Demand Registration. (a) Subject to the provisions hereof, at any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement), the Holders of a majority of Registrable Securities shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to register; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period. (b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders. (c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities. (d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a).
Appears in 4 contracts
Samples: Stockholders Agreement (Parkway, Inc.), Stockholders Agreement (Parkway, Inc.), Voting Agreement (Parkway Properties Inc)
Demand Registration. (a) Subject to the provisions hereof, at At any time on or after the earlier of (i) five (5) years from the date that is 180 of this Agreement and (ii) one hundred eighty (180) days after the Closing Date (as defined in initial public offering of the Merger Agreement), the Holders of a majority of Registrable Securities shall have the right Company’s Common Stock pursuant to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities an effective registration under the Securities Act Act, the holders (a “Demand Registration”excluding the Key Holder) by delivering a written request therefor to of at least fifty percent (50%) of the Registrable Securities then outstanding (excluding Key Holder Registrable Securities) may notify the Company that they intend to offer or cause to be offered for public sale at least fifty percent (i50%) specifying of the Registrable Securities then outstanding (excluding Key Holder Registrable Securities) or any lesser number of Registrable Securities (excluding Key Holder Registrable Securities) if the anticipated aggregate sale price, net of underwriting discounts and commissions, if any, would exceed $10,000,000. Upon receipt of such request, the Company shall promptly deliver notice of such request to all Stockholders holding Registrable Securities who shall then have thirty (30) days to notify the Company in writing of their desire to be included in such registration. If the request for registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to contemplates an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demandunderwritten public offering, the Company shall (x) promptly notify all Holders from whom state such in the request for written notice and in such event the right of any Person to participate in such registration has not been received shall be conditioned upon such Person’s participation in such underwritten public offering and (y) the inclusion of such Person’s Registrable Securities in the underwritten public offering to the extent provided herein. The Company will use its reasonable best efforts to expeditiously effect (but in any event no later than thirty (30) days after such request) the registration of all Registrable Securities whose holders request participation in such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of Act, but only to the Registrable Securities that the Company has been so requested to registerextent provided for in this Agreement; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated required to effect or participate (aregistration pursuant to a request under this Section 2(a) more than two (2) Underwritten Offerings times for the holders of the Registrable Securities as a group. Notwithstanding anything to the contrary contained herein, no request may be made under this Section 2(a) within ninety (90) days after the effective date of a registration statement filed by the Company covering a firm commitment underwritten public offering in any twelve (12which the holders of Registrable Securities shall have been entitled to join pursuant to Section 4 and in which there shall have been effectively registered all Registrable Securities as to which registration shall have been requested. A registration will not count as a requested registration under this Section 2(a) month periodunless and until the registration statement relating to such registration has been declared effective by the Commission; provided, however, that a majority in interest of the participating holders of Registrable Securities may request, in writing, that the Company withdraw a registration statement which has been filed under this Section 2(a) but has not yet been declared effective, and a majority in interest of such holders may thereafter request the Company to reinstate such registration statement, if permitted under the Securities Act, or to file another registration statement, in accordance with the procedures set forth herein and without reduction in the number of demand registrations permitted under this Section 2(a).
(b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior If a requested registration involves an underwritten public offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, and the managing underwriter(s) advise the Company underwriter of such offering determines in good faith that in its or their reasonable opinion the number of securities proposed sought to be offered should be limited due to market conditions, then the number of securities to be included in such registration exceeds underwritten public offering shall be reduced to a number deemed satisfactory by such managing underwriter; provided, that the Underwriters’ Maximum Number, then securities to be excluded shall be determined in the following order of priority: (i) first, persons not having any contractual or other right to include such securities in the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and registration statement, (ii) second, securities held by any other Persons (other than the holders of Registrable Securities) having a contractual, incidental “piggy back” right to include such securities in the registration statement, (iii) third, securities to be registered by the Company will be obligated and required pursuant to include in such Underwritten Offering only that number of registration statement, (iv) fourth, Registrable Securities of holders who did not make the original request for registration and, if necessary, (v) fifth, Registrable Securities of holders who requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities pursuant to be allocated pro rata among the Holders thereof on the basis Section 2(a). If there is a reduction of the number of Registrable Securities requested pursuant to clauses (iv) or (v), such reduction shall be included therein by each such Holder. No shares made on a pro rata basis (based upon the aggregate number of Common Stock held by any Person other than Registrable Securities held by such holders).
(c) With respect to a request for registration pursuant to Section 2(a) which is for an underwritten public offering, the Holders managing underwriter shall be included in a Demand Registration without the prior written consent of chosen by the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included sold in such registrationoffering, and subject only to the consent of the Company, which consent shall not be unreasonably withheld. The Company has complied in all material respects with may not cause any other registration of securities for sale for its obligations under this Agreement with respect thereto; provided, however, that if, after it has own account (other than a registration effected solely to implement an employee benefit plan) to become effective, effective within one hundred twenty (i120) such Registration Statement or days following the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject effective date of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested required pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)2.
Appears in 3 contracts
Samples: Registration Rights Agreement, Registration Rights Agreement (Kala Pharmaceuticals, Inc.), Registration Rights Agreement (Kala Pharmaceuticals, Inc.)
Demand Registration. (a) Subject to the provisions hereoflimitations contained in Section 2(b), at any time on or after the date that is 180 days three months after the Closing Date (as defined the “Rights Effective Date”), Primary Holders may request by written notice delivered to the Company (a “Demand Notice”) that the Company register under the Securities Act all or any portion of the Registrable Securities then held by such Primary Holders, for sale in the Merger Agreementmanner specified in such notice (including, but not limited to, an underwritten public offering) (a “Demand Registration”). In each such case, the Holders of a majority Demand Notice shall specify the number of Registrable Securities for which registration is requested and the proposed manner of disposition of such securities.
(b) The Company shall have use its best efforts to file with the right SEC within thirty (30) days after the Company’s receipt of a Demand Notice a registration statement for the public offering and sale, in accordance with the method of disposition specified by Primary Holders, of the number of Registrable Securities specified in such notice, and thereafter use its commercially reasonable efforts to require cause such registration statement to become effective within sixty (60) days after its filing. Such registration statement may be on Form S-3 or another appropriate form that the Company is eligible to use and that is reasonably acceptable to the managing underwriter, if any; provided that if the Company is a WKSI, an automatic shelf registration on Form S-3 will, at the request of Primary Holders, cover an unspecified number of shares of Common Stock to be sold by the Company and Holders and the Company shall file such a Registration Statement registering for sale all or part shelf registration statement within fifteen (15) days after receipt of their respective a request by the Primary Holders therefor; provided further that if requested at least fifteen (15) days prior to the Rights Effective Date, the Company shall file such a shelf registration statement on the Rights Effective Date.
(c) The Company shall not have any obligation hereunder to register any Registrable Securities under Section 2(a)(ii) unless it shall have received a request from Primary Holders to register at least ten percent (10%) of the aggregate amount of Registrable Securities held by all of the Primary Holders as of the date of such request.
(d) If the Company is required to use its best efforts to register Registrable Securities in a registration initiated upon the demand of Primary Holders pursuant to Section 2(a)(ii) of this Agreement and the Approved Underwriters, if any, for such offering advise that the inclusion of all securities sought to be registered pursuant to Section 2 hereof may interfere with an orderly sale and distribution of or may materially adversely affect the price of such offering, then the Company will include in such offering, first, the aggregate number of Registrable Securities that are participating in such offering pursuant to Sections 2(a)(ii) or 3(a), allocated pro rata among the Registrable Securities based on the number of shares of Common Stock beneficially owned by each such Holder on the date that the Demand Notice is received by the Company which the Approved Underwriters, if any, advise will not likely have such effect, and second, all other securities requested or proposed to be included in such registration (including shares of Common Stock to be sold for the account of the Company).
(e) Upon the demand of Primary Holders pursuant to Section 2(a)(ii) made at any time and from time to time, the Company will facilitate in the manner described in this Agreement a “takedown” of shares of Common Stock off of an effective shelf registration statement on Form S-3 pursuant to Rule 415 of the Securities Act (a “Demand RegistrationShelf Takedown”) by delivering a written request therefor ), including, subject to the limitations set forth in Section 2(b), an underwritten Shelf Takedown. Notwithstanding the foregoing, such Primary Holders may not demand a Shelf Takedown for an offering that will result in the imposition of a lockup on the Company and the Primary Holders unless the shares requested to be sold by the Primary Holders in such takedown have an aggregate market value (ibased on the most recent closing price of the Common Stock at the time of the demand) specifying the number of at least $10 million.
(f) If any Demand Registration of Registrable Securities to be included is in such registration by such Holder or Holders, (ii) specifying whether the intended method form of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demandunderwritten public offering, the Company Primary Holders shall (x) promptly notify all Holders from whom select and obtain one or more investment banking firms of national or regional reputation to act as the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky managing underwriter or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) underwriters of the Registrable Securities that the Company has been so requested to registeroffering; provided, however, that such firm or firms shall, in any case, also be approved by the Company, such approval not to be unreasonably withheld, delayed or conditioned. An investment banking firm or firms selected pursuant to this Section 2(a)(vi) shall be referred to as the “Approved Underwriter” herein.
(ig) Upon the demand of Holders, the Company will file and seek the effectiveness of a post-effective amendment to an existing shelf registration statement on Form S-3 in order to register up to the number of shares previously taken down off of such shelf by such Holders shall and not make yet “reloaded” onto such shelf registration statement. The Holders and the Company will consult and coordinate with each other in order to accomplish such replenishments from time to time in a request for sensible manner.
2.2 The obligations of the Company to effect, or to take any action to effect, a Demand Registration under or an underwritten Shelf Takedown shall be limited as follows:
(a) In connection with the provisions of this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,0002, (ii) the Primary Holders will not be entitled to may require the Company to effect no more than three (3) Demand Registrations or underwritten Shelf Takedowns in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any 365 day period during the six (6) month year period commencing on the Rights Effective Date. After the expiration of the such period, the Company shall no longer have any obligation to file Demand Registrations at the request of the Primary Holders.
(b) The offering For the avoidance of doubt, until the six (6) year anniversary of the Rights Effective Date, there shall be no limit on the number of non-underwritten Shelf Takedowns that Primary Holders may request (but after such date, Primary Holders shall no longer have the right to make any such requests), and, to the extent that Registrable Securities are not covered by an effective shelf registration on Form S-3, the Primary Holders shall be entitled to demand that the Company effect such a shelf-registration, notwithstanding the limits set forth in this Section 2(b) and no such demand for a shelf registration statement shall count against the limits set forth in this Section 2(b).
2.3 Notwithstanding any other provision of this Agreement, the Company shall have the right to defer or suspend the filing or effectiveness of a registration statement relating to any registration requested under Section 2(a) for a reasonable period of time not to exceed 90 days if a prior registration statement of the Company for an underwritten, public offering by the Company of its securities was declared effective by the SEC less than 120 days prior to the anticipated effective date of the requested registration.
2.4 No registration of Registrable Securities under this Section 2 shall relieve the Company of its obligation (if any) to effect registrations of Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders3.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a).
Appears in 3 contracts
Samples: Registration Rights Agreement (Lightyear Fund Ii Lp), Merger Agreement (Vantagesouth Bancshares, Inc.), Merger Agreement (YADKIN FINANCIAL Corp)
Demand Registration. (a) Subject to Except as provided in Section 2.2(b) below, upon the provisions hereof, at any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement), written request of the Holders of a majority of Registrable Securities shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act owning not less than ten percent (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations10%) of the Registrable Securities that the Company has been effect pursuant to this Agreement the registration of the resale of the Registrable Securities under the Securities Act (which request shall specify the Registrable Securities so requested to registerbe registered by each such Holder, the Proposed Amounts thereof and the intended method of disposition by such Holders), the Company will, as expeditiously as reasonably possible, use its best efforts to effect the registration under the Securities Act of the resale of the Proposed Amount of Registrable Securities, for disposition in accordance with the intended method of disposition stated in such request; provided, however, however that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations if in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering good faith judgment of the Registrable Securities pursuant to such Demand Registration may be in the form Board of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval Directors of the Company, which approval shall not such registration would be unreasonably withheld or delayed detrimental to the Company and the Board of Directors of the Company concludes, as a result, that it is in the best interests of the Company to defer the filing of such registration statement at such time, and (ii) the Company shall (together with furnish to such Holders a certificate signed by an executive officer of the Holders proposing Company that the Board of Directors of the Company has made such a determination and that it is, therefore, necessary to distribute their securities through defer the filing of such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with registration statement, then the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement Company shall have indemnification provisions the right to defer such filing for the period during which such registration would be detrimental, provided that the Company may not defer the filing for a period of more than 120 days after receipt of the request of such Holders. The Company shall be entitled to include in substantially any registration statement filed pursuant to this Section 2.2: (A) securities of the form as set forth in Section 4.9 Company held by any other security holder of this Agreement; provided, that (i) the representations and warranties byCompany, and the other agreements on the part of(B) in an underwritten public offering, securities of the Company to be sold by the Company for its own account, except as and for to the benefit extent that (x) in the opinion of the underwriter(s) shall also be made to and for the benefit managing underwriter (if such method of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder disposition shall be required to make any representations and warranties toan underwritten public offering), or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) such inclusion would adversely affect the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition marketing of the Registrable Securities disposed of to be sold by such Holder pursuant to such Underwritten Offering. No Holder may participate Holders or (y) in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms reasonable opinion of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf Holders owning a majority of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders Proposed Amount of Registrable Securities to be included in (if such Underwritten Offering and (ii) method of disposition is not an underwritten public offering), such inclusion would adversely affect the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, price at which such Registrable Securities may be sold pursuant to be allocated pro rata among the Holders thereof on the basis plan of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect theretodistribution; provided, however, that if, after such registration statement has been filed, the managing underwriter believes that the inclusion of all securities requested to be included in the proposed underwritten public offering would adversely affect the marketing of the Registrable Securities or, in the case of a distribution that is not an underwritten public offering, if such Holders owning a majority of the Proposed Amount of Registrable Securities reasonably believe that the inclusion of all securities requested to be included in such registration statement would adversely affect the price at which the Registrable Securities may be sold pursuant to the plan of distribution, then the aggregate amount of securities to be offered by the Company and such other security holders of the Company shall be reduced so as to permit the offering of all Registrable Securities requested by all the Holders of the entire Proposed Amount of Registrable Securities without such adverse effects.
(b) The Company shall not be obligated to take any action to effect any registration requested by the Holders pursuant to Section 2.2(a) hereof (i) after the Company has effected two (2) such registrations pursuant to this Agreement and each such registration has been declared or ordered effective, (ii) for a period of two (2) years after the Company has effected one such registration pursuant to Section 2.2(a) hereof and such registration has been declared or ordered effective, such two year period to commence on the date the registration statement was declared or ordered effective or (iii) at any time after the second anniversary of the expiration date of the Warrants.
(c) Notwithstanding any other provision of this Agreement to the contrary, a registration requested pursuant to this Section 2.2 shall not be deemed to have been effected (i) unless it has become effective, provided that a registration that does not become effective after the Company has filed a registration statement with respect thereto by reason of the refusal of Holders owning a majority of the Proposed Amount to proceed shall be deemed to have been effected by the Company unless the Holders shall have elected to pay all Company Registration Expenses in connection with such registration, (iii) if after it has become effective such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder registration is or becomes the subject of interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or administrative agency, court for any reason other than a misrepresentation or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered an omission by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration StatementHolders, or (iiiii) if, if the conditions to closing specified in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then purchase agreement or underwriting agreement entered into in connection with such registration will be deemed are not to have been effected for purposes satisfied other than by reason of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration some wrongful act or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution omission, or act or omission in bad faith, by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)Holders.
Appears in 3 contracts
Samples: Registration Rights Agreement (Hi Rise Recycling Systems Inc), Registration Rights Agreement (Hi Rise Recycling Systems Inc), Registration Rights Agreement (General Electric Capital Corp)
Demand Registration. (a) Subject to the provisions hereof, If at any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement)Lockup Date, the Holders of Company shall receive a majority of Registrable Securities shall have written request from the right to require Investor that the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities effect the registration under the Securities Act of all or any portion of the Registrable Securities specified in such written request (a “Demand Registration”) by delivering a written request therefor to the Company (i) ), specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined belowinformation set forth under Section 6.4(i), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, then the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use its commercially reasonable best efforts to effect such effect, as expeditiously as reasonably practicable, subject to the restrictions in Section 6.1(e), the registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulationsof the Registrable Securities for which the Investor has requested registration under this Section 6.1, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered, provided, that the Company has been so requested shall not be required to register; provided, however, that effect (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) such Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed period and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings such Demand Registrations in any twelve (12) month period, and total.
(b) At any time prior to the effective date of the registration statement relating to such registration, the Investor may revoke such Demand Registration request by providing a notice to the Company revoking such request, provided, that such Demand Registration shall count as having been effected for purposes of the proviso to Section 6.1(a) above unless the Investor pays all Registration Expenses in any Underwritten Offering during any lock-up period required connection with such revoked Demand Registration within thirty (30) days of written request therefor by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the HoldersCompany.
(c) IfFor any Public Offering relating to a Demand Registration, the Company shall select, with the consent of the Investor (not to be unreasonably withheld, delayed or conditioned), the lead underwriter and any additional underwriters in connection with an Underwritten the offering. In connection with any Public Offering, the Company shall enter into customary agreements (including an underwriting agreement in customary form) and take all other actions as are reasonably required in order to expedite or facilitate the disposition of such Registrable Securities in any such Public Offering.
(d) If a Demand Registration involves an underwritten Public Offering and the managing underwriter(s) advise advises the Company that and the Investor that, in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Numberview, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein in such registration by each such Holder. No shares the Investor, the Company and for the account of Common Stock held by any Person other than Persons exceeds the largest number of Registrable Securities held that can be sold without having a material adverse effect on such offering, including the price at which such Registrable Securities can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be registered in the Demand Registration by the Holders Investor; and
(ii) second, any securities proposed to be registered by the Company or any securities proposed to be registered for the account of any other Persons, with such priorities among them as the Company shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securitiesdetermine.
(de) A Upon notice to the Investor, the Company may postpone effecting a registration pursuant to this Section 6.1 on up to two (2) occasions during any three hundred and sixty-five (365) consecutive day period for a reasonable time specified in the notice but not exceeding ninety (90) days in the aggregate (which period may not be extended or renewed), if (i) the Company shall determine in good faith, based on advice from independent investment bankers, that effecting the registration would materially and adversely affect an offering of securities of the Company, the preparation of which had then been commenced, or (ii) the Company is in possession of material non-public information, the disclosure of which during the period specified in such notice the Company believes in good faith would not be in the best interests of the Company. If the Company so postpones effecting a registration, the Investor will be entitled to withdraw its registration request and, if such request is withdrawn, such registration request will not count for purposes of the limitation set forth in the proviso to Section 6.1(a).
(f) Notwithstanding any provision in this Section 6.1 or elsewhere in this Agreement, no provision relating to the registration of Registrable Securities shall be deemed construed as permitting the Investor to have effect a Transfer of securities that is otherwise prohibited by the terms of this Agreement or any other agreement between the Investor and the Company or any of its Subsidiaries.
