares pursuant to Rule 415 promulgated under the Securities Act or any similar rule then in effect ("Shelf Offering"). If so requested by the Selling Holders, 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 an investment banking firm selected and engaged by the Selling Holders and approved by GCI, which approval shall not be required unreasonably withheld. GCI shall enter into the same underwriting agreement as shall the Selling Holders, containing representations, warranties and agreements not substantially different from those customarily made by an issuer in underwriting agreements with respect to secondary distributions. GCI, as a condition to fulfilling its obligations under this Agreement, may require the underwriters to enter into an agreement in customary form indemnifying GCI against any Losses (as defined in Section 6) that arise out of or are based upon an untrue statement or an alleged untrue statement or omission or alleged omission in the Disclosure Documents (as defined in Section 6) made in reliance upon and in conformity with written information furnished to GCI by the underwriters specifically for use in the preparation thereof.
(d) Each Selling Holder may, before such a Registration Statement becomes effective, withdraw its Registrable Shares from sale, should the terms of sale not be reasonably satisfactory to such Selling Holder; if all Selling Holders who are participating in such registration so withdraw, however, such registration shall be deemed to have occurred for the purposes of Section 4 of this Agreement, unless such Selling Holders pay (pro rata, in proportion to the number of Registrable Shares requested to be included) within twenty (20) days after any such withdrawal, all of GCI's out-of-pocket expenses incurred in connection with such registration.
(e) Notwithstanding the foregoing, GCI shall not be obligated to effect a registration pursuant to this Section 2.1:
(i) prior to the earlier of September 30, 2015 or six months after the Initial Offering;
(ii) after the Company has effected three registrations pursuant to this Section 2.1 and either (A) all such registrations have been declared or ordered effective or (B) the request for such registration statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have not paid the Registration Expenses of such withdrawn registration; provided, however, that for purposes of Section 2.1, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Section 2.1(b), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have requested to be included in such registration statement are actually included;
(iii) 1 during the period starting with the date sixty (60) days prior to GCI's estimated date of filing of, and ending on the a date one hundred eighty six (1806) days following, months following the effective date of the of, a registration statement pertaining to the Initial Offering; an underwritten public offering of equity securities for GCI's account, provided that the Company makes (i) GCI is actively employing in good faith all reasonable efforts to cause the such registration statement for the Initial Offering to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.1(a), the Company gives notice to the Holders effective and that GCI's estimate of the Company’s intention to file a date of filing on such registration statement for its Initial Offering within ninety is made in good faith, and (90ii) days;
(v) if the Company GCI shall furnish to the Holders requesting a registration statement pursuant to this Section 2.1, a certificate signed by the Chairman of GCI's President stating that in the Board of Directors of the Company (the “Board”) stating that, in the good Directors' good-faith judgment of the Boardjudgment, it would be seriously detrimental to the Company and GCI or its stockholders shareholders for such registration statement a Registration Statement to be effected at filed in the near future; and in such timeevent, in which event the Company GCI's obligations to file a Registration Statement shall have the right to defer such filing be deferred for a period of not more than ninety to exceed six (906) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than once in any 12 month period; and provided further that the Company shall not register any securities for its own account or that of any other stockholder during such ninety (90) day period;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.3 below; or
(vii) if the Company has, within the six month period preceding the date of such request, already effected a demand registration for the Holders pursuant to this Section 2.1 and such registration has been declared or ordered effectivemonths.
Appears in 1 contract
Samples: Stock Purchase Agreement (General Communication Inc)
Demand Registration. (a) Subject to Upon the conditions written request of this Section 2.1a majority of the holders of Registrable Securities at any time during the Warrant Exercise Period, if the Company shall receive a written request from Initiating Holders that the Company promptly file a and use its best efforts to cause to become effective an appropriate registration statement under the Securities Act covering such number of Registrable Securities as such holders shall request and to register the sale of such Registrable Securities so that such Registrable Securities may be sold at such times and in such manner as the holders thereof shall determine, provided, that holder of Registrable Securities may effect such demand registration only one time and provided further, that such demand registration right shall terminate upon the earlier to occur of (a) the registration for sale to the public of the number of Registrable Securities for which such holders shall have requested registration or (b) the registration for sale to the public of such portion of the warrants, or the Class A Stock underlying such warrants, issued by the Company to the Representative for which the Representative shall have requested registration. Registrations under this Section 7.4 shall be on such appropriate registration form of the Securities and Exchange Commission (i) as shall be selected by holders of a majority of the Registrable Securities resulting in net offering proceeds of at least $20,000,000, then the Company will (x) promptly give written notice of the requested registration to all Holders and (y) prepare and file a registration statement and otherwise use its best efforts to cause such shares, and all Registrable Securities of any Holder or Holders joining in such registration pursuant to a written request delivered to the Company within thirty (30) days after receipt by such Holder or Holders of initial written notice from the Company, so to be registered under and (ii) as shall permit the disposition of such Registrable Securities Act within ninety (90) days in accordance with the method or methods of the disposition desired by such holders. The Company agrees to include in any such registration statement all information which holders of Registrable Securities being registered shall reasonably request.
(b) . If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, then the Initiating Holders shall so advise the Company as a part of their written request made registration pursuant to this Section 2.1 or any request pursuant to Section 2.3, and the Company shall include such information in the written notice referred to in Section 2.1(a) or Section 2.3(a), as applicable. In such event7.4 involves an underwritten offering, the right of any Holder to include 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. The Company shall (together with all Holders proposing to distribute their Registrable Securities through such underwriting) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company (which underwriter or underwriters shall be reasonably acceptable to selected by the holders of a majority in interest of the Initiating Holders). Notwithstanding any other provision of this Section 2.1 or Section 2.3, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares 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), or in such other proportions as mutually agreed to by such selling Holders; provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.1:
(i) prior to the earlier of September 30, 2015 or six months after the Initial Offering;
(ii) after the Company has effected three registrations pursuant to this Section 2.1 and either (A) all such registrations have been declared or ordered effective or (B) the request for such registration statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have not paid the Registration Expenses of such withdrawn registration; provided, however, that for purposes of Section 2.1, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Section 2.1(b), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have requested to be included in such registration statement are actually included;
(iii) during the period starting with the date of filing of, and ending on the date one hundred eighty (180) days following, the effective date of the registration statement pertaining to the Initial Offering; provided that the Company makes reasonable efforts to cause the registration statement for the Initial Offering to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.1(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for its Initial Offering within ninety (90) days;
(v) if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.1, a certificate signed by the Chairman of the Board of Directors of the Company (the “Board”) stating that, in the good faith judgment of the Board, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than once in any 12 month period; and provided further that the Company shall not register any securities for its own account or that of any other stockholder during such ninety (90) day period;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.3 below; or
(vii) if the Company has, within the six month period preceding the date of such request, already effected a demand registration for the Holders pursuant to this Section 2.1 and such registration has been declared or ordered effective.
Appears in 1 contract
Samples: Representative's Warrant Agreement (Bio Aqua Systems Inc)
Demand Registration. (a) Subject If at any time after issuance of the Stock to the conditions of this Section 2.1a Holder, if the Company shall receive receives a written request from Initiating Holders such Holder that the Company file a registration statement under the Securities Act covering the registration of all or a portion of the Registrable Securities resulting in net offering proceeds of at least $20,000,000the Holder then outstanding, then the Company will (x) promptly give written notice shall as soon as practicable effect such registration of the requested registration to all Holders and (y) prepare and file a registration statement and otherwise use its best efforts to cause such shares, and all Registrable Securities of any Holder the Holder. Such obligation shall include, without limitation, the execution of an undertaking to file post-effective amendments and to effect appropriate registrations or Holders joining in such registration pursuant to a written request delivered to the Company within thirty (30) days after receipt by such Holder qualifications under applicable blue sky or Holders of initial written notice from the Company, to be registered other state securities laws and appropriate compliance with exemptive regulations issued under the Securities Act within ninety (90) days of the requestand any other governmental requirements or regulations.
(b) If the Initiating Holders intend Holder intends to use an underwriter to distribute the Registrable Securities covered by their request by means of an underwritingits request, then the Initiating Holders it shall so advise the Company as a part of their written request made pursuant to this Section 2.1 or any request pursuant to Section 2.3, and the Company shall include such information in the written notice referred to in Section 2.1(a) or Section 2.3(a), as applicableits request. In such event, the right of any Holder to include 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. The Company shall (together with all Holders proposing to distribute their Registrable Securities through such underwritingthe Company) enter into an underwriting agreement in customary form with the an underwriter or underwriters selected for such underwriting by the Company (which underwriter or underwriters shall be reasonably acceptable Holder, subject to a majority in interest the approval of the Initiating Holders)Company which shall not be unreasonably withheld. The Company shall not register any other securities in connection with any such demand registration, other than Registrable Securities, Other Covered Securities and securities registered for its own account. Notwithstanding any other provision of this Section 2.1 or Section 2.3subsection, if the underwriter advises the Holder and the Company in writing that marketing factors require a limitation of the number of securities shares to be underwritten (including Registrable Securities), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting, then shares, if any, other than Registrable Securities and Other Covered Securities shall first be excluded from such registration to the extent required by such underwriting limitation, and thereafter, Registrable Securities and Other Covered Securities shall be allocated excluded in proportion, as nearly as practicable, to the Holders of such Registrable Securities on a pro rata basis based on the number respective amounts of Registrable Securities and Other Covered Securities held by all such Holders (including the Initiating Holders), or in and such other proportions as mutually agreed to by such selling Holders; provided, however, that holders. If the number of shares of Registrable Securities to so excluded exceeds twenty percent (20%) of the number of shares of Registrable Securities which the Holder has requested be included in such underwriting registration, then the Holder shall be entitled either (i) to require that the registration be deferred for such period of time as the Holder, the Company and the underwriter may mutually agree upon, but in no event for more than ninety (90) days from delivery of a written notice of the Holder to the Company requesting such delay, or (ii) to withdraw the registration request, in which case it shall not be reduced unless all other count as a demand registration for purposes of the limitation in Section 3.1(d). The Company shall not effect a public offering of any securities of the Company are first entirely excluded from similar to the underwriting and registration. Any Registrable Securities excluded being offered in the underwritten offering, or withdrawn from such underwriting shall be withdrawn from convertible or exercisable for Registrable Securities during the registrationperiod commencing ten (10) days prior to and ending one hundred twenty (120) days after the effective date of the applicable registration statement, other than a sale of Other Covered Securities.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.1:
(i) prior to Notwithstanding the earlier of September 30foregoing, 2015 or six months after the Initial Offering;
(ii) after the Company has effected three registrations pursuant to this Section 2.1 and either (A) all such registrations have been declared or ordered effective or (B) the request for such registration statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have not paid the Registration Expenses of such withdrawn registration; provided, however, that for purposes of Section 2.1, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Section 2.1(b), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have requested to be included in such registration statement are actually included;
(iii) during the period starting with the date of filing of, and ending on the date one hundred eighty (180) days following, the effective date of the registration statement pertaining to the Initial Offering; provided that the Company makes reasonable efforts to cause the registration statement for the Initial Offering to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.1(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for its Initial Offering within ninety (90) days;
(v) if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.1, Holder a certificate signed by the Chairman of the Board of Directors President or Chief Executive Officer of the Company (the “Board”) stating that, in the good faith judgment of the Boardboard of directors of the Company, it would be seriously detrimental to the Company and its stockholders shareholders for such registration statement to be effected at filed and it is therefore essential to defer the filing of such timeregistration statement, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating HoldersHolder; provided provided, however, that such right to delay a request shall be exercised by the Company may not utilize this right more than once in any 12 12-month period; and provided further that .
(d) Notwithstanding the foregoing, the Company shall not register be obligated to take any securities for its own account action to effect any registration, qualification or that of any other stockholder during such ninety (90) day period;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.3 below; or
(vii) if the Company has, within the six month period preceding the date of such request, already effected a demand registration for the Holders compliance pursuant to this Section 2.1 3.1 in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, qualification or compliance unless the Company is already subject to service in such jurisdiction.
(e) The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 3.1(a) at the request of any Holder after the Company has effected two demand registrations at such Holder’s request and each such registration has been declared or ordered effectiveeffective and kept effective for at least one hundred twenty (120) days. Notwithstanding the immediately preceding sentence or the provisions of Section 3.1(b), a registration will not count as a demand registration under Section 3.1(a) unless the Holder was able to sell a minimum of seventy-five (75%) of the shares sought to be registered in such registration.
Appears in 1 contract
Samples: Registration Rights Agreement (Network Computing Devices Inc)
Demand Registration. (a) Subject to the conditions of this Section 2.12.2, if the Company shall receive a written request from the Holders (excluding the Holders set forth on Exhibit B) of more than thirty percent (30%) of the Registrable Securities then outstanding (the "Initiating Holders Holders") that the Company file a registration statement under the Securities Act covering the registration of the Registrable Securities resulting having an aggregate offering price to the public in net offering proceeds excess of at least $20,000,0007,500,000 (a "Qualified Public Offering"), then the Company will (x) promptly give written notice of the requested registration to all Holders and (y) prepare and file a registration statement and otherwise use its best efforts to cause such sharesshall, and all Registrable Securities of any Holder or Holders joining in such registration pursuant to a written request delivered to the Company within thirty (30) days after of the receipt by such Holder or Holders of initial thereof, give written notice from of such request to all Holders, and subject to the Companylimitations of this Section 2.2, use its best efforts to be registered effect, as soon as practicable, the registration under the Securities Act within ninety (90) days of all Registrable Securities that the requestHolders request to be registered.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, then the Initiating Holders they shall so advise the Company as a part of their written request made pursuant to this Section 2.1 or any request pursuant to Section 2.3, 2.2 and the Company shall include such information in the written notice referred to in Section 2.1(a) or Section 2.3(a2.2(a), as applicable. In such event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s 's participation in such underwriting and the inclusion of such Holder’s 's Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. The Company shall (together with all All Holders proposing to distribute their Registrable Securities securities through such underwriting) underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by a majority in interest of the Company Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to a majority in interest of the Initiating HoldersCompany). Notwithstanding any other provision of this Section 2.1 or Section 2.32.2, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities), ) then the Company shall so advise all Holders of Registrable Securities that which would otherwise be underwritten pursuant hereto, and the number of shares 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), or in such other proportions as mutually agreed to by such selling Holders; provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.12.2:
(i) prior to the earlier of September 30(i) October 1, 2015 2001, or six months (ii) one year after the Initial Offering;
(ii) after the Company has effected three registrations pursuant to this Section 2.1 and either (A) all such registrations have been declared or ordered effective or (B) the request for such registration statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have not paid the Registration Expenses of such withdrawn registration; provided, however, that for purposes of Section 2.1, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Section 2.1(b), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have requested to be included in such registration statement are actually included;
(iii) during the period starting with the date of filing of, and ending on the date one hundred eighty (180) days following, the effective date of the registration statement pertaining to the Initial Offering; provided that the Company makes reasonable efforts to cause the registration statement for the Initial Offering to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.1(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for its Initial Offering within ninety (90) days;
(v) if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.1, a certificate signed by the Chairman of the Board of Directors of the Company (the “Board”) stating that, in the good faith judgment of the Board, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than once in any 12 month period; and provided further that the Company shall not register any securities for its own account or that of any other stockholder during such ninety (90) day period;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.3 below's Common Stock; or
(vii) if the Company has, within the six month period preceding the date of such request, already effected a demand registration for the Holders pursuant to this Section 2.1 and such registration has been declared or ordered effective.
Appears in 1 contract
Demand Registration. REGISTRATION RIGHTS AGREEMENT 22
(a) Subject to Commencing immediately upon the conditions date of this Section 2.1Closing (as defined in the Placement Agreement), if the Company shall receive any Requesting Holders may make a written request from Initiating Holders to the Company (specifying that it is being made pursuant to this Section 2) that the Company file a registration statement under the Securities 1933 Act covering (or a similar document pursuant to any other statute then in effect corresponding to the 1933 Xxx) xxvering the registration of the Registrable Securities resulting in net offering proceeds of at least $20,000,000Stock. In such event, then the Company will shall (x) promptly give written notice within ten (10) days thereafter notify in writing all other Holders of the requested registration to all Holders Registrable Stock of such request, and (y) prepare and file a registration statement and otherwise use its best efforts to cause such shares, and all Registrable Securities of any Holder or Holders joining in such registration pursuant to a written request delivered to the Company within thirty (30) days after receipt by such Holder or Holders of initial written notice from the Company, to be registered under the Securities 1933 Act all Registrable Stock that the Requesting Holders and such other Holders have, within ninety forty-five (9045) days of after the requestCompany has given such notice, requested be registered.
(b) If the Initiating Requesting Holders intend to distribute the Registrable Securities Stock covered by their request by means of an underwritingunderwritten offering, then the Initiating Holders they shall so advise the Company as a part of their written request made pursuant to this Section 2.1 or any request pursuant to Section 2.32.(a) above, and the Company shall include such information in the written notice referred to in clause (x) of Section 2.1(a2.(a) or Section 2.3(a), as applicableabove. In such event, the Holder's right of any Holder to include its Registrable Securities Stock in such registration shall be conditioned upon such Holder’s 's participation in such underwriting underwritten offering and the inclusion of such Holder’s 's Registrable Securities Stock in the underwriting underwritten offering to the extent provided hereinin this Section 2. The Company shall (together with all All Holders proposing to distribute their Registrable Securities Stock through such underwriting) underwritten offering shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company (which underwriters. Such underwriter or underwriters shall be reasonably acceptable to selected by a majority in interest of the Initiating Requesting Holders and shall be approved by the Company, which approval shall not be unreasonably withheld; provided, that all of the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of such underwriters shall also be made to and for the benefit of such Holders and that any or all of the conditions precedent to the obligations of such underwriters under such underwriting agreement shall be conditions precedent to the obligations of such Holders). ; and provided further, that no Holder shall be required to make any representations or warranties to or agreements with the Company or the underwriters other than representations, warranties or agreements regarding such Holder, the Registrable Stock of such Holder and such Holder's intended method of distribution and any other representation required by law or reasonably required by the underwriter.
(c) Notwithstanding any other provision of this Section 2.1 or Section 2.32 to the contrary, if the managing underwriter of an underwritten offering of the Registrable Stock requested to be registered pursuant to this Section 2 advises the Company Requesting Holders in writing that in its opinion marketing factors require a limitation of the number of securities shares to be underwritten (including Registrable Securities)underwritten, then the Company Requesting Holders shall so advise all Holders of Registrable Securities Stock that would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Stock that may be included in the underwriting such underwritten offering shall be allocated among all such Holders, including the Requesting Holders, in proportion (as nearly as practicable) to the Holders of such Registrable Securities on a pro rata basis based on the number amount of Registrable Securities held by all such Holders (including the Initiating Holders), or in such other proportions as mutually agreed to by such selling Holders; provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.1:
(i) prior to the earlier of September 30, 2015 or six months after the Initial Offering;
(ii) after the Company has effected three registrations pursuant to this Section 2.1 and either (A) all such registrations have been declared or ordered effective or (B) the request for such registration statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have not paid the Registration Expenses of such withdrawn registration; provided, however, that for purposes of Section 2.1, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Section 2.1(b), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have Stock requested to be included in such registration statement are actually included;
(iii) during by each Holder at the period starting with the date time of filing ofthe registration statement; provided, and ending on that in the date one hundred eighty (180) days followingevent of such limitation of the number of shares of Registrable Stock to be underwritten, the effective date of the Holders shall be entitled to an additional demand registration statement pertaining to the Initial Offering; provided that the Company makes reasonable efforts to cause the registration statement for the Initial Offering to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.1(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for its Initial Offering within ninety (90) days;
(v) if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.1, a certificate signed by the Chairman 2. If any Holder of Registrable Stock disapproves of the Board of Directors terms of the Company (the “Board”) stating thatunderwriting, in the good faith judgment of the Board, it would be seriously detrimental such Holder may elect to withdraw by written notice to the Company and its stockholders for such registration statement to be effected at such timeCompany, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than once in any 12 month period; and provided further that the Company shall not register any securities for its own account or that of any other stockholder during such ninety (90) day period;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.3 below; or
(vii) if the Company has, within the six month period preceding the date of such request, already effected a demand registration for the Holders pursuant to this Section 2.1 and such registration has been declared or ordered effective.managing underwriter and
Appears in 1 contract
Demand Registration. (a) Subject At any time after the date hereof, the holders of a majority of the then outstanding AIP Shares shall have the right to the conditions of this Section 2.1, if require the Company shall receive a written request from Initiating Holders that the Company file a registration statement to effect up to two registrations of their Common Stock on Form S-1 under the Securities Act covering the registration of the Registrable Securities resulting in net offering proceeds of at least $20,000,000and, then the Company will (x) promptly give written notice of the requested registration to all Holders and (y) prepare and file a registration statement and otherwise use its best efforts to cause such sharesif available, and all Registrable Securities of any Holder unlimited registrations on Form S-2 or Holders joining in such registration pursuant to a written request delivered to the Company within thirty (30) days after receipt by such Holder or Holders of initial written notice from the Company, to be registered S-3 under the Securities Act (any such registration, a "Demand Registration"). Upon receipt of any request for a Demand Registration, the Company shall give prompt written notice of such request to each Stockholder, and, subject to the provisions set forth below, shall include in such Demand Registration all Stockholder Shares with respect to which the Company has received written requests for inclusion therein within ninety (90) 15 days after the delivery of the request.
Company's notice (b) If the Initiating Holders intend to distribute the Registrable Securities including shares covered by their request by means of an underwriting, then Vested Options to the Initiating Holders shall so advise extent that the Company as a part received appropriate assurances that such Options will be exercised upon effectiveness of their written request made pursuant such registration). If other securities are included in any Demand Registration that is not an underwritten offering, all Stockholder Shares included in such offering shall be sold prior to this Section 2.1 or the sale of any request pursuant to Section 2.3of such other securities. If other securities are included in any Demand Registration that is an underwritten offering, and the Company shall include such information in the written notice referred to in Section 2.1(a) or Section 2.3(a), as applicable. In such event, the right of any Holder to include 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. The Company shall (together with all Holders proposing to distribute their Registrable Securities through such underwriting) enter into an underwriting agreement in customary form with the managing underwriter or underwriters selected for such underwriting by the Company (which underwriter or underwriters shall be reasonably acceptable to a majority in interest of the Initiating Holders). Notwithstanding any other provision of this Section 2.1 or Section 2.3, if the underwriter offering advises the Company that marketing factors require a limitation of in its opinion the number of securities to be underwritten (including Registrable Securities), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and included exceeds the number of shares that may securities which can be sold in such offering without adversely affecting the pricing or marketability thereof, the Company will include in such registration all Stockholder Shares requested to be included in the underwriting shall be allocated therein prior to the Holders inclusion of such Registrable Securities on a pro rata basis based on any securities that are not Stockholder Shares. If the number of Registrable Securities held by all such Holders (including the Initiating Holders), or in such other proportions as mutually agreed to by such selling Holders; provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.1:
(i) prior to the earlier of September 30, 2015 or six months after the Initial Offering;
(ii) after the Company has effected three registrations pursuant to this Section 2.1 and either (A) all such registrations have been declared or ordered effective or (B) the request for such registration statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have not paid the Registration Expenses of such withdrawn registration; provided, however, that for purposes of Section 2.1, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Section 2.1(b), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have Stockholder Shares requested to be included in such registration statement are actually included;
(iiiincluding Management Shares) during exceeds the period starting with number of securities which in the date opinion of filing of, and ending on such underwriter can be sold without adversely affecting the date one hundred eighty (180) days following, the effective date pricing or marketability of the registration statement pertaining to the Initial Offering; provided that the Company makes reasonable efforts to cause the registration statement for the Initial Offering to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.1(a)such offering, the Company gives notice will include in such Demand Registration the maximum number of Stockholder Shares that may be so included, such amount to be allocated ratably among the holders thereof based on the percentage of the outstanding Stockholder Shares held by each such Stockholder (assuming the exercise of all Vested Options held by participating Stockholders); provided, that if such Demand Registration constitutes the Company's initial public offering of its Common Stock, then the Company will include in such Demand Registration all Stockholder Shares ratably in accordance with the allocation formula set forth above subject to the Holders discretion of the Company’s intention to file a registration statement for its Initial Offering within ninety (90) days;
(v) if managing underwriter respecting the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.1, a certificate signed by the Chairman allocation of the Board of Directors of the Company (the “Board”) stating that, AIP Shares and Management Shares in the good faith judgment of the Board, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Demand Registration. The Company shall have the right to defer such filing for a period of not more than ninety (90select the investment banker(s) days after receipt and manager(s) to administer any Demand Registration that is an underwritten offering, subject to the approval of the request holders of a majority of the Initiating Holders; provided that AIP Shares to be included in such right to delay a request shall be exercised by the Company not more than once in any 12 month period; and provided further that the Company shall not register any securities for its own account or that of any other stockholder during such ninety (90) day period;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.3 below; or
(vii) if the Company has, within the six month period preceding the date of such request, already effected a demand registration for the Holders pursuant to this Section 2.1 and such registration has been declared or ordered effectiveDemand Registration.
Appears in 1 contract
Demand Registration. (aA) Subject to the conditions of this Section 2.12.2, if the Company shall receive a written request from the Holders (excluding the Holders set forth on Exhibit B) of more than thirty percent (30%) of the Registrable Securities then outstanding (the "Initiating Holders Holders") that the Company file a registration statement under the Securities Act covering the registration of the Registrable Securities resulting having an aggregate offering price to the public in net offering proceeds excess of at least $20,000,0007,500,000 (a "Qualified Public Offering"), then the Company will (x) promptly give written notice of the requested registration to all Holders and (y) prepare and file a registration statement and otherwise use its best efforts to cause such sharesshall, and all Registrable Securities of any Holder or Holders joining in such registration pursuant to a written request delivered to the Company within thirty (30) days after of the receipt by such Holder or Holders of initial thereof, give written notice from of such request to all Holders, and subject to the Companylimitations of this Section 2.2, use its best efforts to be registered effect, as soon as practicable, the registration under the Securities Act within ninety (90) days of all Registrable Securities that the requestHolders request to be registered.
(bB) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, then the Initiating Holders they shall so advise the Company as a part of their written request made pursuant to this Section 2.1 or any request pursuant to Section 2.3, 2.2 and the Company shall include such information in the written notice referred to in Section 2.1(a) or Section 2.3(a2.2(a), as applicable. In such event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s 's participation in such underwriting and the inclusion of such Holder’s 's Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. The Company shall (together with all All Holders proposing to distribute their Registrable Securities securities through such underwriting) underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by a majority in interest of the Company Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to a majority in interest of the Initiating HoldersCompany). Notwithstanding any other provision of this Section 2.1 or Section 2.32.2, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities), ) then the Company shall so advise all Holders of Registrable Securities that which would otherwise be underwritten pursuant hereto, and the number of shares 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), or in such other proportions as mutually agreed to by such selling Holders; provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(cC) The Company shall not be required to effect a registration pursuant to this Section 2.12.2:
(iI) prior to the earlier of September 30(i) October 1, 2015 or six months after the Initial Offering;2001, or
(iiII) after the Company has effected three two (2) registrations pursuant to this Section 2.1 2.2, and either (A) all such registrations have been declared or ordered effective or (B) the request for such registration statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have not paid the Registration Expenses of such withdrawn registrationeffective; provided, however, that for purposes of Section 2.1, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Section 2.1(b), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have requested to be included in such registration statement are actually included;or
(iiiIII) during the period starting with the date of filing of, and ending on the date one hundred eighty twelve (18012) days following, months following the effective date of the registration statement pertaining to the Initial Offering; provided that the Company makes reasonable good faith efforts to cause the such registration statement for the Initial Offering to become effective;
(ivIV) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.1(a2.2(a), the Company gives notice to the Holders of the Company’s 's bona fide intention to file a registration statement for make its Initial Offering within ninety (90) days;days and makes reasonable efforts to cause such registration to become effective; or
(vV) if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.12.2, a certificate signed by the Chairman of the Board of Directors of the Company (the “Board”) stating that, that in the good faith judgment of the BoardBoard of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than once in any 12 twelve (12) month period; and provided further that the Company shall not register any securities for its own account or that of any other stockholder during such ninety (90) day period;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.3 below; or
(vii) if the Company has, within the six month period preceding the date of such request, already effected a demand registration for the Holders pursuant to this Section 2.1 and such registration has been declared or ordered effective.
Appears in 1 contract
Demand Registration. (a) Subject to If the conditions price of this Section 2.1Common Stock equals or exceeds $2.50 per share for thirty (30) consecutive days at any time after the exercise of a Conversion Right, if a Holder of Registrable Securities with a market value of not less than $500,000 may notify the Company shall receive a written request from Initiating Holders in writing that it demands that the Company file a registration statement under the Securities Act covering the registration of all of the Holder's Registrable Securities resulting in net offering proceeds Securities. Within ten days of at least $20,000,000receipt of such notice, then the Company will (x) promptly shall give written notice of the requested registration such request to all Holders and (y) prepare and file of Registrable Securities, should there be more than one. The Holders shall give the Company written election of their intention to have the Registrable Securities owned by them included in such a registration statement and otherwise use its best efforts within ten (10) days of receipt of the Company's notice. The Company shall, subject to cause such sharesthe limitations of subsection 2(b), effect as soon as practicable, and in any event within 120 days of the receipt of a Holder's request, a registration of all Registrable Securities of any Holder which the Holder, or Holders joining in have requested be made part of such registration pursuant to a written request delivered to the Company within thirty statement (30) days after receipt by such Holder or Holders of initial written notice from the Company, to be registered under the Securities Act within ninety (90) days of the request"Demand Registration").
(b) If a Holder whose shares are included in the Initiating Holders intend Demand Registration intends to distribute the Registrable Securities covered by their his/her/its request by means of an underwriting, then the Initiating Holders he/she/it shall so advise the Company as a part of their written his/her/its request made pursuant to this Section 2.1 or any request pursuant to Section 2.3, and the Company shall include such information in the written notice referred to in Section 2.1(a2(a) or Section 2.3(a), as applicableabove. In such event, the right of any Holder to include his/her/its Registrable Securities in such registration shall be conditioned upon such Holder’s 's participation in such underwriting and the inclusion of such Holder’s 's Registrable Securities in the underwriting to the extent provided herein. The Company shall (together with all All Holders proposing to distribute their Registrable Securities through such underwritingunderwriting shall (together with the Company as provided in Section 6) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company (which underwriter or underwriters shall be and reasonably acceptable to a majority in interest of the Initiating Holders). Notwithstanding any other provision of this Section 2.1 or Section 2.3, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares 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), or participating in such other proportions as mutually agreed to by such selling Holders; provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registrationa Demand Registration.
(c) The Company shall is obligated to effect two Demand Registrations pursuant to Section 2 of this Agreement regardless of whether the Holder has elected to exercise all of its Conversion Rights. The Company agrees to include all Registrable Securities then held by the Holder in such registration statement without cutback or reduction.
(1) Other than as set forth in Paragraph 2(c)(2) below, the Holder will not be required entitled to effect demand a registration pursuant under this Paragraph 2(c) within two (2) years of a prior registration of Common Stock by the Company in which the Holder had a right to this Section 2.1:have the Registrable Securities registered.
(i2) prior to In the earlier of September 30, 2015 or six months after the Initial Offering;
(ii) after event the Company has effected three registrations pursuant breaches its obligation of the preceding sentences, any Holder of a Registrable Security which was to this Section 2.1 and either (A) all such registrations have been declared or ordered effective or (B) the request for such registration statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have not paid the Registration Expenses of such withdrawn registration; provided, however, that for purposes of Section 2.1, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Section 2.1(b), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have requested to be included in such registration statement are actually included;
(iii) during the period starting with the date of filing of, but was not shall be entitled to an additional Demand Registration for such excluded securities and ending on the date one hundred eighty (180) days following, the effective date of the registration statement pertaining to the Initial Offering; provided that the Company makes reasonable efforts to cause the registration statement for the Initial Offering to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.1(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for its Initial Offering within ninety (90) days;
(v) if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.1, a certificate signed by the Chairman of the Board of Directors of the Company (the “Board”) stating that, in the good faith judgment of the Board, it would be seriously detrimental to the Company and its stockholders for keep such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised effective as required by the Company not more than once in any 12 month period; and provided further that the Company shall not register any securities for its own account or that of any other stockholder during such ninety (90) day period;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.3 below; or
(vii) if the Company has, within the six month period preceding the date of such request, already effected a demand registration for the Holders pursuant to this Section 2.1 and such registration has been declared or ordered effectiveAgreement.