(g) Notwithstanding the foregoing, no Demand Registration shall count as having been effected as a for purposes of the proviso to Section 6.1(a) (and the Company shall pay or reimburse all Registration Expenses pursuant to Section 6.5) if (i) the registration statement relating to such request is not declared effective within one hundred and eighty (180) days of the date such registration statement is first filed with the SEC and the Investor revokes such Demand Registration unless prior to such registration statement being declared effective, (ii) prior to the Registration Statement relating thereto has been declared effective by the SEC, sale of at least 75% of the Registrable Securities requested to be included in the applicable registration relating to such request, such registration is adversely affected by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental agency or administrative agencycourt for any reason and the Company fails to have such stop order, injunction or other order or requirement removed, withdrawn or resolved to the Investor’s reasonable satisfaction within thirty (30) days of the date of such order, or if (iii) the conditions to closing specified in the underwriting agreement or purchase agreement entered into in connection with the registration relating to such request are not satisfied (other than as a result of a material default or breach thereunder by the Investor).
(h) Upon written request of the Investor following the Lockup Date, the Company will use its commercially reasonable efforts to qualify for registration on and to promptly file, Form S-3 or any court prevents comparable or otherwise limits successor form or forms or any similar short-form registration (“Short-Form Registration”), and such Short-Form Registration will be a “shelf” registration statement providing for the registration, and the sale on a continuous or delayed basis, of the Registrable Securities pursuant to Rule 415. Upon filing a Short-Form Registration, the registrationCompany will, if applicable, use its commercially reasonable efforts to: (i) cause such Short-Form Registration to be declared effective, and (ii) keep such Short-Form Registration effective with the SEC at all times and re-file such Short-Form Registration upon its expiration. The Company shall cooperate in each case less than all any shelf take-down by amending or supplementing the prospectus statement related to such Short-Form Registration as may be requested by the Investor or any transferees or as otherwise required, until the Investor or any transferees who would require such registration to effect a sale of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of no longer hold the Registrable Securities covered by such registration, then or until the time specified in Section 6.14 hereof. The Company shall continue to be obligated to effect a Demand will pay all Registration pursuant to this Section 4.2 of the Registrable Securities included Expenses incurred in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or connection with any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Short-Form Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a).
Appears in 3 contracts
Samples: Stockholder Agreement (China Investment Corp), Stock Purchase Agreement (China Investment Corp), Stockholder Agreement (Aes Corp)
Demand Registration. (ai) Subject to the provisions hereofconditions of this Section 2, at any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement), the Holders of a majority of Registrable Securities shall have the right to require if the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”) by delivering shall receive a written request therefor to from the Company Purchasers of at least fifty percent (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations50%) of the Registrable Securities (the “Initiating Purchasers”) then outstanding (whether or not issued) that the Company has been so requested file a registration statement under the 1933 Act or effect a registration for a public offering in the United States and/or in a jurisdiction or jurisdiction of Canada, covering the registration of at least twenty-five percent (25%) of the Registrable Securities then outstanding (or a lesser percent if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $5,000,000), then the Company shall, promptly, and in any event within twenty (20) days of the receipt thereof, give written notice of such request to register; providedall Purchasers, and subject to the limitations of this Section 2, use its reasonable best efforts to effect, as expeditiously as practicable, the registration under the 1933 Act or the Applicable Canadian Securities Laws of all Registrable Securities that the Purchasers request to be registered. Such Registration Statement also shall cover, to the extent allowable under the 1933 Act and the rules promulgated thereunder (including Rule 416) or the Applicable Canadian Securities Laws, such indeterminate number of additional shares of Common Stock resulting from stock splits, stock dividends or similar transactions with respect to the Registrable Securities. The Registration Statement (and each amendment or supplement thereto) shall be provided in accordance with Section 3(c) to the Purchasers and their counsel prior to its filing. The Company must effect an unlimited number of registrations pursuant to this Section 2(a)(i), provided however, that (i) the Holders Company shall not make be obligated to effect (A) a request for a Demand Registration under this Section 4.2(a) for registration covering the sale of Registrable Securities having for an anticipated aggregate public offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (aB) more than two (2) Underwritten Offerings such registrations in any twelve (12) -month period, and or (bC) in any Underwritten Offering during any lock-up period required by the underwriter(sregistration at a time when it is keeping three (3) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holderssuch registrations effective.
(cii) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the The Company shall so advise all Holders of Registrable Securities not identify any Purchaser as an underwriter in any Registration Statement or Prospectus filed pursuant to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration this Agreement without the prior written consent of such Purchaser and the holders of a majority Prospectus shall contain (except if otherwise directed by any Purchaser whose Registrable Securities are included in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a).and
Appears in 3 contracts
Samples: Registration Rights Agreement (Polymet Mining Corp), Registration Rights Agreement (Glencore Holding Ag), Purchase Agreement (Polymet Mining Corp)
Demand Registration. (a) Subject to the provisions hereof, at At any time on or after the date that is 180 days after expiration of the Closing Date (as defined in the Merger Agreement)Restricted Period, the Holders of a majority of Registrable Securities shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities Sellers Representative may, on one occasion only, request registration under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to registerheld by him; provided, however, that (i) the Holders no such registration request shall not make a request for a Demand Registration under this Section 4.2(a) for be permitted to be made at any time when all Registrable Securities having then held by and issuable to the Founders may be sold under Rule 144 during any ninety (90) day period and the certificates evidencing such Registrable Securities bear no legends restricting the transfer thereof or may be issued or re-issued without such legends (and, to the extent such securities are issued in global form, bear an anticipated aggregate unrestricted CUSIP number or may be issued or re-issued bearing an unrestricted CUSIP number); provided further, however, that no such registration request shall be permitted to be made in connection with an underwritten offering price of less than $5,000,000in which the Registrable Securities would be sold to an underwriter or underwriters for reoffering to the public; and provided further, (ii) however, that no such registration request shall be permitted to be made at any time after the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than Parent has effected one (1) Demand registration pursuant to this Section 13.21. Within ten (10) days after receipt of such a registration request, the Parent shall give written notice of such requested registration to all other holders of Registrable Securities for whom the Parent has current contact information and shall include in such registration all such Registrable Securities with respect to which the Parent has received written requests for inclusion therein within twenty (20) days after the transmission of the Parent’s notice. Within sixty (60) days after the receipt of such a request, the Parent shall prepare and file with the Securities and Exchange Commission (the “SEC”) a Registration in any six Statement on Form S-3 (6or, if Form S-3 is not then available to the Parent, then on (i) month period.
Form S-1 or (bii) The offering such other form of registration statement as is then available to effect a registration for resale of the Registrable Securities pursuant Securities) (the “Registration Statement”) and thereafter shall use its reasonable best efforts to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in cause such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished Statement to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreementbecome effective. The Company Founders’ request(s) for registration shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by specify the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the approximate number of Registrable Securities requested to be included therein by registered, the anticipated per share price range for such offering and the intended method of distribution. As used in this Section 13.21, the term “Founders” shall mean and include only (i) each of the Founders that then holds Registrable Securities, (ii) any bank or other institutional lender to any Founder to which such Holder. No shares of Common Stock held by any Person other than Founder collaterally assigns its rights under this Section 13.21 that (w) then holds Registrable Securities held and (x) agrees to become bound by the Holders shall be included provisions of this Agreement in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registrationaccordance with Section 13.21(k), and the Company has complied in all material respects with (iii) any transferee or assignee thereof to which any such bank or other institutional lender assigns its obligations rights under this Agreement with respect thereto; provided, however, and that if, after it has become effective, (iy) such Registration Statement or the related offer, sale or distribution of then holds Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant and (z) agrees to the registration, and in each case less than all of the Registrable Securities covered become bound by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences provisions of this Agreement in accordance with Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a13.21(k).
Appears in 3 contracts
Samples: Membership Interest Purchase Agreement (FVA Ventures, Inc.), Membership Interest Purchase Agreement (FVA Ventures, Inc.), Membership Interest Purchase Agreement (Blyth Inc)
Demand Registration. (a) Subject to the provisions hereof, at any time on or after the date that is 180 days after the Closing Date (as defined The Company may include in the Merger Agreement), the Holders of a majority of Demand Registration Registrable Securities shall have for the right to require account of the Demanding Holders and shares of Common Stock for the account of the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws shareholders exercising contractual piggy-back registration rights or other shareholders, on the same terms and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of conditions as the Registrable Securities that are included therein for the Company has been so requested to registeraccount of the Demanding Holders; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate if the managing underwriter(s) of any underwritten offering that is the Underwritten Offering, provided that subject of such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) Demand Registration have informed the Company shall (together with in writing that in their opinion the Holders proposing to distribute their total number of securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with that the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part ofDemanding Holders, the Company and any other shareholders intend to and for include in such offering exceeds the benefit of the underwriter(s) shall also number that can be made sold in such offering within a price range acceptable to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in of a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition majority of the Registrable Securities disposed of by such Holder pursuant requested to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnairesbe included therein, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate then (ax) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed Registrable Securities to be offered for the account of any stockholders, other than the Demanding Holders, shall be reduced (to zero, if necessary) pro rata in proportion to the respective number of Registrable Securities requested to be registered by such shareholders; and (y) thereafter, if necessary, the number of Registrable Securities to be offered for the account of the Company shall be reduced (to zero, if necessary), to the extent necessary to reduce the total number of Registrable Securities requested to be included in such registration exceeds offering to the Underwriters’ Maximum Numbernumber of Registrable Securities, then if any, recommended by such managing underwriter(s) (i) and if the Company shall so advise all Holders number of Registrable Securities to be included in such Underwritten Offering offered for the account of shareholders other than the Demanding Holders and (ii) for the account of the Company will be obligated has been reduced to zero, and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein in such offering by each such Holder. No shares the Demanding Holders exceeds the number of Common Stock held by any Person other than Registrable Securities held recommended by such managing underwriter(s), then the number of Registrable Securities to be offered for the account of the Demanding Holders shall be included reduced pro rata in a Demand Registration without proportion to the prior written consent respective number of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration registered by the Holders are included in such registration, Demanding Holders); and (ii) if the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, offering that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop ordersuch Demand Registration is not underwritten, injunction or only Demanding Holders, and no other order or requirement of party (including the SEC or any other governmental or administrative agencyCompany), or if any court prevents or otherwise limits the sale of the shall be permitted to include Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) unless the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Demanding Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect owning a Demand Registration pursuant to this Section 4.2 majority of the Registrable Securities included in such registration. In circumstances not including Demand Registration consent in writing to the events described in the immediately two preceding sentences inclusion of this Section 4.2(d), each Holder of such Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)therein.
Appears in 3 contracts
Samples: Registration Rights Agreement (Thomas Group Inc), Revolving Credit Loan Agreement (Thomas Group Inc), Registration Rights Agreement (Thomas Group Inc)
Demand Registration. (a) Subject to the provisions hereof, at any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement)Date, the Holders of a majority of Registrable Securities shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable lawLaw. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws Laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to register; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a3.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 3.9 of this Agreement; provided, that that
(i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Numbermaximum number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Numbermaximum number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a3.2(a). If (i) a registration requested pursuant to this Section 4.2 3.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 3.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 3.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d3.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a3.2(a).
Appears in 3 contracts
Samples: Voting Agreement (Cousins Properties Inc), Voting Agreement (Parkway Properties Inc), Stockholders Agreement (Cousins Properties Inc)
Demand Registration. (a) Subject to the provisions hereof, If at any time on or after following the date that is 180 days after the Closing Date (as defined in the Merger Agreement)IPO, the Holders of Company shall receive a majority of Registrable Securities shall have written request (a “Demand Notice”) from the right to require Equity Committee that the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities effect the registration under the Securities Act of all or any portion of the Registrable Securities specified in the Demand Notice (a “Demand Registration”) by delivering a written request therefor to the Company (i) ), specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below)thereof, and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, then the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use its commercially reasonable best efforts to effect such effect, as expeditiously as reasonably practicable, subject to the restrictions in Section 2.2(d), the registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulationsof the Registrable Securities for which the Equity Committee has requested registration under this Section 2.2, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities that so to be registered. Notwithstanding the Company has been so requested to register; providedforegoing, however, that (i) the Holders Equity Committee shall not make a request for a be entitled to ten Demand Registration under Registrations pursuant to this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,0002.2, (ii) the Holders will not Equity Committee shall be entitled to require the Company to effect no more than three (3) Demand Registrations in the aggregate under this Agreementone demand registration during any six-month period, and (iii) the Company will shall not be obligated to effect more than one (1) make a Demand Registration with respect to the Equity Committee in any six the event that a Fifth Anniversary Registration or Piggyback Registration (6as defined below) month periodhad been available to the Equity Committee within the 180 days preceding the date of the Demand Notice.
(b) The offering At any time prior to the effective date of the Registrable Securities pursuant registration statement relating to such registration, the Equity Committee may revoke such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate request by providing a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished notice to the Company by or on behalf of revoking such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreementrequest. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings liable for and pay all Registration Expenses in connection with any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the HoldersDemand Registration.
(c) IfIf a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Equity Committee that, in connection with an Underwritten Offeringits view, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed shares of Registrable Securities requested to be included in such registration exceeds the Underwriters’ largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum NumberOffering Size”), then the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be registered in the Demand Registration by the Equity Committee (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among the Covered Persons whose Registrable Securities are included in the Demand Registration on the basis of the relative number of shares of Registrable Securities so requested to be included in such registration by each);
(ii) second, any securities proposed to be registered by the Company or any securities proposed to be registered for the account of any other persons, with such priorities among them as the Company shall determine.
(d) Upon notice to the Demand Requesting Covered Person, the Company may postpone effecting a registration pursuant to this Section 2.2 on one occasion during any period of six consecutive months for a reasonable time specified in the notice but not exceeding 120 days (which period may not be extended or renewed), if (i) the Company shall so advise all Holders determine in good faith that effecting the registration would materially and adversely affect an offering of Registrable Securities to be included in securities of such Underwritten Offering and company the preparation of which had then been commenced or (ii) the Company will be obligated and required to include is in possession of material non-public information the disclosure of which during the period specified in such Underwritten Offering only that number of Registrable Securities requested by notice the Holders thereof to Company believes in good faith would not be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis best interests of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable SecuritiesCompany.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a).
Appears in 2 contracts
Samples: Registration Rights Agreement (Evercore Partners Inc.), Registration Rights Agreement (Evercore Partners Inc.)
Demand Registration. (a) Subject After the consummation of an IPO or at such time prior to the provisions hereofconsummation of an IPO as is permitted by Section 10.3 with respect to a given Shareholder, at any time on or after upon a Shareholder's written request specifying the date that is 180 days after intended manner of disposition (including the Closing Date number of shares of Vail Equity to be sold) (as defined in the Merger Agreementa "Demand Notice"), Vail will use its best efforts to prepare and file with the Holders of a majority of Registrable Securities shall have the right to require the Company to file SEC, as expeditiously as possible, a Registration Statement registering on an available form for sale all or part which Vail then qualifies (but not including by means of their respective Registrable Securities a shelf registration pursuant to Rule 415 under the Securities Act (a “Demand Registration”) by delivering a written request therefor Act), which legal counsel for Vail deems appropriate and which is available for the sale of Vail Equity to permit an underwritten public offering of some or all of the Company (i) specifying the number shares of Registrable Securities to be included in such registration Vail Equity then held by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), Shareholder and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable its best efforts to effect cause such registration statement to become effective (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to register; provided, however, that (i) the Holders shall not make a request for a "Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month periodRegistration").
(b) The offering of the Registrable Securities pursuant to such A Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as occurred until it has become effective under the Securities Act (unless a Shareholder delivers a Demand Notice and subsequently withdraws the Demand Notice, in which case such Demand Registration will be deemed to have occurred unless the Registration Statement relating thereto has been declared effective such Shareholder agrees to pay all reasonable out-of-pocket expenses associated with such registration actually incurred by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect theretoVail); provided, however, that if, after it a Demand Registration has become effective, (i) the offering of Vail Equity pursuant to such Demand Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of prohibited by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or administrative agencya court, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective such Demand Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause occurred (ii) unless such prohibition on the sale of the proviso Vail Equity is based on actions or omissions of such Shareholder, in which case such Demand Registration will be deemed to have occurred unless such Shareholder agrees to pay all reasonable out-of-pocket expenses associated with such registration actually incurred by Vail).
(c) Vail shall only be obligated to effect one Demand Registration per Shareholder in any twelve month period under this Section 4.2(a). If 5.1; provided, however, that Vail will not be required to register the Vail Equity pursuant to a Demand Notice under this Section 5.1 if at such time (i) the shares of Vail Equity which a registration requested Shareholder is requesting to be registered pursuant to this Section 4.2 is deemed not 5.1 constitute less than 6.0% (or, if less, all of the shares of Vail Equity owned by such Shareholder) of the outstanding Vail Securities so requested to have been effected as a Demand Registration be registered or (ii) such Demand Notice is given within six (6) months after the effective date of any other registration requested of any Vail Securities under the Securities Act.
(d) The managing underwriter will be selected by the Shareholder requesting registration pursuant to this Section 4.2 does 5.1 (the "Requesting Shareholder"); provided, however, that such underwriter shall be subject to the approval of Vail, which approval shall not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registrationunreasonably withheld. In circumstances not including the events described in event there is one or more co-managers, the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities first such co-manager shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registrationselected by Vail, provided that such registration nonetheless co-manager shall count as a Demand Registration for purposes of clause (ii) be subject to the approval of the proviso to Section 4.2(a)Requesting Shareholder, which approval shall not be unreasonably withheld or delayed, and all other co-managers will be selected by the Requesting Shareholder.
Appears in 2 contracts
Samples: Shareholder Agreement (Ralcorp Holdings Inc /Mo), Shareholder Agreement (Ralcorp Holdings Inc /Mo)
Demand Registration. All expenses (aother than underwriting discounts and commissions) Subject to the provisions hereof, at any time on or after the date that is 180 days after the Closing Date incurred in connection with a registration requested under Section 2 (which right may be assigned as defined provided in the Merger AgreementSection 1), filings or qualifications pursuant to Section 2, including (without limitation) all registration, filing and qualification fees, printers’ and accounting fees, fees and disbursements of counsel for the Corporation, and the reasonable fees and disbursements of one counsel for the selling Holders selected by Holders of a majority of the Registrable Securities to be registered, shall be borne by the Corporation; provided, however, that the Corporation shall not be required to pay for any expenses of any registration proceeding begun pursuant to Section 2 if the registration request is subsequently withdrawn at the request of the Holders of a majority of the Registrable Securities to be registered (in which case all participating Holders shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying bear such expenses pro rata based upon the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to register; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested were to be included in the registration by the Holders are included in such withdrawn registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto); providedprovided further, however, that ifif at the time of such withdrawal, after it has become effective, the selling Holders have (i) such Registration Statement learned of a material adverse change in the condition, business, or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement prospects of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant Corporation from that known to the registration, and in each case less than all selling Holders at the time of the Registrable Securities covered their request or have been advised by the effective Registration Statement are actually sold by underwriter that the selling Holder or Holders pursuant to the Registration Statement, or registration should be withdrawn (either a “Withdrawal Event”) and (ii) if, in have withdrawn the case request with reasonable promptness following the occurrence of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registrationWithdrawal Event, then the Company selling Holders shall continue not be required to be obligated to effect a Demand Registration pay any of such expenses and shall retain their rights pursuant to this Section 4.2 2. If the Holders are required to pay any expenses, such expenses shall be borne by the holders of the securities (including Registrable Securities included Securities) requesting such registration in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior proportion to the commencement number of marketing of such Demand Registrationsecurities for which registration was requested. If the Corporation is required to pay the expenses due to a Withdrawal Event, provided that such registration nonetheless then the Holders shall count as not forfeit their rights to a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)demand registration.