Appears in 1 contract
Samples: Registration Rights Agreement (Sumitomo Corporation of America)
Demand Registration. (a) Subject to If the conditions of this Registration Statement described in Section 2.12 above is not effective by the Due Date, if Initiating Holders may notify the Company shall receive a written request from Initiating Holders in writing and demand that the Company file a registration statement under the Securities Act (a "Demand Registration Statement") covering the registration resale of the Registrable Securities resulting in net offering proceeds then outstanding. Upon receipt of at least $20,000,000such notice, then the Company will shall, within ten (x10) promptly days thereafter, give written notice of the requested registration such request to all Holders and (yshall, subject to the limitations of subsections 3(b) prepare and file a registration statement and otherwise use its best efforts to cause such shares5(b), as soon as practicable, and all Registrable Securities of in any Holder or Holders joining in such registration pursuant to a written request delivered to the Company within thirty (30) days after receipt by such Holder or Holders of initial written notice from the Company, to be registered under the Securities Act event within ninety (90) days after the receipt of such request, file a registration under the Act of all Registrable Securities which the Holders request, by notice given to the Company.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, then the Initiating Holders they shall so advise the Company as a part of their written request made pursuant to this Section 2.1 or any request pursuant to Section 2.3, 3 and the Company shall include such information in the written notice to other Holders referred to in Section 2.1(a) or Section 2.3(asubsection 3(a), as applicable. In such event, the right of any other Holder to include its his Registrable Securities in such registration shall be conditioned upon such Holder’s 's participation in such underwriting and the inclusion of such Holder’s 's Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. The Company shall (together with all All Holders proposing to distribute their Registrable Securities securities through such underwritingunderwriting shall (together with the Company as provided in subsection 6(f)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company (which underwriter or underwriters shall be reasonably acceptable to a majority in interest of the Initiating Holders), and reasonably acceptable to the Company. Notwithstanding The Holder will not be required to make any representation other provision of this Section 2.1 or Section 2.3, if the underwriter advises the Company that marketing factors require a limitation than as to its ownership of the number of securities to be underwritten (including Registrable Securities), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number its intended method of shares 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), or in such other proportions as mutually agreed to by such selling Holders; provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registrationdistribution.
(c) The Company shall not be required is obligated to effect a only one (1) demand registration pursuant to Section 3 of this Section 2.1:
(i) prior Agreement. The Company agrees to include all Registrable Securities held by all Holders in such Registration Statement without cutback or reduction. In the earlier of September 30, 2015 or six months after the Initial Offering;
(ii) after event the Company has effected three registrations pursuant to this Section 2.1 and either (A) all such registrations have been declared or ordered effective or (B) the request for such registration statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have not paid the Registration Expenses of such withdrawn registration; provided, however, that for purposes of Section 2.1, a registration shall not be counted as “effected” if, as a result of an exercise breaches its obligation of the underwriter’s cutback provisions in Section 2.1(b)preceding sentences, fewer than fifty percent (50%) any Holders of the total number of Registrable Securities that Holders have requested to be which were not included in such Registration Statement shall be entitled to a second demand registration statement are actually included;
(iii) during the period starting with the date of filing of, for such excluded securities and ending on the date one hundred eighty (180) days following, the effective date of the registration statement pertaining to the Initial Offering; provided that the Company makes reasonable efforts to cause the registration statement for the Initial Offering to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.1(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for its Initial Offering within ninety (90) days;
(v) if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.1, a certificate signed by the Chairman of the Board of Directors of the Company (the “Board”) stating that, in the good faith judgment of the Board, it would be seriously detrimental to the Company and its stockholders for keep such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised effective as required by the Company not more than once in any 12 month period; and provided further that the Company shall not register any securities for its own account or that of any other stockholder during such ninety (90) day period;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.3 below; or
(vii) if the Company has, within the six month period preceding the date of such request, already effected a demand registration for the Holders pursuant to this Section 2.1 and such registration has been declared or ordered effective7.
Appears in 1 contract
Samples: Registration Rights Agreement (Tanners Restaurant Group Inc)
Demand Registration. (a) Subject to the conditions of this Section 2.1, if If at any time the Company shall receive a written request from Initiating Holders Purchaser Request that the Company file a registration statement under the Securities Act covering the registration of the Registrable Securities resulting in net offering proceeds of at least $20,000,000Act, then the Company will shall, within ten (x10) promptly days of the receipt thereof, give written notice of the requested registration such Purchaser Request to all Holders and and, subject to the limitations of Section 5 below, shall file (y) prepare and file a registration statement and otherwise use its best efforts to cause such sharesas expeditiously as practicable, and all Registrable Securities of in any Holder or Holders joining in such registration pursuant to a written request delivered to the Company event within thirty (30) days after of the receipt by of such Holder or Holders of initial written notice from the Companyrequest) and use its commercially reasonable best efforts to have declared effective, to be registered a registration statement under the Securities Act with respect to all Registrable Securities which the Holders request to be registered within ninety fifteen (9015) days of the requestmailing of such notice by the Company in accordance with Section 10(g) below.
(b) If the Initiating Holders making the Purchaser Request intend to distribute the Registrable Securities covered by their request by means of an underwriting, then the Initiating Holders they shall so advise the Company as a part of their written request made pursuant to this Section 2.1 or any request pursuant to Section 2.3, y3 and the Company shall include such information in the written notice referred to in Section 2.1(a) or Section 2.3(a3(a), as applicable. In such event, the right of any Holder to include its such Holder's Registrable Securities in such registration shall be conditioned upon such Holder’s 's participation in such underwriting and the inclusion of such Holder’s 's Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Holders participating in the underwriting and such Holder) to the extent provided herein. The Company A majority in interest of the Holders of Registrable Securities participating in the underwriting, with the consent of the Company, which consent shall (together with all not be unreasonably withheld, shall select the managing underwriter or underwriters in such underwriting. All Holders proposing to distribute their Registrable Securities securities through such underwritingunderwriting shall (together with the Company as provided in Section 6(l)) enter into an underwriting agreement in customary form with the underwriter or underwriters so selected for such underwriting by the Company (which underwriter or underwriters shall be reasonably acceptable to a majority in interest of such Holders; provided, however, that no Holder (or any of their assignees) shall be required to make any representations, warranties or indemnities except as they relate to such Holder's ownership of shares and authority to enter into the Initiating Holders)underwriting agreement and to such Holder's intended method of distribution, and the liability of such Holder shall be limited to an amount equal to the net proceeds from the offering received by such Holder. Notwithstanding any other provision of this Section 2.1 or Section 2.3y3, if the underwriter advises the Company a Holder that marketing factors require a limitation of the number of securities shares to be underwritten (including Registrable Securities)underwritten, then the Holder shall so advise the Company and the Company shall so advise all Holders of Registrable Securities that which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the underwriting shall be allocated as follows: (i) first, among holders of Registrable Securities that have elected to participate in such underwritten offering, in proportion (as nearly as practicable) to the Holders of such Registrable Securities on a pro rata basis based on the number aggregate amount of Registrable Securities held by all such Holders holders, until such holders have included in the underwriting all shares requested by such holders to be included, and (including ii) thereafter, among the Initiating Holders)Company and all other holders of Common Stock, or if any, that have the right and have elected to participate in such other proportions underwritten offering, in proportion (as mutually agreed nearly as practicable) to by such selling Holders; provided, however, that the number of shares of Common Stock the Company and such holders seek to include in such underwriting. Without the consent of a majority in interest of the Holders of Registrable Securities participating in a registration referred to in Section 3(a), no securities other than Registrable Securities shall be covered by such registration if the inclusion of such other securities would result in a reduction of the number of Registrable Securities covered by such registration or included in any underwriting or if, in the opinion of the managing underwriter, the inclusion of such underwriting and registration shall not be reduced unless all other securities would adversely impact the marketing of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registrationoffering.
(c) The Company shall not be required obligated to effect a only one (1) registration (and only if such registration would include Registrable Securities with an aggregate value of at least ten million dollars ($10,000,000), calculated using the closing price of the Company's Common Shares on the Trading Market on the date preceding the date of the Purchaser Request) pursuant to Purchaser Requests under this Section 2.1:
3 (i) prior to the earlier of September 30, 2015 or six months after the Initial Offering;
(ii) after the Company has effected three registrations pursuant to this Section 2.1 and either (A) all such registrations have been declared or ordered effective or (B) the request for such registration statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have an offering which is not paid the Registration Expenses of such withdrawn registration; provided, however, that for purposes of Section 2.1, a registration consummated shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Section 2.1(bfor this purpose), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have requested to be included in such registration statement are actually included;
(iii) during the period starting with the date of filing of, and ending on the date one hundred eighty (180) days following, the effective date of the registration statement pertaining to the Initial Offering; provided that the Company makes reasonable efforts to cause the registration statement for the Initial Offering to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.1(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for its Initial Offering within ninety (90) days;
(v) if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.1, a certificate signed by the Chairman of the Board of Directors of the Company (the “Board”) stating that, in the good faith judgment of the Board, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than once in any 12 month period; and provided further that the Company shall not register any securities for its own account or that of any other stockholder during such ninety (90) day period;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.3 below; or
(vii) if the Company has, within the six month period preceding the date of such request, already effected a demand registration for the Holders pursuant to this Section 2.1 and such registration has been declared or ordered effective.
Appears in 1 contract
Samples: Preferred Stock Purchase Agreement (Alpine Group Inc /De/)
Demand Registration. (a) Subject to the conditions of this Section 2.12.2, if the Company shall receive receives a written request from the Holders of 40% of the Shares (or any Common Stock issued upon conversion thereof) (the "Initiating Holders Holders") that the Company file a registration statement statement, on Form S-1, under the Securities Act covering the registration of at least 25% of the Registrable Securities resulting in net or such number of shares of Registrable Securities anticipated to have an aggregate offering proceeds price of at least not less than $20,000,00010,000,000, then the Company will (x) promptly give written notice of the requested registration to all Holders and (y) prepare and file a registration statement and otherwise use its best efforts to cause such sharesshall, and all Registrable Securities of any Holder or Holders joining in such registration pursuant to a written request delivered to the Company within thirty (30) days after of the receipt by such Holder or Holders of initial thereof, give written notice from of such request to all Holders, and subject to the Companylimitations of this Section 2.2, use its best efforts to be registered effect, as soon as practicable, the registration under the Securities Act within ninety (90) days of all Registrable Securities that the requestHolders request to be registered.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, then the Initiating Holders they shall so advise the Company as a part of their written request made pursuant to this Section 2.1 or any request pursuant to Section 2.3, 2.2 and the Company shall include such information in the written notice referred to in Section 2.1(a) or Section 2.3(a2.2(a), as applicable. In such event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s 's participation in such underwriting and the inclusion of such Holder’s 's Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. The Company shall (together with all All Holders proposing to distribute their Registrable Securities securities through such underwriting) underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by a majority of the Company Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to a majority in interest of the Initiating HoldersCompany). Notwithstanding any other provision of this Section 2.1 or Section 2.32.2, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities)underwritten, then the Company shall so advise all Holders of Registrable Securities that which would otherwise be underwritten pursuant hereto, and hereto that the number of shares 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 requested by all each such Holder, and the Holders to be included in the registration (including the Initiating Holders), or in such other proportions as mutually agreed to by such selling Holders; provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.12.2:
(i) prior to the earlier of September 30, 2015 or six months after the Initial Offering;
(ii) after the Company has effected three two (2) registrations pursuant to this Section 2.1 2.2, and either (A) all such registrations have been declared or ordered effective or (B) the request for such registration statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have not paid the Registration Expenses of such withdrawn registration; provided, however, that for purposes of Section 2.1, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Section 2.1(b), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have requested to be included in such registration statement are actually includedHolders;
(iiiii) during the period starting with the date of filing of, and ending on the date one hundred eighty ninety (18090) days following, following the effective date of the of, any registration statement pertaining to the Initial Offering; provided that the Company makes reasonable efforts to cause the registration statement for the Initial Offering to become effectiveon Form S-1;
(iviii) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.1(a2.2(a), the Company gives notice to the Holders of the Company’s 's intention to file a registration statement for make its Initial Offering within ninety (90) days;
(viv) if (A) at the time the Company receives a request for registration in accordance with this Section 2.2 the Company shall then be engaged in any material transaction (such as, by way of example only, negotiating a merger, acquisition, joint-venture or introduction of a major new product) the disclosure of which in a Registration Statement, in the reasonable judgment of a majority of the Board of Directors, exercised in good faith, would be adverse to the Company's best interests, or (B) if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.1, 2.2 a certificate signed by the Chairman a majority of the Board of Directors of the Company (the “Board”) stating that, that in the Board of Directors' reasonable judgment, exercised in good faith judgment faith, the Company's earnings or the occurrence of the Boardsome other material event are not at such time appropriate for disclosure, or, that it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, then, in which event either of such events, the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right rights to delay a request shall be exercised by the Company in the aggregate not more than once in any 12 twelve (12) month period; and provided further that the Company shall not register any securities for its own account or that of any other stockholder during such ninety (90) day period;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.3 below; or
(viiv) if prior to the Company hasearlier to occur of (a) September 1, within 2000 or (b) six months after the six month period preceding Closing of the date of such request, already effected a demand registration for the Holders pursuant to this Section 2.1 and such registration has been declared or ordered effectiveInitial Offering.
Appears in 1 contract
Demand Registration. (a) Subject to the conditions of this Section 2.1, if If at any time the Company shall receive a written request from Initiating Holders Purchaser Request that the Company file a registration statement under the Securities Act covering the registration of the Registrable Securities resulting in net offering proceeds of at least $20,000,000Act, then the Company will shall, within ten (x10) promptly days of the receipt thereof, give written notice of the requested registration such Purchaser Request to all Holders and and, subject to the limitations of Section 5 below, shall file (y) prepare and file a registration statement and otherwise use its best efforts to cause such sharesas expeditiously as practicable, and all Registrable Securities of in any Holder or Holders joining in such registration pursuant to a written request delivered to the Company event within thirty (30) days after of the receipt by of such Holder or Holders of initial written notice from the Companyrequest) and use its commercially reasonable best efforts to have declared effective, to be registered a registration statement under the Securities Act with respect to all Registrable Securities which the Holders request to be registered within ninety fifteen (9015) days of the request.
(bmailing of such notice by the Company in accordance with Section 10(g) below. If the Initiating Holders making the Purchaser Request intend to distribute the Registrable Securities covered by their request by means of an underwriting, then the Initiating Holders they shall so advise the Company as a part of their written request made pursuant to this Section 2.1 or any request pursuant to Section 2.3, 0 and the Company shall include such information in the written notice referred to in Section 2.1(a) or Section 2.3(a), as applicable0. In such event, the right of any Holder to include its such Holder’s 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 a majority in interest of the Holders participating in the underwriting and such Holder) to the extent provided herein. The Company A majority in interest of the Holders of Registrable Securities participating in the underwriting, with the consent of the Company, which consent shall (together with all not be unreasonably withheld, shall select the managing underwriter or underwriters in such underwriting. All Holders proposing to distribute their Registrable Securities securities through such underwritingunderwriting shall (together with the Company as provided in Section 6(l)) enter into an underwriting agreement in customary form with the underwriter or underwriters so selected for such underwriting by the Company (which underwriter or underwriters shall be reasonably acceptable to a majority in interest of such Holders; provided, however, that no Holder (or any of their assignees) shall be required to make any representations, warranties or indemnities except as they relate to such Holder’s ownership of shares and authority to enter into the Initiating Holders)underwriting agreement and to such Holder’s intended method of distribution, and the liability of such Holder shall be limited to an amount equal to the net proceeds from the offering received by such Holder. Notwithstanding any other provision of this Section 2.1 or Section 2.30, if the underwriter advises the Company a Holder that marketing factors require a limitation of the number of securities shares to be underwritten (including Registrable Securities)underwritten, then the Holder shall so advise the Company and the Company shall so advise all Holders of Registrable Securities that which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the underwriting shall be allocated as follows: (i) first, among holders of Registrable Securities that have elected to participate in such underwritten offering, in proportion (as nearly as practicable) to the Holders of such Registrable Securities on a pro rata basis based on the number aggregate amount of Registrable Securities held by all such Holders holders, until such holders have included in the underwriting all shares requested by such holders to be included, and (including ii) thereafter, among the Initiating Holders)Company and all other holders of Common Stock, or if any, that have the right and have elected to participate in such other proportions underwritten offering, in proportion (as mutually agreed nearly as practicable) to by such selling Holders; provided, however, that the number of shares of Common Stock the Company and such holders seek to include in such underwriting. Without the consent of a majority in interest of the Holders of Registrable Securities participating in a registration referred to in Section 3(a), no securities other than Registrable Securities shall be covered by such registration if the inclusion of such other securities would result in a reduction of the number of Registrable Securities covered by such registration or included in any underwriting or if, in the opinion of the managing underwriter, the inclusion of such underwriting and registration shall not be reduced unless all other securities would adversely impact the marketing of the Company are first entirely excluded from the underwriting and registrationsuch offering. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required obligated to effect a only one (1) registration (and only if such registration would include Registrable Securities with an aggregate value of at least five million dollars ($5,000,000), calculated using the closing price of the Company’s Common Shares on the Trading Market on the date preceding the date of the Purchaser Request) pursuant to Purchaser Requests under this Section 2.1:
3 (i) prior to the earlier of September 30, 2015 or six months after the Initial Offering;
(ii) after the Company has effected three registrations pursuant to this Section 2.1 and either (A) all such registrations have been declared or ordered effective or (B) the request for such registration statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have an offering which is not paid the Registration Expenses of such withdrawn registration; provided, however, that for purposes of Section 2.1, a registration consummated shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Section 2.1(bfor this purpose), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have requested to be included in such registration statement are actually included;
(iii) during the period starting with the date of filing of, and ending on the date one hundred eighty (180) days following, the effective date of the registration statement pertaining to the Initial Offering; provided that the Company makes reasonable efforts to cause the registration statement for the Initial Offering to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.1(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for its Initial Offering within ninety (90) days;
(v) if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.1, a certificate signed by the Chairman of the Board of Directors of the Company (the “Board”) stating that, in the good faith judgment of the Board, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than once in any 12 month period; and provided further that the Company shall not register any securities for its own account or that of any other stockholder during such ninety (90) day period;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.3 below; or
(vii) if the Company has, within the six month period preceding the date of such request, already effected a demand registration for the Holders pursuant to this Section 2.1 and such registration has been declared or ordered effective.
Appears in 1 contract
Samples: Series B Preferred Stock Purchase Agreement (Wolverine Tube Inc)
Demand Registration. (a) Subject Borrower hereby agrees to register all or any portion of the conditions of this Section 2.1Registrable Securities on two occasions (but no more than one per year) within 18 months after Closing, if the Company if, and only if, it shall receive a written request from a Holder (the Initiating Holders Holder) that the Company Borrower file a registration statement under the Securities 1933 Act covering the registration of at least 25% of the Registrable Securities resulting in net offering proceeds Then Outstanding. Borrower shall, within 20 days of at least $20,000,000its receipt thereof, then the Company will (x) promptly give written notice of the requested registration such request to all Holders and (y) prepare and file a registration statement and otherwise use its best efforts to cause such shares, and all of record of Registrable Securities. The Holders of said Registrable Securities of any Holder or Holders joining in such registration pursuant to a written request delivered to the Company within thirty (30) shall then have 15 days after receipt by such Holder or Holders of initial written notice from the Company, date of mailing of such notice by Borrower to request that all or a portion of their respective Registrable Securities be registered under the Securities Act within ninety (90) days of the requestincluded in said registration.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, then the Initiating Holders they shall so advise the Company Borrower as a part of their written request made pursuant to this Section 2.1 or any request pursuant to Section 2.3Agreement, and the Company Borrower shall include such information in the written notice to the other Holders of Registrable Securities referred to in Section 2.1(a) or Section 2.3(a9.01(a), as applicable. In such event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s 's participation in such underwriting and the inclusion of such Holder’s 's -------------------------------------------------------------------------------- 32 37 Agreement (Continued) -------------------------------------------------------------------------------- Registrable Securities in the underwriting (unless otherwise mutually agreed by Borrower, the underwriter, the Initiating Holder and such Holder) is limited to the extent provided herein. The Company shall (together with all All Holders proposing to distribute their Registrable Securities securities through such underwritingunderwriting shall (together with Borrower as provided in Section 9.04(e)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company (which underwriter or underwriters shall be reasonably acceptable to a majority in interest mutual agreement of Borrower and the Initiating Holders)Holder, which agreement shall not be unreasonably withheld. Notwithstanding any other provision of this Section 2.1 or Section 2.39.01, if the underwriter advises the Company Initiating Holder and Borrower in writing that marketing factors require a limitation of the number of securities shares to be underwritten (including Registrable Securities)underwritten, then the Company Initiating Holder shall so advise all Holders of Registrable Securities that which would otherwise be underwritten pursuant hereto, and the number of shares 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 among all such Holders (including the Initiating Holders), or that have requested to participate in such other proportions as mutually agreed to by such selling Holders; provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities registration. The rights of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting Holders shall be withdrawn from the registrationsenior to those of any Persons subsequently granted demand registration rights.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.1:
(i) prior to the earlier of September 30, 2015 or six months after the Initial Offering;
(ii) after the Company has effected three registrations pursuant to this Section 2.1 and either (A) all such registrations have been declared or ordered effective or (B) the request for Each such registration statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have not paid the Registration Expenses of such withdrawn registration; provided, however, that for purposes of Section 2.1, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Section 2.1(b), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have requested to be included in such registration statement are actually included;
(iii) during the period starting with the date of filing of, and ending on the date one hundred eighty (180) days following, the remain effective date of the registration statement pertaining to the Initial Offering; provided that the Company makes reasonable efforts to cause the registration statement for the Initial Offering to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.1(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for its Initial Offering within ninety (90) days;
(v) if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.1, a certificate signed by the Chairman of the Board of Directors of the Company (the “Board”) stating that, in the good faith judgment of the Board, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of 180 days, unless the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than once in any 12 month period; and provided further that the Company shall not register any securities for its own account or that of any other stockholder during such ninety (90) day period;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.3 below; or
(vii) if the Company has, within the six month period preceding the date of such request, already effected a demand registration for the Holders pursuant to this Section 2.1 and such registration has been declared or ordered effectiveHolder otherwise determines.
Appears in 1 contract
Demand Registration. (a) Subject to the conditions of this Section 2.1, if the Company shall receive a written request from the Holders of at least a majority of the Registrable Securities (the “Initiating Holders Holders”) that the Company file a registration statement under the Securities Act covering the registration of the Registrable Securities resulting in net with an anticipated aggregate offering proceeds price of at least $20,000,00030,000,000, then the Company will (x) promptly give written notice of the requested registration to all Holders and (y) prepare and file a registration statement and otherwise use its best efforts to cause such sharesshall, and all Registrable Securities of any Holder or Holders joining in such registration pursuant to a written request delivered to the Company within thirty (30) days after of the receipt by such Holder or Holders of initial thereof, give written notice from of such request to all Holders, and subject to the Companylimitations of this Section 2.1, to be registered effect, as expeditiously as reasonably possible, the registration under the Securities Act within ninety (90) days of the requestall Registrable Securities that all Holders request to be registered.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, then the Initiating Holders they shall so advise the Company as a part of their written request made pursuant to this Section 2.1 or any request pursuant to Section 2.3, 2.3 and the Company shall include such information in the written notice referred to in Section 2.1(a) or Section 2.3(a), as applicable. In such event, the right of any Holder to include 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. The Company shall (together with all All Holders proposing to distribute their Registrable Securities securities through such underwriting) underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company (which underwriter or underwriters shall be reasonably acceptable to a majority in interest of the Initiating Holders). Notwithstanding any other provision of this Section 2.1 or Section 2.3, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities), ) then the Company shall so advise all Holders of Registrable Securities that which would otherwise be underwritten pursuant hereto, and the number of shares 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), or in such other proportions as mutually agreed to by such selling Holders; provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registrationunderwriting. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.1:
(i) prior to the earlier of September 30, 2015 (A) the third anniversary of the date of this Agreement or six months after (B) one hundred eighty (180) days following the effective date of the registration statement pertaining to the Initial Offering;
(ii) after the Company has effected three two (2) registrations pursuant to this Section 2.1 2.1, and either (A) all such registrations have been declared or ordered effective or (B) the request for such registration statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders offerings contemplated thereby have not paid the Registration Expenses of such withdrawn registration; provided, however, that for purposes of Section 2.1, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Section 2.1(b), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have requested to be included in such registration statement are actually includedbeen consummated;
(iii) during the period starting with the date of filing of, and ending on the date one hundred eighty (180) days following, following the effective date of the a registration statement pertaining to the Initial Offeringa public offering, other than pursuant to a Special Registration Statement; provided that the Company makes reasonable good faith efforts to cause the such registration statement for the Initial Offering to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.1(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for its Initial Offering within ninety (90) days;
(v) if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.1, a certificate signed by the Chairman of the Board of Directors of the Company (the “Board”) stating that, that in the good faith judgment of the BoardBoard of Directors of the Company, it would be seriously detrimental to the Company and its stockholders shareholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety one hundred twenty (90120) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than once twice in any 12 twelve (12) month period; and provided further that the Company shall not register any securities for its own account or that of any other stockholder during such ninety (90) day period;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.3 below; or
(vii) if in any particular jurisdiction in which the Company haswould be required to qualify to do business or to execute a general consent to service of process in effecting such registration, within the six month period preceding the date of such request, already effected a demand registration for the Holders pursuant to this Section 2.1 and such registration has been declared qualification or ordered effectivecompliance.
Appears in 1 contract
Samples: Investor Rights Agreement (Hylete)
Demand Registration. (a) Subject to the conditions of this Section 2.13.2, if the Company shall receive a written request from the Holders of at least fifty percent (50%) of the Registrable Securities (the “Initiating Holders Holders”) that the Company file a registration statement under the Securities Act covering the registration of at least a majority of the Registrable Securities resulting in then outstanding (or a lesser percent if the anticipated aggregate offering price, net offering proceeds of at least underwriting discounts and commissions, would exceed $20,000,00050,000,000), then the Company will (x) promptly give written notice of the requested registration to all Holders and (y) prepare and file a registration statement and otherwise use its best efforts to cause such sharesshall, and all Registrable Securities of any Holder or Holders joining in such registration pursuant to a written request delivered to the Company within thirty (30) days after of the receipt by such Holder or Holders of initial thereof, give written notice from of such request to all Holders, and subject to the Companylimitations of this Section 3.2, use reasonable best efforts to be registered effect as expeditiously as reasonably possible the registration under the Securities Act within ninety (90) days of the requestall Registrable Securities that all Holders request to be registered.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, then the Initiating Holders they shall so advise the Company as a part of their written request made pursuant to this Section 2.1 or any request pursuant to Section 2.3, 3.2 and the Company shall include such information in the written notice referred to in Section 2.1(a) or Section 2.3(a3.2(a), as applicable. In such event, the right of any Holder to include 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. The Company shall (together with all All Holders proposing to distribute their Registrable Securities securities through such underwriting) underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company Holders of a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to a majority in interest of the Initiating HoldersCompany). Notwithstanding any other provision of this Section 2.1 or Section 2.33.2, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities), ) then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares 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), or in such other proportions as mutually agreed to by such selling Holders; provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.13.2:
(i) prior to the earlier expiration of September 30, 2015 or six months after the restrictions on transfer set forth in Section 3.11 following the Initial Offering;
(ii) after the Company has effected three two (2) registrations pursuant to this Section 2.1 3.2, and either (A) all such registrations have been declared or ordered effective or (B) the request for such registration statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have not paid the Registration Expenses of such withdrawn registration; provided, however, that for purposes of Section 2.1, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Section 2.1(b), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have requested to be included in such registration statement are actually includedeffective;
(iii) during the period starting with the date of filing of, and ending on the date one hundred eighty (180) days following, the effective date of the registration statement pertaining to the Initial Offering; provided that the Company makes reasonable efforts to cause the registration statement for the Initial Offering to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.1(a3.2(a), the Company gives notice to the Holders of the Company’s intention to file make a registration statement for its Initial Offering public offering within ninety (90) days;
(viv) if the Company shall furnish furnishes to the Holders requesting a registration statement pursuant to this Section 2.1, 3.2 a certificate signed by the Chairman a majority of the Board of Directors of the Company (the “Board”) stating that, in the good faith judgment of the Board, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety one hundred twenty (90120) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than once twice in any 12 twelve (12) month period; and provided further that the Company shall not register any securities for its own account or that of any other stockholder during such ninety (90) day period;
(viv) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.3 3.4 below; or
(viivi) if in any particular jurisdiction in which the Company haswould be required to qualify to do business or to execute a general consent to service of process in effecting such registration, within the six month period preceding the date of such request, already effected a demand registration for the Holders pursuant to this Section 2.1 and such registration has been declared qualification or ordered effectivecompliance.
Appears in 1 contract
Samples: Stockholders’ Agreement (F45 Training Holdings Inc.)
Demand Registration. (aA) Subject to If, at any time after the conditions initial purchase of this Section 2.1the Preferred Stock, if holders of at least 20% of the Company shall receive a written Registrable Securities issued or issuable upon conversion of the Preferred Stock (the "INITIATING HOLDERS") request from Initiating Holders that the Company file a registration statement under on Form SB-2 or Form S-1 (the Securities Act "REGISTRATION STATEMENT") covering the registration at least 10% of the Registrable Securities resulting in net issued or issuable upon conversion of the Preferred Stock (or any lesser percentage if the anticipated aggregate offering proceeds of at least price would exceed $20,000,0002,000,000), then the Company will (x) promptly give written notice of shall cause the requested registration to all Holders and (y) prepare and file a registration statement and otherwise use its best efforts to cause such shares, and all Registrable Securities of any Holder or Holders joining in such registration pursuant to a written request delivered attributable to the Company within thirty (30) days after receipt by such Holder or Holders of initial written notice from the Company, Preferred Stock to be registered under the Securities Act within ninety (90) days of the requestregistered.
(bB) If the Initiating Holders intend Investor intends to distribute the Registrable Securities covered by their request by means of an underwriting, then the Initiating Holders it shall so advise the Company as a part of their written its request made pursuant to this Section 2.1 2.2 or any request pursuant to Section 2.3, 2.4 and the Company shall include such information in the written notice referred to in Section 2.1(a2.2(a) or Section 2.3(a2.4(a), as applicable. In such event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s 's participation in such underwriting and the inclusion of such Holder’s 's Registrable Securities in the underwriting to the extent provided herein. The Company shall (together with all All Holders proposing to distribute their Registrable Securities securities through such underwriting) underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company Holders of a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to a majority in interest of the Initiating HoldersCompany). Notwithstanding any other provision of this Section 2.1 2.2 or Section 2.32.4, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities), ) then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares 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), or in such other proportions as mutually agreed to by such selling Holders; provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(cC) The Company shall not be required to effect a registration pursuant to this Section 2.12.2:
(iI) prior to the earlier of September 30, 2015 or six months after the Initial Offering;
(ii) after if the Company has effected three two (2) registrations pursuant to this Section 2.1 2.2 in the preceding twelve (12) months, and either (A) all such registrations have been declared or ordered effective or (B) the request for such registration statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have not paid the Registration Expenses of such withdrawn registration; provided, however, that for purposes of Section 2.1, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Section 2.1(b), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have requested to be included in such registration statement are actually included;
(iii) during the period starting with the date of filing of, and ending on the date one hundred eighty (180) days following, the effective date of the registration statement pertaining to the Initial Offering; provided that the Company makes reasonable efforts to cause the registration statement for the Initial Offering to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.1(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for its Initial Offering within ninety (90) days;
(v) if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.1, a certificate signed by the Chairman of the Board of Directors of the Company (the “Board”) stating that, in the good faith judgment of the Board, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than once in any 12 month period; and provided further that the Company shall not register any securities for its own account or that of any other stockholder during such ninety (90) day period;
(viIV) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.3 below2.4 below and the Company undertakes promptly to file such Form S-3; or
(vii) if the Company has, within the six month period preceding the date of such request, already effected a demand registration for the Holders pursuant to this Section 2.1 and such registration has been declared or ordered effective.
Appears in 1 contract
Samples: Investor Rights Agreement (Northwest Biotherapeutics Inc)
Demand Registration. (a) Subject to If Company shall merge or consolidate with another entity, or the conditions shareholders of this Section 2.1Company shall sell, if transfer or otherwise dispose of all or substantially all of the shares of the Company shall receive to a corporation whose securities are publicly traded ("Successor") in exchange for shares of common stock or other securities of the Successor ("Merger"), and Company receives written request notice from Initiating Holders Investor requesting that the Company file a registration statement under the Securities Act covering the registration of all of the Registrable Securities resulting in net offering proceeds shares Common Stock then owned by Investor, whether issuable upon conversion of at least $20,000,000the Preferred Stock or the exercise of the Warrant, then the ("Shares"), Company will (x) promptly give written notice of the requested registration to all Holders and (y) prepare and file a registration statement and otherwise use its best efforts to cause such shareseffect the registration under the Act of all Shares which investor requests to be registered, and all Registrable Securities of any Holder or Holders joining in such registration pursuant to a written request delivered to the Company within thirty (30) days after receipt extent necessary to permit the legally permissible sale or other disposition by such Holder or Holders of initial written notice from the Company, to be registered under the Securities Act within ninety (90) days of the requestInvestor.