Appears in 2 contracts
Samples: Registration Rights Agreement (Fluence Energy, Inc.), Registration Rights Agreement (Fluence Energy, Inc.)
Demand Registration. (a) Subject to the provisions hereofIf, on or at any time on after the Effectiveness Date there is no currently effective Shelf Registration Statement, then at any time thereafter, upon written notice (a “Demand”) from a Holder or Holders holding at least 50% of the Registrable Securities (collectively, the “Demand Holder”) requesting that the Company effect the registration under the 1933 Act of any or all of the Registrable Securities held by the Demand Holder, which notice shall specify the amount and intended method or methods of disposition of such Registrable Securities, including pursuant to a shelf registration statement utilizing Rule 415 (a “Shelf Registration”), the Company shall, within five days after receiving the Demand, give written notice (the “Request Notice”) of such registration request to all other Holders, except if all the Registrable Securities are held by a single Holder, no Request Notice shall be required, and thereupon will, subject to the limitations set forth in Section 2.02(c), as promptly as possible (and in any event no later than 30 days after the date that is 180 days after of the Closing Date (as defined in the Merger AgreementDemand), the Holders of a majority of Registrable Securities shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use its reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued cause to be declared effective under the Securities 1933 Act, a Registration Statement to effect the registration under the 1933 Act and any other governmental requirements or regulationsof (i) of the such Registrable Securities that which the Company has been so requested to register; provided, however, that (i) register by the Holders shall not make a request for a Demand Registration Holder under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, the Demand and (ii) the Holders will not be entitled to require Registrable Securities which the Company has been requested to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) register by written request to the Company will not by the Holders within ten days after the giving of the Request Notice (which request shall specify the amount and intended method or methods of disposition of such Registrable Securities), all to the extent necessary to permit the disposition (in accordance with the intended method(s) thereof as aforesaid) of the Registrable Securities and such other securities so to be obligated to effect more than one (1) Demand Registration in any six (6) month periodregistered.
(b) The offering of the Registrable Securities A registration requested pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in this Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration 2.02 will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto unless: (i) it has been declared effective by the SECSEC or has otherwise become effective under the 1933 Act and remains effective for not less than 180 days, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registrationor, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) if such Registration Statement relates to an underwritten offering, such longer period as, in the opinion of counsel for the underwriter or underwriters is required by law for the related offer, delivery of a Prospectus in connection with the sale or distribution of Registrable Securities thereunder is by an underwriter or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, dealer; or (ii) if, in it has been filed with the case of an Underwritten Offering, SEC but abandoned or withdrawn at the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) request of the proviso Demand Holder prior to Section 4.2(a). If effectiveness, other than an abandonment or withdrawal requested because of: (iA) the stock price of the Common Stock falling 15% or more since the delivery of a request for registration requested pursuant to this Section 4.2 is deemed not to have been effected 2.02, (B) a material adverse change in the Company’s and the Subsidiaries’ financial condition, business, assets, results of operations financial condition, taken as a whole, or (D) the discovery of materially adverse, non-public information concerning the Company and the Subsidiaries, taken as a whole.
(c) Notwithstanding anything in this Agreement to the contrary:
(i) if the filing of a Registration Statement in respect of a Demand would require the Company to make an Adverse Disclosure, the Company may, upon giving prompt written notice of such action to the Holders, delay the filing of such Registration Statement for the shortest period of time determined in good faith by the Company to be necessary for such purpose; provided that the Company shall not be permitted to do so (A) more than two times during any twenty-four month period, (B) for a period not exceeding 40 days on any one occasion or (C) for a period exceeding 60 days in any 12 month period. The Company shall immediately notify the Holders of the expiration of any period during which it exercised its rights under this Section 2.02(c)(i);
(ii) the registration requested Company shall not be obligated to file a Registration Statement in respect of a Demand (A) on more than two occasions or (B) within a period of one (1) month after the effective date of any other Registration Statement of the Company demanded pursuant to this Section 4.2 does not remain continuously effective until forty-five 2.02;
(45iii) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily may elect to withdraw all or any part of its Registrable Securities from a Demand Registration registration pursuant to this Section 2.02 at any time time, and if all such Holders do so, the Company shall cease its efforts to secure registration; and
(iv) all Demand registrations pursuant to this Section 2.02 shall be on Form S−3, except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form, reasonably acceptable to the Holders of a majority of the Registrable Securities, and as shall permit the disposition of the Registrable Securities in accordance with the intended method of distribution or methods of distribution specified in the applicable Demand Holder’s requests for such registration.
(d) Nothing in this Agreement shall limit the right of any Holder to request the registration of the Registrable Securities issuable upon exercise of the Warrants by such Holder (subject to such exercise occurring prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) completion of the proviso sale of the underlying Registrable Securities prior to Section 4.2(asuch registration), notwithstanding the fact that at the time of the request such Holder Warrants are not Registrable Securities.
Appears in 2 contracts
Samples: Investor Rights Agreement (Hoku Scientific Inc), Investor Rights Agreement (Tianwei New Energy Holdings Co., LTD)
Demand Registration. (a) Subject to In the provisions hereof, at any time on or after the date event that is following 180 days after the Closing Date (as defined in effective date of the Merger Agreement), the Registration Statement any Holder or Holders of a majority desire to sell shares of Registrable Securities shall have owned by such Holder or Holders then upon the right to require written request of any Holder or Holders requesting that the Company to file a Registration Statement registering for sale effect the registration under the Securities Act of all or part of their respective such Holder's or Holders' Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) and specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant thereof, but subject to an Underwritten Offering (as defined below)the limitations set forth herein, the Company will promptly give written notice of such requested registration to all other Holders of Registrable Securities, and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance the Company shall file with applicable law. As soon the Commission as promptly as practicable after the receipt of sending such demandnotice, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable its best efforts to effect such cause to become effective, a registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued statement under the Securities Act registering the offering and any other governmental requirements or regulationssale of:
(i) of the Registrable Securities that which the Company has been so requested to registerregister by such Holder or Holders; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, and
(ii) the Holders will not be entitled to require all other Registrable Securities which the Company has been requested to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) register by any other Holder thereof by written request given to the Company will not be obligated within 15 days after the giving of such written notice by the Company (which request shall specify the intended method of disposition of such Registrable Securities), all to effect more than one the extent necessary to permit the disposition (1in accordance with the intended method thereof as aforesaid) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant so to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreementregistered; providedPROVIDED, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect file a registration statement relating to any registration request under this Section 2(a) (A) unless the aggregate requests by the Holder or participate Holders for such registration cover not less than an aggregate of 1,000,000 shares (aadjusted for any stock splits, reverse stock splits or combination of shares) or (B) with respect to more than two one such registration per calendar year; provided that a request may cover fewer than 1,000,000 shares (2but not less than 500,000 shares) Underwritten Offerings in any twelve (12if the total number of shares of Registrable Securities then outstanding is less than 1,000,000. A request for registration under this Section 2(a) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf shall not be counted for purposes of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then foregoing limitation (i) unless a registration statement has become effective and has been kept continuously effective for the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and period required under Section 4(b), (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, if after it has become effective, (i) use of such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder registration statement is or becomes the subject of suspended by any stop order, injunction or other order or requirement of the SEC Commission or any other governmental agency or administrative agencycourt, or (iii) if any court prevents or otherwise limits no Registrable Securities are sold within the sale of period during which the registration statement has been kept continuously effective as required under Section 4(b). A Holder may, in connection with a request for registration under this Section 2(a), specify that the Registrable Securities pursuant are to be sold on a delayed or continuous basis, in which case the registrationCompany shall file a Shelf Registration Statement with respect thereto; provided, and in that each case less than all of the Registrable Securities covered by following conditions has been satisfied: (i) the effective Registration Statement are actually sold by the selling Holder or Holders pursuant Company is eligible to the Registration Statementfile a registration statement on Form S-3, or (ii) if, in a period of six years has elapsed since the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) effective date of the proviso to Section 4.2(a). If Registration Statement and (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (iiiii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder total number of Registrable Securities shall be permitted voluntarily to withdraw all outstanding constitutes 30% or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) less of the proviso to Section 4.2(a)total number of shares of Common Stock outstanding.
Appears in 2 contracts
Samples: Registration Rights Agreement (Vysis Inc), Registration Rights Agreement (Vysis Inc)
Demand Registration. (ai) Subject to the provisions hereof, at Request for Registration. At any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement)time, the Holders of a majority Purchased Shares representing not less than 25% of the aggregate number of Registrable Securities (or any lesser amount if the request relates to all remaining Registrable Securities) (the "Demand Party") may make two written requests for registration under the Act of their Registrable Securities (a "Demand Registration"); provided, that no transferee of the Investors or of any such transferee shall have be permitted to request a registration pursuant to this Section 2(a) unless the right to require make such a request was specifically transferred by the Company Investors (or any transferee) to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written such transferee. Any such request therefor to the Company (i) specifying shall specify the number of Registrable Securities proposed to be included in such registration by such Holder or Holders, (ii) specifying whether sold and will also specify the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below)thereof, and (iii) containing all information about such Holder required method of disposition to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to register; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, Company if it is other than a firm commitment underwritten public offering (which approval shall not be unreasonably withheld or delayed and (ii) withheld). Subject to the other provisions of this Section 2(a), the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation give written notice of such Holder arising under such underwriting agreement (a) shall be limited registration request within 10 days after the receipt thereof to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or all other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf Holders. Within 15 days after receipt of such Holder expressly for inclusion therein and (b) shall not in notice by any eventHolder, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate request in any such Underwritten Offering unless such Holder agrees to sell writing that its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds (whether or not such Registrable Securities are of the Underwriters’ Maximum Number, then (isame series or class as the Registrable Securities that were the subject of the original demand) and the Company shall so advise all Holders of include in the Demand Registration the Registrable Securities of any such Holder requested to be included in so included. Each such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of request shall specify the number of Registrable Securities requested proposed to be included therein by each sold and the intended method of disposition thereof, such Holder. No shares method of Common Stock held by any Person disposition to be subject to the approval of the Company if it is other than Registrable Securities held by a firm commitment underwritten public offering (which approval shall not be unreasonably withheld). Upon a demand, the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.Company will:
(dx) A registration will not be deemed prepare and file within 30 days after a request has been made and use its reasonable best efforts to have been effected cause to become effective as promptly as reasonably commercially practicable (but in any event use its reasonable best efforts to cause to become effective within 90 days of such demand) a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% in respect of all the Registrable Securities requested to be included in the registration by the which Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect theretorequest for inclusion therein; provided, however, that if, after it has become effective, and
(iy) keep such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five for the shorter of (45A) 90 days after the commencement and (B) such period of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 time as all of the Registrable Securities included in such Registration Statement have been sold thereunder (the shorter of (A) or (B), the "Effectiveness Period"); provided, that if such demand occurs during a Black Out Period (as defined below) or other period (not to exceed 180 days) during which the Company is prohibited or restricted from issuing or selling securities pursuant to any underwriting or purchase agreement relating to an underwritten Rule 144A offering or registered public offering of securities (a "Lock Up Period"), the Company shall notify the Demand Party of the basis therefore and shall not be required to notify the Holders of such demand or file such Registration Statement prior to the end of the Black Out Period or Lock Up Period, as the case may be, in which event, the Company will use its reasonable best efforts to cause such Registration Statement to become effective no later than the later of (A) 150 days after the original demand and (B) 90 days after the end of the Black Out Period or Lock Up Period, as the case may be; and provided, further, that the Company may postpone the filing of any Registration Statement (and, in the case of a Pending Event Suspension Period only, suspend the effectiveness of any registration, suspend the use of any Prospectus and shall not be required to amend or supplement the Registration Statement, any related Prospectus or any document incorporated therein by reference (other than an effective Registration Statement being used in an underwritten offering)) (A) for a period not to exceed an aggregate of 90 days (a "Pending Event Suspension Period") in the event that (1) an event or circumstance occurs and is continuing that has not been publicly disclosed and, if not disclosed in the Registration Statement, any related Prospectus or any document incorporated therein by reference as then amended or supplemented would, in the Company's good faith reasonable judgment, result in the Registration Statement, any related Prospectus or any such document containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein, or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (2) in the good faith judgment of the Board of Directors of the Company (the "Board"), after consultation with its outside securities counsel, the Company has a bona fide business purpose for not then disclosing the existence of such event or circumstance or (B) in the event that the Company, for its own account or the account of others, has pending or is currently engaged in the process of and proposes to register shares of Common Stock for sale in an underwritten public offering on Form X-0, X-0 or S-3, their successor forms or any other form under the Securities Act appropriate for a public offering of such securities (other than a registration on Form S-8), for a period not to exceed 60 days after the consummation of such public offering (a "Pending Registration Suspension Period" and, together with a Pending Event Suspension Period, a "Black Out Period"); provided, further, that the Effectiveness Period shall be extended by the number of days in any Black Out Period occurring during the Effectiveness Period. In circumstances not including the events described in event of the immediately two preceding sentences occurrence of this Section 4.2(d)any Black Out Period or Lock Up Period, each Holder the Company will promptly notify the Holders of Registrable Securities thereof in writing. If the Company shall be permitted voluntarily postpone the filing of a Registration Statement, the Holders of Registrable Securities requesting registration thereof shall have the right to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior the request for registration by giving written notice to the commencement Company within 30 days after receipt of marketing notice of postponement from the Company and, in the event of such Demand Registrationwithdrawal, provided that such registration nonetheless request shall count as a Demand Registration not be counted for purposes of clause (ii) of the proviso requests permitted to be made under this Section 4.2(a2(a). The Company shall not be permitted to assert more than one Black Out Period in any consecutive 180-day period.
Appears in 2 contracts
Samples: Registration Rights Agreement (Aprisma Management Technologies Inc), Registration Rights Agreement (Cabletron Systems Inc)
Demand Registration. (a) Subject to If the provisions hereof, at any time on or after Company shall receive a written request from the date that is 180 days after the Closing Date DLJMB Members (as defined in the Merger Agreement)such requesting person, the Holders of a majority of Registrable Securities shall have the right to require “Requesting Stockholder”) that the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities effect the registration under the Securities Act of all or any portion of such Requesting Stockholder’s Registrable Securities, and specifying the intended method of disposition thereof, then the Company shall promptly give notice of such requested registration (each such request shall be referred to herein as a “Demand Registration”) by delivering a written request therefor at least fifteen (15) Business Days prior to the Company (i) specifying anticipated filing date of the number of Registrable Securities registration statement relating to be included in such registration by such Holder or Holders, (ii) specifying whether Demand Registration to the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), other Stockholders and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company thereupon shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable its best efforts to effect such effect, as expeditiously as possible, the registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act of:
(i) all Registrable Securities for which the Requesting Stockholders have requested registration under this Section 1.01, and
(ii) subject to the restrictions set forth in Sections 1.01(e) and 1.02, all other Registrable Securities of the same class as those requested to be registered by the Requesting Stockholders that any other governmental requirements or regulationsStockholders with rights to request registration under Section 1.02 (all such Stockholders, together with the Requesting Stockholders, the “Registering Stockholders”) have requested the Company to register by request received by the Company within ten (10) Business Days after such Stockholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities that the Company has been so requested to registerbe registered; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offeringthat, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (iiSection 1.01(d) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part ofhereof, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (ax) more than two six Demand Registrations, (2y) Underwritten Offerings in more than one Demand Registration during any twelve (12) four-month period, and or (bz) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by aggregate gross proceeds expected to be received from the SEC, at least 75% sale of the Registrable Securities requested to be included by all Registering Stockholders in such Demand Registration are at least (A) $50 million if such Demand Registration would constitute the Initial Public Offering, or (B) $20 million in any Demand Registration other than the Initial Public Offering.
(b) Promptly after the expiration of the ten (10) Business Day period referred to in Section 1.01(a)(ii) hereof, the Company will notify all Registering Stockholders of the identities of the other Registering Stockholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Stockholders may revoke such request, without liability to any of the other Registering Stockholders, by providing a notice to the Holders are Company revoking such request.
(c) The Company shall be liable for and pay all Registration Expenses in connection with each Demand Registration, regardless of whether such Registration is effected.
(d) A Demand Registration shall not be deemed to have occurred:
(i) unless the registration statement relating thereto (A) has become effective under the Securities Act and (B) has remained effective for a period of at least 120 days (or such shorter period in which all Registrable Securities of the Registering Stockholders included in such registrationregistration have actually been sold thereunder), and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, provided that such registration statement shall not be considered a Demand Registration if, after it has become such registration statement becomes effective, (i1) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder registration statement is or becomes the subject of interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case (2) less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 75% of the Registrable Securities included in such registration. In circumstances not registration statement have been sold thereunder; or
(ii) if the Maximum Offering Size (as defined below) is reduced in accordance with Section 1.01(e) such that less than 50% of the Registrable Securities of the Requesting Stockholders sought to be included in such registration are included.
(e) If a Demand Registration involves a Public Offering and the managing underwriter advises the Company and the Requesting Stockholders that, in its view, the number of Company Securities that the Registering Stockholders and the Company propose to include in such registration exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the events described price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the immediately two preceding sentences priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be registered by the Registering Stockholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Members on the basis of this Section 4.2(d), each Holder the relative number of Registrable Securities shall so requested to be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that included in such registration nonetheless shall count as a Demand Registration for purposes of clause by each); and
(ii) of second, all Registrable Securities proposed to be registered by the proviso to Section 4.2(a)Company.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (STR Holdings (New) LLC), Limited Liability Company Agreement (STR Holdings LLC)
Demand Registration. (a) Subject to the provisions hereof, at At any time on or after the date that is 180 days after expiration of the Closing Date (as defined transfer restrictions contained in the Merger AgreementSection 2.1(a), so long as the Holders Shareholders, collectively, Own at least 5.0% of the Voting Power of the Company, any Shareholder (a majority "Requesting Shareholder") shall be entitled to make a written request of Registrable Securities shall have the right to require the Company to file (a Registration Statement registering "Demand") for sale all or part of their respective Registrable Securities registration under the Securities Act of an amount of Registrable Securities that, when taken together with the amounts of Registrable Securities requested to be registered under the Securities Act by such Requesting Shareholder's Affiliates, equals or is greater than the Registrable Amount (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying based on the number of Registrable Securities to be included in outstanding on the date such registration by such Holder or Holders, Demand is made) (iia "Demand Registration") specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, thereupon the Company shall (x) promptly notify all Holders from whom will, subject to the request for registration has not been received and (y) terms of this Agreement, use its commercially reasonable best efforts to effect such the registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulationsof:
(i) of the Registrable Securities that the Company has been so requested to register; provided, however, that (i) register by the Holders shall not make a request Requesting Shareholders for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price disposition in accordance with the intended method of less than $5,000,000, disposition stated in such Demand;
(ii) the Holders will not be entitled to require all other Registrable Securities that the Company has been requested to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and register pursuant to Section 5.1(b); and
(iii) all Common Shares that the Company will not may elect to register in connection with any offering of Registrable Securities pursuant to this Section 5.1, but subject to Section 5.1(g); all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and the additional Common Shares, if any, to be obligated to effect more than one (1) Demand Registration in any six (6) month periodso registered.
(b) The offering of the Registrable Securities pursuant to such A Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, shall specify: (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the aggregate number of Registrable Securities requested to be included therein registered in such Demand Registration, (ii) the intended method of disposition in connection with such Demand Registration, to the extent then known and (iii) the identity of the Requesting Shareholder (or Requesting Shareholders). Subject to Section 5.1(g), the Company shall include in the Demand Registration covered by each such Holder. No shares of Common Stock held by any Person other than Demand all Registrable Securities held by with respect to which the Holders Company has received a written request for inclusion therein within ten (10) days after the initial Demand.