(b) If the Initiating Holders intend Investor intends to distribute the Registrable Securities Shares covered by their its request by means of an underwriting, then the Initiating Holders shall it will so advise the Company as a part of their written the request made pursuant to this Section 2.1 or any request pursuant to Section 2.3, and the Company shall include such information in the written notice referred to in Section 2.1(a) or Section 2.3(a), as applicableSection. In such event, the right of any Holder Investor to include its Registrable Securities Shares in such the registration shall be conditioned upon such Holder’s Investor's participation in such underwriting and the inclusion of such Holder’s Registrable Securities the Shares in the underwriting to the extent provided hereinunderwriting. The Company shall will enter into (together with all Holders proposing to distribute Investor and the other shareholders distributing their Registrable Securities securities through such the underwriting) enter into an underwriting agreement in customary form with the underwriter or underwriters selected by Company for such the underwriting, provided that the underwriting by the Company (which underwriter or underwriters shall be agreement is in customary form and is reasonably acceptable to a majority in interest of the Initiating Holders). Notwithstanding any other provision of this Section 2.1 or Section 2.3, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares 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), or in such other proportions as mutually agreed to by such selling Holders; provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registrationCompany.
(c) The Notwithstanding the foregoing, if Company shall not be required furnishes to effect a registration pursuant to this Section 2.1:
(i) prior to the earlier of September 30, 2015 or six months after the Initial Offering;
(ii) after the Company has effected three registrations pursuant to this Section 2.1 and either (A) all such registrations have been declared or ordered effective or (B) the request for such registration statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have not paid the Registration Expenses of such withdrawn registration; provided, however, that for purposes of Section 2.1, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Section 2.1(b), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have requested to be included in such registration statement are actually included;
(iii) during the period starting with the date of filing of, and ending on the date one hundred eighty (180) days following, the effective date of the registration statement pertaining to the Initial Offering; provided that the Company makes reasonable efforts to cause the registration statement for the Initial Offering to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.1(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for its Initial Offering within ninety (90) days;
(v) if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.1, Investor a certificate signed by the Chairman President of the Board of Directors of the Company (the “Board”) stating that, that in the good faith judgment of the BoardBoard of Directors of Company, it would be seriously detrimental to the Company and its stockholders shareholders for such the registration statement to be effected at such timefiled and it is therefore essential to defer the filing of the registration statement, in which event the Company shall will have the right to defer such the filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holdersinvestor; provided provided, however, that such Company may not utilize this right to delay a request shall be exercised by the Company not more than once in any 12 twelve-month period; and provided further that the .
(d) Company shall will not register be obligated to prepare, file or to take any securities for its own account or that of action to effect any other stockholder during such ninety registration pursuant to this Section:
(90i) day periodPrior to a Merger;
(viii) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.3 below; or
(vii) if the After Company has, within the six month period preceding the date of such request, already has effected a demand prior registration for the Holders pursuant to this Section 2.1 Agreement and such registration has been declared or ordered effective; or
(iii) During the period starting with the date ninety (90) days prior to Company's good faith estimate of the date of filing of, and ending on a date one hundred eighty (180) days after the effective date of, a registration subject to Section 2 hereof; provided that Company is using reasonable efforts to cause such registration statement to become effective.
Appears in 1 contract
Demand Registration. (a) Subject to the conditions of this Section 2.1, if If at any time the Company shall receive a written request from Initiating Holders that Registration Request, then the Company shall, within 10 days of the receipt thereof, give written notice of such request to all holders of Registrable Securities and, subject to the limitations of Section 6.1(b), shall use its reasonable best efforts to prepare and file a registration statement Registration Statement under the Securities Act covering with respect to all Registrable Securities which the registration applicable holders thereof request to be registered within 10 days of the Registrable Securities resulting mailing of such notice by the Company, in net offering proceeds of at least $20,000,000accordance with Section 6.3 (as expeditiously as practicable) in any event not later than the Filing Date, then the Company will (x) promptly give written notice of the requested registration to all Holders and (y) prepare and file a registration statement and otherwise use its reasonable best efforts to cause such shares, and all Registrable Securities of any Holder or Holders joining in such registration pursuant to a written request delivered to the Company within thirty (30) days after receipt by such Holder or Holders of initial written notice from the Company, Registration Statement to be registered declared effective under the Securities Act within ninety (90) days of as promptly as possible after the requestfiling thereof, but in any event not later than the Required Effectiveness Date.
(b) If the Initiating Holders applicable holders thereof intend to distribute the Registrable Securities covered by their request by means of an underwritingunderwriting (whether it is on a firm commitment or best efforts (i.e., then the Initiating Holders registered direct) basis), they shall so advise the Company as a part of their written request made pursuant to this Section 2.1 or any request pursuant to Section 2.3, 6.1 and the Company shall include such information in the written notice referred to in Section 2.1(a) or Section 2.3(a6.1(a), as applicable. In such event, the right of any Holder such holder to include its such holder’s Registrable Securities in such registration shall be conditioned upon such Holderholder’s participation in such underwriting and the inclusion of such Holderholder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the holders participating in the underwriting and such holder) to the extent provided herein. The Company A majority in interest of the holders of Registrable Securities participating in the underwriting, in consultation with the Company, shall select the managing underwriter or underwriters in such underwriting. All holders proposing to distribute Registrable Securities through such underwriting shall (together with all Holders proposing to distribute their Registrable Securities through such underwritingthe Company) enter into an underwriting agreement in customary form with the underwriter or underwriters so selected for such underwriting by the Company (which underwriter or underwriters shall be reasonably acceptable to a majority in interest of such holders; provided, however, that no holder (or any of their assignees) shall be required to make any representations, warranties or indemnities except as they relate to such holder’s ownership of shares and authority to enter into the Initiating Holders)underwriting agreement and to such holder’s intended method of distribution, and the liability of such holder shall be limited to an amount equal to the net proceeds from the offering received by such holder. Notwithstanding any other provision of this Section 2.1 or Section 2.36.1, if the underwriter advises the Company a holder that marketing factors require a limitation of the number of securities shares to be underwritten (including Registrable Securities)underwritten, then the holder shall so advise the Company and the Company shall so advise all Holders holders of Registrable Securities that which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the underwriting shall be allocated as follows: (i) first, among the Purchasers that have elected to participate in such underwritten offering, in proportion (as nearly as practicable) to the Holders of such Registrable Securities on a pro rata basis based on the number aggregate amount of Registrable Securities held by all such Holders Purchasers, until such Purchasers have included in the underwriting all shares requested by such Purchasers to be included, (including ii) then, among other holders of Registrable Securities that have elected to participate in such underwritten offering, in proportion (as nearly as practicable) to the Initiating Holdersaggregate amount of Registrable Securities held by all such holders, until such holders have included in the underwriting all shares requested by such holders to be included, and (iii) thereafter, among all other holders of Common Stock, if any, that have the right and have elected to participate in such underwritten offering, in proportion (as nearly as practicable) to the amount of shares of Common Stock owned by such holders. Without the consent of a majority in interest of the holders of Registrable Securities participating in a registration referred to in Section 6.1(a), or in no securities other than Registrable Securities shall be covered by such registration if the inclusion of such other proportions as mutually agreed to by such selling Holders; provided, however, that securities would result in a reduction of the number of shares of Registrable Securities covered by such registration or included in any underwriting or if, in the opinion of the managing underwriter, the inclusion of such other securities would adversely impact the marketing of such offering. Notwithstanding anything contained herein, in the event the Commission or applicable federal securities laws and regulations prohibit the Company from including all Registrable Securities requested by the holders thereof to be included registered in any Registration Statement, then the Company shall be obligated to include in such underwriting and registration shall not be reduced unless all other securities Registration Statement only such limited portion of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded as is the maximum amount permitted by the Commission or withdrawn from such underwriting shall be withdrawn from the registrationfederal securities laws and regulations.
(c) The Company shall not be required obligated to effect a registration pursuant to this Section 2.1:
only four (i4) prior to the earlier of September 30, 2015 or six months after the Initial Offering;
(ii) after the Company has effected three registrations pursuant to Registration Requests under this Section 2.1 and either 6.1 (A) all such registrations have been declared or ordered effective or (B) the request for such registration statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have an offering which is not paid the Registration Expenses of such withdrawn registration; provided, however, that for purposes of Section 2.1, a registration consummated shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Section 2.1(bfor this purpose), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have requested to be included in such registration statement are actually included;
(iii) during the period starting with the date of filing of, and ending on the date one hundred eighty (180) days following, the effective date of the registration statement pertaining to the Initial Offering; provided that the Company makes reasonable efforts to cause the registration statement for the Initial Offering to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.1(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for its Initial Offering within ninety (90) days;
(v) if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.1, a certificate signed by the Chairman of the Board of Directors of the Company (the “Board”) stating that, in the good faith judgment of the Board, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than once in any 12 month period; and provided further that the Company shall not register any securities for its own account or that of any other stockholder during such ninety (90) day period;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.3 below; or
(vii) if the Company has, within the six month period preceding the date of such request, already effected a demand registration for the Holders pursuant to this Section 2.1 and such registration has been declared or ordered effective.
Appears in 1 contract
Samples: Preferred Stock Purchase Agreement (Paradigm Holdings, Inc)
Demand Registration. (a) Subject Borrower hereby agrees to use its best efforts to register all or any portion of the conditions of this Section 2.1Registrable Securities on two occasions (but no more than one per year) within 18 months after Loan Closing, if the Company if, and only if, it shall receive a written request from a Holder (the Initiating Holders Holder) that the Company Borrower file a registration statement under the Securities 1933 Act covering the registration of at least 25% of the Registrable Securities resulting in net offering proceeds Then Outstanding. Borrower shall, within 20 days of at least $20,000,000its receipt thereof, then the Company will (x) promptly give written notice of the requested registration such request to all Holders and (y) prepare and file a registration statement and otherwise use its best efforts to cause such shares, and all of record of Registrable Securities. The Holders of said Registrable Securities of any Holder or Holders joining in such registration pursuant to a written request delivered to the Company within thirty (30) shall then have 15 days after receipt by such Holder or Holders of initial written notice from the Company, date of mailing of such notice by Borrower to request that all or a portion of their respective Registrable Securities be registered under the Securities Act within ninety (90) days of the requestincluded in said registration.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, then the Initiating Holders they shall so advise the Company Borrower as a part of their written request made pursuant to this Section 2.1 or any request pursuant to Section 2.3Agreement, and the Company Borrower shall include such information in the written notice to the other Holders of Registrable Securities referred to in Section 2.1(a) or Section 2.3(a9.01(a), as applicable. In such event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s 's participation in such underwriting and the inclusion of such Holder’s 's Registrable Securities in the underwriting (unless otherwise mutually agreed by Borrower, the underwriter, the Initiating Holder and such Holder) is limited to the extent provided herein. The Company shall (together with all All Holders proposing to distribute their Registrable Securities securities through such underwritingunderwriting shall -------------------------------------------------------------------------------- 34 Agreement (Continued) -------------------------------------------------------------------------------- (together with Borrower as provided in Section 9.04(e)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company (which underwriter or underwriters shall be reasonably acceptable to a majority in interest mutual agreement of Borrower and the Initiating Holders)Holder, which agreement shall not be unreasonably withheld. Notwithstanding any other provision of this Section 2.1 or Section 2.39.01, if the underwriter advises the Company Initiating Holder and Borrower in writing that marketing factors require a limitation of the number of securities shares to be underwritten (including Registrable Securities)underwritten, then the Company Initiating Holder shall so advise all Holders of Registrable Securities that which would otherwise be underwritten pursuant hereto, and the number of shares 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 among all such Holders (including the Initiating Holders), or that have requested to participate in such other proportions as mutually agreed to by such selling Holders; provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities registration. The rights of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting Holders shall be withdrawn from the registrationsenior to those of any Persons subsequently granted demand registration rights.
(c) The Company Each such registration shall remain effective for a period of 180 days, unless the Initiating Holder otherwise determines. Notwithstanding the foregoing, if the Holders' elect not to sell all or any portion of the Registrable Securities pursuant to a demand registration which has become effective, such demand registration right shall nonetheless be required to effect deemed satisfied.
(d) Notwithstanding the foregoing, Borrower may delay filing a registration pursuant to this Section 2.1:
(i) prior to the earlier of September 30, 2015 or six months after the Initial Offering;
(ii) after the Company has effected three registrations pursuant to this Section 2.1 and either (A) all such registrations have been declared or ordered effective or (B) the request for such registration statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have not paid the Registration Expenses of such withdrawn registration; provided, however, that for purposes of Section 2.1, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Section 2.1(b), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have requested to be included in such registration statement are actually included;
(iii) during the period starting with the date of filing ofstatement, and ending on the date one hundred eighty (180) days following, the effective date of the registration statement pertaining to the Initial Offering; provided that the Company makes reasonable may withhold efforts to cause the registration statement for the Initial Offering to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.1(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for its Initial Offering within ninety (90) days;
(v) if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.1, a certificate signed by the Chairman of the Board of Directors of the Company (the “Board”) stating that, in the good faith judgment of the Board, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided if Borrower determines in good faith that such right registration might interfere with or affect the negotiation or completion of any transaction involving Borrower. If, after a registration statement becomes effective, Borrower advises the Holders that the registration statement is required to delay a request be amended under applicable federal securities laws, the Holders shall be exercised by suspend any further sales of their Registrable Securities, until the Company advises them that the registration statements has been amended, but not more than once thirty (30) days. The 180-day time period referred to in any 12 month period; and provided further that subsection (c) during which the Company registration statement must be kept current after its effective date shall be extended for an additional number of business days equal to the number of business days during which the right to sell the Registrable Securities was suspended pursuant to the preceding sentence.
(e) Borrower shall have the right to exclude an underwriter not register any securities reasonably acceptable to it.
(f) No demand for its own account or that of any other stockholder during such registration may be made for a ninety (90) day period;
(vi) if the Initiating Holders propose to dispose 90)-day period following completion of shares another underwritten offering of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.3 below; or
(vii) if the Company has, within the six month period preceding the date of such request, already effected a demand registration for the Holders pursuant to this Section 2.1 and such registration has been declared or ordered effectiveBorrower's equity securities.
Appears in 1 contract
Demand Registration. (a) Subject to the conditions of this Section 2.1, if the Company shall receive a written request from the Holders of Registrable Securities holding a majority of the Registrable Securities then outstanding (the “Initiating Holders Holders”), that the Company file a registration statement under the Securities Act covering the registration of all or part of the Registrable Securities resulting in net offering proceeds (such request will state the number of at least $20,000,000shares of Registrable Securities to be disposed of by such Initiating Holders), then the Company will (x) promptly will, within 30 days of the receipt thereof, give written notice of the requested registration such request to all other Holders and (y) prepare and file a registration statement and otherwise use its best efforts to cause such sharesand, and all Registrable Securities of any Holder or Holders joining in such registration pursuant to a written request delivered subject to the Company within thirty (30) days after receipt by such Holder or Holders limitations of initial written notice from this Section 2.1, effect, as expeditiously as reasonably possible, the Company, to be registered registration under the Securities Act within ninety (90) days of all Registrable Securities that all Holders request to be registered. The Company will not include in any registration under this Section 2.1 any securities which are not Registrable Securities without the prior written consent of the requestInitiating Holders.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, then the Initiating Holders they shall so advise the Company as a part of their written request made pursuant to this Section 2.1 or any request pursuant to Section 2.3, 2.3 and the Company shall include such information in the written notice referred to in Section 2.1(a) or Section 2.3(a), as applicable. In such event, the right of any Holder to include 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. The Company shall (together with all All Holders proposing to distribute their Registrable Securities securities through such underwriting) underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by a majority in interest of the Company Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to a majority in interest of the Initiating HoldersCompany). Notwithstanding any other provision of this Section 2.1 or Section 2.3, if the managing underwriter in any underwritten registration advises the Company in writing (with a copy to each Holder) that marketing factors require a limitation of in its opinion the number of Registrable Securities and, if permitted hereunder, other securities requested to be underwritten (including included in such registration exceeds the number of Registrable Securities)Securities and other securities, if any, which can be sold therein without adversely affecting the marketability of the offering, then the Company shall so advise all Holders of Registrable Securities that which would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Initiating Holders and all other 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), or in such other proportions as mutually agreed to by such selling Holders; provided, however, that the total number of shares of Registrable Securities to held by such Holders. In no event will shares of any other selling stockholder or the Company be included in such underwriting and registration shall not that would reduce the number of shares which may be reduced unless all other securities included by Holders without the written consent of the Company are first entirely excluded from Holders of not less than a majority of the underwriting and registrationRegistrable Securities proposed to be sold in the offering. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.1:
(i) prior to the earlier of September 30January 1, 2015 or six months after the Initial Offering2013;
(ii) after the Company has effected three registrations pursuant to this Section 2.1 and either (A) all such registrations have been declared or ordered effective or (B) the request for such registration statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have not paid the Registration Expenses of such withdrawn registration; provided, however, that for purposes of Section 2.1, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Section 2.1(b), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have requested to be included in such registration statement are actually included;
(iii) during the period starting with the date of filing of, and ending on the date one hundred eighty (180) days following, the effective date of the registration statement pertaining to the Initial Offering; provided that the Company makes reasonable efforts to cause the registration statement for the Initial Offering to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.1(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for its Initial Offering within ninety (90) days;
(v) if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.1, 2.1 a certificate signed by the Chairman of the Board of Directors an executive officer of the Company (the “Board”) stating that, in the good faith judgment of the BoardBoard of Directors of the Company, it would be seriously materially detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) 90 days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than once in any 12 12-month period; and provided further that the Company shall not register any securities for its own account or that of any other stockholder during such ninety (90) day period;or
(viiii) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.3 below; or
(vii) if the Company has, within the six month period preceding the date of such request, already effected a demand registration for the Holders pursuant to this Section 2.1 and such registration has been declared or ordered effective.
Appears in 1 contract
Samples: Investor Rights Agreement (Infinity Energy Resources, Inc)
Demand Registration. (a) Subject If holders of at least 20% of the Registrable Securities issued or issuable to the conditions of this Section 2.1, if Holders (the Company shall receive a written “Initiating Holders”) request from Initiating Holders that the Company file a registration statement under on Form SB-2 or Form S-1 (the Securities Act “Registration Statement”) covering the registration at least 10% of the Registrable Securities resulting in net issued or issuable to the Holders (or any lesser percentage if the anticipated aggregate offering proceeds of at least price would exceed $20,000,0002,000,000), then the Company will (x) promptly give written notice of shall cause the requested registration to all Holders and (y) prepare and file a registration statement and otherwise use its best efforts to cause such shares, and all Registrable Securities of any Holder or Holders joining in such registration pursuant to a written request delivered to the Company within thirty (30) days after receipt by such Holder or Holders of initial written notice from the Company, to be registered under the Securities Act within ninety (90) days of the requestregistered.
(b) If the Initiating Holders intend Investor intends to distribute the Registrable Securities covered by their request by means of an underwriting, then the Initiating Holders it shall so advise the Company as a part of their written its request made pursuant to this Section 2.1 2.2 or any request pursuant to Section 2.3, 2.4 and the Company shall include such information in the written notice referred to in Section 2.1(a2.2(a) or Section 2.3(a2.4(a), as applicable. In such event, the right of any Holder to include 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. The Company shall (together with all All Holders proposing to distribute their Registrable Securities securities through such underwriting) underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company Holders of a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to a majority in interest of the Initiating HoldersCompany). Notwithstanding any other provision of this Section 2.1 2.2 or Section 2.32.4, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities), ) then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares 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), or in such other proportions as mutually agreed to by such selling Holders; provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.12.2:
(i) prior to the earlier of September 30, 2015 or six months after the Initial Offering;
(ii) after if the Company has effected three two (2) registrations pursuant to this Section 2.1 2.2 in the preceding twelve (12) months, and either (A) all such registrations have been declared or ordered effective or (B) the request for such registration statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have not paid the Registration Expenses of such withdrawn registrationeffective; provided, however, that for purposes of Section 2.1, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Section 2.1(b), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have requested to be included in such registration statement are actually included;or
(iii) during the period starting with the date of filing of, and ending on the date one hundred eighty (180) days following, the effective date of the registration statement pertaining to the Initial Offering; provided that the Company makes reasonable efforts to cause the registration statement for the Initial Offering to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.1(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for its Initial Offering within ninety (90) days;
(v) if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.1, a certificate signed by the Chairman of the Board of Directors of the Company (the “Board”) stating that, in the good faith judgment of the Board, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than once in any 12 month period; and provided further that the Company shall not register any securities for its own account or that of any other stockholder during such ninety (90) day period;
(viii) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.3 below; or
(vii) if 2.4 below and the Company has, within the six month period preceding the date of undertakes promptly to file such request, already effected a demand registration for the Holders pursuant to this Section 2.1 and such registration has been declared or ordered effectiveForm S-3.
Appears in 1 contract
Samples: Investor Rights Agreement (Northwest Biotherapeutics Inc)
Demand Registration. (a) Subject If the Registration Statement is not declared effective, if the effectiveness lapses or if registration on a Form S-3 registration statement is not available to the Company, then, subject to the conditions of this Section 2.17.3, if the Company shall receive a written request from the Initiating Holders that the Company file a registration statement Demand Registration Statement under the Securities Act covering the registration of the Registrable Securities resulting in net offering proceeds of at least $20,000,000Shares then outstanding, then the Company will (x) promptly give written notice of the requested registration to all Holders and (y) prepare and file a registration statement and otherwise use its best efforts to cause such sharesshall, and all Registrable Securities of any Holder or Holders joining in such registration pursuant to a written request delivered to the Company within thirty (30) days after of the receipt by thereof, give written notice of such Holder or request to all Registered Holders of initial written notice from Registrable Shares, and subject to the Companylimitations of this Section 7.3, to be registered effect, as expeditiously as reasonably possible, the registration under the Securities Act within ninety (90) days of the requestall Registrable Shares that all Registered Holders request to be registered.
(b) If the Initiating Holders intend to distribute the Registrable Securities Shares covered by their request by means of an underwriting, then the Initiating Holders they shall so advise the Company as a part of their written request made pursuant to this Section 2.1 or any request pursuant to Section 2.3, 7.3 and the Company shall include such information in the written notice referred to in Section 2.1(a) or Section 2.3(a7.3(a), as applicable. In such event, the right of any Registered Holder to include its Registrable Securities Shares in such registration shall be conditioned upon such Registered Holder’s participation in such underwriting and the inclusion of such Registered Holder’s Registrable Securities Shares in the underwriting to the extent provided herein. The Company shall (together with all All Registered Holders proposing to distribute their Registrable Securities securities through such underwriting) underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company Registered Holders of a majority of the Registrable Shares held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to a majority in interest of the Initiating HoldersCompany). Notwithstanding any other provision of this Section 2.1 or Section 2.37.3, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities), Shares) then the Company shall so advise all Registered Holders of Registrable Securities Shares that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Registered Holders of such Registrable Securities Shares on a pro rata basis based on the number of Registrable Securities Shares held by all such Registered Holders (including the Initiating Holders), or in such other proportions as mutually agreed to by such selling Holders; provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities Shares excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.17.3:
(i) prior to the earlier of September 30, 2015 or six months after the Initial Offering;
(ii) after the Company has effected three (3) registrations pursuant to this Section 2.1 7.3, and either (A) all such registrations have been declared or ordered effective or (B) the request for such registration statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have not paid the Registration Expenses of such withdrawn registration; provided, however, that for purposes of Section 2.1, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Section 2.1(b), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have requested to be included in such registration statement are actually includedeffective;
(iiiii) during the period starting with the date of filing of, and ending on the date one hundred eighty (180) days following, following the effective date of the a registration statement pertaining to the Initial Offeringa public offering, other than pursuant to a Special Registration Statement; provided that the Company makes reasonable good faith efforts to cause the such registration statement for the Initial Offering to become effective;
(iviii) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.1(a7.3(a), the Company gives notice to the Registered Holders of the Company’s intention to file a registration statement for its Initial Offering a public offering, other than pursuant to a Special Registration Statement within ninety (90) days;
(viv) if the Company shall furnish to the Registered Holders requesting a registration statement Demand Registration Statement pursuant to this Section 2.1, 7.3 a certificate signed by the Chairman of the Board of Directors of the Company (the “Board”) stating that, that in the good faith judgment of the BoardBoard of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement Demand Registration Statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety one hundred twenty (90120) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than once twice in any 12 twelve (12) month period; and provided further that the Company shall not register any securities for its own account or that of any other stockholder during such ninety (90) day period;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.3 below; or
(viiv) if in any particular jurisdiction in which the Company haswould be required to qualify to do business or to execute a general consent to service of process in effecting such registration, within the six month period preceding the date of such request, already effected a demand registration for the Holders pursuant to this Section 2.1 and such registration has been declared qualification or ordered effectivecompliance.
Appears in 1 contract
Demand Registration. (a) Subject to the conditions of this Section 2.1Commencing March 8, if the Company shall receive 2007, any Requesting Holder may make a written request from Initiating Holders to the Company (specifying that it is being made pursuant to this Section 2) that the Company file a registration statement under the Securities 1933 Act (or a similar document pursuant to any other statute then in effect corresponding to the 1000 Xxx) covering the registration of the Registrable Securities resulting in net offering proceeds of at least $20,000,000, then Stock. In such event the Company will shall (xi) promptly give written notice within ten (10) days thereafter notify in writing all other Holders of the requested registration to all Holders Registrable Stock of such request, and (yii) prepare and file a registration statement and otherwise use its best commercially reasonable efforts to cause such shares, registration statement to be prepared and filed with the Commission under the 1933 Act registering the resale of all Registrable Securities of any Holder or Stock that the Requesting Holders joining in and such registration pursuant to a written request delivered to the Company other Holders have, within thirty forty-five (3045) days after receipt by the Company has given such Holder or Holders of initial written notice from the Companynotice, to requested be registered under the Securities Act within ninety (90) days of the requestregistered.
(b) If the Initiating Holders intend to distribute the Registrable Securities Stock covered by their request by means of an underwritingunderwritten offering, then the Initiating Holders they shall so advise the Company as a part of their written request made pursuant to this Section 2.1 or any request pursuant to Section 2.3, and the Company shall include such information in the written notice referred to in Section 2.1(a) or Section 2.3(a), as applicableCompany. In such event, the right of any Holder to include 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. The Company shall (together with all All Holders proposing to distribute their Registrable Securities Stock through such underwriting) underwritten offering shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company (which underwriters. Such underwriter or underwriters shall be reasonably acceptable to selected by a majority in interest of the Initiating Holders and shall be approved by the Company, which approval shall not be unreasonably withheld; provided, that all of the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of such underwriters shall also be made to and for the benefit of such Holders and that any or all of the conditions precedent to the obligations of such underwriters under such underwriting agreement shall be conditions precedent to the obligations of such Holders). ; and provided further, that no Holder shall be required to make any representations or warranties to or agreements with the Company or the underwriters other than representations, warranties or agreements regarding such Holder, the Registrable Stock of such Holder and such Holder’s intended method of distribution and any other representation required by law or reasonably required by the underwriter.
(c) Notwithstanding any other provision of this Section 2.1 or Section 2.32 to the contrary, if the managing underwriter of an underwritten offering of the Registrable Stock required to be registered pursuant to this Section 2 advises the Company Holders in writing that in its opinion marketing factors require a limitation of the number of securities shares to be underwritten (including Registrable Securities)underwritten, then the Company Holders shall so advise all Holders of Registrable Securities Stock that would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Stock that may be included in the underwriting such underwritten offering shall be allocated among all such Holders, including the Holders, in proportion (as nearly as practicable) to the Holders of such Registrable Securities on a pro rata basis based on the number amount of Registrable Securities held by all such Holders (including the Initiating Holders), or Stock requested to be included in such other proportions as mutually agreed to registration by such selling Holderseach Holder at the time of filing the registration statement; provided, however, that in the event of such limitation of the number of shares of Registrable Securities Stock to be included in such underwriting and underwritten, the Holders shall be entitled to an additional demand registration shall not be reduced unless all other securities pursuant to this Section 2. If any Holder of Registrable Stock disapproves of the Company are first entirely excluded from terms of the underwriting underwriting, such Holder may elect to withdraw by written notice to the Company, the managing underwriter and registrationthe Holders. Any Registrable Securities excluded or The securities so withdrawn from such underwriting shall also be withdrawn from the registration.
(cd) The Notwithstanding any provision of this Agreement to the contrary, the Company shall not be required to effect a registration pursuant to this Section 2.1:
(i) prior to the earlier of September 30, 2015 or six months after the Initial Offering;
(ii) after the Company has effected three registrations pursuant to this Section 2.1 and either (A) all such registrations have been declared or ordered effective or (B) the request for such registration statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have not paid the Registration Expenses of such withdrawn registration; provided, however, that for purposes of Section 2.1, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Section 2.1(b), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have requested to be included in such registration statement are actually included;
(iii) 2 during the period starting with the fourteenth (14th) day immediately preceding the date of an anticipated filing by the Company of, and ending on the a date one hundred eighty (180) days following, the effective date of the registration statement pertaining to the Initial Offering; provided that the Company makes reasonable efforts to cause the registration statement for the Initial Offering to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.1(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for its Initial Offering within ninety (90) days;
(v) if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.1, a certificate signed by the Chairman of the Board of Directors of the Company (the “Board”) stating that, in the good faith judgment of the Board, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt following the effective date of, a registration statement pertaining to a public offering of securities for the account of the request of the Initiating HoldersCompany; provided that such right to delay a request shall be exercised by the Company not more than once in any 12 month period; and provided further provided, that the Company shall not register any securities for its own account or actively employ in good faith all reasonable efforts to cause such registration statement to become effective; and provided further, that the Company’s estimate of any other stockholder during the date of filing such ninety (90) day period;registration statement shall be made in good faith.
(vie) The Company shall be obligated to effect and pay for a total of only one (1) registration pursuant to this Section 2, unless increased pursuant to Section 2(c) hereof; provided, that a registration requested pursuant to this Section 2 shall not be deemed to have been effected for purposes of this Section 2(e), unless (i) it has been declared effective by the Commission (ii) if it is a shelf registration, it has remained effective for the Initiating Holders propose period set forth in Section 3(b), (iii) the offering of Registrable Stock pursuant to dispose such registration is not subject to any stop order, injunction or other order or requirement of the Commission (other than any such action prompted by any act or omission of the Holders), and (iv) no limitation of the number of shares of Registrable Securities that may Stock to be immediately registered on Form S-3 pursuant to a request made underwritten has been required pursuant to Section 2.3 below; or
(vii2(c) if the Company has, within the six month period preceding the date of such request, already effected a demand registration for the Holders pursuant to this Section 2.1 and such registration has been declared or ordered effectivehereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Digifonica International Corp)
Demand Registration. (a) Subject to the Holder's rights to convert all or part of the Debentures, the Borrower hereby agrees to register, subject to the terms and conditions set forth herein, all or any portion of this Section 2.1, the Registrable Securities on one occasion at least 18 months after Closing if the Company it shall receive a written request from Initiating the Holders of at least thirty-three percent (33%) of the Registrable Securities Then Outstanding that the Company Borrower file a registration statement under the Securities 1933 Act covering the registration of at least a majority of the Registrable Securities resulting in net offering proceeds Then Outstanding. The Borrower shall, within 20 days of at least $20,000,000its receipt thereof, then the Company will (x) promptly give written notice of the requested registration such request to all Holders and (y) prepare and file of record of Registrable Securities. The Holders of said Registrable Securities shall then have 15 days from the date of mailing of such notice by the Borrower to request that all or a registration statement and otherwise portion of their respective Registrable Securities be included in said registration. The Borrower hereby agrees, subject to the limitations hereof, to use its best reasonable efforts to cause such shareseffect as soon as reasonably possible, and in any event (if legally possible, and as allowed by the SEC, and if no factor outside the Borrower's reasonable control prevents it) within 150 days of the receipt of the initial written registration request, to effect the registration under the 1933 Act of all Registrable Securities of any Holder or which the Holders joining in such registration pursuant to a written request delivered to thereof (the Company within thirty (30"Initiating Holders") days after receipt by such Holder or Holders of initial written notice from the Company, to be registered under the Securities Act within ninety (90) days of the requesthave requested.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, then the Initiating Holders they shall so advise the Company Borrower as a part of their written request made pursuant to this Section 2.1 or any request pursuant to Section 2.3Agreement, and the Company Borrower shall include such information in the written notice to the other Holders of Registrable Securities referred to in Section 2.1(a) or Section 2.3(a9.01(a), as applicable. In such event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s 's participation in such underwriting and the inclusion of such Holder’s 's Registrable Securities in the underwriting (unless otherwise mutually agreed by the Borrower, the underwriter, a majority in interest of the Initiating Holders and such Holder) is limited to the extent provided herein. The Company shall (together with all All Holders proposing to distribute their Registrable Securities securities through such underwritingunderwriting shall (together with the Borrower as provided in Section 9.03(e)) enter into an underwriting agreement in customary form with the underwriter or AGREEMENT (CONTINUED) underwriters selected for such underwriting by mutual agreement of the Company (which underwriter or underwriters shall be reasonably acceptable to Borrower and a majority in interest of the Initiating Holders), which agreement shall not be unreasonably withheld. Notwithstanding any other provision of this Section 2.1 or Section 2.39.01, if the underwriter advises the Company Initiating Holders and the Borrower in writing that marketing factors require a limitation of the number of securities shares to be underwritten (including Registrable Securities)underwritten, then the Company Initiating Holder(s) shall so advise all Holders of Registrable Securities that which would otherwise be underwritten pursuant hereto, and the number of shares 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 among all such Holders (including the Initiating Holders), or that have requested to participate in such other proportions as mutually agreed to by such selling Holders; provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting The rights of Holders shall be withdrawn from the registrationsenior to those of any Persons subsequently granted registration rights.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.1:
(i) prior to Notwithstanding the earlier of September 30foregoing, 2015 or six months after the Initial Offering;
(ii) after the Company has effected three registrations pursuant to this Section 2.1 and either (A) all such registrations have been declared or ordered effective or (B) the request for such registration statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have not paid the Registration Expenses of such withdrawn registration; provided, however, that for purposes of Section 2.1, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Section 2.1(b), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have requested to be included in such registration statement are actually included;
(iii) during the period starting with the date of filing of, and ending on the date one hundred eighty (180) days following, the effective date of the registration statement pertaining to the Initial Offering; provided that the Company makes reasonable efforts to cause the registration statement for the Initial Offering to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.1(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for its Initial Offering within ninety (90) days;
(v) if the Company Borrower shall furnish to the Initiating Holders requesting a registration statement pursuant to this Section 2.1, a certificate signed by the Chairman President of the Borrower stating that in the good faith judgment of the Board of Directors of the Company (the “Board”) stating that, in the good faith judgment of the BoardBorrower, it would be seriously materially detrimental to the Company Borrower and its stockholders shareholders for such registration statement to be effected filed at such that time, in which event and it is therefore essential to defer the Company filing of such registration statement, the Borrower shall have the right to defer the commencement of such a filing for a period of not more than ninety (90) 180 days after receipt of the request of the Initiating Holders; provided provided, however, that at least 12 months must elapse between any two such right to delay a request shall be exercised by the Company not more than once in any 12 month period; and provided further that the Company shall not register any securities for its own account or that of any other stockholder during such ninety (90) day period;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.3 below; or
(vii) if the Company has, within the six month period preceding the date of such request, already effected a demand registration for the Holders pursuant to this Section 2.1 and such registration has been declared or ordered effectivedeferrals.