(c) The Shareholders, collectively, shall be included in a entitled to an aggregate of six (6) Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable SecuritiesRegistrations.
(d) A registration will Demand Registration shall not be deemed to have been effected and shall not count as a Demand Registration (i) unless the Registration Statement relating a registration statement with respect thereto has been declared become effective by the SEC, and has remained effective for a period of at least 75% of the sixty (60) days (or such shorter period in which all Registrable Securities requested to be included in the registration by the Holders are included in such registrationDemand Registration have actually been sold thereunder), and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that (ii) if, after it has become effective, (i) such Demand Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of to any stop order, injunction or other order or requirement of the SEC Commission or any other governmental agency or administrative agencycourt for any reason, (iii) if the conditions to closing specified in the purchase agreement or if underwriting agreement entered into in connection with such Demand Registration are not satisfied as a consequence of any court prevents act or otherwise limits omission by the sale Company or (iv) the number of Registrable Securities requested for inclusion is materially reduced pursuant to Section 5.1(g).
(e) Demand Registrations shall be on such appropriate registration form of the Commission as shall be selected by the Company.
(f) The Company shall be entitled to postpone (upon written notice to all Shareholders) for up to an aggregate of ninety (90) days during any period of twelve (12) consecutive months the filing or the effectiveness of a registration statement for any Demand Registration if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating to such Demand Registration would cause the disclosure of material, non-public information that the Company has a bona fide business purpose for preserving as confidential. In the event of a postponement by the Company of the filing or effectiveness of a registration statement for a Demand Registration, the holders of a majority of Registrable Securities pursuant held by the Requesting Shareholder(s) shall have the right to the registration, and withdraw such Demand in each case less accordance with Section 5.3.
(g) The Company shall not include any securities other than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) Registration, except with the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement written consent of the distribution by the Holders of the Registrable Securities covered by Shareholders participating in such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 that hold a majority of the Registrable Securities included in such registrationDemand Registration. In circumstances If, in connection with a Demand Registration, any managing underwriter (or, if such Demand Registration is not an Underwritten Offering, a nationally recognized independent investment bank selected by the Company) advises the Company, in writing, that, in its opinion, the inclusion of all of the securities, including securities of the events described Company that are not Registrable Securities, sought to be registered in connection with such Demand Registration would adversely affect the marketability of the Registrable Securities sought to be sold pursuant thereto, then the Company shall include in such registration statement only such securities as the Company is advised by such underwriter can be sold without such adverse effect as follows and in the immediately two preceding sentences following order of this Section 4.2(d)priority: (i) first, each Holder up to the number of Registrable Securities shall requested to be permitted voluntarily included in such Demand Registration by the Shareholders, which, in the opinion of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Shareholders requesting such Demand Registration on the basis of the number of such securities requested to withdraw be included by such Shareholders and such Shareholders that are Piggyback Sellers; (ii) second, securities the Company proposes to sell; and (iii) third, all other securities of the Company duly requested to be included in such registration statement, pro rata on the basis of the amount of such other securities requested to be included or any part of its Registrable Securities from such other method determined by the Company.
(h) Any time that a Demand Registration at any time prior involves an Underwritten Offering, the Company shall select the investment banker or investment bankers and managers that will serve as lead and co-managing underwriters with respect to the commencement of marketing offering of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)Registrable Securities.
Appears in 2 contracts
Samples: Shareholder Agreement (Aircastle LTD), Shareholder Agreement (Aircastle LTD)
Demand Registration. (a) Subject to the provisions hereof, The Company hereby agrees that at any time on or after the date that is 180 days after one year from the Closing Date (as defined in the Merger Agreement), the Holders of a majority of Registrable Securities shall have the right to require Purchaser may request that the Company to file a Registration Statement registering for sale effect the registration under the Securities Act of 1933, as amended (the "Securities Act") of all or part of their respective Registrable Securities the Purchased Securities, and thereupon will, as expeditiously as possible, use its best efforts to effect the registration under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Purchased Securities that which the Company has been so requested to registerregister by the Purchaser, all to the extent requisite to permit the disposition of the Purchased Securities so to be registered; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated required to effect or participate (afile any such registration statement under this Section 9(a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by unless the underwriter(s) in any prior underwritten anticipated aggregate gross offering conducted by the Company on its own behalf or on behalf of the Holdersprice is at least $2,000,000.
(ci) If, The Company shall pay all of the expenses in connection with an Underwritten Offeringthe registration statement filed pursuant to this Section 3(a), except for underwriting discounts and commissions and transfer taxes, including, but not limited to the managing underwriter(s) advise reasonable attorneys fees of one counsel selected by the Company that in its or their reasonable opinion the number of securities proposed to be included in such Purchaser, which shall not exceed $1,000 per effective registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and statement.
(ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration requested pursuant to this Section 9(a) will not be deemed to have been effected as unless a Demand Registration unless the Registration Statement relating registration statement with respect thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect theretobecome effective; provided, however, that if, within 180 days after it has become effective, (i) the offering of the Purchased Securities pursuant to such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder registration is or becomes the subject of interfered with by any stop order, injunction or other order or requirement of the SEC Securities and Exchange Commission (the "SEC") or any other governmental agency or administrative agencycourt, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause effected.
(iiiii) of the proviso to Section 4.2(a). If (i) a requested registration requested pursuant to this Section 4.2 is deemed not 9(a) 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 exceeds the number which can be reasonably sold in such offering, the Company will include in such registration first, securities offered by the Company, second, the Purchased Securities which have been effected as a Demand Registration or (ii) the registration requested to be registered pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement 9(a), third, an amount of securities of the distribution by Company which the Holders Company is including in such registration statement pursuant to any incidental ("piggyback") registration rights, and fourth, the amount of other securities ("Other Securities") of the Registrable Securities covered Company held by all other security holders which, in the good faith opinion of such registrationmanaging underwriter, then can be sold without causing a material adverse effect on the offering.
(iv) The Company shall continue to be obligated to effect a Demand Registration register Purchased Securities pursuant to this Section 4.2 9(a) only once provided that if the number of Purchased Securities requested by the Purchaser to be included in a Registration Statement requested by the Purchaser pursuant to Section 9 (a) is cut back, the Purchaser shall have the right, no earlier than one year following effectiveness of the Registrable first demand registration, to request a second Registration Statement to register the Purchased Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)so registered.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Nam Corp), Stock Purchase Agreement (Insurance Services Office Inc)
Demand Registration. (a) Subject to the provisions hereof, at any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement), the Holders of a majority of Registrable Securities shall have the right to require If the Company to file shall receive a Registration Statement registering for sale all or part of their respective Registrable Securities written request by THL that the Company effect the registration under the Securities Act (of all or a “Demand Registration”) by delivering a written request therefor to portion of the Company (i) THL Entities' Registrable Securities, and specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below)thereof, and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, then the Company shall promptly give written notice of such requested registration (xa "THL Demand Registration") promptly notify all Holders from whom at least five days prior to the request for anticipated filing date of the registration has not been received statement relating to such THL Demand Registration to the Non-THL Shareholders and (y) thereupon will use reasonable its best efforts to effect such effect, as expeditiously as possible, the registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulationsof:
(i) of the Registrable Securities that of the THL Entities which the Company has been so requested to register; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, and
(ii) subject to the Holders will not be entitled restrictions set forth in Section 5.2, all other Registrable Securities of the same class as that to require which THL's request relates for which an effective Piggyback Registration (as such term is defined in Section 5.2) request has been made; provided, that subject to Section 5.1(d) hereof, the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will shall not be obligated to effect more than six THL Demand Registrations. In no event will the Company be required to effect more than one (1) THL Demand Registration in within any six (6) four-month period.
(b) The offering Promptly after the expiration of the Registrable Securities pursuant 2-day period referred to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i5.2(a) the representations and warranties by, and the other agreements on the part ofhereof, the Company to and for will notify all the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed Shareholders to be included in such registration exceeds the Underwriters’ Maximum Number, then THL Demand Registration (ithe "Holders") of the Company shall so advise all other Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holdertherein. No shares of Common Stock held by THL may, at any Person other than Registrable Securities held by time prior to the Holders shall be included in a Demand Registration without the prior written consent effective date of the holders of a majority in interest registration statement relating to such registration, revoke such request, without liability to any of the Registrable Securitiesother Holders, by providing a written notice to the Company revoking such request, in which case such request, so revoked, shall not be considered a THL Demand Registration.
(c) The Company will pay all Registration Expenses in connection with any THL Demand Registration.
(d) A registration will requested pursuant to this Section 5.1 shall not be deemed to have been effected as a Demand Registration (i) unless the Registration Statement registration statement relating thereto (A) has been declared become effective by under the SEC, Securities Act and (B) has remained effective for a period of at least 75% 180 days (or such shorter period in which all Registrable Securities of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect theretoregistration have actually been sold thereunder); provided, however, that if, if after it has become effective, any registration statement requested pursuant to this Section 5.1 becomes effective (ix) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder registration statement is or becomes the subject of interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case (y) less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 75% of the Registrable Securities included in such registration. In circumstances registration statement has been sold thereunder, such registration statement shall not including be considered a THL Demand Registration, or (ii) if the events described Maximum Offering Size (as defined below) is reduced in accordance with Section 5.1(e) such that less than 66 2/3% of the immediately two preceding sentences Registrable Securities of this Section 4.2(d)the THL Entities sought to be included in such registration are included.
(e) If a THL Demand Registration involves an Underwritten Public Offering and the managing underwriter shall advise the Company and THL that, each Holder in its view, (i) the number of shares of Registrable Securities shall requested to be permitted voluntarily included in such registration (including any securities which the Company proposes to be included which are not Registrable Securities) or (ii) the inclusion of some or all of the shares of Registrable Securities owned by the Holders, in any such case, exceeds the largest number of shares which can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the "Maximum Offering Size"), the Company will include in such registration, in the priority listed below, up to the Maximum Offering Size:
(A) first, all Registrable Securities requested by THL to be registered and all Registrable Securities requested to be included in such registration by any other Holder pursuant to an effective Piggyback Registration request (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among the THL Entities and such Holders on the basis of the relative number of Registrable Securities held by such Shareholder); and
(B) second, any securities proposed to be registered by the Company. provided, however, that in such case, any Holder may elect to withdraw all or any part of its such Holder's Registrable Securities from the registration.
(f) Upon written notice to THL, the Company may postpone effecting a Demand Registration at registration pursuant to this Section 5.1 on one occasion during any period of six consecutive months for a reasonable time prior to specified in the commencement notice but not exceeding 90 days (which period may not be extended or renewed), if (i) an investment banking firm of marketing recognized national standing shall advise the Company and THL in writing that effecting the registration would materially and adversely affect an offering of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes securities of clause the Company the preparation of which had then been commenced or (ii) the Company has a bona fide business reason for determining that it is in possession of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, would not be in the best interests of the proviso Company.
(g) After the Company has effected two Demand Registrations pursuant to this Section 4.2(a5.1 of Common Stock, the Institutional Shareholders, upon request of such Institutional Shareholders owning a majority of the Shares acquired by such Institutional Shareholders on the Closing Date, may request that the Company register shares of Registrable Securities then owned by such Institutional Shareholders (an "Institutional Shareholder Demand Registration"). In no event will the Company be required to effect more than one such Institutional Shareholder Demand Registration. The provisions of this Article 5 shall apply, mutatis mutandis, to any such Institutional Shareholder Demand Registration.
(h) After the Transfer of Shares of Common Stock representing more than 20% of the Shares collectively owned by the Equity Investors of the Initial Ownership on a Fully Diluted basis owned by such Equity Investors, the Primary Executives may request that the Company register Shares which are Registrable Securities then owned by them (a "Primary Executive Demand Registration"). In no event will the Company be required to effect more than three such Primary Executive Demand Registrations. The provisions of this Article 5 shall apply, mutatis mutandis, to any such Primary Executive Demand Registration; provided, that, notwithstanding anything to the contrary herein, (i) no Primary Executive Demand Registrations may be made during the six month period following the Effective Time or within six months after the effective date any other registration statement (other than registration statement on From S-4 or S-8 or similar form), and (ii) the Company must use its best efforts to effect such Primary Executive Demand Registration as soon as practicable, but in no event later than 120 days following the date of the demand.
Appears in 2 contracts
Samples: Investors' Agreement (Fisher Scientific International Inc), Investors' Agreement (Donaldson Lufkin & Jenrette Inc /Ny/)
Demand Registration. (a) Subject to the provisions hereof, at At any time on or after the date that is 180 days after six month anniversary of the Closing Date consummation by the Company of the IPO, if the Company shall receive a written request from a Sponsor or Sponsors holding outstanding Registrable Securities (as defined in the Merger Agreement)such requesting Persons, the Holders of a majority of Registrable Securities shall have the right to require “Requesting Stockholders”) that the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities effect the registration under the Securities Act of all or any portion of such Requesting Stockholders’ Registrable Securities, and specifying the intended method of disposition thereof, then the Company shall promptly give notice of such requested registration (each such request shall be referred to herein as a “Demand Registration”) by delivering a written request therefor at least ten (10) days prior to the Company (i) specifying anticipated filing date of the number of Registrable Securities registration statement relating to be included in such registration by such Holder or Holders, (ii) specifying whether Demand Registration to the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), other Stockholders and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company thereupon shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use its reasonable best efforts to effect such effect, as expeditiously as possible, the registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and of:
(i) all Registrable Securities for which the Requesting Stockholders have requested registration under this Section 7.01, and
(ii) subject to the restrictions set forth in Section 7.01(d), all other Registrable Securities that any other governmental requirements or regulationsStockholders (all such Stockholders, together with the Requesting Stockholders, the “Registering Stockholders”) have requested the Company to register by request received by the Company within seven (7) days after such Stockholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered; provided that no Person may participate in any registration statement pursuant to this Section 7.01(a) unless such Person agrees to sell their Registrable Securities to the Company has been so requested underwriters selected as provided in Section 7.05(f) on the same terms and conditions as apply to registerthe Requesting Stockholders; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to no such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder Registering Stockholders shall be required to make any representations and warranties toor warranties, or agreements withprovide any indemnity, in connection with any underwriter in a such registration other than customary representationsrepresentations and warranties (or indemnities with respect thereto) as to (i) such Person’s ownership of his, warranties her or its Registrable Securities to be transferred free and agreements clear of all liens, claims, and encumbrances, (ii) such Person’s power and authority to effect such transfer, and (iii) such matters pertaining to compliance with securities laws by such Registering Stockholder as may be reasonably requested; provided, further, however, that the obligation of such Person to indemnify pursuant to any such underwriting arrangements shall be several, not joint and several, among such Persons selling Registrable Securities, and the liability of each Holder such Person will be in respect of any indemnificationproportion thereto; and provided, contribution or other obligation of further, that such Holder arising under such underwriting agreement (a) shall liability will be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statementto, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to received by such Holder (after deduction of all underwriters’ discounts and commissions) Person from the disposition sale of the his, her or its Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on registration; provided that, the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by aggregate gross proceeds expected to be received from the SEC, at least 75% sale of the Registrable Securities requested to be included in the registration by the Holders are included all Registering Stockholders in such registrationDemand Registration are at least $25,000,000.
(b) Promptly after the expiration of the seven-day period referred to in Section 7.01(a)(ii) hereof, the Company will notify all Registering Stockholders of the identities of the other Registering Stockholders and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution number of shares of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registrationtherein. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at At any time prior to the commencement effective date of marketing the registration statement relating to such registration, a majority of the Requesting Stockholders may revoke such request without liability to any of the other Registering Stockholders, by providing a notice to the Company revoking such request.
(c) The Company shall be liable for and pay all Registration Expenses in connection with each Demand Registration, regardless of whether such Registration is effected; provided that such registration nonetheless holders of Registrable Securities shall count pay all underwriting discounts, selling commissions, and stock transfer taxes applicable to the sale of Registrable Securities, and fees and disbursements of counsel for any Stockholder, except for the fees and disbursements of the Stockholders borne and paid by the Company as a Registration Expense.
(d) If a Demand Registration for purposes involves a Public Offering and the managing underwriter advises the Company and the Requesting Stockholders that, in its view, the number of clause Registrable Securities that the Registering Stockholders and the Company propose to include in such registration exceeds the largest number of Registrable Securities that can be sold without having an adverse effect on such offering, including the price at which such Registrable Securities can be sold (ii) of the proviso “Demand Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to Section 4.2(a).the Demand Maximum Offering Size:
Appears in 2 contracts
Samples: Stockholders Agreement (INC Research Holdings, Inc.), Stockholders Agreement (INC Research Holdings, Inc.)
Demand Registration. (a) Subject to the provisions hereof, at At any time on or after the date that is 180 one hundred eighty (180) days after the Closing Date effective date of the registration statement for the IPO of the Company’s Common Stock, either Investor (as defined the “Initiating Holder”) may notify the Company that it intends to offer or cause to be offered for public sale all or any portion of its Registrable Securities in the Merger Agreement)manner specified in such request. Upon receipt of such request, the Holders Company shall promptly deliver notice of a majority such request to all other holders of Registrable Securities who shall then have ten (10) days to notify the Company in writing of their desire to be included in such registration. If the request for registration contemplates an underwritten public offering, the Company shall state such in the written notice and in such event the right of any Person to require participate in such registration shall be conditioned upon such Person’s participation in such underwritten public offering and the Company to file a Registration Statement registering for sale all or part inclusion of their respective such Person’s Registrable Securities in the underwritten public offering to the extent provided herein. The Company will use reasonable best efforts to expeditiously effect (but in any event no later than ninety (90) days after such request) the registration of all Registrable Securities whose holders request participation in such registration under the Securities Act (a “Demand Registration”) by delivering a written request therefor Act, but only to the extent provided for in this Agreement; provided however, that the Company shall not be required to effect registration pursuant to a request under this Section 2 (i1) specifying more than three (3) times for each Investor, or (2) if the number of Registrable Securities proposed to be included in such registration are expected to have an aggregate sale price (net underwriting discounts and commissions, if any) less than $50,000,000. Notwithstanding anything to the contrary contained herein, no request may be made under this Section 2 within one hundred twenty (120) days after the effective date of a registration statement filed by such Holder or Holders, (ii) specifying whether the intended method Company covering a firm commitment underwritten public offering in which the holders of disposition thereof is Registrable Securities shall have been entitled to join pursuant to an Underwritten Offering (Section 4 and in which there shall have been effectively registered all Registrable Securities as defined below), to which registration shall have been requested. A registration will not count as a requested registration under this Section 2(a) unless and (iii) containing all information about until the registration statement relating to such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under declared effective by the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to registerCommission; provided, provided however, that (i) the Holders shall not make participating Investors holding a request for a Demand Registration under this Section 4.2(a) for majority of the Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, being registered by all participating Investors (a “Participating Majority”) or (ii) the Holders will Initiating Holder, only to the extent no such Investor holds a majority of the Registrable Securities being registered by all participating Investors, may request, in writing, that the Company withdraw a registration statement which has been filed under this Section 2(a) but has not be entitled to require yet been declared effective, and a Participating Majority (or Initiating Holder, as applicable) may thereafter request the Company to effect more than three (3) Demand Registrations reinstate such registration statement, if permitted under the Securities Act, or to request that the Company file another registration statement, in accordance with the procedures set forth herein and without reduction in the aggregate number of demand registrations permitted under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month periodSection 2(a).
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of If a requested registration involves an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate and the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made offering determines in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company good faith that in its or their reasonable opinion the number of securities proposed sought to be offered should be limited due to market conditions, then the number of securities to be included in such registration exceeds underwritten public offering shall be reduced to a number deemed satisfactory by such managing underwriter; provided, that the Underwriters’ Maximum Number, then shares to be excluded shall be determined in the following order of priority: (i) persons not having any contractual or other right to include such securities in the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and registration statement, (ii) securities held by any other Persons (other than the holders of Registrable Securities) having a contractual, incidental “piggy back” right to include such securities in the registration statement, (iii) securities to be registered by the Company will be obligated and required pursuant to include in such Underwritten Offering only that number of registration statement, (iv) Registrable Securities requested by of the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum NumberManagement Stockholders, such and (vi) Registrable Securities to be allocated pro rata among of the Holders thereof on the basis Investors. If there is a reduction of the number of Registrable Securities requested pursuant to clauses (v) or (vi), such reduction shall be included therein by each such Holder. No shares made on a pro rata basis (based upon the aggregate number of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securitiessuch holders).
(dc) A With respect to a request for registration will not pursuant to Section 2(a) which is for an underwritten public offering, the managing underwriter shall be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective chosen by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration Participating Majority or (ii) the registration requested pursuant Initiating Holder, only to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders extent no such Investor holds a majority of the Registrable Securities covered being registered by such registration, then the Company shall continue to all participating Investors (which approval will not be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all unreasonably withheld or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(adelayed).
Appears in 2 contracts
Samples: Registration Rights Agreement (Intapp, Inc.), Registration Rights Agreement (Intapp, Inc.)
Demand Registration. (a) Subject After the consummation of an IPO or at such time prior to the provisions hereofconsummation of an IPO as is permitted by Section 10.3 with respect to a given Shareholder, at any time on or after upon a Shareholder's written request specifying the date that is 180 days after intended manner of disposition (including the Closing Date number of shares of Vail Equity to be sold) (as defined in the Merger Agreementa "Demand Notice"), Vail will use its best efforts to prepare and file with the Holders of a majority of Registrable Securities shall have the right to require the Company to file SEC, as expeditiously as possible, a Registration Statement registering on an available form for sale all or part which Vail then qualifies (but not including by means of their respective Registrable Securities a shelf registration pursuant to Rule 415 under the Securities Act (a “Demand Registration”) by delivering a written request therefor Act), which legal counsel for Vail deems appropriate and which is available for the sale of Vail Equity to permit an underwritten public offering of some or all of the Company (i) specifying the number shares of Registrable Securities to be included in such registration Vail Equity then held by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), Shareholder and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable its best efforts to effect cause such registration statement to become effective (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to register; provided, however, that (i) the Holders shall not make a request for a "Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month periodRegistration").
(b) The offering of the Registrable Securities pursuant to such A Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as occurred until it has become effective under the Securities Act (unless a Shareholder delivers a Demand Notice and subsequently withdraws the Demand Notice, in which case such Demand Registration will be deemed to have occurred unless the Registration Statement relating thereto has been declared effective such Shareholder agrees to pay all reasonable out-of-pocket expenses associated with such registration actually incurred by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect theretoVail); provided, however, that if, after it a Demand Registration has become effective, (i) the offering of Vail Equity pursuant to such Demand Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of prohibited by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or administrative agencya court, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective such Demand Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause occurred (ii) unless such prohibition on the sale of the proviso Vail Equity is based on actions or omissions of such Shareholder, in which case such Demand Registration will be deemed to have occurred unless such Shareholder agrees to pay all reasonable out-of-pocket expenses associated with such registration actually incurred by Vail).
(c) Vail shall only be obligated to effect one Demand Registration per Shareholder in any twelve month period under this Section 4.2(a). If 5.1; provided, however, that Vail will not be required to register the Vail Equity pursuant to a Demand Notice under this Section 5.1 if at such time (i) the shares of Vail Equity which a registration requested Shareholder is requesting to be registered pursuant to this Section 4.2 is deemed not 5.1 constitute less than 6.0% (or, if less, all of the shares of Vail Equity owned by such Shareholder) of the outstanding Vail Securities so requested to have been effected as a Demand Registration be registered or (ii) such Demand Notice is given within six (6) months after the effective date of any other registration requested of any Vail Securities under the Securities Act.
(d) The managing underwriter will be selected by the Shareholder requesting registration pursuant to this Section 4.2 does 5.1 (the "Requesting Shareholder"); provided, however, that such underwriter shall be subject to the approval of Vail, which approval shall not remain continuously effective until fortybe unreasonably withheld. In the event there is one or more co-five (45) days after managers, the commencement first such co-manager shall be selected by Vail, provided that such co-manager shall be subject to the approval of the distribution Requesting Shareholder, which approval shall not be unreasonably withheld or delayed, and all other co-managers will be selected by the Holders Requesting Shareholder.
(e) In connection with a Demand Registration, both the Shareholder not requesting the Demand Registration (the "Non-Requesting Shareholder") and Vail may elect to include additional shares of Vail Securities in such offering on the Registrable same terms and conditions as the Vail Equity to be sold by the Requesting Shareholder; provided, however, that if the managing underwriter(s) advises the Requesting Shareholder, the Non-Requesting Shareholder and Vail that, in its judgment, the number of shares proposed to be included in such offering exceeds the largest number of Vail Securities covered by which can be sold without having an adverse effect on such registrationoffering, including the price at which such securities can be sold (the "Marketable Number"), then the Company shall continue total number of shares to be obligated included in such offering shall be limited as follows: (i) first, all the shares of Vail Equity that the Requesting Shareholder and the Non-Requesting Shareholder propose to effect a Demand Registration pursuant sell up to this Section 4.2 the Marketable Number, allocated pro rata between the Requesting Shareholder and the Non-Requesting Shareholder on the basis of the Registrable relative number of Vail Securities that the Requesting Shareholder and the Non-Requesting Shareholder have proposed to be included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause and (ii) second, all the shares of Vail Securities that Vail proposes to sell, which does not exceed the proviso difference, if any, between the Marketable Number and that number of shares which the Requesting Shareholder and the Non-Requesting Shareholder have included pursuant to Section 4.2(a)clauses (i) and (ii) above.
Appears in 2 contracts
Samples: Shareholder Agreement (Ralcorp Holdings Inc), Shareholder Agreement (Vail Resorts Inc)
Demand Registration. (ai) Subject to If the provisions hereof, Company shall receive at any time on or after the date end of the Effectiveness Period for the Shelf Registration, a written request from the Investors of at least thirty-three percent (33%) of the Demand Securities then outstanding that is 180 days after the Closing Date (as defined in the Merger Agreement), the Holders of a majority of Registrable Securities shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities registration statement under the Securities Act (a “covering the registration of the Demand Registration”) by delivering a written request therefor Securities pursuant to this Section 2(b), then the Company shall, within ten (i10) specifying business days of the number receipt of Registrable such written request, give written notice of such request ("Request Notice") to all Investors, and file within thirty (30) days and use its best efforts to cause such Registration Statement to become effective within an additional thirty (30) days, the Registration Statement covering all Demand Securities which Investors request to be registered and included in such registration by written notice given such Holder or HoldersInvestors to the Company within twenty (20) days after receipt of the Request Notice; provided that the Registrable Securities requested by all Investors to be registered pursuant to such request must be at least thirty-three percent (33%) of all Demand Securities then outstanding; provided further, that in the event the proposed offering described in the Request Notice is an Underwritten Offering, then additional Holdover Securities (other than Warrants and Series A Preferred) held by Investors may be included in the registration described in the Request Notice, subject to compliance with subsection (ii) specifying whether below.
(ii) If the intended method Investors initiating the registration request under this Section 2(b) ("Initiating Investors") intend to distribute the Demand Securities covered by their request by means of disposition thereof is an Underwritten Offering, then they shall so advise the Company as a part of their request made pursuant to an Underwritten Offering (as defined below), this Section 2(b) and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom include such information in the request for registration has not been received and (y) use reasonable best efforts Request Notice referred to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to register; provided, however, that in subsection (i) the Holders shall not make a request for a Demand Registration under of this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”2(b). In such caseevent, (i) the Company may designate right of any Investor to include his Demand Securities and, if applicable, Holdover Securities in such registration shall be conditioned upon such Investor's participation in such Underwritten Offering and the managing underwriter(s) inclusion of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate Investor's Demand Securities in the Underwritten Offering, subject Offering (unless otherwise mutually agreed by a majority in interest of the Initiating Investors and such Investor) to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders extent provided herein. All Investors proposing to distribute their securities through such underwriting) Underwritten Offering shall enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through underwriter or underwriters selected for such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially Offering by the form as set forth in Section 4.9 Company. Notwithstanding any other provision of this Agreement; providedSection 2(b), that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of if the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iiiadvise(s) the liability Company in writing that marketing factors require a limitation of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, underwritten then (i) the Company shall so advise all Holders of Registrable Investors owning Demand Securities to and, if applicable, Holdover Securities, which would otherwise be included in such Underwritten Offering registered and (ii) the Company will be obligated underwritten pursuant hereto, and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Demand Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable and, if applicable, Holdover Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to that may be included in the registration Underwritten Offering shall be reduced as required by the Holders are included in such registrationunderwriter(s) and allocated among the Investors owning Demand Securities and, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; providedif applicable, howeverHoldover Securities, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant on a pro rata basis according to the registrationnumber of Demand Securities and, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statementif applicable, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full CooperationHoldover Securities, then such outstanding held by each Investor requesting registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(aInitiating Investors).
Appears in 2 contracts
Samples: Registration Rights Agreement (Sci Systems Inc), Registration Rights Agreement (Avnet Inc)
Demand Registration. (a) Subject to the provisions hereof, at At any time on or after the date that is 180 days after expiration of the Closing Date (as defined transfer restrictions contained in the Merger AgreementSection 2.1(a), so long as the Holders Shareholders, collectively, Own at least 5.0% of the Voting Power of the Company, any Shareholder (a majority “Requesting Shareholder”) shall be entitled to make a written request of Registrable Securities shall have the right to require the Company to file (a Registration Statement registering “Demand”) for sale all or part of their respective Registrable Securities registration under the Securities Act of an amount of Registrable Securities that, when taken together with the amounts of Registrable Securities requested to be registered under the Securities Act by such Requesting Shareholder’s Affiliates, equals or is greater than the Registrable Amount (based on the number of Registrable Securities outstanding on the date such Demand is made) (a “Demand Registration”) by delivering a written request therefor and thereupon the Company will, subject to the Company (i) specifying the number terms of Registrable Securities to be included in such registration by such Holder or Holdersthis Agreement, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use its commercially reasonable best efforts to effect such the registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulationsof:
(i) of the Registrable Securities that the Company has been so requested to register; provided, however, that (i) register by the Holders shall not make a request Requesting Shareholders for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price disposition in accordance with the intended method of less than $5,000,000, disposition stated in such Demand;
(ii) the Holders will not be entitled to require all other Registrable Securities that the Company has been requested to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and register pursuant to Section 5.1(b); and
(iii) all Common Shares that the Company will not may elect to register in connection with any offering of Registrable Securities pursuant to this Section 5.1, but subject to Section 5.1(g); all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and the additional Common Shares, if any, to be obligated to effect more than one (1) Demand Registration in any six (6) month periodso registered.
(b) The offering of the Registrable Securities pursuant to such A Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, shall specify: (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the aggregate number of Registrable Securities requested to be included therein registered in such Demand Registration, (ii) the intended method of disposition in connection with such Demand Registration, to the extent then known and (iii) the identity of the Requesting Shareholder (or Requesting Shareholders). Subject to Section 5.1(g), the Company shall include in the Demand Registration covered by each such Holder. No shares of Common Stock held by any Person other than Demand all Registrable Securities held by with respect to which the Holders Company has received a written request for inclusion therein within ten (10) days after the initial Demand.
(c) The Shareholders, collectively, shall be included in a entitled to an aggregate of six (6) Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable SecuritiesRegistrations.
(d) A registration will Demand Registration shall not be deemed to have been effected and shall not count as a Demand Registration (i) unless the Registration Statement relating a registration statement with respect thereto has been declared become effective by the SEC, and has remained effective for a period of at least 75% of the sixty (60) days (or such shorter period in which all Registrable Securities requested to be included in the registration by the Holders are included in such registrationDemand Registration have actually been sold thereunder), and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that (ii) if, after it has become effective, (i) such Demand Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of to any stop order, injunction or other order or requirement of the SEC Commission or any other governmental agency or administrative agencycourt for any reason, (iii) if the conditions to closing specified in the purchase agreement or if underwriting agreement entered into in connection with such Demand Registration are not satisfied as a consequence of any court prevents act or otherwise limits omission by the sale Company or (iv) the number of Registrable Securities requested for inclusion is materially reduced pursuant to Section 5.1(g).
(e) Demand Registrations shall be on such appropriate registration form of the Commission as shall be selected by the Company.
(f) The Company shall be entitled to postpone (upon written notice to all Shareholders) for up to an aggregate of ninety (90) days during any period of twelve (12) consecutive months the filing or the effectiveness of a registration statement for any Demand Registration if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating to such Demand Registration would cause the disclosure of material, non-public information that the Company has a bona fide business purpose for preserving as confidential. In the event of a postponement by the Company of the filing or effectiveness of a registration statement for a Demand Registration, the holders of a majority of Registrable Securities pursuant held by the Requesting Shareholder(s) shall have the right to the registration, and withdraw such Demand in each case less accordance with Section 5.3.
(g) The Company shall not include any securities other than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) Registration, except with the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement written consent of the distribution by the Holders of the Registrable Securities covered by Shareholders participating in such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 that hold a majority of the Registrable Securities included in such registrationDemand Registration. In circumstances If, in connection with a Demand Registration, any managing underwriter (or, if such Demand Registration is not an Underwritten Offering, a nationally recognized independent investment bank selected by the Company) advises the Company, in writing, that, in its opinion, the inclusion of all of the securities, including securities of the events described Company that are not Registrable Securities, sought to be registered in connection with such Demand Registration would adversely affect the marketability of the Registrable Securities sought to be sold pursuant thereto, then the Company shall include in such registration statement only such securities as the Company is advised by such underwriter can be sold without such adverse effect as follows and in the immediately two preceding sentences following order of this Section 4.2(d)priority: (i) first, each Holder up to the number of Registrable Securities shall requested to be permitted voluntarily included in such Demand Registration by the Shareholders, which, in the opinion of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Shareholders requesting such Demand Registration on the basis of the number of such securities requested to withdraw be included by such Shareholders and such Shareholders that are Piggyback Sellers; (ii) second, securities the Company proposes to sell; and (iii) third, all other securities of the Company duly requested to be included in such registration statement, pro rata on the basis of the amount of such other securities requested to be included or any part of its Registrable Securities from such other method determined by the Company.
(h) Any time that a Demand Registration at any time prior involves an Underwritten Offering, the Company shall select the investment banker or investment bankers and managers that will serve as lead and co-managing underwriters with respect to the commencement of marketing offering of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)Registrable Securities.
Appears in 2 contracts
Samples: Shareholder Agreement (Marubeni Corp /Fi), Shareholder Agreement (Marubeni Corp /Fi)
Demand Registration. (a) Subject to the provisions hereof, at any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement), the Holders of a majority of Registrable Securities shall have the right to require If the Company shall be requested by holders of at least 20% of the total number of outstanding Restricted Shares (assuming conversion of all shares of Convertible Preferred Stock) to file effect a Registration Statement registering for sale all or part of their respective Registrable Securities registration under the Securities Act (of all or a “Demand Registration”) portion of Restricted Shares with an aggregate Fair Market Value as of the date of such request equal to at least $25,000,000, or, if the Restricted Shares have an aggregate Fair Market Value of less than $25,000,000, all of the remaining Restricted Shares, in accordance with this Section, then the Company shall promptly give written notice of such proposed registration to all holders of Restricted Shares and shall offer to include in such proposed registration any Restricted Shares requested to be included in such proposed registration by delivering a written request therefor such holders who respond in writing to the Company Company's notice within 15 days after delivery of such notice (i) specifying which response shall specify the number of Registrable Securities Restricted Shares proposed to be included in such registration by such Holder or Holders, (ii) specifying whether and the intended method of disposition thereof is distribution, which may be pursuant to an Underwritten Offering (as defined belowa shelf registration), and (iii) containing all information about such Holder required . If a registration pursuant to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demandSection 7 hereof is available, the holders of Restricted Shares shall utilize such registration instead of making a request pursuant to this Section 5, unless the holders of Restricted Shares reasonably determine that it is advantageous to such holders of Restricted Shares to make a request under this Section 5. The Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable its best efforts to effect such registration (including, without limitation, on an appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued form under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that Restricted Shares which the Company has been so requested to register; provided, however, that (i) the Holders Company shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be -------- ------- obligated to effect more than one (1) Demand Registration any registration under the Securities Act except in any six (6) month period.accordance with the following provisions:
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter shall not be obligated to participate file more than four registration statements in the Underwritten Offeringtotal pursuant to this Section, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and paragraph (c) below;
(ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect file any registration statement during any period in which (A) any other registration statement (other than on Form S-4 or participate Form S-8 promulgated under the Securities Act or any successor forms thereto) pursuant to which Primary Shares are to be or were sold has been filed and not withdrawn or has been declared effective within the prior 90 days or (aB) more than two (2the Company has determined in good faith that the filing of a registration statement would require the disclosure of material information that the Company has a bona fide business purpose for preserving as confidential, such filing to be delayed until the date which is 90 days after such request for registration pursuant to this Section 5(a); provided that the Company may only -------- so delay the filing or effectiveness of a registration statement pursuant to this Section 5(a)(ii)(B) Underwritten Offerings in on one occasion during any twelve (12) twelve-month period; and
(iii) with respect to the registration pursuant to this Section, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf may include in such registration any Primary Shares or on behalf of the Holders.
(c) IfOther Shares; provided, in connection with an Underwritten Offeringhowever, that if the managing underwriter(s) advise underwriter advises the Company in -------- ------- writing that in its or their reasonable opinion the number inclusion of securities all Restricted Shares, Primary Shares and Other Shares proposed to be included in such registration exceeds would interfere with the Underwriters’ Maximum Numbersuccessful marketing (including pricing) of all such securities, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof Restricted Shares, Primary Shares and Other Shares proposed to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent following order:
(A) First, the Restricted Shares, pro rata based upon the ----- --- ---- number of Restricted Shares owned by each holder at the time of such registration;
(B) Second, the Primary Shares; and ------
(C) Third, the Other Shares. -----
(b) The holders of Restricted Shares requesting a majority registration pursuant to this Section may, in interest the notice delivered pursuant to paragraph (a) above, elect that such registration cover an underwritten offering. Upon such election, such holders shall select one or more nationally recognized firms of investment banks to act as the Registrable Securitiesmanaging underwriters and shall select any additional investment banks to be used in connection with such offering, provided that such investment banks must be reasonably satisfactory to the Company. The Company shall, together with all holders proposing to sell Restricted Shares in such offering, enter into a customary underwriting agreement with such underwriters.