Appears in 1 contract
Samples: Convertible Loan Agreement (Play by Play Toys & Novelties Inc)
Demand Registration. (a) Subject to Commencing six (6) months following the conditions consummation of this Section 2.1the Merger, if any Holder or group of Holders holding, in the Company shall receive a written request from Initiating Holders that the Company file a registration statement under the Securities Act covering the registration aggregate, thirty-five percent (35%) or more of the Registrable Securities resulting then issued and outstanding (the “Outstanding Amount”) shall have the right, by written notice given to the Company (a “Demand Notice”), to request the Company to register under and in net offering proceeds accordance with the provisions of the Securities Act all or any portion of the Registrable Securities designated by such Holder(s). Each request for a Demand Registration shall be in writing and shall specify the approximate aggregate number of Registrable Securities requested to be registered (which aggregate number of Registrable Securities must have a value equal to at least $20,000,00010,000,000 based on the closing price of such securities on the last trading day prior to the date of such request or, then in the case no closing price is available, at the anticipated price offered to the public and the intended method of distribution. In no event shall the Company will be obligated to effectuate more than two (x2) promptly give written notice of the requested registration to all Holders and Demand Registrations nor more than one (y1) prepare and file a registration statement and otherwise use its best efforts to cause such shares, and all Registrable Securities of in any Holder or Holders joining in such registration pursuant to a written request delivered to the Company within thirty (30) days after receipt by such Holder or Holders of initial written notice from the Company, to be registered under the Securities Act within ninety (90) days of the requesttwelve month period.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means Upon receipt of an underwritinga Demand Notice, then the Initiating Holders shall so advise the Company as a part of their written request made pursuant to this Section 2.1 or any request pursuant to Section 2.3, and the Company shall include promptly (and in any event within ten (10) Business Days from the date of receipt of such information in the written notice referred to in Section 2.1(a) or Section 2.3(aDemand Notice), as applicable. In notify all other Holders, if any, of the receipt of such event, Demand Notice and allow them the right of any Holder opportunity to include 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. The Company shall (together with all Holders proposing to distribute their Registrable Securities through such underwriting) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company (which underwriter or underwriters shall be reasonably acceptable to a majority in interest of the Initiating Holders). Notwithstanding any other provision of this Section 2.1 or Section 2.3, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares 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 them in the proposed registration by submitting their own Demand Notice. In connection with any Demand Registration in which more than one Holder participates, in the event that such Holders (Demand Registration, including any Shelf Takedown thereunder, involves an underwritten offering and the Initiating Holders), managing underwriter or underwriters participating in such other proportions as mutually agreed to by such selling Holders; provided, however, that offering advise in writing the number of shares Holders of Registrable Securities to be included in such underwriting and registration shall not offering that the total number of Registrable Securities to be reduced unless all other securities included in such offering exceeds the amount that can be sold in (or during the time of) such offering without delaying or jeopardizing the success of such offering (including the price per share of the Company are first entirely excluded Registrable Securities to be sold), then the Registrable Securities to be offered shall be distributed amongst the participating Holders according to each Holder’s overall percentage of ownership in the Company. In the event of such a pro-rata distribution, to the extent that any Holder (or Holders) has not submitted a Demand Notice, or withdraws from the underwriting and registration. Any underwriting, then those Registrable Securities excluded or withdrawn from such underwriting that would have been allocated pro-rata to the non-participating Holder if they had participated shall be withdrawn from distributed amongst the registrationparticipating Holders, pro rata according to each participating Holder’s overall percentage of ownership in the Company.
(c) The Company, within sixty (60) days of the date on which the Company receives a Demand Notice given by Holders in accordance with Section 3(a), shall file with the SEC, and the Company shall not thereafter use its reasonable best efforts to cause to be required to effect a registration pursuant to this Section 2.1:
(i) prior to the earlier of September 30, 2015 or six months after the Initial Offering;
(ii) after the Company has effected three registrations pursuant to this Section 2.1 and either (A) all such registrations have been declared or ordered effective or (B) the request for such registration statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have not paid the Registration Expenses of such withdrawn registration; provided, however, that for purposes of Section 2.1as promptly as practicable, a Registration Statement on the appropriate form for the registration shall not be counted as “effected” ifand sale, as a result in accordance with the intended method or methods of an exercise of the underwriter’s cutback provisions in Section 2.1(b)distribution, fewer than fifty percent (50%) of the total number of Registrable Securities that specified by the Holders have requested to be included in such registration statement are actually included;Demand Notice (a “Demand Registration”). Any Demand Registration may, at the request of the Holders submitting the Demand Notice, be a Shelf Registration to the extent the Company is eligible to use the relevant form for a Shelf Registration.
(iiid) during The Company shall use its commercially reasonable efforts to keep each Registration Statement filed pursuant to this Section 3 continuously effective and usable for the resale of the Registrable Securities covered thereby (i) in the case of a Registration that is not a Shelf Registration, for a period starting with of one hundred twenty (120) days from the date on which the SEC declares such Registration Statement effective and (ii) in the case of filing ofa Shelf Registration, for a period of three (3) years from the date on which the SEC declares such Registration Statement effective, or, in either case (x) until such earlier date as all of the Registrable Securities covered by such Registration Statement have been sold pursuant to such Registration Statement, and ending on (y) as such period may be extended pursuant to this Section 3. The time period for which the date one hundred eighty Company is required to maintain the effectiveness of any Registration Statement shall be extended by the aggregate number of days of all Delay Periods and all Interruption Periods occurring with respect to such Registration and such period and any extension thereof is hereinafter referred to as the “Effectiveness Period”. If any Registrable Securities remain issued and outstanding after thirty (18030) days following, full months following the initial effective date of a Shelf Registration filed pursuant to this Section 3, upon the registration statement pertaining to request of Holder(s) of at least ten percent (10%) of the Initial Offering; provided that Registrable Securities then issued and outstanding, the Company makes reasonable efforts to cause the registration statement for the Initial Offering to become effective;
(iv) if shall, within thirty (30) days of receipt such request, file a new Shelf Registration and shall thereafter use its reasonable best efforts to cause to be declared effective as promptly as practical, such new Shelf Registration; any such new Shelf Registration shall not be deemed a new Demand Registration for purposes of a written request from Initiating Holders pursuant the limitation set forth in the final sentence of Section 3(a).
(e) The Company shall be entitled to Section 2.1(a), postpone the filing of any Registration Statement otherwise required to be prepared and filed by the Company gives notice to the Holders of the Company’s intention to file a registration statement for its Initial Offering within ninety (90) days;
(v) if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.13, or suspend the use of any effective Registration Statement under this Section 3, for a certificate signed by the Chairman reasonable period of time, if the Board of Directors of the Company (the “Board”) stating that, determines in the Board of Directors’ reasonable good faith judgment that the registration and distribution of the BoardRegistrable Securities covered or to be covered by such Registration Statement would (i) materially interfere with any pending material financing, it would acquisition, disposition, or corporate reorganization involving the Company or any of its subsidiaries, taken as a whole, (ii) require premature disclosure thereof, or (iii) be seriously detrimental to the Company and its stockholders for shareholders, which such registration statement to determination shall be effected at such time, in which event the Company shall have the right to defer such filing for made by a period of not more than ninety (90) days after receipt majority of the request members then serving on the Company’s Board of Directors, and, following the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than once in any 12 month period; and provided further that the Company shall not register any securities for its own account or that making of any other stockholder during such ninety (90) day period;
(vi) if determination, promptly gives the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.3 below; or
(vii) if the Company has, within the six month period preceding the date written notice of such request, already effected determination (the period during which the filing of a demand registration for the Holders Registration Statement is delayed pursuant to this Section 2.1 and 3(e) is referred to herein as a “Delay Period”); provided, however, that the aggregate number of days included in all Delay Periods during any consecutive twelve (12) months preceding any new Delay Period shall not exceed the aggregate of (x) forty-five (45) days minus (y) the number of days occurring during all Interruption Periods during such registration has been declared or ordered effective.consecutive twelve (12)
Appears in 1 contract
Samples: Merger Agreement (Stratasys Inc)
Demand Registration. (a) Subject If, pursuant to the conditions of this Section 2.1, if the Company shall receive a written request from Initiating Holders that the Company file a registration statement under the Securities Act covering the registration of the Registrable Securities resulting in net offering proceeds of at least $20,000,000, then the Company will (x) promptly give written notice of the requested registration to all Holders and (y) prepare and file a registration statement and otherwise use its best efforts to cause such shares, and all Registrable Securities of any Holder or Holders joining in such registration pursuant to a written request delivered to the Company within thirty (30) days after receipt by such Holder or Holders of initial written notice from the Company, to be registered under the Securities Act within ninety (90) days of the request.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, then the Initiating Holders they shall so advise the Company as a part of their written request made pursuant to this Section 2.1 or any request pursuant to Section 2.32.1, and the Company shall include such information in the written notice referred Demand Notice. The underwriter(s) will be selected by the Initiating Holders, subject only to in Section 2.1(a) or Section 2.3(a), as applicablethe reasonable approval of the Company. In such event, the right of any Holder to include its such Holder’s 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. The Company shall (together with all All Holders proposing to distribute their Registrable Securities securities through such underwritingunderwriting shall (together with the Company as provided in Section 2.4(f)) enter into an underwriting agreement in customary form with the underwriter or underwriters underwriter(s) selected for such underwriting underwriting. If any Holder disapproves of the terms of any such underwriting, such Holder may elect to withdraw therefrom by promptly delivering written notice to the Company (which underwriter and the underwriter. Any Registrable Securities excluded or underwriters withdrawn from such underwriting shall be reasonably acceptable to excluded and withdrawn from the registration unless such registration is a majority in interest registration statement for a delayed or continuous offering under Rule 415 of the Initiating Holders)Securities Act. Notwithstanding any other provision of this Section 2.1 or Section 2.3, if the underwriter advises underwriter(s) advise(s) the Company Initiating Holders in writing that marketing factors require a limitation of on the number of securities shares to be underwritten (including Registrable Securities)underwritten, then the Company Initiating Holders shall so advise all Holders of Registrable Securities that otherwise would otherwise be underwritten pursuant hereto, and the number of shares Registrable Securities that may be included in the underwriting shall be allocated to the among such Holders of such Registrable Securities on a pro rata basis based on Securities, including the Initiating Holders, in proportion (as nearly as practicable) to the number of Registrable Securities held owned by all such Holders (including the Initiating Holders), each Holder or in such other proportions proportion as shall mutually be agreed to by all such selling Holders; provided, however, that the number of shares of Registrable Securities held by the Holders to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting underwriting; provided, further, that Holders of Series F Preferred Stock and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company Series G Preferred Stock shall not be required to effect a registration pursuant to this Section 2.1:
(i) prior to affected by any such limitation until such time as the earlier of September 30, 2015 or six months after the Initial Offering;
(ii) after the Company has effected three registrations pursuant to this Section 2.1 and either (A) all such registrations limitation shall have been declared or ordered effective or (B) the request for such registration statements has been subsequently withdrawn by the Initiating applied to all other Holders and the Initiating Holders have not paid the Registration Expenses of such withdrawn registration; provided, however, that for purposes of Section 2.1, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Section 2.1(b), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have requested to be included Securities. To facilitate the allocation of shares in such registration statement are actually included;
(iii) during the period starting accordance with the date of filing of, and ending on the date one hundred eighty (180) days following, the effective date of the registration statement pertaining to the Initial Offering; provided that the Company makes reasonable efforts to cause the registration statement for the Initial Offering to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.1(a)above provisions, the Company gives notice or the underwriters may round the number of shares allocated to any Holder to the Holders of the Company’s intention to file a registration statement for its Initial Offering within ninety (90) days;
(v) if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.1, a certificate signed by the Chairman of the Board of Directors of the Company (the “Board”) stating that, in the good faith judgment of the Board, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than once in any 12 month period; and provided further that the Company shall not register any securities for its own account or that of any other stockholder during such ninety (90) day period;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.3 below; or
(vii) if the Company has, within the six month period preceding the date of such request, already effected a demand registration for the Holders pursuant to this Section 2.1 and such registration has been declared or ordered effectivenearest 100 shares.
Appears in 1 contract
Demand Registration. (a) Subject Borrower hereby agrees to register all or any portion of the conditions of this Section 2.1Registrable Securities on one occasion if, if the Company and only if, it shall receive a written request from a Holder (the "Initiating Holders Holder") that the Company Borrower file a registration statement under the Securities 1933 Act covering the registration of at least 25% of the Registrable Securities resulting in net offering proceeds Then Outstanding. Borrower shall, within 20 days of at least $20,000,000its receipt thereof, then the Company will (x) promptly give written notice of the requested registration such request to all Holders and (y) prepare and file a registration statement and otherwise use its best efforts to cause such shares, and all of record of Registrable Securities. The Holders of said Registrable Securities of any Holder or Holders joining in such registration pursuant to a written request delivered to the Company within thirty (30) shall then have 15 days after receipt by such Holder or Holders of initial written notice from the Company, date of mailing of such notice by Borrower to request that all or a portion of their respective Registrable Securities be registered under the Securities Act within ninety (90) days of the requestincluded in said registration.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an a firm underwriting, then the Initiating Holders they shall so advise the Company Borrower as a part of their written request made pursuant to this Section 2.1 or any request pursuant to Section 2.3Agreement, and the Company Borrower shall include such information in the written notice to the other Holders of Registrable Securities referred to in Section 2.1(a) or Section 2.3(a9.01(a), as applicable. In such event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s 's participation in such underwriting and the inclusion of such Holder’s 's Registrable Securities in the underwriting (unless otherwise mutually agreed by Borrower, the underwriter, the Initiating Holder and such Holder) is limited to the extent provided herein. The Company shall (together with all All Holders proposing to distribute their Registrable Securities securities through such underwritingunderwriting shall (together with Borrower as provided in Section 9.04(e)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company (which underwriter or underwriters shall be reasonably acceptable to a majority in interest mutual agreement of Borrower and the Initiating Holders)Holder, which agreement shall not be unreasonably withheld. Notwithstanding any other provision of this Section 2.1 or Section 2.39.01, if the underwriter advises the Company Initiating Holder and Borrower in writing that marketing factors require a limitation of the number of securities shares to be underwritten (including Registrable Securities)underwritten, then the Company Initiating Holder shall so advise all Holders of Registrable Securities that which would otherwise be underwritten pursuant hereto, and the number of shares 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 among all such Holders (including the Initiating Holders), or that have requested to participate in such other proportions as mutually agreed to by such selling Holders; provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities registration. The rights of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting Holders shall be withdrawn from the registrationPARI PASSU to those of any other Persons previously granted demand registration rights and senior to those of any other Person subsequently granted demand registration rights.
(c) The Company Each such registration shall remain effective for a period of 180 days, unless the Initiating Holder otherwise determines. Notwithstanding the foregoing, if the Holders' elect not to sell all or any portion of the Registrable Securities pursuant to a demand registration which has become effective, such demand registration right shall nonetheless be deemed satisfied.
(d) If, after a registration statement becomes effective, Borrower advises the Holders that the registration statement is required to effect a be amended under applicable federal securities laws, the Holders shall suspend any further sales of their Registrable Securities, until the Company advises them that the Agreement (Continued) -------------------------------------------------------------------------------- registration statement has been amended, but not more than thirty (30) days. The 180-day time period referred to in subsection (c) during which the registration statement must be kept current after its effective date shall be extended for an additional number of business days equal to the number of business days during which the right to sell the Registrable Securities was suspended pursuant to this Section 2.1:the preceding sentence.
(ie) prior to the earlier of September 30, 2015 or six months after the Initial Offering;
(ii) after the Company has effected three registrations pursuant to this Section 2.1 and either (A) all such registrations have been declared or ordered effective or (B) the request No demand for such registration statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have not paid the Registration Expenses of such withdrawn registration; provided, however, that may be made for purposes of Section 2.1, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Section 2.1(b), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have requested to be included in such registration statement are actually included;
(iii) during the period starting with the date of filing of, and ending on the date one hundred eighty (180) days following, the effective date 180)-day period following completion of the registration statement pertaining to the Initial Offering; provided that the Company makes reasonable efforts to cause the registration statement for the Initial Offering to become effective;
(iv) if within thirty (30) days another underwritten offering of receipt of a written request from Initiating Holders pursuant to Section 2.1(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for its Initial Offering within ninety (90) days;
(v) if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.1, a certificate signed by the Chairman of the Board of Directors of the Company (the “Board”) stating that, in the good faith judgment of the Board, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than once in any 12 month period; and provided further that the Company shall not register any securities for its own account or that of any other stockholder during such ninety (90) day period;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.3 below; or
(vii) if the Company has, within the six month period preceding the date of such request, already effected a demand registration for the Holders pursuant to this Section 2.1 and such registration has been declared or ordered effectiveBorrower's equity securities.
Appears in 1 contract
Demand Registration. (a) Subject to If the conditions of this Registration Statement described in Section 2.12 above is not effective by the Due Date, if Initiating Holders may notify the Company shall receive a written request from Initiating Holders in writing and demand that the Company file a registration statement under the Securities Act (a "Demand Registration Statement") covering the registration resale of the Registrable Securities resulting in net offering proceeds then outstanding held by such Holders. Upon receipt of at least $20,000,000such notice, then the Company will shall, within ten (x10) promptly days thereafter, give written notice of the requested registration such request to all Holders and (y) prepare and file a registration statement and otherwise use its best efforts shall, subject to cause such sharesthe limitations of subsection 3(b), as soon as practicable, and in any event within 60 days after the receipt of such request, include in the Demand Registration Statement all Registrable Securities of any Holder or which the Holders joining in such registration pursuant to a written request delivered request, by notice given to the Company within thirty (30) days after receipt by such Holder or Holders of initial written notice from the Company, to be registered under the Securities Act within ninety (9010) days of receipt of the requestCompany's notice.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, then the Initiating Holders they shall so advise the Company as a part of their written request made pursuant to this Section 2.1 or any request pursuant to Section 2.3, 3 and the Company shall include such information in the written notice referred to in Section 2.1(a) or Section 2.3(asubsection 3(a), as applicable. In such event, the right of any other Holder to include its his Registrable Securities in such registration shall be conditioned upon such Holder’s 's participation in such underwriting and the inclusion of such Holder’s 's Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. The Company shall (together with all All Holders proposing to distribute their Registrable Securities securities through such underwritingunderwriting shall (together with the Company as provided in subsection 6(f)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company (which underwriter or underwriters shall be reasonably acceptable to a majority in interest of the Initiating Holders), and reasonably acceptable to the Company. Notwithstanding The Holder will not be required to make any representation other provision of this Section 2.1 or Section 2.3, if the underwriter advises the Company that marketing factors require a limitation than as to its ownership of the number of securities to be underwritten (including Registrable Securities), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number its intended method of shares 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), or in such other proportions as mutually agreed to by such selling Holders; provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registrationdistribution.
(c) The Company is obligated to effect only one demand registration pursuant to Section 3 of this Agreement. The Company agrees to include all Registrable Securities held by all Holders in such Registration Statement without cutback or reduction. In the event the Company breaches its obligation of the preceding sentence, any Holders of the Registrable Securities which were not included in such Registration Statement shall be entitled to such a second demand registration for such excluded securities and the Company shall keep such registration statement effective as required by Section 6. The Company is not be required obligated to effect a demand registration pursuant to under this Section 2.1:
(i) prior to the earlier of September 30, 2015 or six months after the Initial Offering;
(ii) after the Company has effected three registrations pursuant to this Section 2.1 and either (A) all such registrations have been declared or ordered effective or (B) the request for such registration statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have not paid the Registration Expenses of such withdrawn registration; provided, however, that for purposes of Section 2.1, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Section 2.1(b), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have requested to be included in such registration statement are actually included;
(iii) during the period starting with the date of filing of, and ending on the date one hundred eighty (180) days following, the effective date of the registration statement pertaining to the Initial Offering; provided that the Company makes reasonable efforts to cause the registration statement for the Initial Offering to become effective;
(iv) 3 if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.1(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for its Initial Offering within ninety (90) days;
(v) if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.1, a certificate signed by the Chairman of the Board of Directors of the Company (the “Board”) stating that, in the good faith judgment opinion of the Board, it would be seriously detrimental counsel to the Company and its stockholders reasonably acceptable to the person or persons from whom written request for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than once in any 12 month period; and provided further that the Company shall not register any securities for its own account or that of any other stockholder during such ninety (90) day period;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.3 below; or
(vii) if the Company has, within the six month period preceding the date of such request, already effected a demand registration for the Holders pursuant to this Section 2.1 and such registration has been declared received (and satisfactory to the Company's transfer agent to permit the transfer) that registration under the Act is not required for the immediate transfer of all of the Registrable Securities pursuant to Rule 144 or ordered effectiveother applicable provision. Such opinion shall be addressed to the Holder at the Holder's Request.
Appears in 1 contract
Demand Registration. (a) Subject to the conditions of this Section 2.1Commencing February 9, if the Company shall receive 2007, any Requesting Holder may make a written request from Initiating Holders to the Company (specifying that it is being made pursuant to this Section 2) that the Company file a registration statement under the Securities 1933 Act (or a similar document pursuant to any other statute then in effect corresponding to the 1000 Xxx) covering the registration of the Registrable Securities resulting in net offering proceeds of at least $20,000,000, then Stock. In such event the Company will shall (xi) promptly give written notice within ten (10) days thereafter notify in writing all other Holders of the requested registration to all Holders Registrable Stock of such request, and (yii) prepare and file a registration statement and otherwise use its best commercially reasonable efforts to cause such shares, registration statement to be prepared and filed with the Commission under the 1933 Act registering the resale of all Registrable Securities of any Holder or Stock that the Requesting Holders joining in and such registration pursuant to a written request delivered to the Company other Holders have, within thirty forty-five (3045) days after receipt by the Company has given such Holder or Holders of initial written notice from the Companynotice, to requested be registered under the Securities Act within ninety (90) days of the requestregistered.
(b) If the Initiating Holders intend to distribute the Registrable Securities Stock covered by their request by means of an underwritingunderwritten offering, then the Initiating Holders they shall so advise the Company as a part of their written request made pursuant to this Section 2.1 or any request pursuant to Section 2.3, and the Company shall include such information in the written notice referred to in Section 2.1(a) or Section 2.3(a), as applicableCompany. In such event, the right of any Holder to include 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. The Company shall (together with all All Holders proposing to distribute their Registrable Securities Stock through such underwriting) underwritten offering shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company (which underwriters. Such underwriter or underwriters shall be reasonably acceptable to selected by a majority in interest of the Initiating Holders and shall be approved by the Company, which approval shall not be unreasonably withheld; provided, that all of the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of such underwriters shall also be made to and for the benefit of such Holders and that any or all of the conditions precedent to the obligations of such underwriters under such underwriting agreement shall be conditions precedent to the obligations of such Holders). ; and provided further, that no Holder shall be required to make any representations or warranties to or agreements with the Company or the underwriters other than representations, warranties or agreements regarding such Holder, the Registrable Stock of such Holder and such Holder’s intended method of distribution and any other representation required by law or reasonably required by the underwriter.
(c) Notwithstanding any other provision of this Section 2.1 or Section 2.32 to the contrary, if the managing underwriter of an underwritten offering of the Registrable Stock required to be registered pursuant to this Section 2 advises the Company Holders in writing that in its opinion marketing factors require a limitation of the number of securities shares to be underwritten (including Registrable Securities)underwritten, then the Company Holders shall so advise all Holders of Registrable Securities Stock that would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Stock that may be included in the underwriting such underwritten offering shall be allocated among all such Holders, including the Holders, in proportion (as nearly as practicable) to the Holders of such Registrable Securities on a pro rata basis based on the number amount of Registrable Securities held by all such Holders (including the Initiating Holders), or Stock requested to be included in such other proportions as mutually agreed to registration by such selling Holderseach Holder at the time of filing the registration statement; provided, however, that in the event of such limitation of the number of shares of Registrable Securities Stock to be included in such underwriting and underwritten, the Holders shall be entitled to an additional demand registration shall not be reduced unless all other securities pursuant to this Section 2. If any Holder of Registrable Stock disapproves of the Company are first entirely excluded from terms of the underwriting underwriting, such Holder may elect to withdraw by written notice to the Company, the managing underwriter and registrationthe Holders. Any Registrable Securities excluded or The securities so withdrawn from such underwriting shall also be withdrawn from the registration.
(cd) The Notwithstanding any provision of this Agreement to the contrary, the Company shall not be required to effect a registration pursuant to this Section 2.1:
(i) prior to the earlier of September 30, 2015 or six months after the Initial Offering;
(ii) after the Company has effected three registrations pursuant to this Section 2.1 and either (A) all such registrations have been declared or ordered effective or (B) the request for such registration statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have not paid the Registration Expenses of such withdrawn registration; provided, however, that for purposes of Section 2.1, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Section 2.1(b), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have requested to be included in such registration statement are actually included;
(iii) 2 during the period starting with the fourteenth (14th) day immediately preceding the date of an anticipated filing by the Company of, and ending on the a date one hundred eighty (180) days following, the effective date of the registration statement pertaining to the Initial Offering; provided that the Company makes reasonable efforts to cause the registration statement for the Initial Offering to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.1(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for its Initial Offering within ninety (90) days;
(v) if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.1, a certificate signed by the Chairman of the Board of Directors of the Company (the “Board”) stating that, in the good faith judgment of the Board, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt following the effective date of, a registration statement pertaining to a public offering of securities for the account of the request of the Initiating HoldersCompany; provided that such right to delay a request shall be exercised by the Company not more than once in any 12 month period; and provided further provided, that the Company shall not register any securities for its own account or actively employ in good faith all reasonable efforts to cause such registration statement to become effective; and provided further, that the Company’s estimate of any other stockholder during the date of filing such ninety (90) day period;registration statement shall be made in good faith.
(vie) The Company shall be obligated to effect and pay for a total of only one (1) registration pursuant to this Section 2, unless increased pursuant to Section 2(c) hereof; provided, that a registration requested pursuant to this Section 2 shall not be deemed to have been effected for purposes of this Section 2(e), unless (i) it has been declared effective by the Commission (ii) if it is a shelf registration, it has remained effective for the Initiating Holders propose period set forth in Section 3(b), (iii) the offering of Registrable Stock pursuant to dispose such registration is not subject to any stop order, injunction or other order or requirement of the Commission (other than any such action prompted by any act or omission of the Holders), and (iv) no limitation of the number of shares of Registrable Securities that may Stock to be immediately registered on Form S-3 pursuant to a request made underwritten has been required pursuant to Section 2.3 below; or
(vii2(c) if the Company has, within the six month period preceding the date of such request, already effected a demand registration for the Holders pursuant to this Section 2.1 and such registration has been declared or ordered effectivehereof.
Appears in 1 contract
Samples: Subscription Agreement (Digifonica International Corp)
Demand Registration. (a) Subject If at any time and from time to time on or after the conditions of this Section 2.1date hereof, if the Company shall receive a written request from Initiating Holders one or more Legato Founders or Key Shareholders (such Legato Founders or Key Shareholders, collectively, the “Requesting Shareholders”) that the Company file Company, (i) effect a registration statement under the Securities Act covering if any Registrable Securities are listed on a U.S. National Securities Exchange or the registration Company is otherwise subject to Section 13 or 15(d) of the Exchange Act, or (ii) effect a qualification for distribution by prospectus under Canada Securities Laws if any Registrable Securities are listed on a Canada National Securities Exchange or the Company is a reporting issuer in any province or territory of Canada under Canada Securities Laws, of all or any portion of the Requesting Shareholder’s Registrable Securities, specifying the intended method of disposition thereof, including whether to be conducted via an underwritten offering (each such request shall be referred to herein as a “Demand Registration”). The Company shall use its commercially reasonable efforts to effect, as expeditiously as possible, the filing of a Registration Filing and the effectiveness of the Demand Registration, or the filing of a prospectus under Canada Securities Laws and the issuance of a final receipt for such prospectus, or both, subject to the restrictions set forth in this ARTICLE III. The Company shall give reasonably prompt notice of a Demand Registration (and in no event later than 15 Business Days or 4 Business Days in the case of a Bought Deal prior to the anticipated filing date of the Registration Filing relating to such Demand Registration) to the other Legato Founders and Key Shareholders with respect to all other Registrable Securities of the same class as those requested to be registered by the Requesting Shareholders (all such Legato Founders and Key Shareholders, together with the Requesting Shareholders, and any other Shareholders participating in a Demand Registration or Piggyback Registration, the “Registering Shareholders”) that such Shareholders 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 commercially reasonable efforts to include all Registrable Securities requested to be registered by the Registering Shareholders in such Registration Filing. Notwithstanding the foregoing, the Company shall not be obligated to effect a Demand Registration (i) unless the aggregate proceeds expected to be received from the sale of the Registrable Securities resulting requested to be included in net offering proceeds of at least $20,000,000, then such Demand Registration equals or exceeds C$50,000,000 and (ii) if the Company will (x) promptly give written notice shall have effected a Demand Registration or Piggyback Registration in which Legato Founders and Key Shareholders had the opportunity to sell Registrable Securities within the four-month period prior to receipt of the requested registration to all Holders and (y) prepare and file a registration statement and otherwise use its best efforts to cause such shares, and all Registrable Securities of any Holder or Holders joining in such registration pursuant to a written request delivered to the Company within thirty (30) days after receipt by such Holder or Holders of initial written notice from the Company, to be registered under the Securities Act within ninety (90) days of the requestDemand Registration.
(b) If At any time prior to the Initiating Holders intend Public Offering Launch of a Demand Registration, the Requesting Shareholders may revoke such request, without liability to distribute any of the Registrable Securities covered other Registering Shareholders, by their request by means of an underwriting, then the Initiating Holders shall so advise providing a notice to the Company as a part of their written request made pursuant to this Section 2.1 or any request pursuant to Section 2.3, and the Company shall include revoking such information in the written notice referred to in Section 2.1(a) or Section 2.3(a), as applicable. In such event, the right of any Holder to include 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. The Company shall (together with all Holders proposing to distribute their Registrable Securities through such underwriting) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company (which underwriter or underwriters shall be reasonably acceptable to a majority in interest of the Initiating Holders). Notwithstanding any other provision of this Section 2.1 or Section 2.3, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares 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), or in such other proportions as mutually agreed to by such selling Holders; provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registrationrequest.
(c) The Company shall be liable for and pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Demand Registration is completed.