(dc) A requested registration will not under this Section may be deemed rescinded by written notice to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective Company by the SEC, at least 75% Persons holding a majority of the Registrable Securities requested Restricted Shares to be included in such registration with the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, following consequences:
(i) If such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder registration statement is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant rescinded prior to the registrationfiling date, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such rescinded registration will be deemed shall not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) count as a registration requested statement initiated pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or for purposes of paragraph (a) above;
(ii) If such registration statement is rescinded after the filing date but prior to its effective date, such rescinded registration requested shall not count as a registration statement initiated pursuant to this Section 4.2 does not remain continuously effective until fortyfor purposes of paragraph (a) above if the participating holders (x) have reimbursed the Company for all out-five (45) days after the commencement of the distribution of-pocket expenses incurred by the Holders Company in connection with such rescinded registration or (y)
(1) reasonably believed that the registration statement contained an untrue statement of material fact or omitted to state a material fact required to be stated therein or necessary to make the Registrable Securities covered by such registrationstatements made therein not misleading, then (2) notified the Company of such fact and requested that the Company correct such alleged misstatement or omission and (3) the Company has refused to correct such alleged misstatement or omission; and
(iii) A registration that becomes effective shall continue to be obligated to effect not count as a Demand Registration registration statement initiated pursuant to this Section 4.2 for purposes of paragraph (a) above unless the participating holders are able to sell at least 80% of the Registrable Securities Restricted Shares sought to be included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)statement.
Appears in 2 contracts
Samples: Investor's Rights Agreement (Building One Services Corp), Investor's Rights Agreement (Apollo Investment Fund Iv Lp)
Demand Registration. (a) Subject to If the provisions hereof, at any time on or after Company shall receive a written request from the date that is 180 days after the Closing Date DLJMB Members (as defined in the Merger Agreement)such requesting person, the Holders of a majority of Registrable Securities shall have the right to require “Requesting Stockholder”) that the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities effect the registration under the Securities Act of all or any portion of such Requesting Stockholder’s Registrable Securities, and specifying the intended method of disposition thereof, then the Company shall promptly give notice of such requested registration (each such request shall be referred to herein as a “Demand Registration”) by delivering a written request therefor at least fifteen (15) Business Days prior to the Company (i) specifying anticipated filing date of the number of Registrable Securities registration statement relating to be included in such registration by such Holder or Holders, (ii) specifying whether Demand Registration to the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), other Stockholders and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company thereupon shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable its best efforts to effect such effect, as expeditiously as possible, the registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act of:
(i) all Registrable Securities for which the Requesting Stockholders have requested registration under this Section 1.01, and
(ii) subject to the restrictions set forth in Sections 1.01(e) and 1.02, all other Registrable Securities of the same class as those requested to be registered by the Requesting Stockholders that any other governmental requirements or regulationsStockholders with rights to request registration under Section 1.02 (all such Stockholders, together with the Requesting Stockholders, the “Registering Stockholders”) have requested the Company to register by request received by the Company within ten (10) Business Days after such Stockholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities that the Company has been so requested to registerbe registered; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offeringthat, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (iiSection 1.01(d) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part ofhereof, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (ax) more than two six Demand Registrations, (2y) Underwritten Offerings in more than one Demand Registration during any twelve (12) four-month period, and or (bz) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by aggregate gross proceeds expected to be received from the SEC, at least 75% sale of the Registrable Securities requested to be included by all Registering Stockholders in such Demand Registration are at least (A) $50 million if such Demand Registration would constitute the Initial Public Offering, or (B) $20 million in any Demand Registration other than the Initial Public Offering.
(b) Promptly after the expiration of the ten (10) Business Day period referred to in Section 1.01(a)(ii) hereof, the Company will notify all Registering Stockholders of the identities of the other Registering Stockholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Stockholders may revoke such request, without liability to any of the other Registering Stockholders, by providing a notice to the Holders are Company revoking such request.
(c) The Company shall be liable for and pay all Registration Expenses in connection with each Demand Registration, regardless of whether such Registration is effected.
(d) A Demand Registration shall not be deemed to have occurred:
(i) unless the registration statement relating thereto (A) has become effective under the Securities Act and (B) has remained effective for a period of at least 120 days (or such shorter period in which all Registrable Securities of the Registering Stockholders included in such registrationregistration have actually been sold thereunder), and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, provided that such registration statement shall not be considered a Demand Registration if, after it has become such registration statement becomes effective, (i1) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder registration statement is or becomes the subject of interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case (2) less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 75% of the Registrable Securities included in such registration. In circumstances not registration statement have been sold thereunder; or
(ii) if the Maximum Offering Size (as defined below) is reduced in accordance with Section 1.01(e) such that less than 50% of the Registrable Securities of the Requesting Stockholders sought to be included in such registration are included.
(e) If a Demand Registration involves a Public Offering and the managing underwriter advises the Company and the Requesting Stockholders that, in its view, the number of Company Securities that the Registering Stockholders and the Company propose to include in such registration exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the events described price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the immediately two preceding sentences priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be registered by the Registering Stockholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Stockholders on the basis of this Section 4.2(d), each Holder the relative number of Registrable Securities shall so requested to be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that included in such registration nonetheless shall count as a Demand Registration for purposes of clause by each); and
(ii) of second, all Registrable Securities proposed to be registered by the proviso to Section 4.2(a)Company.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (STR Holdings, Inc.), Limited Liability Company Agreement (STR Holdings (New) LLC)
Demand Registration. (a) Subject to the provisions hereof, at At any time and from time to time on or after the date that is 180 days and/or after the Closing Date Date, each Holder shall severally have the option and right, exercisable by delivering a written notice to Parent (as defined in the Merger Agreementa “Demand Notice”), the Holders of a majority of Registrable Securities shall have the right to require Parent to, pursuant to the Company terms of and subject to the limitations contained in this Agreement, prepare and file with the Commission a Registration Statement registering for the offering and sale all or part of their respective the number and type of Registrable Securities under on the Securities Act terms and conditions specified in the Demand Notice, which may include sales on a delayed or continuous basis pursuant to Rule 415 pursuant to a Shelf Registration Statement (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying ). The Demand Notice must set forth the number of Registrable Securities that the Initiating Holder intends to include in such Demand Registration and the intended methods of disposition thereof. Notwithstanding anything to the contrary herein, in no event shall Parent be required to effectuate a Demand Registration unless the Registrable Securities of the Holders to be included therein after compliance with Section 2.1(b) have an aggregate value of at least $200 million based on the VWAP (the “Minimum Amount”) as of the date of the Demand Notice; provided, however, that the Minimum Amount shall not apply in the event that, as the result of Cut Back Shares being removed from such Registration Statement pursuant to this Section 2.1(a), the Registrable Securities of the Holders to be included therein after compliance with Section 2.1(b) have an aggregate value of less than $200 million. If at any time the Commission takes the position that some or all of the Registrable Securities proposed to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is a Registration Statement filed pursuant to an Underwritten Offering a Demand Registration must be removed from such Registration Statement (as defined below)such portion of the Registrable Securities, and (iiithe “Cut Back Shares”) containing in order for all information about of the Registrable Securities in such Holder required Registration Statement filed pursuant to a Demand Registration to be eligible to be made on a delayed or continuous basis under the provisions of Rule 415 or for the Initiating Holder to not be named as an “underwriter” in such Registration Statement, then if the Initiating Holder so elects, Parent shall remove the Cut Back Shares from such Registration Statement. Any Cut Back Shares so removed pursuant to this Section 2.1(a) shall be allocated among the Holders including Registrable Securities for resale on such Registration Statement on a pro rata basis. Further, a Demand Registration shall not constitute a Demand Registration of the Initiating Holder for purposes of Section 2.1(c) if, as a result of the cutback provisions in this Section 2.1(a) or Registrable Securities of Holders other than the Initiating Holder included in such Demand Registration pursuant to Section 2.1(b), there is included in the Demand Registration less than the lesser of (x) Registrable Securities of the Initiating Holder having a VWAP measured on the effective date of the related Registration Statement of $200 million and (y) two-thirds of the number of Registrable Securities the Initiating Holder set forth in the applicable Demand Notice.
(b) Within five Business Days (or if the Registration Statement will be a Shelf Registration Statement, within two Business Days) after the receipt of the Demand Notice, Parent shall give written notice of such Demand Notice to all Holders and, within 30 days after receipt of the Demand Notice (except if Parent is not then eligible to register for resale the Registrable Securities on Form S-3, in which case, within 90 days thereof), shall, subject to the limitations of this Section 2.1, file a Registration Statement in accordance with applicable law. As soon as practicable after the receipt terms and conditions of such demandthe Demand Notice, the Company which Registration Statement shall (x) promptly notify cover all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to register; provided, however, that (i) the Holders shall not make a in writing request for a to be included in the Demand Registration under (such request to be given to Parent within three Business Days (or if the Registration Statement will be a Shelf Registration Statement, within one Business Day) after receipt of notice of the Demand Notice given by Parent pursuant to this Section 4.2(a) for 2.1(b)). Parent shall use reasonable best efforts to cause such Registration Statement to become and remain effective (including using reasonable best efforts to file a Registration Statement including Registrable Securities having an anticipated aggregate offering price included on any previous Registration Statement that ceases to be effective, which, for the avoidance of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval doubt shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into considered an underwriting agreement in customary form additional Demand Registration for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to Section 2.1(c)) under the Securities Act until all such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees securities registered for resale thereunder cease to sell its be Registrable Securities on (the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders“Effectiveness Period”).
(c) IfSubject to the other limitations contained in this Agreement, Parent is not obligated hereunder to effect (A) a Demand Registration within 90 days after the closing of any Underwritten Offering (or such shorter time as Parent may notify the Holders in writing) (any such time period, a “No Demand Period”), (B) more than a total of four Demand Registrations in the aggregate; provided, that notwithstanding anything to the contrary herein, in connection with an Underwritten Offeringno event shall Parent be required to effect more than two Demand Registrations within a given calendar year, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (iiC) the Company will be obligated and required a subsequent Demand Registration pursuant to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis a Demand Notice if a Registration Statement covering all of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders Initiating Holder shall have become and remains effective under the Securities Act and is sufficient to permit offers and sales of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice in accordance with the intended timing and method or methods of distribution thereof specified in the Demand Notice. No Demand Registration shall be included deemed to have occurred for purposes of this Section 2.1(c) if the Registration Statement relating thereto does not become effective or is not maintained effective for its entire Effectiveness Period, in a which case the Initiating Holder shall be entitled to an additional Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securitieslieu thereof.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SECHolder (and, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registrationif applicable, and the Company has complied in Carlyle) may withdraw all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale portion of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the its Registrable Securities included in a Demand Registration from such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement effectiveness of marketing the applicable Registration Statement. Upon receipt of a notice from the Initiating Holder that the Initiating Holder is withdrawing all of its Registrable Securities from the Demand Registration or a notice from a Holder (and, if applicable, Carlyle) to the effect that the Holder (and, if applicable, Carlyle) is withdrawing an amount of its Registrable Securities such that the remaining amount of Registrable Securities to be included in the Demand Registration is below the Minimum Amount, Parent may cease all efforts to secure effectiveness of the applicable Registration Statement, unless one or more Holders other than the withdrawing Holder(s) shall promptly request Parent in writing to include additional Registrable Securities in the Demand Registration such that amount of Registrable Shares to be included in the Demand Registration satisfies the Minimum Amount (a “Requisite Holder Substitution”). In the absence of a Requisite Holder Substitution, such registration nonetheless shall be deemed a Demand Registration with respect to the Initiating Holder for purposes of Section 2.1(c) unless (A) the Initiating Holder shall have paid or reimbursed Parent for its pro rata share of all reasonable and documented out-of-pocket fees and expenses incurred by Parent in connection with the withdrawn registration of such Registrable Securities (based on the number of securities the Initiating Holder sought to register, as compared to the total number of securities included in such Demand Registration) or (B) the withdrawal is made following the occurrence of a Material Adverse Change or pursuant to Parent’s request for suspension pursuant to Section 3.15.
(e) Parent may include in any such Demand Registration other Parent Securities for sale for its own account or for the account of any other Person, subject to Section 2.3(c).
(f) Subject to the limitations contained in this Agreement, Parent shall effect any Demand Registration on such appropriate registration form of the Commission (A) as shall be selected by Parent and (B) subject to applicable law and the requirements of the Commission, as shall permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the Demand Notice; provided that, subject to Section 3.15, (X) if the Registration Statement is on Form S-1, Parent shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission (provided that Form S-1 is then available for sales on a delayed or continuous basis under the provisions of Rule 415 in respect of such Demand Registration), provided that such registration nonetheless shall count as and (Y) if Parent becomes, and is at the time of its receipt of a Demand Notice eligible to use Form S-3, the Demand Registration for purposes any offering and selling of clause Registrable Securities shall be registered on Form S-3 or any equivalent or successor form under the Securities Act (iiif available to Parent) and (Z) if at the time of its receipt of a Demand Notice, Parent is a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be registered on an Automatic Shelf Registration Statement on Form S-3 or any equivalent or successor form under the Securities Act (if available to Parent). If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to Parent that it intends to effect an offering of all or part of the proviso Registrable Securities included on such Registration Statement, Parent will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(g) Without limiting Article III, in connection with any Demand Registration pursuant to and in accordance with this Section 4.2(a)2.1, Parent shall (A) promptly prepare and file or cause to be prepared and filed (1) such additional forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents, as may be necessary or advisable to register or qualify the securities subject to such Demand Registration, including under the securities laws of such jurisdictions as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, Parent would become subject to general service of process or to taxation or qualification to do business in such jurisdiction solely as a result of registration and (2) such forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents as may be necessary to apply for listing or to list the Registrable Securities subject to such Demand Registration on the Trading Market and (B) do any and all other acts and things that may be reasonably necessary or appropriate or reasonably requested by the Holders to enable the Holders to consummate a public sale of such Registrable Securities in accordance with the intended timing and method or methods of distribution thereof.
(h) In the event a Holder transfers Registrable Securities included on a Registration Statement and such Registrable Securities remain Registrable Securities following such transfer, at the request of such Holder, Parent shall amend or supplement such Registration Statement as may be necessary in order to enable such transferee to offer and sell such Registrable Securities pursuant to such Registration Statement; provided that in no event shall Parent be required to file a post-effective amendment to the Registration Statement unless (A) such Registration Statement includes only Registrable Securities held by the Holder, Affiliates of the Holder or transferees of the Holder or (B) Parent has received written consent therefor from a Person for whom Registrable Securities have been registered on (but not yet sold under) such Registration Statement, other than the Holder, Affiliates of the Holder or transferees of the Holder.
Appears in 2 contracts
Samples: Registration Rights Agreement (Chesapeake Energy Corp), Registration Rights Agreement (WildHorse Resource Development Corp)
Demand Registration. (a) Subject to the provisions hereof, at any time on or after the date that is 180 days after six (6) month anniversary of the Closing Date (as defined in the Merger Purchase Agreement), the Holders of a majority of Registrable Securities shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use commercially reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to register; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a4.1(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Public Offering”). In such case, (i) the Company Holders of a majority of the shares of Registrable Stock to be sold in the Underwritten Offering may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed Offering and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings by a selling holder of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 5.8 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the of Company on its own behalf or on behalf of the Holderssecurities.
(c) If, in connection with a Demand Registration in the form of an Underwritten Offering, the managing underwriter(s) advise give written advice to the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the an Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration and that does not exceed such Underwriters’ Maximum NumberNumber prior to the inclusion of other securities that have been requested to be so included by any other person, and such Registrable Securities to shall be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a4.1(a). If (i) a registration requested pursuant to this Section 4.2 4.1 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 4.1 does not remain continuously effective until the earlier of forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registrationregistration or the completion of such distribution, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 4.1 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d4.1(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a4.1(a).
Appears in 2 contracts
Samples: Stockholders Agreement (AV Homes, Inc.), Securities Purchase Agreement (AV Homes, Inc.)
Demand Registration. (ai) Subject to the provisions hereof, at any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement), Upon written notice of the Holders of a majority of the then outstanding Registrable Securities shall have the right to require (on a common stock equivalent basis) requesting that the Company to effect a registration under the Securities Act of Registrable Securities and specifying the intended method or methods of distribution thereof (which may include a continuous or delayed offering), the Company shall prepare and file a Registration Statement registering for sale all or part of their respective Registrable Securities on Form S-3 under the Securities Act (a “Demand Registration”) by delivering a written request therefor Act, or other appropriate Form in the event Form S-3 is not available, covering the Registrable Securities then outstanding and shall use commercially reasonable efforts to cause such Registration Statement to become effective as expeditiously as possible and to remain effective until the Company earlier to occur of (i) specifying the number of date on which all Registrable Securities to be included in such registration covered by such Holder Registration Statement have been sold and the distribution contemplated thereby has been completed or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing date by which all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that covered thereby may be sold under Rule 144(k) (the Company has been so requested to register"Effectiveness Period"); provided, however, that (i) the Holders Purchaser shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by demands to register the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities pursuant to be included in such Underwritten Offering and (iithis Section 6(a)(i). A demand registration requested pursuant to this Section 6(a)(i) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared become effective by under the SECSecurities Act and remains effective for the period described above.
(ii) A Holder (including the Purchaser) or Holders requesting a registration pursuant to this Section 6(a) may, at least 75% any time prior to the effective date of the Registrable Securities requested Registration Statement relating to be included in the registration by the Holders are included in such registration, and revoke such request by providing a written notice to the Company has complied revoking such request.
(iii) The Company may include any other securities in all material respects with its obligations under any demand registration effected pursuant to this Agreement with respect theretoSection 6(a); provided, however, that if, after it has become effective, (iif the managing underwriter(s) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement representative(s) of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits several underwriters (the sale "Managing Underwriter") of a proposed underwritten public offering of Common Stock advises the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant intending to participate in such offering in writing that the Registration Statement, total amount or (ii) if, in the case kind of an Underwritten Offering, securities which such Holders and the Company fails intend to provide Full Cooperation, then include in such registration will be deemed not offering is sufficiently large to have been effected for purposes materially adversely affect the success of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registrationoffering, then the amount or kind of securities to be offered for the accounts of the Company shall continue be reduced pro rata to the extent necessary to reduce the total amount or kind of securities to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including proposed public offering to the events described amount or kind recommended by such Managing Underwriter and, if such reduction results in no securities being offered for the immediately two preceding sentences accounts of this Section 4.2(d)the Company in such proposed public offering, each Holder then the amount or kind of Registrable Securities securities to be offered for the account of the Company shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior reduced to the commencement extent necessary to reduce the total amount or kind of marketing of securities to be included in such Demand Registration, provided that proposed public offering to the amount or kind recommended by such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)managing underwriter or underwriters.
Appears in 2 contracts
Samples: Stock Purchase and Registration Rights Agreement (Startech Environmental Corp), Stock Purchase and Registration Rights Agreement (Northshore Asset Management LLC)
Demand Registration. (a) Subject to the provisions hereof, If at any time on or after the date Partnership shall receive a written request (a “Demand Notice”) from the Demand Committee that is 180 days after the Closing Date (as defined in Partnership effect the Merger Agreement), the Holders of a majority of Registrable Securities shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities registration under the Securities Act of all or any portion of the Registrable Securities specified in the Demand Notice (a “Demand Registration”) by delivering a written request therefor ), specifying the information set forth under Section 2.5(j), then the Partnership shall use its commercially reasonable efforts to effect, as expeditiously as reasonably practicable, subject to the Company (i) specifying the number of Registrable Securities to be included restrictions in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined belowSection 2.2(d), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulationsof the Registrable Securities for which the Demand Committee has requested registration under this Section 2.2, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities that the Company has been so requested to register; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month periodregistered.
(b) The offering At any time prior to the effective date of the Registrable Securities pursuant registration statement relating to such registration, the Demand Committee may revoke such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate request by providing a co-managing underwriter to participate in the Underwritten Offering, subject notice to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through Partnership revoking such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder request. The Partnership shall be required to make liable for and pay all Registration Expenses in connection with any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the HoldersDemand Registration.