(d) A Demand Registration shall be deemed not be required to effect a registration pursuant to this Section 2.1have occurred:
(i) prior unless the Public Offering Pricing has been completed and a final Prospectus or Shelf Prospectus Supplement relating to the earlier applicable Registration Filing containing pricing information has been filed with the SEC or one or more Canada Securities Authorities; provided that a Demand Registration shall be deemed not to have occurred if either (1) such Registration Filing is interfered with by any cease trade or stop order, injunction or other order or requirement of September 30the SEC, 2015 a Canada Securities Authority or six months after any other governmental agency or court or (2) less than 75% of the Initial Offering;Registrable Securities included in such Registration Filing have been sold thereunder; or
(ii) after if the Maximum Offering Size is reduced in accordance with Section 3.1(e) such that less than 75% 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 underwriters advise the Company has effected three registrations pursuant to this Section 2.1 and either (A) all such registrations have been declared or ordered effective or (B) the request for such registration statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have not paid Registering Shareholders that, in their view, the Registration Expenses of such withdrawn registration; provided, however, that for purposes of Section 2.1, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Section 2.1(b), fewer than fifty percent (50%) of the total number amount of Registrable Securities that Holders have requested to be included in such registration statement are actually included;
Demand Registration (iii) during the period starting with the date of filing of, and ending on the date one hundred eighty (180) days following, the effective date of the registration statement pertaining to the Initial Offering; provided including any securities that the Company makes reasonable efforts proposes to cause include) exceeds the registration statement for largest amount of Registrable Securities that can be sold without having an adverse effect on such offering, including the Initial price at which such Registrable Securities can be sold (the “Maximum Offering to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.1(aSize”), the Company gives notice shall include in such registration, in the priority listed below, up to the Holders Maximum Offering Size:
(i) 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 Company’s intention to file a registration statement for its Initial Offering within ninety (90) days;relative number of Registrable Securities beneficially owned by such Registering Shareholders); and
(vii) second, any securities proposed to be registered by any other Persons (including the Company), with such priorities among them as the Company shall determine.
(f) 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 90 days (which period may not be extended or renewed), if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.1, provides a certificate signed by the Chairman of the Board of Directors principal executive officer of the Company (the “Board”) stating that, that in the good faith judgment judgement of the Board, Board that (A) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company reasonably believes would not be in the best interests of the Company or (B) that it would otherwise be seriously detrimental to the Company and its stockholders shareholders for such registration statement Demand Registration to be effected at such time. It is agreed that the existence or anticipation of a material acquisition or financing activity will be sufficient reason for the Company to postpone a Demand Registration.
(g) At any time that Legato Founders or Key Shareholders may request a Demand Registration, in which event upon the request of one or more Legato Founders or Key Shareholders that satisfy the Registration Requirements, the Company shall have the right use its commercially reasonable efforts to defer such filing file a Registration Filing for a period Shelf Registration with respect to the Registrable Securities and to cause such Shelf Registration to become effective. 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 a Demand Registration subject to the provisions of not more than ninety (90) days after receipt of the request of the Initiating HoldersSection 3.1(a); provided that such right none of (x) the filing of a Shelf Base Prospectus or (y) the filing of Shelf Prospectus Supplement that does not relate to delay an underwritten Public Offering and is only for the purpose of updating a request shall Shelf Base Prospectus with the identities of any selling shareholders, the amounts of securities to be exercised sold and any related information required by the Company not more than once in any 12 month period; and provided further that the applicable Registration Filing, shall constitute a Demand Registration. The Company shall not register any securities for its own account or that give notice of any other stockholder during such ninety (90) day period;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 Shelf Registration pursuant to a request made pursuant to the procedures in Section 2.3 below; or
(vii) if the Company has, within the six month period preceding the date of such request, already effected a demand registration for the Holders pursuant to this Section 2.1 and such registration has been declared or ordered effective3.1(a).
Appears in 1 contract
Samples: Investor Rights Agreement (Algoma Steel Group Inc.)
Demand Registration. (a) Subject to the conditions of this Section 2.1, if If the Company shall receive receives a written request from the Initiating Holders that the Company file a registration statement under the Securities Act covering the sale of Registrable Securities that, if completed, would result in a public offering of equity securities of the Company having an aggregate offering price to the public in excess of $15,000,000, then the Company will, within 30 days of the receipt thereof, give written notice of such request to all other Holders and effect, as soon as practicable, the registration under the Securities Act of all Registrable Securities that the Holders request to be registered. Each Holder desiring to include in any such registration statement all or any part of the Registrable Securities resulting in net offering proceeds of at least $20,000,000held by it will, then the Company will (x) promptly give written notice of the requested registration to all Holders and (y) prepare and file a registration statement and otherwise use its best efforts to cause such shares, and all Registrable Securities of any Holder or Holders joining in such registration pursuant to a written request delivered to the Company within thirty (30) 15 days after receipt by such Holder or Holders of initial written the above-described notice from the Company, to be registered under so notify the Securities Act within ninety (90) days of the requestCompany in writing.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, then the Initiating Holders shall they will so advise the Company as a part of their written request made pursuant to this Section 2.1 or any request pursuant to Section 2.3, 2.2 and the Company shall will include such information in the written notice referred to in Section 2.1(a) or Section 2.3(a2.2(a), as applicable. In such event, the right of any Holder to include its Registrable Securities in such registration shall will be conditioned upon such Holder’s 's participation in such underwriting and the inclusion of such Holder’s 's Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. The Company shall (together with all All Holders proposing to distribute their Registrable Securities securities through such underwriting) underwriting will enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company (which underwriter or underwriters shall be reasonably acceptable to a majority in interest of the Initiating Holders)Company. Notwithstanding any other provision of this Section 2.1 or Section 2.32.2, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities), ) then the Company shall will so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall will be allocated first, to the holders of Common Stock issued or issuable upon conversion of Series J Preferred Stock who have exercised Registration rights pursuant to Section 2.3 of the Investors Rights Agreement dated as of September 30, 1997; and, second, to the Holders of such Registrable Securities that would otherwise be underwritten pursuant hereto on a pro rata basis based on the number of Registrable Securities held by all such Holders (including the Initiating Holders), or in such other proportions as mutually agreed to by such selling Holders; provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall will be withdrawn from the registration. Notwithstanding the foregoing, the Company may, if approved by its Board of Directors, unilaterally amend this Section from time to time to provide purchasers of Equity Securities issued after May 31, 1998 with allocation rights prior to those of Holders; provided that such rights may not have priority over the rights of Holders to register Series K Securities hereunder.
(c) The Company shall will not be required to effect a registration pursuant to this Section 2.12.2:
(i) prior to the earlier of September 30, 2015 or six months after the Initial Offering;
(ii) after the Company has effected three registrations pursuant to this Section 2.1 and either (A) all such registrations have been declared or ordered effective or (B) the request for such registration statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have not paid the Registration Expenses of such withdrawn registration; provided, however, that for purposes of Section 2.1, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Section 2.1(b), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have requested to be included in such registration statement are actually included;
(iii1) during the period starting with the date of filing of, and ending on the date one hundred eighty (180) 180 days following, following the effective date of the registration statement pertaining to the Initial Offering; , provided that the Company makes is making reasonable and good faith efforts to cause the such registration statement for the Initial Offering to become effective;
(iv2) if if, within thirty (30) 30 days of receipt of a written request from the Initiating Holders pursuant to Section 2.1(a2.2(a), the Company gives notice to notifies the Holders of the Company’s its intention to file a registration statement for with respect to a public offering of its Initial Offering Common Stock (excluding a registration relating to an employee benefit plan or with respect to a corporate reorganization or other transaction under Rule 145 of the Securities Act) within ninety (90) 90 days, during the period beginning on the date of such notice from the Company and ending 90 days thereafter;
(v3) after the Company has effected two registrations pursuant to this Section 2.2 and such registrations have been declared or ordered effective (provided that there shall not be counted for purposes of this clause (3) any registration in which there are included, as a result of the operation of Section 2.2(b), less than 75% of the securities for which Holders requested inclusion under Section 2.2(a)); or
(4) if the Company shall furnish furnishes to the Holders requesting a registration statement pursuant to this Section 2.1, a certificate signed by the Chairman Board of Directors stating that in the good faith judgment of the Board of Directors of the Company (the “Board”) stating that, in the good faith judgment of the BoardCompany, it would be seriously detrimental to the Company and its stockholders shareholders for such registration statement to be effected at such time, in which event the Company shall will have the right to defer such filing for a period of not more than ninety (90) 90 days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall will be exercised by the Company not no more than once twice in any 12 month one-year period; and provided further that .
(d) Notwithstanding anything else contained in this Agreement, no Holder shall be permitted to cause the registration of any Registrable Securities at any time when holders of Series J Preferred Stock of the Company shall would not register any securities for its own account be permitted to cause registration of Common Stock issued or that of any other stockholder during such ninety (90) day period;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 issuable upon conversion thereof pursuant to a request made pursuant to Section 2.3 below; or
(vii) if the Company hasInvestors Rights Agreement dated as of September 30, within 1997 among such holders and the six month period preceding the date of such request, already effected a demand registration for the Holders pursuant to this Section 2.1 and such registration has been declared or ordered effectiveCompany.
Appears in 1 contract
Samples: Registration Rights Agreement (Emed Technologies Corp)
Demand Registration. (a) Subject to If, at any time after six calendar months after the conditions date of this Section 2.1Agreement, if the Company Borrower shall receive at any time a written request from Initiating Holders Lender, that the Company Borrower file a registration statement under the Securities Act covering the registration of the Registrable Securities resulting in then outstanding having an aggregate offering price, net offering proceeds of underwriting discounts and commissions, of at least $20,000,0001,000,000, then the Company will (x) promptly give written notice Borrower shall effect as soon as practicable, and in any event within 120 days of the requested receipt of such request, the registration to all Holders and (y) prepare and file a registration statement and otherwise use its best efforts to cause such shares, and under the Act of all Registrable Securities of any Holder or Holders joining in such registration pursuant that Lender requests to a written request delivered be registered, subject to the Company limitations of Section 2(b), within thirty (30) days after receipt by such Holder or Holders of initial written notice from the Company, to be registered under the Securities Act within ninety (90) 20 days of the requestmailing of such notice by Borrower in accordance with Section 9(d) of the Agreement.
(b) If the Holders initiating the registration request hereunder ("Initiating Holders Holders") intend to distribute the Registrable Securities covered by their request by means of an underwriting, then the Initiating Holders they shall so advise the Company Borrower as a part of their written request made pursuant to this Section 2.1 or any request pursuant to Section 2.3, section 2(a) and the Company Borrower shall include such information in the written notice referred to in Section 2.1(a) or Section 2.3(a2(a), as applicable. The underwriter will be selected by Borrower and shall be reasonably acceptable to a majority in interest of the Initiating Holders. In such event, the right of any Holder to include its his Registrable Securities in such registration shall be conditioned upon such Holder’s 's participation in such underwriting and the inclusion of such Holder’s 's Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. The Company shall (together with all All Holders proposing to distribute their Registrable Securities securities through such underwritingunderwriting shall (together with Borrower as provided in Section 4(e)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company (which underwriter or underwriters shall be reasonably acceptable to a majority in interest of the Initiating Holders)underwriting. Notwithstanding any other provision of this Section 2.1 or Section 2.32, if the underwriter advises the Company Initiating Holders in writing that marketing factors require a limitation of the number of securities shares to be underwritten (including Registrable Securities)underwritten, then the Company Initiating Holders shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the underwriting shall be allocated among all Holders electing to include shares in the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (offering, including the Initiating Holders), or in such other proportions proportion (as mutually agreed nearly as practicable) to by such selling Holders; provided, however, that the number of shares amount of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registrationBorrower owned by each Holder.
(c) The Company Borrower shall not be required obligated to effect a effect, or to take any action to effect, any registration pursuant to this Section 2.12:
(i) prior to the earlier of September 30, 2015 or six months after the Initial Offering;
(ii) after the Company After Borrower has effected three two registrations pursuant to this Section 2.1 2 and either (A) all such registrations have been declared or ordered effective or (B) the request for such registration statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have not paid the Registration Expenses of such withdrawn registration; provided, however, that for purposes of Section 2.1, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Section 2.1(b), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have requested to be included in such registration statement are actually includedeffective;
(iiiii) during During the period starting with the date 60 days prior to Borrower's good faith estimate of the date of filing of, and ending on the a date one hundred eighty (180) 180 days following, after the effective date of the of, a registration statement pertaining subject to the Initial OfferingSection 3; provided that the Company makes Borrower is actively employing in good faith all reasonable efforts to cause the registration statement for the Initial Offering to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.1(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for its Initial Offering within ninety (90) days;
(v) if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.1, a certificate signed by the Chairman of the Board of Directors of the Company (the “Board”) stating that, in the good faith judgment of the Board, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holderseffective; provided that such right to delay a request shall be exercised by the Company not more than once in any 12 month period; and provided further that the Company shall not register any securities for its own account or that of any other stockholder during such ninety (90) day period;or
(viiii) if If the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.3 12 below; or
(vii) if the Company has, within the six month period preceding the date of such request, already effected a demand registration for the Holders pursuant to this Section 2.1 and such registration has been declared or ordered effective.
Appears in 1 contract
Demand Registration. At any time after the earlier of (ai) Subject to the conditions fifth anniversary of the date of this Section 2.1Agreement and (ii) 180 days after the consummation of the Company’s initial public offering of Shares under the Securities Act, if the holders of a majority of the then-outstanding Investor Shares shall have the right to require the Company shall receive a written request from Initiating Holders that the Company file a registration statement to effect up to two registrations of their Shares on Form S-1 under the Securities Act covering the registration of the Registrable Securities resulting in net offering proceeds of at least $20,000,000and, then the Company will (x) promptly give written notice of the requested registration to all Holders and (y) prepare and file a registration statement and otherwise use its best efforts to cause such sharesif available, and all Registrable Securities of any Holder unlimited registrations on Form S-2 or Holders joining in such registration pursuant to a written request delivered to the Company within thirty (30) days after receipt by such Holder or Holders of initial written notice from the Company, to be registered S-3 under the Securities Act (any such registration, a “Demand Registration”). Upon receipt of any request for a Demand Registration, the Company shall give prompt written notice of such request to each Stockholder, and shall include in such Demand Registration all Stockholder Shares with respect to which the Company has received written requests for inclusion therein within ninety (90) 30 days after the delivery of the request.
(b) Company’s notice. If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of other securities are included in any Demand Registration that is an underwriting, then the Initiating Holders shall so advise the Company as a part of their written request made pursuant to this Section 2.1 or any request pursuant to Section 2.3underwritten offering, and the Company shall include such information in the written notice referred to in Section 2.1(a) or Section 2.3(a), as applicable. In such event, the right of any Holder to include 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. The Company shall (together with all Holders proposing to distribute their Registrable Securities through such underwriting) enter into an underwriting agreement in customary form with the managing underwriter or underwriters selected for such underwriting by the Company (which underwriter or underwriters shall be reasonably acceptable to a majority in interest of the Initiating Holders). Notwithstanding any other provision of this Section 2.1 or Section 2.3, if the underwriter offering advises the Company that marketing factors require a limitation of in its opinion the number of securities to be underwritten (including Registrable Securities), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and included exceeds the number of shares that may securities which can be sold in such offering without adversely affecting the marketability thereof, the Company will include in such registration all Stockholder Shares requested to be included in the underwriting shall be allocated therein prior to the Holders inclusion of such Registrable Securities on a pro rata basis based on any securities that are not Stockholder Shares. If the number of Registrable Securities held by all such Holders (including the Initiating Holders), or in such other proportions as mutually agreed to by such selling Holders; provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.1:
(i) prior to the earlier of September 30, 2015 or six months after the Initial Offering;
(ii) after the Company has effected three registrations pursuant to this Section 2.1 and either (A) all such registrations have been declared or ordered effective or (B) the request for such registration statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have not paid the Registration Expenses of such withdrawn registration; provided, however, that for purposes of Section 2.1, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Section 2.1(b), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have Stockholder Shares requested to be included in such registration statement are actually included;
(iii) during exceeds the period starting with number of securities which in the date opinion of filing ofsuch underwriter can be sold without adversely affecting the marketability of such offering, and ending such Stockholder Shares shall be included pro rata among the holders thereof based on the date one hundred eighty (180) days following, the effective date percentage of the registration statement pertaining outstanding Stockholder Shares held by each such Stockholder. If other securities are included in any Demand Registration that is not an underwritten offering, all Stockholder Shares included in such Demand Registration shall be sold prior to the Initial Offering; provided that the Company makes reasonable efforts to cause the registration statement for the Initial Offering to become effective;
(iv) if within thirty (30) days sale of receipt any of a written request from Initiating Holders pursuant to Section 2.1(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for its Initial Offering within ninety (90) days;
(v) if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.1, a certificate signed by the Chairman of the Board of Directors of the Company (the “Board”) stating that, in the good faith judgment of the Board, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the other securities. The Company shall have the right to defer such filing for a period of not more than ninety (90select the investment banker(s) days after receipt and manager(s) to administer any Demand Registration that is an underwritten offering, subject to the approval of the request holders of a majority of the Initiating Holders; provided that Investor Shares to be included in such right to delay Demand Registration. If, as a request shall be exercised by the Company not more result of inclusion of Stockholder Shares other than once Investor Shares in any 12 month period; and provided further that Demand Registration, the Company holders of Investor Shares are unable to sell at least 90% of the Investor Shares requested to be included in such registration, such registration shall not register any securities for its own account or that count as one of any other stockholder during such ninety (90) day period;
(vi) if the Initiating Holders propose to dispose Demand Registrations afforded the holders of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.3 below; or
(vii) if the Company has, within the six month period preceding the date of such request, already effected a demand registration for the Holders pursuant to Investor Shares under this Section 2.1 and such registration has been declared or ordered effective7(a).
Appears in 1 contract
Samples: Stockholders Agreement (Critical Homecare Solutions Holdings, Inc.)
Demand Registration. (a) Subject to the conditions of this Section 2.12.2, if the Company shall receive a written request from the Holders of a majority of the Registrable Securities (the “Initiating Holders Holders”) that the Company file a registration statement under the Securities Act covering the registration of at least a majority of the Registrable Securities resulting in then outstanding (or a lesser percent if the anticipated aggregate offering price, net offering proceeds of at least underwriting discounts and commissions, would exceed $20,000,0002,000,000 (a “Demand Offering”)), then the Company will (x) promptly give written notice of the requested registration to all Holders and (y) prepare and file a registration statement and otherwise use its best efforts to cause such sharesshall, and all Registrable Securities of any Holder or Holders joining in such registration pursuant to a written request delivered to the Company within thirty (30) days after of the receipt by such Holder or Holders of initial thereof, give written notice from of such request to all Holders, and subject to the Companylimitations of this Section 2.2, to be registered effect, as expeditiously as reasonably possible, the registration under the Securities Act within ninety (90) days of the requestall Registrable Securities that all Holders request to be registered.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, then the Initiating Holders they shall so advise the Company as a part of their written request made pursuant to this Section 2.1 2.2 or any request pursuant to Section 2.3, 2.4 and the Company shall include such information in the written notice referred to in Section 2.1(a2.2(a) or Section 2.3(a2.4(a), as applicable. In such event, the right of any Holder to include 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. The Company shall (together with all All Holders proposing to distribute their Registrable Securities securities through such underwriting) underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company Holders of a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to a majority in interest of the Initiating HoldersCompany). Notwithstanding any other provision of this Section 2.1 2.2 or Section 2.32.4, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities), ) then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares 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), or in such other proportions as mutually agreed to by such selling Holders; provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.12.2:
(i) prior to the earlier of September 30, 2015 (A) the fourth anniversary of the date of this Agreement or six months after (B) the Initial expiration of the restrictions on transfer set forth in Section 2.11 following a Demand Offering;
(ii) after the Company has effected three two (2) registrations pursuant to this Section 2.1 2.2, and either (A) all such registrations have been declared or ordered effective or (B) the request for such registration statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have not paid the Registration Expenses of such withdrawn registration; provided, however, that for purposes of Section 2.1, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Section 2.1(b), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have requested to be included in such registration statement are actually includedeffective;
(iii) during the period starting with the date of filing of, and ending on the date one hundred eighty (180) days following, following the effective date of the registration statement pertaining to the Initial Offering; provided that Offering (or such longer period during which the Company makes reasonable efforts transfer of securities may be restricted pursuant to cause the registration statement for the Initial Offering to become effectiveSection 2.11);
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.1(a2.2(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for its Initial Offering a public offering, other than pursuant to a Special Registration Statement, within ninety (90) days;
(v) if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.1, 2.2 a certificate signed by the Chairman of the Board of Directors of the Company (the “Board”) stating that, that in the good faith judgment of the BoardBoard of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety one hundred twenty (90120) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than once twice in any 12 twelve (12) month period; and provided further that the Company shall not register any securities for its own account or that of any other stockholder during such ninety (90) day period;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.3 2.4 below; or
(vii) if in any particular jurisdiction in which the Company haswould be required to qualify to do business or to execute a general consent to service of process in effecting such registration, within the six month period preceding the date of such request, already effected a demand registration for the Holders pursuant to this Section 2.1 and such registration has been declared qualification or ordered effectivecompliance.
Appears in 1 contract
Samples: Investor Rights Agreement (Ariosa Diagnostics, Inc.)
Demand Registration. (a) Subject From and after the date hereof, the holders of a majority of the then outstanding Greenwich Stock shall have the right to the conditions of this Section 2.1, if require the Company shall receive a written request from Initiating Holders that the Company file a registration statement to effect up to two registrations of their Common Stock on Form S-1 under the Securities Act covering the registration of the Registrable Securities resulting in net offering proceeds of at least $20,000,000and, then the Company will (x) promptly give written notice of the requested registration to all Holders and (y) prepare and file a registration statement and otherwise use its best efforts to cause such sharesif available, and all Registrable Securities of any Holder unlimited registrations on Form S-2 or Holders joining in such registration pursuant to a written request delivered to the Company within thirty (30) days after receipt by such Holder or Holders of initial written notice from the Company, to be registered S-3 under the Securities Act and from and after a Qualified Public Offering, SG shall have the right to require the Company to effect up to two registrations of Common Stock on Form S-2 or S-3 (any such registration, a "DEMAND REGISTRATION"), each such request to specify the intended method or methods of distribution thereof (which may include a distribution in an underwritten offering). Upon receipt of any request for a Demand Registration, the Company shall give prompt written notice of such request to each Stockholder and the Warrant Agent, and, subject to the provisions set forth below, shall include in such Demand Registration all Stockholder Shares with respect to which the Company has received written requests for inclusion therein within ninety (90) 30 days after the delivery of the request.
Company's notice (b) If the Initiating Holders intend to distribute the Registrable Securities including shares covered by their request by means of an underwriting, then Vested Options to the Initiating Holders shall so advise extent that the Company as a part receives appropriate assurances that such Options will be exercised upon effectiveness of their written request made pursuant such registration). If other securities are included in any Demand Registration that is not an underwritten offering, all Stockholder Shares included in such offering shall be sold prior to this Section 2.1 or the sale of any request pursuant to Section 2.3of such other securities. If other securities are included in any Demand Registration that is an underwritten offering, and the Company shall include such information in the written notice referred to in Section 2.1(a) or Section 2.3(a), as applicable. In such event, the right of any Holder to include 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. The Company shall (together with all Holders proposing to distribute their Registrable Securities through such underwriting) enter into an underwriting agreement in customary form with the managing underwriter or underwriters selected for such underwriting by the Company (which underwriter or underwriters shall be reasonably acceptable to a majority in interest of the Initiating Holders). Notwithstanding any other provision of this Section 2.1 or Section 2.3, if the underwriter offering advises the Company that marketing factors require a limitation of in its opinion the number of securities to be underwritten (including Registrable Securities), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and included exceeds the number of shares that may securities which can be included sold in such offering without adversely affecting the underwriting shall be allocated to pricing or marketability thereof, the Holders Company will include in such registration first, the Stockholder Shares of such Registrable Securities Greenwich and SG, on a pro rata basis, second, the Stockholder Shares of Societe Generale and its assigns on a pro rata basis and third, all other Stockholder Shares, pro rata among the holders thereof, based on the number percentage of Registrable Securities the outstanding Stockholder Shares held by all each such Holders Stockholder (including assuming the Initiating Holders), or in such other proportions as mutually agreed to by such selling Holders; provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.1:
(i) prior to the earlier of September 30, 2015 or six months after the Initial Offering;
(ii) after the Company has effected three registrations pursuant to this Section 2.1 and either (A) all such registrations have been declared or ordered effective or (B) the request for such registration statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have not paid the Registration Expenses of such withdrawn registration; provided, however, that for purposes of Section 2.1, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Section 2.1(ball Vested Options held by participating Stockholders), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have requested to be included in such registration statement are actually included;
(iii) during the period starting with the date of filing of, and ending on the date one hundred eighty (180) days following, the effective date of the registration statement pertaining to the Initial Offering; provided that the Company makes reasonable efforts to cause the registration statement for the Initial Offering to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.1(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for its Initial Offering within ninety (90) days;
(v) if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.1, a certificate signed by the Chairman of the Board of Directors of the Company (the “Board”) stating that, in the good faith judgment of the Board, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the . The Company shall have the right to defer such filing for a period of not more than ninety (90select the investment banker(s) days after receipt and manager(s) to administer any Demand Registration that is an underwritten offering, subject to the approval of the request holders of a majority of the Initiating Holders; provided Greenwich Stock to be included in such Demand Registration. The parties hereto acknowledge that such right this Section 10 is for the benefit of the holder(s) of SG Warrants and the shares of Common Stock into which the SG Warrants are exercisable and their successors or assigns. The Company agrees to delay a request shall be exercised by provide notice to the Company not more than once in any 12 month period; and provided further that the Company shall not register any securities for its own account or that Warrant Agent of any other stockholder during such ninety (90) day period;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.3 below; or
(vii) if the Demand Registration or Company has, within the six month period preceding the date of such request, already effected a demand registration for the Holders Registration pursuant to this Section 2.1 and such registration has been declared or ordered effective10.
Appears in 1 contract
Samples: Stockholders Agreement (Day International Group Inc)
Demand Registration. (a) Subject If, on or after the earlier to occur of December 31, 2009, or the conditions expiration of this Section 2.1, if 180 days after the Company shall receive have first offered its securities pursuant to a written request from registration under the 1933 Act, Initiating Holders that shall notify the Company file a registration statement under in writing that such Holders intend to offer or cause to be offered for sale to the Securities Act covering the registration public all or any portion of the Registrable Securities resulting under such circumstances as would require registration thereof under the 1933 Act or qualification thereof under one or more state securities laws of jurisdictions in net offering proceeds of at least $20,000,000which the offer is to be made, then the Company will will, as expeditiously as possible, (xi) promptly give written notice of notify Holders other than the Initiating Holders that it has been requested registration to all Holders register Registrable Securities under the 1933 Act pursuant to this Section 8.2, and (yii) prepare and file a registration statement and otherwise use its best efforts to cause such shares, and all Registrable Securities of securities as may be requested by any Holder or Holders joining in such registration pursuant to a written request delivered to the Company within thirty (30) days after receipt by such Holder or Holders of initial written notice from the Company, thereof to be registered under the 1933 Act, if applicable, and registered or qualified under any state securities laws to the extent required (in the opinion of counsel referred to in this Section 8.2) to permit the sale or other disposition thereof in the manner described by the person requesting such registration. The Holders shall have a total of four such rights to demand registration of Registrable Securities Act within ninety (90) days under this Section 8.2. In addition to the above-described demand registration rights, the holders of Preferred Stock of the requestCompany shall have a total of two rights to demand registration of Registrable Securities held by them under this Section 8.2.
(b) If holders of securities of the Initiating Company other than Holders intend who are entitled, by contract with the Company, to distribute have such securities included in such a registration (the Registrable Securities covered by their “Other Holders”) request by means of an underwritingsuch inclusion, then the Initiating Holders shall so advise offer to include the Company as a part securities of their written request made such other Holders in any registration pursuant to this Section 2.1 or any request pursuant to Section 2.3, and the Company shall include such information in the written notice referred to in Section 2.1(a) or Section 2.3(a), as applicable. In such event, the right of any Holder to include 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 herein8.2. The Company shall (together with all Holders and Other Holders proposing to distribute include their Registrable Securities through securities in such underwritingregistration) shall enter into an underwriting agreement in customary form with the underwriter or representative of the underwriters (the “Underwriter”) selected for to underwrite such underwriting offering by the Company (which underwriter or underwriters shall be reasonably acceptable to a majority in interest of the Initiating Holders), subject to the approval of the Company, which approval shall not be unreasonably withheld. Notwithstanding any other provision of this Section 2.1 or Section 2.38.2, if the underwriter advises the Company Initiating Holders in writing that marketing factors require a limitation of on the number of securities shares to be underwritten (including Registrable Securities)underwritten, then the Company Initiating Holders shall so advise all Holders of Registrable Securities that and Other Holders whose securities would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the registration and underwriting shall be allocated among all Holders in proportion, as nearly as practicable, to the Holders of such Registrable Securities on a pro rata basis based on the number respective amounts of Registrable Securities held by all such Holders (including the Initiating Holders), or in such other proportions as mutually agreed to by such selling Holders; provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.1:
(i) prior to the earlier of September 30, 2015 or six months after the Initial Offering;
(ii) after the Company has effected three registrations pursuant to this Section 2.1 and either (A) all such registrations have been declared or ordered effective or (B) the request for such registration statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have not paid the Registration Expenses of such withdrawn registration; provided, however, that for purposes of Section 2.1, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Section 2.1(b), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have which they had requested to be included in such registration and underwriting at the time of filing the registration statement, and to the extent that additional shares may be included in the underwriting, among all Other Holders requesting such inclusion in proportion, as nearly as practicable, to the respective amount of securities which they had requested to be included in such registration and underwriting. No Registrable Securities or other securities excluded from the underwriting by reason of the Underwriter’s marketing limitations shall be included in such registration. If any Holder or Other Holder who has requested inclusion in such registration as provided herein disapproves of the terms of the underwriting, such person may elect to withdraw therefrom by written notice to the Company, the Underwriter and the Initiating Holders. The securities so withdrawn shall also be withdrawn from registration. If the Underwriter has not limited the number of Registrable Securities or other securities to be underwritten, the Company may include its securities for its own account in such registration if the Underwriter so agrees and if the number of Registrable Securities which would otherwise have been included in such registration and underwriting will not thereby be limited.
(c) The registration of Registrable Securities under this Section 8.2 shall be at the Company’s expense, except that Holders and Other Holders participating in a registration pursuant hereto shall pay their pro rata brokerage or underwriting commissions or discounts relating to the sale owned by them; and the Company shall also pay the fees and expenses of any one special counsel retained by such Holders or Other Holders and except that after the second demand registration under this Section 8.2 demand registrations shall be at the expense of the Holders participating in the registration. Initiating Holders who exercise a right to demand registration under this Section 8.2 may withdraw the exercise and cause the Company either not to file or to withdraw the filing of the registration statement are actually includedat anytime prior to the effectiveness of such statement, provided that:
(i) If the exercise is so withdrawn prior to filing of the registration statement, then the withdrawal of the exercise will not be deemed to have been the exercise of a demand registration right;
(ii) If effectiveness of the registration statement is delayed by more than 90 days by the Company and the exercise is withdrawn prior to effectiveness of the registration statement, then the withdrawal of the exercise will not be deemed to have been the exercise of a demand registration right;
(iii) during Any withdrawals other than the period starting with the date of filing of, withdrawals specified in (i) and ending on the date one hundred eighty (180ii) days following, the effective date of the registration statement pertaining above shall be deemed to the Initial Offering; provided that the Company makes reasonable efforts to cause the registration statement for the Initial Offering to become effective;
(iv) if within thirty (30) days of receipt of be a written request from Initiating Holders demand pursuant to Section 2.1(a)8.2 hereof. If the withdrawn demand registration right is not deemed to have been the exercise of a demand registration right, as provided in subparagraphs (i) and (ii) above, then the withdrawing Holder shall pay or reimburse the legal, auditing and printing expenses reasonably incurred by the Company gives notice in connection with the attempted registration; but if the withdrawn demand registration right is deemed to be an exercise as provided in subparagraph (iii) above, then the Holders of Company shall pay all expenses incurred by it in connection with the Company’s intention to file a attempted registration statement for its Initial Offering within ninety (90) days;
(v) if the Company shall furnish to would have been responsible for paying the Holders requesting a registration statement pursuant to this Section 2.1, a certificate signed by the Chairman expenses of the Board preparation of Directors of the Company (the “Board”) stating that, in the good faith judgment of the Board, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than once in any 12 month period; and provided further that the Company shall not register any securities for its own account or that of any other stockholder during such ninety (90) day period;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.3 below; or
(vii) if the Company has, within the six month period preceding the date of such request, already effected a demand registration for the Holders pursuant to this Section 2.1 and such registration has been declared or ordered effectivestatement.
Appears in 1 contract
Samples: Stock Purchase Agreement (Exa Corp)
Demand Registration. (a) Subject to If the conditions Registration Statement described in Section 2 is not filed by the Due Date, or if such Registration Statement is filed timely but is not effective within a reasonable time thereafter, the Holders of this Section 2.1, if Registrable Securities obtained or obtainable upon conversion of at least twenty-five percent (25%) of the shares of the Preferred Stock outstanding may notify the Company shall receive a written request from Initiating Holders in writing that they demand that the Company file a registration statement under the Securities Act covering the registration of all of the Registrable Securities resulting in net offering proceeds then outstanding on Form S-1 or Form SB-2, or if available, Form S-3. Upon receipt of at least $20,000,000such notice, then the Company will shall, within ten (x10) promptly days, give written notice of the requested registration such request to all Holders and (y) prepare and file a registration statement and otherwise use its best efforts shall, subject to cause such sharesthe limitations of subsection 3(b), effect as soon as practicable, and all Registrable Securities of in any Holder or Holders joining in such registration pursuant to a written request delivered to the Company event within thirty (30) days after of the receipt of such request, the registration under the Act of all Registrable Securities which the Holders request, by such Holder or Holders notice given to the Company within ten (10) days of initial written notice from receipt of the Company's notice, to be registered under as expeditiously as reasonably possible after the Securities Act within ninety mailing of such notice by the Company (90) days of the requesta "Demand Registration").
(b) If the Holders initiating the registration request hereunder ("Initiating Holders Holders") intend to distribute the Registrable Securities covered by their request by means of an underwriting, then the Initiating Holders they shall so advise the Company as a part of their written request made pursuant to this Section 2.1 or any request pursuant to Section 2.3, 3 and the Company shall include such information in the written notice referred to in Section 2.1(a) or Section 2.3(asubsection 3(a), as applicable. In such event, the right of any Holder to include its his Registrable Securities in such registration shall be conditioned upon such Holder’s 's participation in such underwriting and the inclusion of such Holder’s 's Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. The Company shall (together with all All Holders proposing to distribute their Registrable Securities securities through such underwritingunderwriting shall (together with the Company as provided in subsection 7(f)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company (which underwriter or underwriters shall be reasonably acceptable to a majority in interest of the Initiating Holders). Notwithstanding any other provision of this Section 2.1 or Section 2.3, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and reasonably acceptable to the number of shares Company; provided that may be included in the underwriting no Holder shall be allocated required to the Holders make any representations other than with respect to its ownership of such Registrable Registered Securities on a pro rata basis based on the number and its intended method of Registrable Securities held by all such Holders (including the Initiating Holders), or in such other proportions as mutually agreed to by such selling Holders; provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registrationdistribution.
(c) The Company agrees to include all Registrable Securities held by all Holders in such Registration Statement without cutback or reduction. In the event the Company breaches its obligation of the preceding sentences, any Holders of the Registrable Securities which were not included in such Registration Statement shall be entitled to additional Demand Registrations for such excluded securities on the same terms as the Demand Registration described in this Agreement. In the event the Company breaches its obligations to effect and maintain any registration statement filed pursuant to the terms of this Agreement, any Holders of Registrable Securities which were not sold because of such breach shall be required entitled to additional Demand Registrations for such securities which shall be maintained until such time as the securities are sold.
(d) The Company is not obligated to effect a demand registration pursuant to under this Section 2.1:
(i) prior to the earlier of September 30, 2015 or six months after the Initial Offering;
(ii) after the Company has effected three registrations pursuant to this Section 2.1 and either (A) all such registrations have been declared or ordered effective or (B) the request for such registration statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have not paid the Registration Expenses of such withdrawn registration; provided, however, that for purposes of Section 2.1, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Section 2.1(b), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have requested to be included in such registration statement are actually included;
(iii) during the period starting with the date of filing of, and ending on the date one hundred eighty (180) days following, the effective date of the registration statement pertaining to the Initial Offering; provided that the Company makes reasonable efforts to cause the registration statement for the Initial Offering to become effective;
(iv) 3 if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.1(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for its Initial Offering within ninety (90) days;
(v) if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.1, a certificate signed by the Chairman of the Board of Directors of the Company (the “Board”) stating that, in the good faith judgment written opinion of the Board, it would be seriously detrimental counsel to the Company and its stockholders reasonably acceptable to the person or persons from whom written request for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than once in any 12 month period; and provided further that the Company shall not register any securities for its own account or that of any other stockholder during such ninety (90) day period;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.3 below; or
(vii) if the Company has, within the six month period preceding the date of such request, already effected a demand registration for the Holders pursuant to this Section 2.1 and such registration has been declared received (and satisfactory to the Company's transfer agent to permit the transfer) that registration under the Act is not required for the immediate transfer of the Registrable Securities pursuant to Rule 144 or ordered effectiveother applicable provision.
(e) The Company represents that it is eligible to effect the registration contemplated hereby on Form S-1 or Form SB-2 and will continue to take such actions as are necessary to maintain such eligibility. The Company will use its best efforts to become eligible to use Form S-3 and maintain such eligibility.
Appears in 1 contract
Demand Registration. (a) Subject At any time, and from time to time, Stockholders holding not less than 25% of the Registrable Shares, shall have the right, by written notice (the "Demand Notice") given to the conditions Company, to request the Company to register under and in accordance with the provisions of the Securities Act all or any portion of the Registrable Shares held by such Stockholders (the "Demanding Holders") the expected gross proceeds of which (based upon the price per share to be set forth in the Prospectus relating to such Registration) shall exceed $1 million, as designated by such Stockholders (a "Demand Registration"). Upon receipt of any such Demand Notice, the Company shall promptly, but in no event more than five Business Days after receipt thereof, notify each other Stockholder of the receipt of such Demand Notice and, subject to the limitations set forth below, shall include in the proposed registration all Registrable Shares with respect to which the Company has received a written request for inclusion therein within 15 Business Days after delivery of the Company's notice. In connection with any Demand Registration in which more than one Stockholder participates, in the event that such Demand Registration involves an underwritten offering and the managing underwriter or underwriters participating in such offering advise in writing the Stockholders participating in such offering that the total amount of securities to be included in such offering exceeds the amount that can be sold in (or during the time of) such offering without delaying or jeopardizing the success of such offering (including the price per share of the securities to be sold), then the total number or amount of securities to be included in such underwritten offering shall be reduced to a number deemed satisfactory by such managing underwriter or underwriters, provided, that the securities to be excluded shall be determined in the following sequence: (i) first, securities proposed by the Company to be sold for its own account and securities held by holders of securities of the Company other than Registrable Shares requesting and legally entitled to include such securities in such registration, on a pro rata basis (based upon the number or amount of securities requested (or proposed) to be registered by each such holder and the Company); (ii) second, securities held by holders of Registrable Shares other than Demanding Holders, on a pro rata basis (based upon the number of Registrable Shares beneficially held by each such holder); and (iii) third, securities held by Demanding Holders, on a pro rata basis (based upon the number of Registrable Shares beneficially held. The holders of Registrable Shares shall be entitled to an aggregate of three Demand Registrations on Form S-1 or Form S-2 (or any similar or successor forms thereto) and an unlimited number (but no more than one in any six month period) of Demand Registrations on Form S-3 (or any similar or successor forms thereto), to the extent the Company meets the requirement for the use thereof,) pursuant to this Section 2.1; provided, if that any Demand Registration that (x) does not become effective, (y) is not maintained for the Company shall receive a written request from Initiating time period required in accordance with Section 2.1(c) hereof, or (z) pursuant to which the Demanding Holders that the Company file a registration statement under the Securities Act covering the registration do not register at least 51% of the Registrable Securities resulting Shares specified in net offering proceeds a Demand Notice, shall not count as one of at least $20,000,000, then the such Demand Registrations.
(b) The Company will (x) promptly give written notice of the requested registration to all Holders and (y) prepare and file a registration statement and otherwise shall use its best efforts to cause such sharesqualify and remain qualified to register securities on Form S-3) (or any similar or successor forms thereto).
(c) Subject to Section 2.1(d), the Company shall file with the SEC, as soon as practicable, but in no event more than 45 days after the date on which the Company receives a Demand Notice given by Demanding Holders in accordance with Section 2.1(a) hereof, and all the Company shall thereafter cause to be declared effective as promptly as practicable, a Registration Statement on the appropriate form for the registration and sale, in accordance with the intended method or methods of distribution, of the total number of Registrable Securities of any Holder or Shares specified by the Demanding Holders joining in such registration pursuant Demand Notice together with any other Registrable Shares with respect to which the Company has received a written request delivered for inclusion in accordance with Section 2.1(a) hereof, subject to the Company within thirty (30reduction as set forth in Section 2.1(a) days after receipt by such Holder or Holders of initial written notice from the Company, to be registered under the Securities Act within ninety (90) days of the requesthereof.
(bd) If the Initiating Holders intend The Company shall use best efforts to distribute the Registrable Securities covered by their request by means of an underwriting, then the Initiating Holders shall so advise the Company as a part of their written request made keep each Registration Statement filed pursuant to this Section 2.1 or any request continuously effective and usable for the resale of the Registrable Shares covered thereby for a period of 180 days from the date on which the SEC declares such Registration Statement effective, as such period may be extended pursuant to this Section 2.32.1, and or if shorter, until all the Company shall include Registrable Shares covered by such information in the written notice referred Registration Statement have been sold pursuant to in Section 2.1(asuch Registration Statement.
(e) or Section 2.3(a), as applicable. In such event, the right of any Holder to include 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. The Company shall (together with all Holders proposing be entitled to distribute their Registrable Securities through such underwriting) enter into an underwriting agreement in customary form with postpone the underwriter or underwriters selected for such underwriting filing of any Registration Statement otherwise required to be prepared and filed by the Company (pursuant to this Section 2.1, or suspend the use of any effective Registration Statement under this Section 2.1, for a reasonable period of time which underwriter or underwriters shall be reasonably acceptable to as short as practicable, but in any event not in excess of 90 days (a majority in interest of the Initiating Holders"Delay Period"). Notwithstanding any other provision of this Section 2.1 or Section 2.3, if the underwriter advises Company determines in good faith that the registration and distribution of the Registrable Shares covered or to be covered by such Registration Statement would materially interfere with any pending or imminent material financing, acquisition, disposition or corporate reorganization or other material corporate development involving the Company that marketing factors or any of its subsidiaries or would require premature disclosure thereof and promptly gives the Demanding Holders written notice of such determination, containing a limitation statement of the number reasons for such postponement and an approximation of securities to be underwritten (including Registrable Securities), then the Company shall so advise all Holders period of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares 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), or in such other proportions as mutually agreed to by such selling Holdersanticipated delay; provided, however, that (i) the aggregate number of days included in all Delay Periods during any consecutive 12 months shall not exceed the aggregate of (x) 90 days minus (y) the number of shares days occurring during all Hold Back Periods and Interruption Periods during such consecutive 12 months and (ii) a period of at least 60 days shall elapse between the termination of any Delay Period, Hold Back Period or Interruption Period and the commencement of the immediately succeeding Delay Period. If the Company shall so postpone the filing of a Registration Statement, the holders of Registrable Securities Shares to be included in registered shall have the right to withdraw the request for registration by giving written notice to the Company within 30 days after receipt of the notice of postponement or, if earlier, the termination of such underwriting Delay Period. The time period for which the Company is required to maintain the effectiveness of any Registration Statement shall be extended by the aggregate number of days of all Delay Periods, all Hold Back Periods and registration all Interruption Periods occurring during such Registration. The Company shall not be reduced entitled to initiate a Delay Period unless all it shall (A) to the extent permitted by agreements with other securities securityholders of the Company are first entirely excluded Company, concurrently prohibit sales by such other securityholders under registration statements covering securities held by such other security holders and (B) in accordance with the Company's policies from time to time in effect, forbid purchases and sales in the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from open market by senior executives of the registrationCompany.
(cf) The Demanding Holders may, at any time prior to the effective date of the Registration Statement relating to a Demand Registration, revoke such request by providing a written notice to the Company revoking such request. However, if such revocation is made after filing of a Registration Statement with the SEC, then, for all such revocations after the second such revocation, the registration will be deemed to have been completed for purposes of being counted against the quota of Demand Registrations to which the Demanding Holders are entitled pursuant to this Agreement.
(g) The Company shall not be required to effect a registration pursuant to this Section 2.1:
(i) prior to the earlier of September 30, 2015 or six months after the Initial Offering;
(ii) after the Company has effected three registrations include any securities that are not Registrable Shares in any Registration Statement filed pursuant to this Section 2.1 and either (A) all such registrations have been declared or ordered effective or (B) without the request for such registration statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have not paid the Registration Expenses prior written consent of such withdrawn registration; provided, however, that for purposes of Section 2.1, Stockholders holding a registration shall not be counted as “effected” if, as a result of an exercise majority of the underwriter’s cutback provisions in Section 2.1(b), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have requested Shares to be included in the offering covered by such registration statement are actually included;
(iii) during the period starting with the date of filing of, and ending on the date one hundred eighty (180) days following, the effective date of the registration statement pertaining to the Initial Offering; provided that the Company makes reasonable efforts to cause the registration statement for the Initial Offering to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.1(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for its Initial Offering within ninety (90) days;
(v) if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.1, a certificate signed by the Chairman of the Board of Directors of the Company (the “Board”) stating that, in the good faith judgment of the Board, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than once in any 12 month period; and provided further that the Company shall not register any securities for its own account or that of any other stockholder during such ninety (90) day period;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.3 below; or
(vii) if the Company has, within the six month period preceding the date of such request, already effected a demand registration for the Holders pursuant to this Section 2.1 and such registration has been declared or ordered effectiveRegistration Statement.
Appears in 1 contract
Samples: Stock Purchase Agreement (Universal Access Global Holdings Inc)
Demand Registration. (a) Subject The Company hereby agrees to use its best efforts to register all or any portion of the conditions Registrable Shares on one (1) occasion upon receipt of this Section 2.1, if the Company shall receive a written request from Initiating Holders a holder (the "Holder" or "Holders") of record of the Registrable Shares that the Company file a registration statement under the Securities 1933 Act covering the registration of the Registrable Securities resulting in net offering proceeds Shares then outstanding. The Company shall, within twenty (20) days of at least $20,000,000its receipt thereof, then the Company will (x) promptly give written notice of the requested registration such request to all holders of record of Registrable Shares. The Holders and of said Registrable Shares shall then have fifteen (y15) prepare and file a registration statement and otherwise use its best efforts to cause days from the date of mailing of such shares, and all Registrable Securities of any Holder or Holders joining in such registration pursuant to a written request delivered to notice by the Company within thirty (30) days after receipt by such Holder to request that all or Holders a portion of initial written notice from the Company, to their respective Registrable Shares be registered under the Securities Act within ninety (90) days of the requestincluded in said registration.
(b) If the Initiating Holders intend to distribute the Registrable Securities Shares covered by their request by means of an underwriting, then the Initiating Holders they shall so advise the Company as a part of their written request made pursuant to this Section 2.1 or any request pursuant to Section 2.3Agreement, and the Company shall include such information in the written notice to the other Holders of Registrable Shares referred to in Section 2.1(a1(a) or Section 2.3(a), as applicableabove. In such event, the right of any Holder to include its Registrable Securities Shares in such registration shall be conditioned upon such Holder’s 's participation in such underwriting and the inclusion of such Holder’s 's Registrable Securities Shares in the underwriting (unless otherwise mutually agreed by the Company, the underwriter, the Initiating Holder and such Holder) is limited to the extent provided herein. The Company shall (together with all All Holders proposing to distribute their Registrable Securities securities through such underwritingunderwriting shall (together with the Company as provided in Section 3(a) below) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by mutual agreement of the Company (which underwriter or underwriters shall be reasonably acceptable to a majority in interest of and the Initiating Holders)Holder, which agreement shall not be unreasonably withheld. Notwithstanding any other provision of this Section 2.1 or Section 2.31, if the underwriter advises the Initiating Holder and the Company in writing that marketing factors require a limitation of the number of securities shares to be underwritten (including Registrable Securities)underwritten, then the Company Initiating Holder shall so advise all Holders of Registrable Securities that Shares which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Shares 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 among all such Holders (including the Initiating Holders), or that have requested to participate in such other proportions as mutually agreed to by such selling Holders; provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.1:
(i) prior to the earlier of September 30, 2015 or six months after the Initial Offering;
(ii) after the Company has effected three registrations pursuant to this Section 2.1 and either (A) all such registrations have been declared or ordered effective or (B) the request for Each such registration statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have not paid the Registration Expenses shall remain effective for a period of such withdrawn registration; provided, however, that for purposes of Section 2.1, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Section 2.1(b), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have requested to be included in such registration statement are actually included;
(iii) during the period starting with the date of filing of, and ending on the date one hundred eighty (180) days followingdays, unless the Initiating Holder requests that such registration be terminated prior to the expiration of such period.
(d) If, after a registration statement becomes effective, the effective date of Company advises the Holders that the registration statement pertaining is required to be amended under applicable federal securities laws, the Initial Offering; provided Holders shall suspend any further sales of their Registrable Shares, until the Company advises them that the Company makes reasonable efforts to cause the registration statement for the Initial Offering to become effective;
(iv) if within statements has been amended, but not more than thirty (30) days. The one hundred eighty (180)-day time period referred to in subsection (c) during which the registration statement must be kept current after its effective date shall be extended for an additional number of business days equal to the number of receipt of a written request from Initiating Holders business days during which the right to sell the Registrable Shares was suspended pursuant to Section 2.1(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for its Initial Offering within ninety (90) days;preceding sentence.
(ve) if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.1, a certificate signed by the Chairman of the Board of Directors of the Company (the “Board”) stating that, in the good faith judgment of the Board, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the The Company shall have the right to defer such filing for a period of exclude an underwriter not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right reasonably acceptable to delay a request shall be exercised by the Company not more than once in any 12 month period; and provided further that the Company shall not register any securities for its own account or that of any other stockholder during such ninety (90) day period;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.3 below; or
(vii) if the Company has, within the six month period preceding the date of such request, already effected a demand registration for the Holders pursuant to this Section 2.1 and such registration has been declared or ordered effectiveit.
Appears in 1 contract
Samples: Registration Rights Agreement (Integrated Security Systems Inc)
Demand Registration. (a) Subject to At any time following the conditions Effectiveness Period, the holders of this Section 2.1, if Restricted Stock constituting at least 25% of the Restricted Stock outstanding at such time may request the Company shall receive a written request from Initiating Holders that the Company file a registration statement to register under the Securities Act covering the registration all or any portion of the Registrable Securities resulting Restricted Stock held by such requesting holder or holders for sale in net offering proceeds of at least $20,000,000, then the Company will (x) promptly give written notice of the requested registration to all Holders and (y) prepare and file a registration statement and otherwise use its best efforts to cause such shares, and all Registrable Securities of any Holder or Holders joining manner specified in such registration pursuant to a written request delivered to the Company within thirty (30) days after receipt by such Holder or Holders of initial written notice from the Company, to be registered under the Securities Act within ninety (90) days of the request.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, then the Initiating Holders shall so advise the Company as a part of their written request made pursuant to this Section 2.1 or any request pursuant to Section 2.3, and the Company shall include such information in the written notice referred to in Section 2.1(a) or Section 2.3(a), as applicable. In such event, the right of any Holder to include 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 hereinnotice. The Company shall (together with all Holders proposing to distribute their Registrable Securities through such underwriting) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company (which underwriter or underwriters shall be reasonably acceptable to a majority in interest of the Initiating Holders). Notwithstanding any other provision of this Section 2.1 or Section 2.3, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares 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), or in such other proportions as mutually agreed to by such selling Holders; provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required have no obligation to effect a registration pursuant to under this Section 2.1:
(i) prior to 5 unless the earlier of September 30, 2015 or six months after the Initial Offering;
(ii) after the Company has effected three registrations pursuant to this Section 2.1 and either (A) all such registrations have been declared or ordered effective or (B) the request for such registration statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have not paid the Registration Expenses of such withdrawn registration; provided, however, that for purposes of Section 2.1, a registration shall not be counted as “effected” if, as a result of an exercise aggregate offering price of the underwriter’s cutback provisions in Section 2.1(b), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have securities requested to be included in sold pursuant to such registration statement are actually included;
(iii) during the period starting with the date of filing of, and ending on the date one hundred eighty (180) days following, the effective date of the registration statement pertaining to the Initial Offering; provided that the Company makes reasonable efforts to cause the registration statement for the Initial Offering to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.1(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for its Initial Offering within ninety (90) days;
(v) if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.1, a certificate signed by the Chairman of the Board of Directors of the Company (the “Board”) stating thatis, in the good faith judgment of the BoardCompany, it expected to be equal to or greater than $7.5 million.
(b) Promptly following receipt of any notice under this Section 5, the Company shall immediately give written notice to any holders of Restricted Stock from whom notice has not been received, and shall file and use its reasonable efforts to have declared effective a registration statement under the Securities Act, for public sale in accordance with the method of disposition specified in such notice from such requesting holders the number of shares of Restricted Stock specified in such notice (and in any notices received from other such holders of Restricted Stock within 20 days after their receipt of such notice from the Company). If such method of disposition shall be an underwritten public offering, the Company may designate the managing underwriter of such offering which shall be a firm of recognized national standing, subject to the approval of the selling holders of a majority of the Restricted Stock included in the offering, which approval shall not be unreasonably withheld. The number of shares of Restricted Stock to be included in such an underwriting may be reduced (pro rata among all of the requesting holders based on the number of shares requested by each holder to be included) if and to the extent that the managing underwriter shall be of the opinion that such inclusion would adversely affect the marketing of the securities to be seriously detrimental sold therein. Notwithstanding anything to the contrary contained herein, the obligation of the Company under this Section 5 shall be deemed satisfied only when a registration statement covering all shares of Restricted Stock specified in notices received as aforesaid, for sale in accordance with the method of disposition specified by the requesting holder, shall have become effective and, if such method of disposition is a firm commitment underwritten public offering, all such shares shall have been sold pursuant thereto.
(c) Each of the Company and its stockholders for such holders of Common Stock other than the Restricted Stock, shall be entitled to include in any registration statement referred to in this Section 5 for which the method of distribution is an underwritten public offering, for sale in accordance with the method of disposition specified by the requesting holders, shares of Common Stock to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised sold by the Company not more than once for its own account, or such other stockholders, as the case may be, except to the extent that, in any 12 month period; the opinion of the managing underwriter, such inclusion would adversely affect the marketing of the Restricted Stock to be sold. Except as provided in this paragraph (c) or pursuant to the Company's Second and provided further that Amended Restated Registration Rights Agreement dated April 20, 1999, as amended through the date hereof and as it may be amended to reflect the registration rights contemplated by the Agreement to Sublease (the "Second Amended and Restated Agreement") or as it may be amended solely to add additional parties, the Company shall will not register effect any securities other registration of its Common Stock, whether for its own account or that of any other stockholder during such ninety (90) day period;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.3 below; or
(vii) if the Company hasholders, within the six month period preceding from the date of such request, already effected receipt of a demand registration for the Holders notice from requesting holders pursuant to this Section 2.1 and such 5 until the completion of the period of distribution of the registration has been declared or ordered effectivecontemplated thereby.
(d) Notwithstanding anything to the contrary contained herein, the Company shall be obligated to register Restricted Stock pursuant to this Section 5 on one occasion only.
Appears in 1 contract
Samples: Registration Rights Agreement (Spectrasite Holdings Inc)
Demand Registration. (a) Subject to Upon the conditions of this Section 2.1, if the Company shall receive a written request from Initiating Holders time to time (a "REQUEST") of any of the Blackstone Entities (a "DEMAND PARTY") that the Company file a effect the registration statement under the Securities Act covering the registration of the all or part of such Demand Party's Registrable Securities resulting in net offering proceeds and specifying the amount and intended method of at least $20,000,000disposition thereof, then the Company will (x) promptly give written notice of the such requested registration to all Holders and (y) prepare and file a registration statement and otherwise the other Shareholders and, as expeditiously as possible, use its reasonable best efforts to cause effect the registration under the Securities Act of:
(1) such shares, and all Registrable Securities which the Company has been so requested to register by the Demand Party; and
(2) the Registrable Securities of any Holder or Holders joining in such registration pursuant other Shareholders which the Company has been requested to a register by written request delivered given to the Company within thirty (30) 10 days after receipt by the giving of such Holder or Holders of initial written notice from by the Company, Company (which request shall specify the amount and intended method of disposition of such securities). The Demand Party shall have the right to be registered under select the Securities Act within ninety (90) days of managing underwriter or underwriters to administer the requestofferings covered by its Requests.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, then the Initiating Holders shall so advise the Company as a part of their written request made pursuant to this Section 2.1 or any request pursuant to Section 2.3, and the Company shall include such information in the written notice referred to in Section 2.1(a) or Section 2.3(a), as applicable. In such event, the right of any Holder to include 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. The Company shall (together with all Holders proposing to distribute their Registrable Securities through such underwriting) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company (which underwriter or underwriters shall be reasonably acceptable to a majority in interest of the Initiating Holders). Notwithstanding any other provision of this Section 2.1 or Section 2.3, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares 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), or in such other proportions as mutually agreed to by such selling Holders; provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a requested registration pursuant to this Section 2.1:
(i) prior to 2.2 involves an underwritten offering and the earlier of September 30, 2015 or six months after the Initial Offering;
(ii) after managing underwriter advises the Company has effected three registrations pursuant to this Section 2.1 and either (A) all such registrations have been declared or ordered effective or (B) in writing that, in its opinion, the request for such registration statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have not paid the Registration Expenses of such withdrawn registration; provided, however, that for purposes of Section 2.1, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Section 2.1(b), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have securities requested to be included in such registration statement are actually included;
by the Shareholders exceeds the largest number of securities which can be sold in such offering without having an adverse effect on such offering (iiiincluding the price at which the securities can be sold) during the period starting with the date of filing of, and ending on the date one hundred eighty (180) days following, the effective date of the registration statement pertaining to the Initial Offering; provided that the Company makes reasonable efforts to cause the registration statement for the Initial Offering to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.1(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for its Initial Offering within ninety (90) days;
(v) if then the Company shall furnish include in such registration such number of Registrable Securities requested to be included in such registration which, in the Holders opinion of such managing underwriter, can be sold without having the adverse effect described above, which number shall be allocated PRO RATA among all such requesting Shareholders based on the relative number of Registrable Securities then held by each such requesting Shareholder. In the event that the number of Registrable Securities which the Shareholders have requested to include is less than the number of securities which, in the opinion of the managing underwriter, can be sold in such offering without having the adverse effect referred to above, then the Company shall be entitled to include in such registration, for its own account, up to that number of securities which, in the opinion of such managing underwriter, can be sold without having the adverse result on the offering referred to above.
(c) If a requested registration statement pursuant to this Section 2.1, a certificate signed by 2.2 involves an underwritten offering and the Chairman of the Board of Directors of managing underwriter advises the Company (the “Board”) stating that, in the good faith judgment its opinion, certain disclosure is of the Board, it would be seriously detrimental material importance to the Company and its stockholders for success of such registration statement to be effected at such timeproposed offering, in which event then the Company shall have cooperate with the right managing underwriter to defer provide such filing for a period disclosure. The Company agrees to include in any registration statement all information which, in the reasonable view of not more than ninety counsel to the underwriters (90if any) days after receipt of the request of the Initiating Holders; provided that such right or Designated Counsel, is required to delay a request be included.
(d) The Demand Party shall be exercised permitted to request that any registration under this Section 2.2 be made under Rule 415 under the Securities Act (the "SHELF REGISTRATION"). The Company shall use its commercially reasonable efforts to effect such Shelf Registration and to keep it continuously effective until such date on which there are no Registrable Securities covered by such registration. During the Company not more than once in any 12 month period; and provided further that period during which the Shelf Registration is effective, the Company shall not register any securities for its own account supplement or that of any other stockholder during such ninety (90) day period;
(vi) make amendments to the Shelf Registration, if required by the Initiating Holders propose to dispose of shares Securities Act or if reasonably requested by the Demand Party or an underwriter of Registrable Securities that may to be immediately registered on Form S-3 sold pursuant thereto, including to a request made pursuant reflect any specific plan of distribution or method of sale, and shall use its reasonable best efforts to Section 2.3 below; orhave such supplements and amendments declared effective, if required, as soon as practicable after filing.
(viie) if the The Company has, within the six month period preceding the date will pay all Registration Expenses in connection with each registration of such request, already effected a demand registration for the Holders Registrable Securities pursuant to this Section 2.1 and such registration has been declared or ordered effective2.2.
Appears in 1 contract
Demand Registration. (a) Subject to the conditions of this Section 2.1SECTION 2.2, if the Company shall receive a written request from the Initiating Holders that the Company file a registration statement under the Securities Act covering the registration of not less than twenty percent (20%) of the Registrable Securities resulting in net offering proceeds of at least $20,000,000then outstanding, then the Company will shall promptly, but in any case not later than fifteen (x15) promptly days after the receipt thereof, give written notice of the requested registration such request to all Holders and (y) prepare and file a registration statement and otherwise and, subject to the limitations of this SECTION 2.2, use its best efforts to cause such shareseffect, as soon as practicable, and all Registrable Securities of in any Holder or Holders joining in such registration pursuant to a written request delivered to the Company event within thirty sixty (3060) days after of the receipt by of such Holder or Holders of initial written notice from request, the Company, to be registered registration under the Securities Act within ninety (90) days of all Registrable Securities that the requestHolders request to be registered.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, then the Initiating Holders they shall so advise the Company as a part of their written request made pursuant to this Section 2.1 SECTION 2.2 or any request pursuant to Section 2.3SECTION 2.4, and the Company shall include such information in the written notice it provides to the Holders referred to in Section 2.1(aSECTION 2.2(A) or Section 2.3(aSECTION 2.4(A), as applicable. In such event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s 's participation in such underwriting and the inclusion of such Holder’s 's Registrable Securities in the underwriting to the extent provided herein. The Company shall (together with A Holder may elect to include in such underwriting all or fewer than all of the Registrable Securities he holds. All Holders proposing to distribute their Registrable Securities securities through such underwritingunderwriting shall (together with the Company) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by a majority in interest of the Company Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company) and customary selling stockholder documents, including a majority in interest custody agreement and power of the Initiating Holders)attorney. Notwithstanding any other provision of this Section 2.1 SECTION 2.2 or Section 2.3SECTION 2.4, if the underwriter advises the Company in writing that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities), ) then the Company shall so advise all Holders of Registrable Securities that which would otherwise be underwritten pursuant hereto, and the number of shares Registrable Securities that may be included in the underwriting shall be allocated among all Holders that have elected to include their securities in the registration in proportion (as nearly as practicable) to the Holders of such Registrable Securities on a pro rata basis based on the total number of Registrable Securities held by all each such Holders (including the Initiating Holders), or in such other proportions as mutually agreed to by such selling HoldersHolder; provided, provided however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person may withdraw therefrom by written notice to the Company, the underwriter or the Initiating Holders. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares to be included in such registration was previously reduced as a result of marketing factors pursuant to this SECTION 2.2(B), then the Company shall offer to all Holders who have not so withdrawn their securities from the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among the Holders of Registrable Securities requesting additional inclusion in proportion (as nearly as practicable) to the amount of Registrable Securities owned by each such Holder. For any Holder that is a partnership or corporation, the partners, retired partners and stockholders of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed a single "Holder," and any pro rata reduction with respect to such "Holder" shall be based upon the aggregate amount of shares carrying registration rights owned by all entities and individuals included in such "Holder" as defined in this sentence.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.1SECTION 2.2:
(i) if the anticipated aggregate offering price, net of underwriting discounts and commissions, would not exceed $5,000,000;
(ii) prior to the earlier of September 30, 2015 or six months after the Initial Offering;
(ii) after the Company has effected three registrations pursuant to this Section 2.1 and either (A) all such registrations have been declared or ordered effective or three (3) years from the date of this Agreement and (B) the request for such registration statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have not paid the Registration Expenses of such withdrawn registration; provided, however, that for purposes of Section 2.1, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Section 2.1(b), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have requested to be included in such registration statement are actually included;
(iii) during the period starting with the date of filing of, and ending on the date one hundred eighty (180) 180 days following, following the effective date of the registration statement pertaining to the Initial Offering; provided that ;
(iii) after the Company makes reasonable efforts has effected two (2) registrations pursuant to cause the registration statement for the Initial Offering to become this SECTION 2.2, and such registrations have been declared or ordered effective;
(iv) if if, within thirty (30) days of receipt of a written request from the Initiating Holders pursuant to Section 2.1(aSECTION 2.2(A), the Company gives notice to the Holders of the Company’s 's intention to file make a registration statement for its Initial Offering public offering within ninety (90) days; provided that the Company makes reasonable good faith efforts to cause the registration statement in connection with any such public offering to become effective;
(v) if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.1, SECTION 2.2 a certificate signed by the Chairman Chief Executive Officer of the Company stating that in the good faith judgment of the Board of Directors of the Company (the “Board”) stating that, in the good faith judgment of the BoardCompany, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event and the Company shall have the right Board of Directors concludes, as a result, that it is therefore essential to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than once in any 12 12-month period; and provided further that the Company shall not register any securities for its own account or that of any other stockholder during such ninety (90) day period;or
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.3 SECTION 2.4 below; or
(vii) if the Company has, within the six month period preceding the date of such request, already effected a demand registration for the Holders pursuant to this Section 2.1 and such registration has been declared or ordered effective.