(c) IfIf a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Partnership and the Demand Committee that, in connection with an Underwritten Offeringits view, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed units of Registrable Securities requested to be included in such registration exceeds the Underwriters’ largest number of units that can be sold without having a material adverse effect on such offering, including the price at which such units can be sold (the “Maximum NumberOffering Size”), then the Partnership shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) the Company shall so advise first, all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held registered in the Demand Registration by the Holders Demand Committee (allocated, if necessary for the offering not to exceed the Maximum Offering Size, in such proportions as shall be included in a determined by the Demand Registration without Committee);
(ii) second, any securities proposed to be registered by the prior written consent Partnership or any securities proposed to be registered for the account of any other persons, with such priorities among them as the holders of a majority in interest of the Registrable SecuritiesPartnership shall determine.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant Upon notice to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten OfferingDemand Committee, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) Partnership may postpone effecting a registration requested pursuant to this Section 4.2 is deemed 2.2 on up to three occasions during any period of six consecutive months for a reasonable time specified in the notice but not to have exceeding 120 days in the aggregate (which period may not be extended or renewed), if (i) the General Partner shall determine in good faith that effecting the registration would materially and adversely affect an offering of securities of the Partnership the preparation of which had then been effected as a Demand Registration commenced or (ii) the registration requested pursuant to this Section 4.2 does Partnership is in possession of material non-public information the disclosure of which during the period specified in such notice the General Partner believes in good faith would not remain continuously effective until forty-five (45) days after be in the commencement best interests of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)Partnership.
Appears in 2 contracts
Samples: Registration Rights Agreement (Blackstone Group L.P.), Registration Rights Agreement (Blackstone Group L.P.)
Demand Registration. (a) Subject to the provisions hereof, If at any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement)Demand Commencement Date, the Holders Corporation receives a written request by the Stockholders holding at least 51% of a majority of the aggregate Registrable Securities shall have held by all Stockholders (any such requesting Persons, "SELLING STOCKHOLDERS") that the right to require Corporation effect the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities registration under the Securities Act (a “Demand Registration”) by delivering a written request therefor to of at least 51% of the Company (i) specifying the number of aggregate Registrable Securities to be included in such registration held by such Holder or Holdersall Stockholders, (ii) and specifying whether the intended method of disposition thereof is pursuant thereof, then the Corporation shall promptly give written notice of such requested registration (a "DEMAND REGISTRATION") at least 10 days prior to an Underwritten Offering the anticipated filing date of the registration statement relating to such Demand Registration to all other Stockholders and thereupon will use its reasonable best efforts to effect, as expeditiously as possible, the registration under the Securities Act of:
(as defined below), and i) the Registrable Securities then held by all Stockholders;
(ii) the Common Stock proposed to be issued by the Corporation; and
(iii) containing all information about such Holder required other Common Stock which any other stockholder, who is entitled to request to be included in any registration by the Corporation of Common Stock (all such Registration Statement stockholders, together with the Selling Stockholders, the "HOLDERS"), has requested the Corporation to register in accordance with applicable law. As soon the agreement pursuant to which such stockholder has such rights, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulationsaforesaid) of the Registrable Securities that so to be registered; provided that, subject to Section 5.02(d), the Company has been so requested to register; provided, however, that (i) the Holders Corporation shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect (i) more than one two Demand Registrations under this Article 5, (1ii) a Demand Registration within 12 calendar months after a previous Demand Registration or (iii) with respect to any registration statement filed, or to be filed, pursuant to this Section, if the Corporation shall furnish to the Stockholders of Registrable Securities that have made such request a written notice stating that maintaining the effectiveness or commencing a filing of a registration statement would (because of the existence of, or in anticipation of, any six acquisition or other material event or transaction the public disclosure of which at the time would be materially prejudicial to the Corporation) be significantly disadvantageous (6a "DISADVANTAGEOUS CONDITION") month periodto the Corporation, the Corporation shall be entitled to cause such registration statement to be withdrawn and the effectiveness of such registration statement terminated, or, in the event no registration statement has yet been filed, shall be entitled not to file any such registration statement, until such Disadvantageous Condition no longer exists (written notice of which the Corporation shall promptly deliver to such Stockholders). Upon receipt of any such certification of a Disadvantageous Condition, such Stockholders shall forthwith discontinue use of the prospectus contained in such registration statement and, if so directed by the Corporation, each such Stockholder will deliver to the Corporation all copies, other than permanent file copies then in such Stockholder's possession, of the prospectus then covering such Registrable Securities current at the time of receipt of such notice. If so requested by the requesting Stockholders, the Corporation shall, if any registration statement shall have been withdrawn, at such time as it is possible or, if earlier, at the end of a 120-day period following such withdrawal, file a new registration statement covering the Registrable Securities that were covered by such withdrawn registration and maintain the effectiveness thereof for such time as is required under this Agreement.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with Corporation will notify as soon as practicable all the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) Demand Registration of the Company shall so advise all other Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein therein. The Selling Stockholders requesting a registration under this Section may, at any time prior to the effective date of the registration statement relating to such registration, revoke such request, without liability to any of the other Holders, by each providing a written notice to the Corporation revoking such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders request, in which case such request, so revoked, shall be included in considered a Demand Registration without unless the prior written consent of participating Stockholders reimburse the holders of a majority Corporation for all costs incurred by the Corporation in interest of the Registrable Securitiesconnection with such registration.
(c) The Corporation will pay all Registration Expenses in connection with any Demand Registration.
(d) A registration will requested pursuant to this Section shall not be deemed to have been effected as unless the registration statement relating thereto (A) has become effective under the Securities Act and (B) has remained effective for a period of at least 120 days (or such shorter period in which all Registrable Securities of the Selling Stockholders included in such registration have actually been sold thereunder).
(e) If a Demand Registration unless involves a Public Offering and the Registration Statement relating thereto has been declared effective by managing underwriter shall advise the SECCorporation and the Selling Stockholders that, at least 75% in its view, (i) the number of the Registrable Securities requested to be included in such registration (including any securities which the registration by Corporation proposes to be included which are not Registrable Securities) or (ii) the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement inclusion of some or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered owned by the effective Registration Statement are actually Holders, in any such case, exceeds the largest number of securities which can be sold by without having an adverse effect on such offering, including the selling Holder or Holders pursuant to price at which such securities can be sold (the Registration Statement"MAXIMUM OFFERING SIZE"), or (ii) ifthe Corporation will include in such registration, in the case of an Underwritten Offeringpriority listed below, up to the Maximum Offering Size:
(A) First, the Company fails to provide Full CooperationCommon Stock held by the Stockholders (allocated, then such registration will be deemed if necessary for the offering not to have been effected for purposes of clause (ii) exceed the Maximum Offering Size, pro rata to such Stockholders on the basis of the proviso number of Common Stock, on a Fully Diluted basis, held by each such Stockholder);
(B) Second, the Common Stock to Section 4.2(a). If be issued by the Corporation in an amount that does not cause the offering to exceed the Maximum Offering Size; and
(iC) a registration requested pursuant to this Section 4.2 is deemed Third, the Common Stock held by the other stockholders (allocated, if necessary for the offering not to have been effected exceed the Maximum Offering Size, as a Demand Registration or (ii) agreed between the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by Corporation and such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(aother stockholders).
Appears in 1 contract
Demand Registration. (a) Subject to the provisions hereof, at At any time on or after the date that is 180 days after the Closing Date date hereof (or such earlier date (i) as defined in would permit the Merger Company to cause any filings required hereunder to be filed on the 180th day after the date hereof or (ii) as is permitted by waiver of the IPO Underwriting Agreement), any Person that is a Stockholder (a “Requesting Stockholder”) on the Holders date a Demand is made shall be entitled to make a written request of a majority of Registrable Securities shall have the right to require the Company to file (a Registration Statement registering “Demand”) for sale all or part of their respective Registrable Securities registration under the Securities Act of a number of Registrable Securities that, when taken together with the number of Registrable Securities requested to be registered under the Securities Act by such Requesting Stockholder’s Affiliates, equals or is greater than the Registrable Amount (a “Demand Registration”) by delivering a written request therefor and thereupon the Company will, subject to the Company (i) specifying the number terms of Registrable Securities to be included in such registration by such Holder or Holdersthis Agreement, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use its commercially reasonable best efforts to effect such the registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulationsof:
(i) of the Registrable Securities that the Company has been so requested to registerregister by the Requesting Stockholders for disposition in accordance with the intended method of disposition stated in such Demand, which may be an Underwritten Offering;
(ii) all other Registrable Securities that the Company has been requested to register by the Registering Stockholder pursuant to Section 4.1(b);
(iii) all shares of Common Stock that the Company may elect to register in connection with any offering of Registrable Securities pursuant to this Section 4.1, but subject to Section 4.1(f); providedand
(iv) all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and the additional Common Stock, howeverif any, that to be so registered.
(b) A Demand shall specify: (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for aggregate number of Registrable Securities having an anticipated aggregate offering price of less than $5,000,000requested to be registered in such Demand Registration, (ii) the Holders will not be entitled intended method of disposition in connection with such Demand Registration, to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, extent then known and (iii) the identity of the Requesting Stockholder (or Requesting Stockholders). Within five days after receipt of a Demand, the Company will not be obligated shall give written notice of such Demand to effect more than one (1) any other Persons that on the date a Demand is delivered to the Company is a Stockholder. Subject to Section 4.1(f), the Company shall include in the Demand Registration covered by such Demand all Registrable Securities with respect to which the Company has received a written request for inclusion therein within five days after such notice by the Company has been given. Such written request shall comply with the requirements of a Demand as set forth in any six (6) month periodthis Section 4.1(b).
(bc) The offering Each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as the Stockholders, together, Beneficially Own less than a Registrable Amount.
(d) Demand Registrations shall be on such registration form of the Commission for which the Company is eligible as shall be selected by the Requesting Stockholders whose shares represent a majority of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) that the Company may designate the managing underwriter(s) of the Underwritten Offeringhas been requested to register, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offeringincluding, subject to the approval of extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the Commission, and shall be reasonably acceptable to the Company, which approval shall not be unreasonably withheld or delayed and .
(iie) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate any Demand Registration (aA) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any within three months of a “firm commitment” Underwritten Offering during any lock-up period required by the underwriter(sin which all Stockholders were given “piggyback” rights pursuant to Section 4.2 (subject to Section 4.1(f)) in any prior underwritten offering conducted by the Company on its own behalf or on behalf and provided that at least 50% of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof such Stockholders to be included in such Demand Registration were included) or (B) within three months of any other Underwritten Offering pursuant to Section 4.3(e). In addition, the Company shall be entitled to postpone (upon written notice to all Stockholders) for a reasonable period of time not to exceed 60 days in succession the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice, or for more than 90 days in the aggregate, in any period of 12 consecutive months) if the Board determines in good faith and in its reasonable judgment that does not exceed the filing or effectiveness of the registration statement relating to such Underwriters’ Maximum NumberDemand Registration would cause the disclosure of material, such non-public information that the Company has a bona fide business purpose for preserving as confidential. In the event of a postponement by the Company of the filing or effectiveness of a registration statement for a Demand Registration, the holders of a majority of Registrable Securities held by the Requesting Stockholder(s) shall have the right to withdraw such Demand in accordance with Section 4.4.
(f) The Company shall not include any securities other than Registrable Securities in a Demand Registration, except with the written consent of Stockholders participating in such Demand Registration that hold a majority of the Registrable Securities included in such Demand Registration. If, in connection with a Demand Registration, any managing underwriter (or, if such Demand Registration is not an Underwritten Offering, a nationally recognized investment bank engaged in connection with such Demand Registration) advises the Company, that, in its opinion, the inclusion of all of the securities, including securities of the Company that are not Registrable Securities, sought to be allocated pro rata among registered in connection with such Demand Registration would adversely affect the Holders thereof on marketability of the basis Registrable Securities sought to be sold pursuant thereto, then the Company shall include in such registration statement only such securities as the Company is advised by such underwriter or investment bank can be sold without such adverse effect as follows and in the following order of priority: (i) first, up to the number of Registrable Securities requested to be included therein in such Demand Registration by each the Stockholders, which, in the opinion of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Holder. No shares Stockholders requesting such Demand Registration on the basis of Common Stock the number of such securities held by any Person such Stockholders and such Stockholders that are Piggyback Sellers; (ii) second, securities the Company proposes to sell; and (iii) third, all other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent securities of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities Company duly requested to be included in such registration statement, pro rata on the registration basis of the number of such other securities requested to be included or such other method determined by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement Company.
(g) Any investment bank(s) that will serve as an underwriter with respect thereto; providedto such Demand Registration or, however, that if, after it has become effective, (i) if such Demand Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected (i) by FIG LLC, for so long as a majority of the Common Stock of the Company fails to provide Full Cooperationis owned by the Initial Stockholder, then such registration will be deemed not to have been effected for purposes of clause its Permitted Transferees and any Fortress Affiliate Stockholder, and thereafter (ii) of by the proviso to Section 4.2(a). If Stockholder participating in such Demand Registration that holds (itogether with its Permitted Transferees) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement number of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences Demand Registration constituting a plurality of this Section 4.2(d), each Holder of all Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of included in such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a).
Appears in 1 contract
Samples: Stockholders Agreement (Nationstar Mortgage Holdings Inc.)
Demand Registration. (a) Subject to Commencing ninety (90) days following the provisions date hereof, at any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement), the Requesting Holders of a majority of Registrable Securities shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”) by delivering may make a written request therefor to the Company (ispecifying that it is being made pursuant to this Section 2) specifying that the number Company file a registration statement under the 1933 Act (or a similar document pursuant to any other statute then in effect corresponding to the 1933 Act) covering the registration of Registrable Securities to be included in such registration by such Holder or HoldersStock. In sxxx xxxxx, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the xxx Company shall (x) promptly within five (5) days thereafter notify in writing all other Holders from whom the request for registration has not been received of Registrable Stock of such request, and (y) use its reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued cause to be registered under the Securities 1933 Act all Registrable Stock that the Requesting Holders and any such other governmental requirements or regulationsHolders have, within fifteen (15) of the Registrable Securities that days after the Company has been so given such notice, requested to register; providedbe registered. Notwithstanding the foregoing, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will shall not be obligated to effect more file the above described registration statement if the aggregate proceeds from the registration would reasonably be expected to be less than one (1) Demand Registration in any six (6) month period$300,000.
(b) The offering of If the Requesting Holders intend to distribute the Registrable Securities pursuant to such Demand Registration may be in the form Stock covered by their request by means of an underwritten public offering offering, they shall so advise the Company as a part of their request pursuant to Section 2(a) above, and the Company shall include such information in the written notice referred to in clause (an “Underwritten Offering”)x) of Section 2(a) above. In such caseevent, (i) the Company may designate Holder's right to include its Registrable Stock in such registration shall be conditioned upon such Holder's participation in such underwritten offering and the managing underwriter(s) inclusion of such Holder's Registrable Stock in the underwritten offering to the extent provided in this Section 2. All holders proposing to distribute Registrable Stock through such underwritten offering shall enter into an underwriting agreement in customary form with the underwriter or underwriters. Such underwriter or underwriters shall be selected by a majority in interest of the Underwritten Offering, provided that such Requesting Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of and shall be approved by the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreementwithheld; providedPROVIDED, that (i) all of the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) such underwriters shall also be made to and for the benefit of such Holders and that any or all of the Holders proposing conditions precedent to distribute their securities through the Underwritten Offeringobligations of such underwriters under such underwriting agreement shall be conditions precedent to the obligations of such Holders; and PROVIDED FURTHER, (ii) that no Holder holder shall be required to make any representations and or warranties to, to or agreements with, any underwriter in a registration with the Company or the underwriters other than customary representations, warranties and or agreements and (iii) regarding such Holder, the liability of each Holder in respect of any indemnification, contribution or other obligation Registrable Stock of such Holder arising under and such underwriting agreement (a) shall be limited to losses arising out Holder's intended method of distribution and any other representation required by law or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holdersunderwriter.
(c) IfNotwithstanding any other provision of this Section 2 to the contrary, in connection with an Underwritten Offering, if the managing underwriter(s) advise underwriter of an underwritten offering of the Company Registrable Stock requested to be registered pursuant to this Section 2 advises the Requesting Holders in writing that in its or their reasonable opinion marketing factors require a limitation of the number of securities proposed shares to be included in such registration exceeds underwritten, the Underwriters’ Maximum Number, then (i) the Company Requesting Holders shall so advise all Holders of Registrable Securities to Stock that would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Stock that may be included in such Underwritten Offering and underwritten offering shall be allocated among all such Holders, including the Requesting Holders, in proportion (iias nearly as practicable) to the Company will be obligated and required to include in such Underwritten Offering only that number amount of Registrable Securities Stock requested by the Holders thereof to be included in such registration by each Holder at the time of filing the registration statement; PROVIDED, that does not exceed in the event of such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis limitation of the number of shares of Registrable Securities requested Stock to be included therein by each underwritten, such Holderregistration shall not count against the number of demand registrations the Requesting Holders are permitted to request hereunder. No shares If any Holder of Common Registrable Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent disapproves of the holders of a majority in interest terms of the Registrable Securitiesunderwriting, such Holder may elect to withdraw by written notice to the Company, the managing underwriter and the Requesting Holders. The securities so withdrawn shall also be withdrawn from registration.
(d) A Notwithstanding any provision of this Agreement to the contrary, the Company shall not be required to effect a registration will pursuant to this Section 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 a date ninety (90) days following the effective date of, a registration statement pertaining to an underwritten public offering of securities for the account of the Company; PROVIDED, that the Company shall 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 the date of filing such registration statement shall be made in good faith.
(e) Subject to the additional terms contained herein, the Requesting Holders shall be entitled to an unlimited number of registrations on Form S-3, but shall only be allowed three demands that utilize forms other than Form S-3. The Company shall use Form S-3 for registrations pursuant hereto if such form is available to the Company. If federal law precludes the use of Form S-3, the Company shall use whatever form is necessary; however, the Company shall not be obligated to use such non Form S-3 forms more than a total of three times, 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 as a Demand Registration for purposes of this Section 2(e), unless the Registration Statement relating thereto (i) it has been declared effective by the SECCommission, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such (ii) if it is a shelf registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effectiveremained effective for the period set forth in Section 3(b), (iiii) such Registration Statement or the related offer, sale or distribution offering of Registrable Securities thereunder Stock pursuant to such registration is or becomes the not subject of to any stop order, injunction or other order or requirement of the SEC Commission (other than any such action prompted by any act or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale omission of the Holders), and (iv) no limitation of the number of shares of Registrable Securities Stock to be underwritten has been required pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (iiSection 2(c) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Applied Voice Recognition Inc /De/)
Demand Registration. (ai) Subject to the provisions hereofterms and conditions of this Agreement, at any time on or and from time to time after the date that is 180 90 days after the Closing Date (as defined in the Merger Agreement)date hereof, the Holders of a majority of Registrable Securities shall have the right upon written notice to require the Company to file (a Registration Statement registering for sale all “Demand Notice”) delivered by one or part of their respective Registrable Securities under more Qualified Holders requesting that the Securities Act Company effect the registration (a “Demand Registration”) under the Securities Act (other than pursuant to a registration statement on Form S-4 or Form S-8 or any similar or successor form under the Securities Act) of any or all of the Registrable Securities held by delivering a written request therefor such Qualified Holder(s) which offering is expected to yield aggregate gross proceeds of at least $25 million, the Company shall promptly (ibut in any event, not later than five Business Days following the Company’s receipt of such Demand Notice) specifying the number give written notice of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demandDemand Notice to all other Holders that, to its knowledge, hold Registrable Securities (each, a “Demand Eligible Holder”). The Company shall promptly file the appropriate Registration Statement (the “Demand Registration Statement”) and use its commercially reasonable efforts to effect, at the earliest practicable date, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulationsunder the applicable state securities laws of (A) of the Registrable Securities that which the Company has been so requested to register; providedregister by the Qualified Holder(s) in the Demand Notice, however, that (iB) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for all other Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (iithe same class or series as those requested to be registered by the Qualified Holder(s) the Holders will not be entitled to require which the Company has been requested to effect more than three register by the Demand Eligible Holders by written request (3the “Demand Eligible Holder Request”) Demand Registrations in given to the aggregate under this AgreementCompany within five Business Days after the giving of such written notice by the Company, and (iiiC) any Registrable Securities to be offered and sold by the Company will not be obligated Company, in each case subject to effect more than one Section 2(b)(ii), all to the extent required to permit the disposition (1in accordance with the intended methods of disposition) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such be so registered. The Holders’ rights to request a Demand Registration may set forth in this Section 2(b) shall not be in exercisable at any time if the form of an underwritten public offering (an “Underwritten Offering”). In such case, Company (i) the Company may designate the managing underwriter(s(x) is not in violation of the Underwritten Offeringits obligations to file a Shelf Registration Statement pursuant to Section 2(a) or (y) has a currently effective Shelf Registration Statement covering all Registrable Securities in accordance with Section 2(a), provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has otherwise complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)Agreement.