Appears in 1 contract
Samples: Investor Rights Agreement (Trubion Pharmaceuticals, Inc)
Demand Registration. (a) Subject Borrower hereby agrees to register all or any portion of the conditions of this Section 2.1Registrable Securities on two occasions (but no more than one per year) within 18 months after Loan Closing, if the Company if, and only if, it shall receive a written request from a Holder (the Initiating Holders Holder) that the Company Borrower file a registration statement under the Securities 1933 Act covering the registration of at least 25% of the Registrable Securities resulting in net offering proceeds Then Outstanding. Borrower shall, within 20 days of at least $20,000,000its receipt thereof, then the Company will (x) promptly give written notice of the requested registration such request to all Holders and (y) prepare and file a registration statement and otherwise use its best efforts to cause such shares, and all of record of Registrable Securities. The Holders of said Registrable Securities of any Holder or Holders joining in such registration pursuant to a written request delivered to the Company within thirty (30) shall then have 15 days after receipt by such Holder or Holders of initial written notice from the Company, date of mailing of such notice by Borrower to request that all or a portion of their respective Registrable Securities be registered under the Securities Act within ninety (90) days of the requestincluded in said registration.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, then the Initiating Holders they shall so advise the Company Borrower as a part of their written request made pursuant to this Section 2.1 or any request pursuant to Section 2.3Agreement, and the Company Borrower shall include such information in the written notice to the other Holders of Registrable Securities referred to in Section 2.1(a) or Section 2.3(a9.01(a), as applicable. In such event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s 's participation in such underwriting and the inclusion of such Holder’s 's Registrable Securities in the underwriting (unless otherwise mutually agreed by Borrower, the underwriter, the Initiating Holder and such Holder) is limited to the extent provided herein. The Company shall (together with all All Holders proposing to distribute their Registrable Securities securities through such underwritingunderwriting shall (together with Borrower as provided in Section 9.04(e)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company (which underwriter or underwriters shall be reasonably acceptable to a majority in interest mutual agreement of Borrower and the Initiating Holders)Holder, which agreement shall not be unreasonably withheld. Notwithstanding any other provision of this Section 2.1 or Section 2.39.01, if the underwriter advises the Company Initiating Holder and Borrower in writing that marketing factors require a limitation of the number of securities shares to be underwritten (including Registrable Securities)underwritten, then the Company Initiating Holder shall so advise all Holders of Registrable Securities that which would otherwise be underwritten pursuant hereto, and the number of shares 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 among all such Holders (including the Initiating Holders), or that have requested to participate in such other proportions as mutually agreed to by such selling Holders; provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities registration. The nights of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting Holders shall be withdrawn from the registrationsenior to those of any Persons subsequently granted demand registration nights.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.1:
(i) prior to the earlier of September 30, 2015 or six months after the Initial Offering;
(ii) after the Company has effected three registrations pursuant to this Section 2.1 and either (A) all such registrations have been declared or ordered effective or (B) the request for Each such registration statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have not paid the Registration Expenses of such withdrawn registration; provided, however, that for purposes of Section 2.1, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Section 2.1(b), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have requested to be included in such registration statement are actually included;
(iii) during the period starting with the date of filing of, and ending on the date one hundred eighty (180) days following, the remain effective date of the registration statement pertaining to the Initial Offering; provided that the Company makes reasonable efforts to cause the registration statement for the Initial Offering to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.1(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for its Initial Offering within ninety (90) days;
(v) if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.1, a certificate signed by the Chairman of the Board of Directors of the Company (the “Board”) stating that, in the good faith judgment of the Board, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of 180 days, unless the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than once in any 12 month period; and provided further that the Company shall not register any securities for its own account or that of any other stockholder during such ninety (90) day period;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.3 below; or
(vii) if the Company has, within the six month period preceding the date of such request, already effected a demand registration for the Holders pursuant to this Section 2.1 and such registration has been declared or ordered effectiveHolder otherwise determines.
Appears in 1 contract
Demand Registration. (a) Subject to the conditions of this Section 2.1, if If the Company shall receive receives at any time after the date that is 12 months after Closing, a written request from the Holders of a majority of the Registrable Securities then outstanding (the "Initiating Holders Holders") that the Company file a registration statement under the Securities Act covering the registration of at least fifty percent (50%) of the Registrable Securities resulting in net offering proceeds of at least $20,000,000then outstanding, then the Company will shall:
(xi) promptly within 10 days of the receipt thereof, give written notice of the requested registration such request to all Holders and Holders; and
(yii) prepare and file a registration statement and otherwise use its best all reasonable efforts to cause such shareseffect as soon as practicable, and in any event within 180 days of the receipt of such request, the registration under the Act of all Registrable Securities of any Holder or which the Holders joining in such registration pursuant to a written request delivered to the Company within thirty (30) days after receipt by such Holder or Holders of initial written notice from the Company, to be registered under the Securities Act registered, within ninety (90) 30 days of the requestmailing of such notice by the Company in accordance with Section 2.4. subject to the limitations of subsection 1.2(b).
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, then the Initiating Holders they shall so advise the Company as a part of their written request made pursuant to this Section 2.1 or any request pursuant to Section 2.3subsection 1.2(a), and the Company shall include such information in the written notice referred to in Section 2.1(a) subsection 1.2(a). The underwriter will be selected by the Initiating Holders and shall be an underwriter of regional or Section 2.3(a), as applicablenational standing reasonably acceptable to the Company. In such event, the right of any Holder to include its Registrable Securities in such the registration shall be conditioned upon such Holder’s 's participation in such the underwriting and the inclusion of such Holder’s 's Registrable Securities in the underwriting to (unless otherwise mutually agreed by a majority in interest of the extent provided hereinInitiating Holders and such Holder). The Company shall (together with all All Holders proposing to distribute their Registrable Securities securities through such underwritingthe underwriting shall (together with the Company as provided in subsection 1.4(e)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company (which underwriter or underwriters shall be reasonably acceptable to a majority in interest of the Initiating Holders)underwriting. Notwithstanding any other provision of this Section 2.1 or Section 2.31.2, if the underwriter advises the Company Initiating Holders in writing that marketing factors require a limitation of the number of securities shares to be underwritten (including Registrable Securities)underwritten, then the Company Initiating Holders shall so advise all Holders of Registrable Securities that which would otherwise be underwritten pursuant heretoto this subsection, and the number of shares 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 among all such Holders (Holders, including the Initiating Holders), or in such other proportions proportion (as mutually agreed nearly as practicable) to the amount of Registrable Securities of the Company owned by such selling Holderseach Holder; provided, however, that the number of shares of Registrable Securities to be included in such the underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registrationunderwriting.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.1:
(i) prior to Notwithstanding the earlier of September 30foregoing, 2015 or six months after the Initial Offering;
(ii) after the Company has effected three registrations pursuant to this Section 2.1 and either (A) all such registrations have been declared or ordered effective or (B) the request for such registration statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have not paid the Registration Expenses of such withdrawn registration; provided, however, that for purposes of Section 2.1, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Section 2.1(b), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have requested to be included in such registration statement are actually included;
(iii) during the period starting with the date of filing of, and ending on the date one hundred eighty (180) days following, the effective date of the registration statement pertaining to the Initial Offering; provided that the Company makes reasonable efforts to cause the registration statement for the Initial Offering to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.1(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for its Initial Offering within ninety (90) days;
(v) if the Company shall furnish furnishes to the Initiating Holders requesting a registration statement pursuant to this Section 2.1, a certificate signed by the Chairman Chief Executive Officer of the Company stating that in the good faith judgment of the Board of Directors of the Company (the “Board”) stating that, in the good faith judgment of the BoardCompany, it would be seriously detrimental to the Company and its stockholders shareholders for such a registration statement to be effected at such timefiled and it is therefore essential to defer the filing of the registration statement, in which event the Company shall have the right to defer such taking action with respect to the filing for a period of not more than ninety (90) 120 days after receipt of the request of the Initiating Holders; provided provided, however, that such right to delay a request shall be exercised by the Company may not utilize this right more than once in any 12 twelve-month period; and provided further that .
(d) In addition, the Company shall not register be obligated to effect, or to take any securities for its own account or that of action to effect, any other stockholder during such ninety (90) day period;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.3 below; or
(vii) if the Company has, within the six month period preceding the date of such request, already effected a demand registration for the Holders pursuant to this Section 2.1 1.2: (i) after the Company has effected two registrations pursuant to this Section 1.2 and such registration has registrations have been declared or ordered effective; and
(ii) within twelve months after the effective date of the first registration made pursuant to this Section 1.2.
Appears in 1 contract
Demand Registration. (a) Subject to the conditions of this Section 2.1, if If the Company shall receive at any time a written request from Initiating Holders of at least thirty-five percent (35%) of the Registrable Securities then outstanding ("INITIATING HOLDERS"), requesting that the Company file a registration statement under the Securities Act covering the registration of a portion of the Registrable Securities resulting in net offering proceeds of at least $20,000,000then outstanding, then the Company will shall:
(xi) promptly within ten (10) days of the receipt thereof, give written notice of the requested registration such request to all Holders and Holders; and
(yii) prepare and file a registration statement and otherwise use its best efforts to cause such shareseffect as soon as practicable, and all Registrable Securities of in any Holder or Holders joining in such registration pursuant to a written request delivered to the Company event within thirty sixty (30) days after receipt by such Holder or Holders of initial written notice from the Company, to be registered under the Securities Act within ninety (9060) days of the receipt of such request, the registration under the Act of all Registrable Securities which the Holders request to be registered, subject to the limitations of subsection 1.2(b), within fifteen (15) days of the mailing of such notice by the Company in accordance with Section 2.5.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, then the Initiating Holders they shall so advise the Company as a part of their written request made pursuant to this Section 2.1 or any request pursuant to Section 2.3, subsection 1.2(a) and the Company shall include such information in the written notice referred to in Section 2.1(a) or Section 2.3(asubsection 1.2(a), as applicable. The underwriter will be selected by the Company and shall be reasonably acceptable to a majority of the Initiating Holders. In such event, the right of any Holder or other holder of securities of the Company to include its Registrable Securities securities in such registration shall be conditioned upon such Holder’s 's or holders' participation in such underwriting and the inclusion of such Holder’s Registrable Securities 's or holders' securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder or holder) to the extent provided herein. The All Holders and other holders of securities of the Company proposing to distribute their securities through such underwriting shall (together with all Holders proposing to distribute their Registrable Securities through such underwritingthe Company as provided in subsection 1.5(e)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company (which underwriter or underwriters shall be reasonably acceptable to a majority in interest of the Initiating Holders)underwriting. Notwithstanding any other provision of this Section 2.1 or Section 2.3section 1.2, if the underwriter advises the Company Initiating Holders in writing that marketing factors require a limitation of the number of securities shares to be underwritten (including Registrable Securities)underwritten, then the Company Initiating Holders shall so advise all Holders of Registrable Securities that and other holders of registration rights which would otherwise be underwritten pursuant hereto, and the number of shares of securities that may be included in the underwriting on behalf of each Holder or other holder 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), or in such other proportions as mutually agreed to by such selling Holders; provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.1:
allocated: (i) prior first, to the earlier of September 30, 2015 or six months after the Initial Offering;
(ii) after the Company has effected three registrations pursuant to this Section 2.1 and either (A) all such registrations have been declared or ordered effective or (B) the request for such registration statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have not paid the Registration Expenses of such withdrawn registration; provided, however, that for purposes of Section 2.1, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Section 2.1(b), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have requested to be included in such registration statement are actually included;
by the Holders of Registrable Securities; (ii) second, to shares of Common Stock held by other holders requested to be included in such registration, provided that such amount shall be allocated among such other holders on a pro rata basis based upon their respective percentage of ownership of the total number of shares of Common Stock then outstanding and (iii) during third, to shares of Common Stock to be offered by the period starting with the date Company in such registration. For purposes of filing ofallocation securities to be included in any offering, and ending on the date one hundred eighty (180) days followingfor any selling stockholder which is a partnership or corporation, the effective date partners, retired partners and stockholders of such holder (and in the case of a partnership, any affiliated partnerships), or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single "selling stockholder," and any pro-rata reduction with respect to such "selling stockholder" shall be based upon the aggregate amount of shares carrying registration statement pertaining to the Initial Offering; provided that the Company makes reasonable efforts to cause the registration statement for the Initial Offering to become effective;rights owned by all entities and individuals included in such "selling stockholder," as defined in this sentence.
(ivc) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.1(a)Notwithstanding the foregoing, the Company gives notice to the Holders of the Company’s intention to file a registration statement for its Initial Offering within ninety (90) days;
(v) if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.11.2, a certificate signed by the Chairman Chief Executive Officer of the Company stating that in the good faith judgment of the Board of Directors of the Company (the “Board”) stating that, in the good faith judgment of the BoardCompany, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at filed and it is therefore essential to defer the filing of such timeregistration statement, in which event the Company shall have the right to defer taking action with respect to such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided PROVIDED, HOWEVER, that such right to delay a request shall be exercised by the Company may not utilize this right more than once in any 12 twelve-month period; and provided further that .
(d) In addition, the Company shall not register be obligated to effect, or to take any securities for its own account or that of action to effect, any other stockholder during such ninety (90) day period;registration pursuant to this Section 1.2:
(vii) After the Company has effected one (1) registration pursuant to this Section 1.2 and such registration has been declared or ordered effective (or two (2) such registrations if the Company is not S-3 eligible and the Articles Approval (each as defined in the Purchase Agreement) is not obtained prior to the expiration of the underwriters lock-up in the Company's Public Offering; and
(ii) If the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.3 1.4 below; or
(vii) if the Company has, within the six month period preceding the date of such request, already effected a demand registration for the Holders pursuant to this Section 2.1 and such registration has been declared or ordered effective.
Appears in 1 contract
Demand Registration. (a) Subject to If at any time after conversion of the conditions Convertible Preferred Shares, or exercise of this Section 2.1the Warrants, if the Company shall receive receives a written request from Initiating Holders the Holder that the Company file a registration statement under the Securities Act covering the registration of all or a portion of the Registrable Securities resulting in net offering proceeds of at least $20,000,000the Holder then outstanding, then the Company will (x) promptly give written notice shall as soon as practicable effect such registration of the requested registration to all Holders and (y) prepare and file a registration statement and otherwise use its best efforts to cause such shares, and all Registrable Securities of any Holder the Holder. Such obligation shall include, without limitation, the execution of an undertaking to file post-effective amendments and to effect appropriate registrations or Holders joining in such registration pursuant to a written request delivered to the Company within thirty (30) days after receipt by such Holder qualifications under applicable blue sky or Holders of initial written notice from the Company, to be registered other state securities laws and appropriate compliance with exemptive regulations issued under the Securities Act within ninety (90) days of the requestand any other governmental requirements or regulations.
(b) If the Initiating Holders intend Holder intends to use an underwriter to distribute the Registrable Securities covered by their request by means of an underwritingits request, then the Initiating Holders it shall so advise the Company as a part of their written request made pursuant to this Section 2.1 or any request pursuant to Section 2.3, and the Company shall include such information in the written notice referred to in Section 2.1(a) or Section 2.3(a), as applicableits request. In such event, the right of any Holder to include 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. The Company shall (together with all Holders proposing to distribute their Registrable Securities through such underwritingthe Company) enter into an underwriting agreement in customary form with the an underwriter or underwriters selected for such underwriting by the Company (which underwriter or underwriters shall be reasonably acceptable Holder, subject to a majority in interest the approval of the Initiating Holders)Company which shall not be unreasonably withheld. The Company shall not register any other securities in connection with any such demand registration, other than for its own account. Notwithstanding any other provision of this Section 2.1 or Section 2.3subsection, if the underwriter advises the Holder and the Company in writing that marketing factors require a limitation of the number of securities shares to be underwritten (including Registrable Securities), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting underwriting, then shares, if any, other than Registrable Securities shall first be allocated excluded from such registration 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), or in such other proportions as mutually agreed to extent required by such selling Holders; provided, however, that underwriting limitation. If the number of shares of Registrable Securities to so excluded exceeds twenty percent (20%) of the number of shares of Registrable Securities which the Holder has requested be included in such underwriting registration, then the Holder shall be entitled either (i) to require that the registration be deferred for such period of time as the Holder, the Company and the underwriter may mutually agree upon, but in no event for more than ninety (90) days from delivery of a written notice of the Holder to the Company requesting such delay, or (ii) to withdraw the registration request, in which case it shall not be reduced unless all other count as a demand registration for purposes of the limitation in SECTION 3.1(d). The Company shall not effect a sale of any securities of the Company are first entirely excluded from similar to the underwriting and registration. Any Registrable Securities excluded being offered in the underwritten offering, or withdrawn from such underwriting shall be withdrawn from convertible or exercisable for Registrable Securities during the registrationperiod commencing ten (10) days prior to and ending one hundred twenty (120) days after the effective date of the applicable registration statement.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.1:
(i) prior to Notwithstanding the earlier of September 30foregoing, 2015 or six months after the Initial Offering;
(ii) after the Company has effected three registrations pursuant to this Section 2.1 and either (A) all such registrations have been declared or ordered effective or (B) the request for such registration statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have not paid the Registration Expenses of such withdrawn registration; provided, however, that for purposes of Section 2.1, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Section 2.1(b), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have requested to be included in such registration statement are actually included;
(iii) during the period starting with the date of filing of, and ending on the date one hundred eighty (180) days following, the effective date of the registration statement pertaining to the Initial Offering; provided that the Company makes reasonable efforts to cause the registration statement for the Initial Offering to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.1(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for its Initial Offering within ninety (90) days;
(v) if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.1Holder, a certificate signed by the Chairman of the Board of Directors President or Chief Executive Officer of the Company (the “Board”) stating that, that in the good faith judgment of the Boardboard of directors of the Company, it would be seriously detrimental to the Company and its stockholders shareholders for such registration statement to be effected at filed and it is therefore essential to defer the filing of such timeregistration statement, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating HoldersHolder; provided that such right to delay a request shall be exercised by the Company not more than once in any 12 month period; and provided further PROVIDED, HOWEVER, that the Company may not utilize this right more than once.
(d) The Company shall not register be obligated to effect, or to take any securities for its own account or that of action to effect, any other stockholder during such ninety (90) day period;registration pursuant to SECTION 3.1
(via) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.3 below; or
(vii) if AFTER the Company has, within the six month period preceding the date of such request, already has effected a two demand registration for the Holders pursuant to this Section 2.1 registrations and each such registration has been declared or ordered effectiveeffective and kept effective for at least one hundred twenty (120) days. Notwithstanding the immediately preceding sentence or the provisions of SECTION 3.1(b), a registration will not count as a demand registration under SECTION 3.1(a) unless the Holder was able to sell a minimum of seventy-five (75%) of the shares sought to be registered in such registration.
Appears in 1 contract
Samples: Registration Rights Agreement (Network Computing Devices Inc)
Demand Registration. (a) Subject If at any time after conversion of the Note and issuance of the Stock to the conditions of this Section 2.1Holder, if the Company shall receive receives a written request from Initiating Holders the Holder that the Company file a registration statement under the Securities Act covering the registration of all or a portion of the Registrable Securities resulting in net offering proceeds of at least $20,000,000the Holder then outstanding, then the Company will (x) promptly give written notice shall as soon as practicable effect such registration of the requested registration to all Holders and (y) prepare and file a registration statement and otherwise use its best efforts to cause such shares, and all Registrable Securities of any Holder the Holder. Such obligation shall include, without limitation, the execution of an undertaking to file post-effective amendments and to effect appropriate registrations or Holders joining in such registration pursuant to a written request delivered to the Company within thirty (30) days after receipt by such Holder qualifications under applicable blue sky or Holders of initial written notice from the Company, to be registered other state securities laws and appropriate compliance with exemptive regulations issued under the Securities Act within ninety (90) days of the requestand any other governmental requirements or regulations.
(b) If the Initiating Holders intend Holder intends to use an underwriter to distribute the Registrable Securities covered by their request by means of an underwritingits request, then the Initiating Holders it shall so advise the Company as a part of their written request made pursuant to this Section 2.1 or any request pursuant to Section 2.3, and the Company shall include such information in the written notice referred to in Section 2.1(a) or Section 2.3(a), as applicableits request. In such event, the right of any Holder to include 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. The Company shall (together with all Holders proposing to distribute their Registrable Securities through such underwritingthe Company) enter into an underwriting agreement in customary form with the an underwriter or underwriters selected for such underwriting by the Company (which underwriter or underwriters shall be reasonably acceptable Holder, subject to a majority in interest the approval of the Initiating Holders)Company which shall not be unreasonably withheld. The Company shall not register any other securities in connection with any such demand registration, other than for its own account. Notwithstanding any other provision of this Section 2.1 or Section 2.3subsection, if the underwriter advises the Holder and the Company in writing that marketing factors require a limitation of the number of securities shares to be underwritten (including Registrable Securities), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting underwriting, then shares, if any, other than Registrable Securities shall first be allocated excluded from such registration 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), or in such other proportions as mutually agreed to extent required by such selling Holders; provided, however, that underwriting limitation. If the number of shares of Registrable Securities to so excluded exceeds twenty percent (20%) of the number of shares of Registrable Securities which the Holder has requested be included in such underwriting registration, then the Holder shall be entitled either (i) to require that the registration be deferred for such period of time as the Holder, the Company and the underwriter may mutually agree upon, but in no event for more than ninety (90) days from delivery of a written notice of the Holder to the Company requesting such delay, or (ii) to withdraw the registration request, in which case it shall not be reduced unless all other count as a demand registration for purposes of the limitation in SECTION 3.1(d). The Company shall not effect a sale of any securities of the Company are first entirely excluded from similar to the underwriting and registration. Any Registrable Securities excluded being offered in the underwritten offering, or withdrawn from such underwriting shall be withdrawn from convertible or exercisable for Registrable Securities during the registrationperiod commencing ten (10) days prior to and ending one hundred twenty (120) days after the effective date of the applicable registration statement.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.1:
(i) prior to Notwithstanding the earlier of September 30foregoing, 2015 or six months after the Initial Offering;
(ii) after the Company has effected three registrations pursuant to this Section 2.1 and either (A) all such registrations have been declared or ordered effective or (B) the request for such registration statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have not paid the Registration Expenses of such withdrawn registration; provided, however, that for purposes of Section 2.1, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Section 2.1(b), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have requested to be included in such registration statement are actually included;
(iii) during the period starting with the date of filing of, and ending on the date one hundred eighty (180) days following, the effective date of the registration statement pertaining to the Initial Offering; provided that the Company makes reasonable efforts to cause the registration statement for the Initial Offering to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.1(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for its Initial Offering within ninety (90) days;
(v) if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.1Holder, a certificate signed by the Chairman of the Board of Directors President or Chief Executive Officer of the Company (the “Board”) stating that, that in the good faith judgment of the Boardboard of directors of the Company, it would be seriously detrimental to the Company and its stockholders shareholders for such registration statement to be effected at filed and it is therefore essential to defer the filing of such timeregistration statement, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating HoldersHolder; provided that such right to delay a request shall be exercised by the Company not more than once in any 12 month period; and provided further PROVIDED, HOWEVER, that the Company may not utilize this right more than once.
(d) The Company shall not register be obligated to effect, or to take any securities for its own account or that of action to effect, any other stockholder during such ninety (90) day period;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 registration pursuant to a request made pursuant to Section 2.3 below; or
(viiSECTION 3.1(a) if after the Company has, within the six month period preceding the date of such request, already has effected a two demand registration for the Holders pursuant to this Section 2.1 registrations and each such registration has been declared or ordered effectiveeffective and kept effective for at least one hundred twenty (120) days. Notwithstanding the immediately preceding sentence or the provisions of SECTION 3.1(b), a registration will not count as a demand registration under SECTION 3.1(a) unless the Holder was able to sell a minimum of seventy-five (75%) of the shares sought to be registered in such registration.
Appears in 1 contract
Samples: Registration Rights Agreement (Network Computing Devices Inc)
Demand Registration. (a) Subject At any time, and from time to time, Stockholders holding not less than 25% of the Registrable Shares, shall have the right, by written notice (the “Demand Notice”) given to the conditions Company, to request the Company to register under and in accordance with the provisions of the Securities Act all or any portion of the Registrable Shares held by such Stockholders (the “Demanding Holders”) the expected gross proceeds of which (based upon the price per share to be set forth in the Prospectus relating to such Registration) shall exceed $1 million, as designated by such Stockholders (a “Demand Registration”). Upon receipt of any such Demand Notice, the Company shall promptly, but in no event more than five Business Days after receipt thereof, notify each other Stockholder of the receipt of such Demand Notice and, subject to the limitations set forth below, shall include in the proposed registration all Registrable Shares with respect to which the Company has received a written request for inclusion therein within 15 Business Days after delivery of the Company’s notice. In connection with any Demand Registration in which more than one Stockholder participates, in the event that such Demand Registration involves an underwritten offering and the managing underwriter or underwriters participating in such offering advise in writing the Stockholders participating in such offering that the total amount of securities to be included in such offering exceeds the amount that can be sold in (or during the time of) such offering without delaying or jeopardizing the success of such offering (including the price per share of the securities to be sold), then the total number or amount of securities to be included in such underwritten offering shall be reduced to a number deemed satisfactory by such managing underwriter or underwriters, provided, that the securities to be excluded shall be determined in the following sequence: (i) first, securities proposed by the Company to be sold for its own account and securities held by holders of securities of the Company other than Registrable Shares requesting and legally entitled to include such securities in such registration, on a pro rata basis (based upon the number or amount of securities requested (or proposed) to be registered by each such holder and the Company); (ii) second, securities held by holders of Registrable Shares other than Demanding Holders, on a pro rata basis (based upon the number of Registrable Shares beneficially held by each such holder); and (iii) third, securities held by Demanding Holders, on a pro rata basis (based upon the number of Registrable Shares beneficially held . The holders of Registrable Shares shall be entitled to an aggregate of three Demand Registrations on Form S-1 or Form S-2 (or any similar or successor forms thereto) and an unlimited number (but no more than one in any six month period) of Demand Registrations on Form S-3 (or any similar or successor forms thereto), to the extent the Company meets the requirement for the use thereof,) pursuant to this Section 2.1; provided, if that any Demand Registration that (x) does not become effective, (y) is not maintained for the Company shall receive a written request from Initiating time period required in accordance with Section 2.1(c) hereof, or (z) pursuant to which the Demanding Holders that the Company file a registration statement under the Securities Act covering the registration do not register at least 51% of the Registrable Securities resulting Shares specified in net offering proceeds a Demand Notice, shall not count as one of at least $20,000,000, then the such Demand Registrations.
(b) The Company will (x) promptly give written notice of the requested registration to all Holders and (y) prepare and file a registration statement and otherwise shall use its best efforts to cause such sharesqualify and remain qualified to register securities on Form S-3) (or any similar orsuccessor forms thereto).
(c) Subject to Section 2.1(d), the Company shall file with the SEC, as soon as practicable, but in no event more than 45 days after the date on which the Company receives a Demand Notice given by Demanding Holders in accordance with Section 2.1(a) hereof, and all the Company shall thereafter cause to be declared effective as promptly as practicable, a Registration Statement on the appropriate form for the registration and sale, in accordance with the intended method or methods of distribution, of the total number of Registrable Securities of any Holder or Shares specified by the Demanding Holders joining in such registration pursuant Demand Notice together with any other Registrable Shares with respect to which the Company has received a written request delivered for inclusion in accordance with Section 2.1(a) hereof, subject to the Company within thirty (30reduction as set forth in Section 2.1(a) days after receipt by such Holder or Holders of initial written notice from the Company, to be registered under the Securities Act within ninety (90) days of the requesthereof.
(bd) If the Initiating Holders intend The Company shall use best efforts to distribute the Registrable Securities covered by their request by means of an underwriting, then the Initiating Holders shall so advise the Company as a part of their written request made keep each Registration Statement filed pursuant to this Section 2.1 or any request continuously effective and usable for the resale of the Registrable Shares covered thereby for a period of 180 days from the date on which the SEC declares such Registration Statement effective, as such period may be extended pursuant to this Section 2.32.1, and or if shorter, until all the Company shall include Registrable Shares covered by such information in the written notice referred Registration Statement have been sold pursuant to in Section 2.1(asuch Registration Statement.
(e) or Section 2.3(a), as applicable. In such event, the right of any Holder to include 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. The Company shall (together with all Holders proposing be entitled to distribute their Registrable Securities through such underwriting) enter into an underwriting agreement in customary form with postpone the underwriter or underwriters selected for such underwriting filing of any Registration Statement otherwise required to be prepared and filed by the Company (pursuant to this Section 2.1, or suspend the use of any effective Registration Statement under this Section 2.1, for a reasonable period of time which underwriter or underwriters shall be reasonably acceptable to as short as practicable, but in any event not in excess of 90 days (a majority in interest of the Initiating Holders“Delay Period”). Notwithstanding any other provision of this Section 2.1 or Section 2.3, if the underwriter advises Company determines in good faith that the registration and distribution of the Registrable Shares covered or to be covered by such Registration Statement would materially interfere with any pending or imminent material financing, acquisition, disposition or corporate reorganization or other material corporate development involving the Company that marketing factors or any of its subsidiaries or would require premature disclosure thereof and promptly gives the Demanding Holders written notice of such determination, containing a limitation statement of the number reasons for such postponement and an approximation of securities to be underwritten (including Registrable Securities), then the Company shall so advise all Holders period of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares 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), or in such other proportions as mutually agreed to by such selling Holdersanticipated delay; provided, however, that (i) the aggregate number of days included in all Delay Periods during any consecutive 12 months shall not exceed the aggregate of (x) 90 days minus (y) the number of shares days occurring during all Hold Back Periods and Interruption Periods during such consecutive 12 months and (ii) a period of at least 60 days shall elapse between the termination of any Delay Period, Hold Back Period or Interruption Period and the commencement of the immediately succeeding Delay Period. If the Company shall so postpone the filing of a Registration Statement, the holders of Registrable Securities Shares to be included in registered shall have the right to withdraw the request for registration by giving written notice to the Company within 30 days after receipt of the notice of postponement or, if earlier, the termination of such underwriting Delay Period. The time period for which the Company is required to maintain the effectiveness of any Registration Statement shall be extended by the aggregate number of days of all Delay Periods, all Hold Back Periods and registration all Interruption Periods occurring during such Registration. The Company shall not be reduced entitled to initiate a Delay Period unless all it shall (A) to the extent permitted by agreements with other securities securityholders of the Company are first entirely excluded Company, concurrently prohibit sales by such other securityholders under registration statements covering securities held by such other security holders and (B) in accordance with the Company’s policies from time to time in effect, forbid purchases and sales in the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from open market by senior executives of the registrationCompany.
(cf) The Demanding Holders may, at any time prior to the effective date of the Registration Statement relating to a Demand Registration, revoke such request by providing a written notice to the Company revoking such request. However, if such revocation is made after filing of a Registration Statement with the SEC, then, for all such revocations after the second such revocation, the registration will be deemed to have been completed for purposes of being counted against the quota of Demand Registrations to which the Demanding Holders are entitled pursuant to this Agreement.
(g) The Company shall not be required to effect a registration pursuant to this Section 2.1:
(i) prior to the earlier of September 30, 2015 or six months after the Initial Offering;
(ii) after the Company has effected three registrations include any securities that are not Registrable Shares in any Registration Statement filed pursuant to this Section 2.1 and either (A) all such registrations have been declared or ordered effective or (B) without the request for such registration statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have not paid the Registration Expenses prior written consent of such withdrawn registration; provided, however, that for purposes of Section 2.1, Stockholders holding a registration shall not be counted as “effected” if, as a result of an exercise majority of the underwriter’s cutback provisions in Section 2.1(b), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have requested Shares to be included in the offering covered by such registration statement are actually included;
(iii) during the period starting with the date of filing of, and ending on the date one hundred eighty (180) days following, the effective date of the registration statement pertaining to the Initial Offering; provided that the Company makes reasonable efforts to cause the registration statement for the Initial Offering to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.1(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for its Initial Offering within ninety (90) days;
(v) if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.1, a certificate signed by the Chairman of the Board of Directors of the Company (the “Board”) stating that, in the good faith judgment of the Board, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than once in any 12 month period; and provided further that the Company shall not register any securities for its own account or that of any other stockholder during such ninety (90) day period;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.3 below; or
(vii) if the Company has, within the six month period preceding the date of such request, already effected a demand registration for the Holders pursuant to this Section 2.1 and such registration has been declared or ordered effectiveRegistration Statement.
Appears in 1 contract
Samples: Registration Rights Agreement (Universal Access Global Holdings Inc)
Demand Registration. (a) Subject to Commencing as of the conditions of this Section 2.1date first written hereinabove, if the Company shall receive any Requesting Holders may make a written request from Initiating Holders to the Company (specifying that it is being made pursuant to this Section 2) that the Company file a registration statement under the Securities 1933 Act (or a similar document pursuant to any other statute then in effect corresponding to the 0000 Xxx) covering the registration of the Registrable Securities resulting in net offering proceeds of at least $20,000,000Stock. In such event, then the Company will shall (x) promptly give written notice within ten (10) days thereafter notify in writing all other Holders of the requested registration to all Holders Registrable Stock of such request, and (y) prepare and file a registration statement and otherwise use its best efforts to cause such shares, and all Registrable Securities of any Holder or Holders joining in such registration pursuant to a written request delivered to the Company within thirty (30) days after receipt by such Holder or Holders of initial written notice from the Company, to be registered under the Securities 1933 Act all Registrable Stock that the Requesting Holders and such other Holders have, within ninety forty-five (9045) days after the Company has given such notice, requested be registered. REGISTRATION RIGHTS AGREEMENT Page 2 of the request.14 -----------------------------
(b) If the Initiating Requesting Holders intend to distribute the Registrable Securities Stock covered by their request by means of an underwritingunderwritten offering, then the Initiating Holders they shall so advise the Company as a part of their written request made pursuant to this Section 2.1 or any request pursuant to Section 2.32.(a) above, and the Company shall include such information in the written notice referred to in clause (x) of Section 2.1(a2.(a) or Section 2.3(a), as applicableabove. In such event, the Holder's right of any Holder to include its Registrable Securities Stock in such registration shall be conditioned upon such Holder’s 's participation in such underwriting underwritten offering and the inclusion of such Holder’s 's Registrable Securities Stock in the underwriting underwritten offering to the extent provided hereinin this Section 2. The Company shall (together with all All Holders proposing to distribute their Registrable Securities Stock through such underwriting) underwritten offering shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company (which underwriters. Such underwriter or underwriters shall be reasonably acceptable to selected by a majority in interest of the Initiating Requesting Holders and shall be approved by the Company, which approval shall not be unreasonably withheld; PROVIDED, that all of the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of such underwriters shall also be made to and for the benefit of such Holders and that any or all of the conditions precedent to the obligations of such underwriters under such underwriting agreement shall be conditions precedent to the obligations of such Holders). ; and PROVIDED FURTHER, that no Holder shall be required to make any representations or warranties to or agreements with the Company or the underwriters other than representations, warranties or agreements regarding such Holder, the Registrable Stock of such Holder and such Holder's intended method of distribution and any other representation required by law or reasonably required by the underwriter.
(c) Notwithstanding any other provision of this Section 2.1 or Section 2.32 to the contrary, if the managing underwriter of an underwritten offering of the Registrable Stock requested to be registered pursuant to this Section 2 advises the Company Requesting Holders in writing that in its opinion marketing factors require a limitation of the number of securities shares to be underwritten (including Registrable Securities)underwritten, then the Company Requesting Holders shall so advise all Holders of Registrable Securities Stock that would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Stock that may be included in the underwriting such underwritten offering shall be allocated among all such Holders, including the Requesting Holders, in proportion (as nearly as practicable) to the Holders amount of Registrable Stock requested to be included in such registration by each Holder at the time of filing the registration statement; PROVIDED, that in the event of such Registrable Securities on a pro rata basis based on the number limitation of Registrable Securities held by all such Holders (including the Initiating Holders), or in such other proportions as mutually agreed to by such selling Holders; provided, however, that the number of shares of Registrable Securities Stock to be included in such underwriting and underwritten, the Holders shall be entitled to an additional demand registration shall not be reduced unless all other securities pursuant to this Section 2. If any Holder of Registrable Stock disapproves of the Company are first entirely excluded from terms of the underwriting underwriting, such Holder may elect to withdraw by written notice to the Company, the managing underwriter and registrationthe Requesting Holders. Any Registrable Securities excluded or The securities so withdrawn from such underwriting shall also be withdrawn from the registration.
(cd) The Notwithstanding any provision of this Agreement to the contrary, the Company shall not be required to effect a registration pursuant to this Section 2.1:
(i) prior to the earlier of September 30, 2015 or six months after the Initial Offering;
(ii) after the Company has effected three registrations pursuant to this Section 2.1 and either (A) all such registrations have been declared or ordered effective or (B) the request for such registration statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have not paid the Registration Expenses of such withdrawn registration; provided, however, that for purposes of Section 2.1, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Section 2.1(b), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have requested to be included in such registration statement are actually included;
(iii) 2 during the period starting with the fourteenth (14th) day immediately preceding the date of an anticipated filing by the Company of, and ending on the a date one hundred eighty (180) days following, the effective date of the registration statement pertaining to the Initial Offering; provided that the Company makes reasonable efforts to cause the registration statement for the Initial Offering to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.1(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for its Initial Offering within ninety (90) days;
(v) if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.1, a certificate signed by the Chairman of the Board of Directors of the Company (the “Board”) stating that, in the good faith judgment of the Board, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt following the effective date of, a registration statement pertaining to a public offering of securities for the REGISTRATION RIGHTS AGREEMENT Page 3 of 14 ----------------------------- account of the request of the Initiating HoldersCompany; provided that such right to delay a request shall be exercised by the Company not more than once in any 12 month period; and provided further PROVIDED, that the Company shall not register any securities for its own account or actively employ in good faith all reasonable efforts to cause such registration statement to become effective; and PROVIDED FURTHER, that the Company's estimate of any other stockholder during the date of filing such ninety (90) day period;registration statement shall be made in good faith.
(vie) The Company shall be obligated to effect and pay for a total of only one (1) registration pursuant to this Section 2, unless increased pursuant to Section 2.(c) hereof; PROVIDED, that a registration requested pursuant to this Section 2 shall not be deemed to have been effected for purposes of this Section 2.(e), unless (i) it has been declared effective by the Commission, (ii) if it is a shelf registration, it has remained effective for the Initiating Holders propose period set forth in Section 3.(b), (iii) the offering of Registrable Stock pursuant to dispose such registration is not subject to any stop order, injunction or other order or requirement of the Commission (other than any such action prompted by any act or omission of the Holders), and (iv) no limitation of the number of shares of Registrable Securities that may Stock to be immediately registered on Form S-3 pursuant to a request made underwritten has been required pursuant to Section 2.3 below; or
(vii2.(c) if the Company has, within the six month period preceding the date of such request, already effected a demand registration for the Holders pursuant to this Section 2.1 and such registration has been declared or ordered effectivehereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Venturi Technologies Inc)
Demand Registration. (ai) Subject to the conditions of this Section 2.1, if the The Company shall receive cause to be filed with the Commission as promptly as practicable, but in no event later than August 15, 1999, a written request from Initiating Holders that the Company file a registration statement shelf Registration Statement pursuant to Rule 415 under the Securities Act covering (the registration "Shelf Registration Statement") on Form S-3 (or other appropriate form) to cover sales of the Registrable Securities resulting (in net offering proceeds the form of at least $20,000,000shares of Common Stock to be obtained upon exercise of the Warrants then held by them). In connection with the Shelf Registration Statement, then the Company will (x) promptly give written notice shall also register the offer and sale of the requested registration to all Holders and (y) prepare and file Warrant Shares issuable upon exercise of the Warrants as a registration statement and otherwise primary registration. The Company shall use its best commercially reasonable efforts to cause such shares, and all Registrable Securities of any Holder or Holders joining in such registration pursuant to a written request delivered to the Company within thirty (30) days after receipt by such Holder or Holders of initial written notice from the Company, Shelf Registration Statement to be registered under declared effective by the Securities Act within ninety (90) days of the request.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, then the Initiating Holders shall so advise the Company Commission as a part of their written request made pursuant to this Section 2.1 or any request pursuant to Section 2.3, and the Company shall include such information in the written notice referred to in Section 2.1(a) or Section 2.3(a), soon as applicable. In such event, the right of any Holder to include 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 hereinpracticable thereafter. The Company shall use commercially reasonable efforts to keep such Shelf Registration Statement continuously effective until the earlier to occur of two years following the Date of Exercise of the last Warrant issued pursuant to this Agreement or such time as, in the written opinion of counsel to the Company, which opinion is reasonably acceptable to such Holders, such registration is not required for the unrestricted resale under Rule 144 (together with k) of Registrable Securities entitled to registration rights under this Agreement. If Holders of a majority of the Registrable Securities to be registered for resale in the Shelf Registration Statement so elect, an offering of Registrable Securities pursuant to the Shelf Registration Statement may be effected in the form of an underwritten offering. Upon the receipt of a notice of election by a majority of the Registrable Securities to effect an underwritten offering, the Company will notify in writing all Holders proposing whose names are not included in such notice and such non-electing Holders may, within five business days of receipt of such notice, elect to distribute their Registrable Securities through such underwriting) enter into be included with, and treated as, an underwriting agreement in customary form with electing Holder. If the managing underwriter or underwriters selected for such underwriting by the Company (which underwriter or underwriters shall be reasonably acceptable to a majority in interest of the Initiating Holders). Notwithstanding any other provision of this Section 2.1 or Section 2.3, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis based on that in its opinion the number amount of Registrable Securities held by all such Holders (including the Initiating Holders), or proposed to be sold in such other proportions as mutually agreed to by offering exceeds the amount of Registrable Securities which can be sold in such selling Holders; providedoffering, howeverthere shall be included in such underwritten offering the amount of such Registrable Securities which in the opinion of such underwriter(s) can be sold, that the and such amount or number of shares of such Registrable Securities shall be allocated pro rata among the Holders electing to be included participate in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registrationunderwritten offering.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.1:
(i) prior to the earlier of September 30, 2015 or six months after the Initial Offering;
(ii) after In addition to their rights under Sections 12(a), (b) and (c)(i) hereof, following the Company has effected three registrations pursuant to this Section 2.1 and either (A) all such registrations have been declared or ordered effective or (B) the request for such registration statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have not paid the Registration Expenses of such withdrawn registration; provided, however, that for purposes of Section 2.1, a registration shall not be counted as “effected” if, as a result of an exercise expiration of the underwriter’s cutback provisions in Section 2.1(b)Shelf Registration Statement, fewer than fifty percent (50%) Holders collectively holding at least 75,000 shares of the total number of then outstanding Registrable Securities that Holders have requested to be included in such registration statement are actually included;
(iii) during the period starting with the date of filing of, and ending on the date one hundred eighty (180) days following, the effective date or if less than 75,000 shares of the registration statement pertaining to the Initial Offering; provided that the Company makes reasonable efforts to cause the registration statement for the Initial Offering to become effective;
(ivRegistrable Securities are then outstanding, then such lesser amount) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.1(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for its Initial Offering within ninety (90) days;
(v) if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.1, a certificate signed by the Chairman of the Board of Directors of the Company (the “Board”) stating that, in the good faith judgment of the Board, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than once in any 12 month period; and provided further that the Company shall not register any securities for its own account or that of any other stockholder during such ninety (90) day period;
(vi) if the Initiating Holders propose to dispose of shares have effected registrations of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.3 below; or
(vii) if the Company has, within the six month period preceding the date of such request, already effected a demand registration for the Holders pursuant to this Section 2.1 and such registration has been declared or ordered effective.a
Appears in 1 contract
Demand Registration. (a) Subject to the conditions of this Section 2.1Sections 2.6, 2.7 and 2.8, if at any time after the Effective Time, the Company shall receive a written request from Initiating Holders the Institutional Shareholder that the Company file with the Commission a registration statement under the Securities Act covering the registration for offer and sale of the outstanding Registrable Securities resulting in net offering proceeds of at least $20,000,000held by such Institutional Shareholder, then the Company will (x) shall promptly notify in writing all other Shareholders of such request. Within 20 days after such notice has been given by the Company, any other Holder may give written notice to the Company of its election to include its Registrable Securities in the requested registration to all Holders and (y) prepare and file a registration statement and otherwise registration. As soon as practicable after the expiration of such 20-day period, the Company shall use its reasonable best efforts to cause such shares, and the registration of all Registrable Securities of any Holder or Holders joining in such with respect to which registration pursuant to a written request delivered to the Company within thirty (30) days after receipt by such Holder or Holders of initial written notice from the Company, to be registered under the Securities Act within ninety (90) days of the request.
(b) has been so requested. If the Initiating Holders intend Institutional Shareholder intends to distribute the Registrable Securities Shares covered by their request by means of an underwriting, then the Initiating Holders it shall so advise the Company as a part of their written request made pursuant to this Section 2.1 or any request pursuant to Section 2.3, and the Company shall include such information in the written notice referred to in Section 2.1(a) or Section 2.3(a), as applicableabove. The underwriter shall be selected by the Institutional Holder and shall be reasonably acceptable to the Company. In such event, the right of any Holder to include its his or her Registrable Securities Shares in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities Shares in the underwriting to the extent provided herein. The Company shall (together with all Holders All Shareholders proposing to distribute their Registrable Securities securities through such underwriting) underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company (which underwriter or underwriters shall be reasonably acceptable to a majority in interest of the Initiating Holders)underwriting. Notwithstanding any other provision of this Section 2.1 or Section 2.3the foregoing, if the underwriter advises the Company Institutional Holder in writing that marketing factors require a limitation of the number of securities shares to be underwritten (including Registrable Securities)underwritten, then the Company shall so advise all Holders Shareholders of Registrable Securities that Shares which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Shares that may be included in the underwriting shall be allocated among all Shareholders thereof, including the Institutional Holder, in proportion (as nearly as practicable) to the Holders of such Registrable Securities on a pro rata basis based on the number amount of Registrable Securities held by all such Holders (including the Initiating Holders), or in such other proportions as mutually agreed to by such selling Holders; provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities Shares of the Company are first entirely excluded from owned by each Holder. Notwithstanding the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from provisions set forth above in this Section 2.1, the registration.
(c) The Company shall not be required obligated to effect a any registration pursuant to this Section 2.1:
(i) prior to the earlier of September 30, 2015 or six months within 180 days after the Initial a Public Offering;
(ii) after the Company has effected three registrations pursuant to this Section 2.1 and either (A) all such registrations have been declared or ordered effective or (B) the request for such registration statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have not paid the Registration Expenses of such withdrawn registration; provided, however, that for purposes of Section 2.1, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Section 2.1(b), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have requested to be included in such registration statement are actually included;
(iii) during the period starting with the date of filing of, and ending on the date one hundred eighty (180) days following, the effective date of the registration statement pertaining to the Initial Offering; provided that the Company makes reasonable efforts to cause the registration statement for the Initial Offering to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.1(a). In addition, the Company gives notice may postpone for up to 90 days the Holders filing or effectiveness of the Company’s intention to file a registration statement for its Initial Offering within ninety (90) days;
(v) if the Company shall furnish to the Holders requesting a registration statement pursuant to a request under this Section 2.1, a certificate signed by the Chairman of if the Board of Directors (with the concurrence of the Company (the “Board”managing underwriters, if any) stating that, determines in the good faith judgment of the Board, it that such registration would be seriously detrimental reasonably expected to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised material adverse effect on any proposal or plan by the Company to engage in any acquisition or sale of assets, merger, consolidation, tender offer, financing or similar transaction (a “Blocking Right”). The Company may not assert a Blocking Right more than once in any 12 twelve month period; and provided further that . In the event of any postponement described in this subsection the requesting Shareholders shall, upon written notice to the Company by a majority of requesting Shareholders, be entitled to withdraw such request and, if such request is withdrawn, such request shall not register any securities for its own account or that of any other stockholder during such ninety (90) day period;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to count as a request made pursuant to Section 2.3 below; or
(vii) if the Company has, within the six month period preceding the date of such request, already effected a demand for registration for the Holders pursuant to this Section 2.1 and such registration has been declared or ordered effectiveSection.
Appears in 1 contract
Demand Registration. (a) Subject to 2.1 Following the conditions exercise in full of this Section 2.1either or both of the Warrants, if the Company shall receive Holder may make a written request from Initiating Holders that the Company file a for registration statement under the Securities Act covering the registration of all or part of the Registrable Securities resulting in net offering proceeds Warrant Shares (a "Demand Registration"), which request shall state the intended method of at least $20,000,000disposition thereof, then and the Company will (x) promptly give written notice of the requested registration to all Holders and (y) prepare and file a registration statement and otherwise use its best commercially reasonable efforts to cause the Warrant Shares as to which registration shall have been so requested to be covered by a registration statement. Holder shall be entitled to request two Demand Registrations. Each Demand Registration shall be on Form S-3 if such shares, and all Registrable Securities of any Holder or Holders joining in such registration pursuant to a written request delivered to the Company within thirty (30) days after receipt Form is then available for use by such Holder or Holders of initial written notice from the Company, to be registered under . The Company may exclude the Securities Act within ninety (90) days of the request.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, then the Initiating Holders shall so advise the Company as a part of their written request made Warrant Shares from registration pursuant to this Section 2.1 or any request pursuant 2 if the Holder fails to Section 2.3provide information reasonably requested by the Company with respect to the intended method of distribution of the Warrant Shares to the public.
2.2 If the Demand Registration is in the form of an underwritten offering, and the Company shall include such information in select the written notice referred to in Section 2.1(a) investment banker or Section 2.3(a)investment bankers and manager or managers that will administer the offering, as applicable. In such event, the right of any Holder to include 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. The Company shall (together with all Holders proposing to distribute their Registrable Securities through such underwriting) enter into an underwriting agreement in customary form with the underwriter which investment bankers or underwriters selected for such underwriting by the Company (which underwriter or underwriters managers shall be reasonably acceptable to a majority in interest Holder. If any of the Initiating Holders). Notwithstanding any other provision of Warrant Shares to be registered pursuant to a registration statement filed pursuant to this Section 2.1 or Section 2.32 are to be sold in a firm commitment underwritten offering, and if the managing underwriter advises or underwriters advise the Company in writing that marketing factors require a limitation in its or their opinion the aggregate amount of securities proposed to be sold in such firm commitment underwritten offering by (i) the Company for its own account, (ii) Holder and (iii) the stockholders of the number Company with respect to securities of securities to be underwritten (including Registrable Securities), then the Company other than the Warrant Shares, would adversely affect the success of such offering, there shall so advise all Holders be included in such firm commitment underwritten offering only the amount of Registrable Securities that would otherwise such securities which in the opinion of such underwriters can be sold in the proposed underwritten pursuant heretooffering, and the number amount of shares that may be included in the underwriting such securities shall be allocated first, to the Holders of such Registrable Securities on a pro rata basis Holder based on the number of Registrable Securities held by Warrant Shares it desires to sell in the underwritten offering; second, to the Company; and thereafter pro rata among all such Holders selling stockholders, if any (including which may include Holder with respect to the Initiating HoldersShares), or in such other proportions as mutually agreed to by such selling Holders; provided, however, that based on the number of shares (including any of Registrable Securities the Shares) otherwise proposed to be included in therein by such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registrationselling stockholders.
(c) 2.3 The Company shall not be required use commercially reasonable efforts to effect a cause such registration pursuant statement to this Section 2.1:
remain effective until the earlier to occur of (i) prior to the earlier of September 30, 2015 or six months 90 days after the Initial Offering;
(ii) after the Company has effected three registrations pursuant to this Section 2.1 and either (A) all such registrations have been declared or ordered effective or (B) the request for such registration statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have not paid the Registration Expenses of such withdrawn registration; provided, however, that for purposes of Section 2.1, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Section 2.1(b), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have requested to be included in such registration statement are actually included;
(iii) during the period starting with the date of filing of, and ending on the date one hundred eighty (180) days following, the effective date of the registration statement pertaining or (ii) until all the Warrant Shares registered for sale are sold pursuant to the Initial Offering; provided that the Company makes reasonable efforts to cause the registration statement for the Initial Offering to become effective;statement.
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.1(a), the Company gives notice to the Holders of the 2.4 The Company’s intention to file a registration statement for its Initial Offering within ninety (90) days;
(v) if the Company shall furnish to the Holders requesting a registration statement pursuant to 's obligations under this Section 2.1, a certificate signed 2 shall terminate when Holder may sell or otherwise transfer all Warrant Shares without registration under the Act by virtue of Rule 144(k) under the Chairman of the Board of Directors of the Company Act (the “Board”) stating that, or any similar provision in the good faith judgment of the Board, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than once in any 12 month period; and provided further that the Company shall not register any securities for its own account or that of any other stockholder during such ninety (90) day period;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.3 below; or
(vii) if the Company has, within the six month period preceding the date of such request, already effected a demand registration for the Holders pursuant to this Section 2.1 and such registration has been declared or ordered effectiveforce).
Appears in 1 contract
Samples: Registration Rights Agreement (Integra Lifesciences Corp)
Demand Registration. (a) Subject to the conditions of this Section 2.1, if If the Company shall receive at any -------------------- time after its initial firm-commitment public offering (so long as such request is not within 180 days after the effective date of a registration statement filed by the Company covering an underwritten offering of an of its securities to the public) a written request from Initiating Holders Sellers holding at least 100,000 shares of Common Stock issued or to be issued upon exercise of any Warrants ("Warrant Stock") that the Company file a registration statement under the Securities Act covering the registration of the Registrable Securities resulting in net offering proceeds of at least $20,000,000for its Common Stock, then the Company will (x) promptly give written notice of the requested registration to all Holders and (y) prepare and file a registration statement and otherwise shall use its best efforts to cause effect such sharesregistration, on Form S-3 or successor form replacing Form S-3, if practicable, as would permit or facilitate the sale and distribution of all Registrable or such portion of such Warrant Stock as is specified in such request. For purposes of this Agreement, the term "Seller" or "Sellers" shall mean a holder of Restricted Securities of any Holder or Holders joining in such registration pursuant to a written request delivered to the Company within thirty (30) days after receipt by such Holder for which the Company shall be required to file a registration statement or Holders of initial written notice from the Company, to which shall be registered under the Securities Act within ninety at the request of such holder pursuant to the provisions of this Section 2. Neither the Company nor any of its Affiliates (90as defined in the Warrants) days shall be deemed a "Seller" for any purposes of the request.
(b) this Agreement. If the Initiating Holders intend to distribute managing underwriter for the Registrable Securities covered by their request by means of an underwritingrespective offering, then the Initiating Holders shall so advise if any, advises the Company as a part of their written request made pursuant to this Section 2.1 or any request pursuant to Section 2.3, and in writing that the Company shall include such information in the written notice referred to in Section 2.1(a) or Section 2.3(a), as applicable. In such event, the right of any Holder to include its Registrable Securities inclusion in such registration shall of some or all of the Warrant Stock sought to 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. The Company shall (together with all Holders proposing to distribute their Registrable Securities through such underwriting) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting registered by the Company (which underwriter Seller or underwriters shall be reasonably acceptable to a majority Sellers in interest of its opinion will cause the Initiating Holders). Notwithstanding any other provision of this Section 2.1 proceeds or Section 2.3, if the underwriter advises price per unit the Company or the requesting or demanding holder of securities will derive from such registration to be reduced or that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities), then registered at the instance of the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and or such requesting or demanding holder plus the number of shares that may securities sought to be included in registered by the underwriting shall Sellers is too large a number to be allocated to the Holders of such Registrable Securities on a pro rata basis based on reasonably sold, the number of Registrable Securities held by all such Holders (including the Initiating Holders)securities sought to be registered for each Seller shall be reduced pro rata, or in such other proportions as mutually agreed proportion to by such selling Holders; provided, however, that the number of shares of Registrable Securities securities sought to be included in such underwriting and registration shall not be reduced unless registered by all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.1:
(i) prior Sellers, to the earlier extent necessary to reduce the number of September 30, 2015 or six months after securities to be registered to the Initial Offering;
(ii) after the Company has effected three registrations pursuant to this Section 2.1 and either (A) all such registrations have been declared or ordered effective or (B) the request for such registration statements has been subsequently withdrawn number recommended by the Initiating Holders and managing underwriter (the Initiating Holders have not paid the Registration Expenses of such withdrawn registration; provided, however, that for purposes of Section 2.1, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Section 2.1(b"Recommended Number"), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have requested subject at all times to be included in such those registration statement are actually included;
(iii) during the period starting with the date of filing of, and ending on the date one hundred eighty (180) days following, the effective date of the registration statement pertaining rights granted to the Initial Offering; provided that the Company makes reasonable efforts to cause the registration statement for the Initial Offering to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.1(a), the Company gives notice to the Holders certain holders of the Company’s intention to file a registration statement for its Initial Offering within ninety (90) days;
(v) if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.1, a certificate signed by the Chairman of the Board of Directors of the Company (the “Board”) stating that, 's securities set forth in the good faith judgment of the BoardInvestors' Rights Agreement dated July 9, it would be seriously detrimental to 1999 between the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than once in any 12 month period; and provided further that the Company shall not register any securities for its own account or that of any other stockholder during such ninety (90) day period;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.3 below; or
(vii) if the Company has, within the six month period preceding the date of such request, already effected a demand registration for the Holders pursuant to this Section 2.1 and such registration has been declared or ordered effectiveinvestors listed therein.
Appears in 1 contract
Demand Registration. (a) Subject to If, at any time more than one (1) year after the conditions date of this Section 2.1Agreement, if the Company shall receive a receives written request notice from Initiating Holders Investor requesting that the Company file a registration statement under the Securities Act covering the registration of the Registrable Securities resulting in net offering proceeds of at least $20,000,000fifty percent (50%) of the Shares then owned by Investor, then the Company will (x) promptly give written notice of the requested registration to all Holders and (y) prepare and file a registration statement and otherwise use its best efforts to cause such shareseffect the registration under the Act of all Shares which investor requests to be registered, and all Registrable Securities of any Holder or Holders joining in such registration pursuant to a written request delivered to the Company within thirty (30) days after receipt extent necessary to permit the legally permissible sale or other disposition by such Holder or Holders of initial written notice from the Company, Investor to be registered under the Securities Act within ninety (90) days of the requestso registered.
(b) If the Initiating Holders intend Investor intends to distribute the Registrable Securities Shares covered by their its request by means of an underwriting, then the Initiating Holders shall it will so advise the Company as a part of their written the request made pursuant to this Section 2.1 or any request pursuant 2. The underwriter selected by Investor shall be reasonably acceptable to Section 2.3, and the Company shall include such information in the written notice referred to in Section 2.1(a) or Section 2.3(a), as applicableCompany. In such event, the right of any Holder Investor to include its Registrable Securities Shares in such the registration shall be conditioned upon such HolderInvestor’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities the Shares in the underwriting to the extent provided hereinunderwriting. The Company shall will enter into (together with all Holders proposing to distribute Investor and the other shareholders distributing their Registrable Securities securities through such the underwriting) enter into an underwriting agreement in customary form with the underwriter or underwriters selected by Investor for such the underwriting, provided that the underwriting by the Company (which underwriter or underwriters shall be agreement is in customary form and is reasonably acceptable to a majority in interest of the Initiating Holders). Notwithstanding any other provision of this Section 2.1 or Section 2.3, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares 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), or in such other proportions as mutually agreed to by such selling Holders; provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registrationCompany.
(c) The Notwithstanding the foregoing, if Company shall not be required furnishes to effect a registration pursuant to this Section 2.1:
(i) prior to the earlier of September 30, 2015 or six months after the Initial Offering;
(ii) after the Company has effected three registrations pursuant to this Section 2.1 and either (A) all such registrations have been declared or ordered effective or (B) the request for such registration statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have not paid the Registration Expenses of such withdrawn registration; provided, however, that for purposes of Section 2.1, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Section 2.1(b), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have requested to be included in such registration statement are actually included;
(iii) during the period starting with the date of filing of, and ending on the date one hundred eighty (180) days following, the effective date of the registration statement pertaining to the Initial Offering; provided that the Company makes reasonable efforts to cause the registration statement for the Initial Offering to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.1(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for its Initial Offering within ninety (90) days;
(v) if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.1, Investor a certificate signed by the Chairman President of the Board of Directors of the Company (the “Board”) stating that, that in the good faith judgment of the BoardBoard of Directors of Company, it would be seriously detrimental to the Company and its stockholders shareholders for such the registration statement to be effected at such timefiled and it is therefore essential to defer the filing of the registration statement, in which event the Company shall will have the right to defer such the filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holdersinvestor; provided provided, however, that such Company may not utilize this right to delay a request shall be exercised by the Company not more than once in any 12 twelve-month period; and provided further that the Company shall not register any securities for its own account or that of any other stockholder during such ninety (90) day period;.
(vid) if the Initiating Holders propose Company will not be obligated to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant prepare, file or to a request made pursuant take any action to Section 2.3 below; or
(vii) if the Company has, within the six month period preceding the date of such request, already effected a demand effect any registration for the Holders pursuant to this Section 2.1 2:
(i) Within one year from the date hereof;
(ii) After Company has effected a prior registration pursuant to this Agreement and such registration has been declared or ordered effective; or
(iii) During the period starting with the date ninety (90) days prior to Company’s good faith estimate of the date of filing of, and ending on a date one hundred eighty (180) days after the effective date of, a registration subject to Sections 1 or 2 hereof; provided that Company is using reasonable efforts to cause such registration statement to become effective.
Appears in 1 contract
Samples: Registration Rights Agreement (Slaight Communications Inc.)
Demand Registration. (ai) Subject to Upon the conditions written request of this Section 2.1any holder or holders ("Initiating Holders") of at least 30% of the shares of Registrable Stock, if which request shall state the intended method of disposition by such Initiating Holders and shall request that the Company effect the registration of all or part of the Registrable Stock under the Securities Act, the Company shall receive a written request from Initiating Holders that the Company file a registration statement under the Securities Act covering the registration of the Registrable Securities resulting in net offering proceeds of at least $20,000,000, then the Company will (x) promptly give written notice of the such requested registration to all Holders and (y) other holders, if any, of Registrable Stock. If, after the expiration of thirty days from the giving of such notice to the holders of Registrable Stock, the Company shall have received written requests to register at least 50% of the shares of Registrable Stock, which requests shall state the intended method of disposition of such securities by such holders, the Company shall use all reasonable efforts to prepare and file with the Commission a registration statement and otherwise use its best efforts such other documents, including a prospectus, as may be necessary to cause permit a public offering and sale of such sharesRegistrable Stock in the United States in compliance with the provisions of the Securities Act, and all Registrable Securities of any Holder or Holders joining in such registration pursuant to a written request delivered to the Company within thirty extent required to permit the disposition (30in accordance with the intended methods thereof as aforesaid) days after receipt by such Holder or Holders the holders of initial written notice from the Company, Registrable Stock so to be registered under (the Securities Act within ninety (90) days "Participating Holders"). If such sale of Registrable Stock is to be pursuant to an underwritten offering, the request.
(b) If underwriter shall be selected by the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, then the Initiating Holders shall so advise the Company as a part of their written request made pursuant to this Section 2.1 or any request pursuant to Section 2.3, and the Company shall include such information in the written notice referred to in Section 2.1(a) or Section 2.3(a), as applicable. In such event, the right of any Holder to include 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. The Company shall (together with all Holders proposing to distribute their Registrable Securities through such underwriting) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company (which underwriter or underwriters shall be reasonably acceptable to a majority in interest of the Initiating Holders)Company. Notwithstanding any other provision of this Section 2.1 or Section 2.3, if If the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares 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), or in such other proportions as mutually agreed to by such selling Holders; provided, however, selected determines that the number of shares of Registrable Securities so to be included is required to be limited due to market conditions or otherwise, the holders of Registrable Stock proposing to sell their shares in such underwriting and underwritten registration shall not share pro rata (according to the number of shares requested to be reduced unless all other securities registered) in the number of the shares being underwritten (as determined by such underwrit- er) and registered for their account. The Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall only be withdrawn from the registrationrequired to effect two registrations pursuant to this Section 6(b).
(cii) The Company shall not be required to effect a any registration under this Section 6(b) within nine months after the completion of any Registered offering of its securities pursuant to this Section 2.1:
(i) prior which the holders of Registrable Stock were afforded the right to the earlier register as many shares of September 30, 2015 or their Registrable Stock as requested nor within six months after the Initial Offering;
(ii) after the Company has effected three registrations pursuant to this Section 2.1 and either (A) all such registrations have been declared or ordered effective or (B) the request for such registration statements has been subsequently withdrawn any other Registered offering by the Initiating Holders and the Initiating Holders have not paid the Registration Expenses of such withdrawn registration; provided, however, that for purposes of Section 2.1, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Section 2.1(b), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have requested to be included in such registration statement are actually included;Company.
(iii) during the period starting with the date of filing of, and ending on the date one hundred eighty (180) days following, the effective date of the registration statement pertaining to the Initial Offering; provided that the Company makes reasonable efforts to cause the registration statement for the Initial Offering to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.1(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for its Initial Offering within ninety (90) days;
(v) if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.1, a certificate signed by the Chairman of the Board of Directors of the Company (the “Board”) stating that, in the good faith judgment of the Board, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the The Company shall have the right to defer include in any registration statement or post-effective amendment filed pursuant to this Section 6(b), other securities of the Company then proposed to be distributed, except that, to the extent consistent with the rights of other holders of the Company's securities, if and to the extent that the underwriter or underwriters acting with respect of such filing registered offering reasonably determine that the inclusion of such other securities may substantially prejudice or hinder the offering of Registrable Stock, the number of such other securities shall be reduced or eliminated prior to any reduction in the number of shares of Registrable Stock so to be registered.
(iv) If the registration under this paragraph (b) is effected on a Form S-3 (or any successor form thereto), and the effectiveness of such registration statement can be maintained without significant additional expense to the Company, then the Company agrees to maintain the effectiveness of such registration statement for a period of not more than ninety (90) days one year after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than once in any 12 month period; and provided further that the Company shall not register any securities for its own account or that of any other stockholder during such ninety (90) day period;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.3 below; or
(vii) if the Company has, within the six month period preceding the date of such request, already effected a demand registration for the Holders pursuant to this Section 2.1 and such registration has been declared or ordered effectiveinitial effective date.
Appears in 1 contract