Appears in 1 contract
Samples: Registration Rights Agreement (Midstates Petroleum Company, Inc.)
Demand Registration. (a) Subject to the provisions hereof, at any time on or On and after the date that is 180 days after end of the Closing Date (as defined in the Merger Agreement)Earn Out Period, the Holders of Stockholders’ Representative may in his sole and absolute discretion request in a majority of Registrable Securities shall have the right to require written notice that the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities registration statement under the Securities Act (or a “Demand Registration”) by delivering a written request therefor similar document pursuant to any other statute then in effect corresponding to the Company (iSecurities Act) specifying covering the number registration of any or all Registrable Securities to Stock held by the Stockholders; provided, that there must be included in such registration Registrable Stock having a minimum value of Ten Million Dollars ($10,000,000) (based on the then current market price of such Registrable Stock) or such lesser amount if it constitutes all of the Registrable Stock held by such Holder Shareholders participating in the registration (the “ Registration Threshold ”); provided, that the Registration Threshold shall be increased to Twenty Million Dollars ($20,000,000) or Holderssuch lesser amount if it constitutes all of the Registrable Stock held by such Shareholders participating in the registration, but in no event less than a minimum value of Five Million Dollars (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below$5,000,000), and if the Company is not eligible to register the sale or other disposition of Registrable Securities on Form S-3 (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable lawor a successor form). As soon as practicable after the Following receipt of such demandany notice under this Section 5.1, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use its reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued cause to be registered under the Securities Act and any other governmental requirements or regulations) of the all Registrable Securities Stock that the Company has been so Stockholders have requested be registered in a manner of disposition reasonably acceptable to register; providedthe Company, howeverincluding but not limited to, that an offering on a delayed or continuous basis pursuant to Rule 415 (ior any successor rule) under the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month periodAct.
(b) The offering of If the Company intends to have the Registrable Securities pursuant to such Demand Registration may be in the form Stock distributed by means of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval Stockholders shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the underwriter or underwriters. If any Stockholder who intends to sell Registrable Securities in the offering disapproves of the terms of the underwriting, such Stockholder may elect to withdraw all its Registrable Stock from the registration by written notice to the Company and the managing underwriter(sunderwriter. The underwriters shall be selected by the Company in its sole discretion.
(c) proposing Notwithstanding any provision of this Agreement to distribute their the contrary,
(i) the Company shall not be required to effect a registration pursuant to this Section 5.1 during the period starting with the date of filing by the Company of, and ending on a date 120 days following the effective date of, a registration statement pertaining to a public offering of securities through such Underwritten Offeringfor the account of the Company or on behalf of the selling stockholders under any other registration rights agreement which the Stockholders have been entitled to join pursuant to Section 5.2;
(ii) if the Board determines in good faith that it is in the best interests of the Company (A) not to disclose the existence of facts surrounding any proposed or pending acquisition, which underwriting agreement shall have indemnification provisions in substantially disposition, strategic alliance or financing transaction or other potential material event involving the form as Company or (B) to suspend the registration rights set forth in herein, the Company may (1) postpone the filing of any registration pursuant to this Section 4.9 5.1 and (2) suspend the rights of this Agreementany Stockholder to make sales pursuant to any registration statement for such a period of time as the Board may determine; provided, that (i) such periods of postponement and suspension may not exceed 120 days in the representations aggregate during any period of 12 consecutive months; and warranties by, and each Stockholder agrees in consideration of the other agreements obligations of the Company set forth herein to maintain any communication by the Company with respect to the postponement or suspension of the any registration pursuant to this Section 5.1 in confidence such that the Company may rely on the part ofsafe harbor provisions of Rule 100(b)(2)(ii) of Regulation FD under the Exchange Act with respect to such communications; provided, further, that in the event the Company shall give such notice, the Company to and for shall extend the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder period during which such registration statement shall be required to make any representations and warranties to, or agreements with, any underwriter maintained effective as provided in a Section 5.3(a) by the number of days by which the Company suspends such registration other than customary representations, warranties and agreements and statement; and
(iii) the liability of each Holder Company shall not be required to effect a registration pursuant to this Section 5.1 more than one time in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) twelve-month period and shall not be limited obligated to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made cause any audit to be undertaken in such Registration Statement, connection with any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to registration that the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall is not otherwise required to undertake at that time in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell connection with its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required obligations under the terms of such underwriting agreement. Securities Act, the Exchange Act and the rules and regulations thereunder.
(d) The Company shall not be obligated to effect or participate (a) and pay for more than two (2) Underwritten Offerings in any twelve (12) month periodthree registrations pursuant to this Section 5.1; provided, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed a registration requested pursuant to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company this Section 5.1 shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration for purposes of this Section 5.1(d) unless the Registration Statement relating thereto (i) it has been declared effective by the SECCommission, at least 75% of (ii) it has remained effective for the Registrable Securities requested to be included period set forth in the registration by the Holders are included in such registrationSection 5.3(a), and (iii) the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution offering of Registrable Securities thereunder Stock pursuant to such registration is or becomes the not subject of to any stop order, injunction or other order or requirement of the SEC or Commission (other than any other governmental or administrative agencysuch stop order, injunction, or if any court prevents or otherwise limits the sale other requirement of the Registrable Securities pursuant to the registration, and in each case less than all Commission prompted by any act or omission of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder holders of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(aStock).
Appears in 1 contract
Demand Registration. (ai) Subject to the provisions hereof[***], at Purchaser and any time on or after the date that is 180 days after the Closing Date permitted transferee of Purchaser (as defined in the Merger Agreement), the Holders of each a majority of Registrable Securities “Holder”) [***] shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective the Shares held by or issuable to them (excluding Shares then subject to the lock-up restrictions) (collectively, the “Registrable Securities Securities”) under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an underwritten public offering of Ordinary Shares by the Company (an “Underwritten Offering (as defined belowOffering”), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the The Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use commercially reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to register; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, [***].
(ii) If the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of is an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate shall select the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the CompanyHolders of a majority of the Registrable Securities to be sold in the Underwritten Offering, which such approval shall not to be unreasonably withheld withheld, conditioned or delayed delayed, and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings by a selling holder of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(ciii) If, in connection with a Demand Registration in the form of an Underwritten Offering, the managing underwriter(s) advise give written advice to the Company that in its or their reasonable opinion of the number of securities proposed to be included in which such registration exceeds should, in the opinion of the managing underwriter(s) of such registration, in light of marketing factors, be limited (an “Underwriters’ Maximum Number”), then the Company shall (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities[***].
(div) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included [***] in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registrationregistration (each, an “Interference”), which Interference does not result from any act or omission of any Holder whose Registrable Securities are registered pursuant to such Registration Statement [***], and (ii) in each case less than all of the Registrable Securities covered [***] by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) the last sentence of the proviso to Section 4.2(a6(a)(i). If (i) a registration requested pursuant to this Section 4.2 6(a) is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 6(a) does not remain continuously effective until forty-five (45) days after the commencement completion of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 6(a) of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d6(a)(iv), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) the last sentence of the proviso to Section 4.2(a6(a)(i).
Appears in 1 contract
Demand Registration. (a) Subject to the provisions hereof, at any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement), the Holders of a majority of Registrable Securities shall have the right to require If the Company to file shall receive a Registration Statement registering for sale all or part of their respective Registrable Securities written request by the CSH Shareholders (any such requesting Person, a "Selling Shareholder") that the Company effect the registration under the Securities Act (of all or a “Demand Registration”) by delivering a written request therefor to the Company (i) portion of such Selling Shareholder's Registrable Securities, and specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below)thereof, and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, then the Company shall promptly give written notice of such requested registration (xa "Demand Registration") promptly notify all Holders from whom to the request for registration has not been received Xxxxxxxxxxx Shareholders, the Xxxxx Shareholders, the Xxxxxxxx Shareholders and (y) the LSH Shareholders, and thereupon will use reasonable its best efforts to effect such effect, as expeditiously as possible, the registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulationsof:
(i) of the Registrable Securities that which the Company has been so requested to registerregister by the Selling Shareholders, then held by the Selling Shareholders; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, and
(ii) all other Registrable Securities of the Holders will not be entitled same type as that to require which the request by the Selling Shareholders relates which any Xxxxxxxxxxx Shareholder, any Xxxxx Shareholder, any Xxxxxxxx Shareholder or any LSH Shareholder (all such Shareholders, together with the Selling Shareholders, the "Holders") has requested the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) register by written request received by the Company will within 10 days (one of which shall be a Business Day) after the receipt by such Holders of such written notice given by the Company, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered; provided that, subject to Section 5.01(d) hereof, the Company shall not be obligated to effect more than one (1) five Demand Registrations for the CSH Shareholders; and provided further that the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Common Stock requested to be included in such Demand Registration, in the reasonable opinion of CSH exercised in good faith, equals or exceeds $7,500,000. In no event will the Company be required to effect more than one Demand Registration within any six (6) four-month period.
(b) The offering Promptly after the expiration of the Registrable Securities pursuant 10-day period referred to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i5.01(a)(ii) the representations and warranties by, and the other agreements on the part ofhereof, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of will notify all the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) Demand Registration of the Company shall so advise all other Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein therein. The Selling Shareholders requesting a registration under Section 5.01(a) may, at any time prior to the effective date of the registration statement relating to such registration, revoke such request, without liability to any of the other Holders, by each providing a written notice to the Company revoking such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders request, in which case such request, so revoked, shall be included in considered a Demand Registration without the prior written consent unless such revocation arose out of the holders of a majority in interest fault of the Registrable SecuritiesCompany or unless the participating Shareholders reimburse the Company for all costs incurred by the Company in connection with such registration, in which case such request shall not be considered a Demand Registration.
(c) The Company will pay all Registration Expenses in connection with any Demand Registration.
(d) A registration will requested pursuant to this Section 5.01 shall not be deemed to have been effected as a Demand Registration unless the Registration Statement registration statement relating thereto (i) has been declared become effective by under the SEC, at least 75% Securities Act and (ii) all of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect theretoregistered thereunder have been sold; provided, however, provided that if, within 180 days after it has become effective, (i) such Registration Statement or the related offer, sale or distribution offering of Registrable Securities thereunder pursuant to such registration is or becomes the subject of interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes effected.
(e) If a Demand Registration involves an Underwritten Public Offering and the managing underwriter shall advise the Company and the Selling Shareholders that, in its view, (i) the number of clause shares of Registrable Securities requested to be included in such registration (including any securities which the Company proposes to be included which are not Registrable Securities) or (ii) the inclusion of some or all of the proviso shares of Registrable Securities owned by the Holders, in any such case, exceeds the largest number of shares which can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the "Maximum Offering Size"), the Company will include in such registration, in the priority listed below, up to the Maximum Offering Size:
(A) first, all Registrable Securities requested to be registered by the parties requesting such Demand Registration and all Registrable Securities requested to be included in such registration by any other Holder (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Holders on the basis of the relative number of Registrable Securities so requested to be included in such registration); and
(B) second, any securities proposed to be registered by the Company.
(f) Upon written notice to each Selling Shareholder, the Company may postpone effecting a registration pursuant to this Section 4.2(a5.01 on one occasion during any period of six consecutive months for a reasonable time specified in the notice but not exceeding 90 days (which period may not be extended or renewed), if (1) an investment banking firm of recognized national standing shall advise the Company and the Selling Shareholders in writing that effecting the registration would materially and adversely affect an offering of securities of such Company the preparation of which had then been commenced or (2) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, would not be in the best interests of the Company.
(g) After the Company has effected one Demand Registration by the CSH Shareholders pursuant to this Section 5.01 of Common Stock, the Xxxxxxxxxxx Shareholders, upon request of the Xxxxxxxxxxx Shareholders owning a majority of the Shares acquired by the Xxxxxxxxxxx Shareholders on the Closing Date may request that the Company register Common Stock which are Registrable Securities then owned by such Xxxxxxxxxxx Shareholders. In no event will the Company be required to effect more than two such Demand Registrations by the Xxxxxxxxxxx Shareholders. The other provisions of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any such Demand Registration by the Xxxxxxxxxxx Shareholders.
(h) If (i) a any registration requested pursuant to this Section 4.2 5.01 which is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution proposed by the Holders Company to be effected by the filing of a registration statement on form S-3 (or any successor or similar short-form registration statement) shall be in connection with an Underwritten Public Offering, and if the Registrable Securities covered by managing underwriter shall advise the Company in writing that, in its opinion, the use of another form of registration statement is of material importance to the success of such registrationproposed offering, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities registration shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of effected on such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)other form.
Appears in 1 contract
Demand Registration. (a) Subject to the provisions hereof, at any time on or after the date that is 180 days after one (1) year anniversary of the Closing Date (as defined in the Merger Purchase Agreement), the Holders of a majority of Registrable Securities shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to register; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a4.1(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 4.8 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a4.1(a). If (i) a registration requested pursuant to this Section 4.2 4.1 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 4.1 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 4.1 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a).such
Appears in 1 contract
Demand Registration. (a) Subject to If the provisions hereof, at any time on or after the date that is 180 days after the Closing Date Purchaser shall request (as defined in the Merger Agreement), the Holders of a majority of Registrable Securities shall have the right to require "DEMAND") the Company in writing to file a Registration Statement registering for sale all or part of their respective Registrable Securities register under the Securities Act of 1933, as amended (a “Demand Registration”) by delivering a written request therefor to the "SECURITIES ACT"), any shares of the Common Stock of the Company (ithe "COMMON STOCK") specifying acquired by the number Purchaser upon exercise of Registrable Securities either of the Warrants (the shares of Common Stock so acquired and subject to be included in such registration by such Holder or Holders, (ii) specifying whether request being herein referred to as the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below"SUBJECT STOCK"), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable its best efforts to effect cause the shares of Subject Stock specified in such request to be registered as soon as reasonably practicable so as to permit the sale thereof, and in connection therewith shall prepare and file a Form S-3 registration statement (including, without limitation, appropriate qualification under applicable blue sky or similar form which may be promulgated in the future) or such other state securities laws form as to which the Company is eligible to file with the Securities and appropriate compliance with applicable regulations issued Exchange Commission (the "SEC") under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to registereffect such registration; provided, however, that such request shall (i) specify the number of shares of Subject Stock intended to be offered and sold, which number of shares shall represent Subject Stock with an aggregate market value of at least $500,000, based on the average closing sale price of the Common Stock for the ten (10) trading days preceding the date prior to the date of the Purchaser's request first received by the Company, (ii) express the present intention of the Purchaser to offer or cause the offering of such shares of Subject Stock for distribution, (iii) describe the nature or method of the proposed offer and sale thereof, and (iv) contain the undertaking of the Purchaser to provide all such information and materials and take all such action as may be required in order to permit the Company to comply with all applicable requirements of the SEC and to obtain any desired acceleration of the effective date of such registration statement.
(b) Notwithstanding the foregoing and Section 4 hereof, upon delivery to the Purchaser of a written notice, the Company shall be entitled to postpone filing of the registration statement, and may withhold efforts to cause the registration statement to become effective, for a reasonable period of time (not to exceed ninety (90) days) if (i) the Holders Company is contemplating filing a registration statement within ninety (90) days of such request for registration (which shall not make a request for a Demand Registration affect the Purchaser's other rights hereunder, including without limitation the Purchaser's rights under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,0003 below), (ii) the Holders will not be entitled to require Company determines in good faith that such registration might interfere with or affect the negotiation or completion of any transaction that is being contemplated by the Company (whether or not a final decision has been made to effect more than three (3undertake such transaction) Demand Registrations in at the aggregate under this Agreementtime the right to delay is exercised, and or (iii) the Company will determines in good faith that such registration might involve initial or continuing disclosure obligations that might not be obligated in the best interests of the Company or its shareholders. The Company shall not be required to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of demand registration statement under this Agreement; provided, however, that if any postponement pursuant to the preceding sentence extends beyond the date on which the Warrants expire, the obligations of the Company hereunder shall be extended by a number of days necessary to complete the distribution of securities subject to such postponement. In a case of postponement pursuant to clause (i) of the representations and warranties by, and the other agreements on the part offirst sentence of this paragraph (b), the Company to and request for registration will not constitute a Demand for purposes of determining the benefit number of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder Demands permitted pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering this paragraph unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted contemplated registration by the Company on its own behalf is abandoned or on behalf not consummated within the ninety (90) day period and then the Company successfully registers the shares of Subject Stock pursuant to the HoldersDemand.
(c) If, in connection with an Underwritten Offeringafter a registration statement becomes effective, the managing underwriter(s) advise Company advises the Purchaser that the Company considers it appropriate for the registration statement to be amended, the Purchaser shall suspend any further sales of the registered shares until the Company advises the Purchaser that the registration statement has been amended. The ninety (90) day time period referred to in Section 4 hereof during which the registration statement must be kept current after its or their reasonable opinion effective date shall be extended for an additional number of business days equal to the number of securities proposed business days during which the right to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No sell shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities was suspended pursuant to the registrationpreceding sentence, and but in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, no event will the Company fails be required to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) update the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days statement after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences expiration of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)Agreement.
Appears in 1 contract
Demand Registration. (a) Subject to the provisions hereof, at any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement), the Holders of Upon written notice from a majority Holder of Registrable Securities shall have in the right to require manner set forth in Section 11(g) hereof requesting that the Company to file a Registration Statement registering for sale effect the registration under the Securities Act of any or all or part of their respective the Registrable Securities held by such Holder, which notice shall specify the intended method or methods of disposition of such Registrable Securities, the Company will use its best efforts to effect (at the earliest practicable date) the registration under the Securities Act of such Registrable Securities for disposition in accordance with the intended method or methods of disposition stated in such request (including, but not limited to, an offering on a delayed or continuous basis pursuant to Rule 415 (or any successor rule to similar effect) promulgated under the Securities Act (a “Demand Registration”"Rule 415 Offering") by delivering a written request therefor to if the Company is then eligible to register such Registrable Securities on Form S-3 (or a successor form)), except that:
(i) specifying if, after the number Primary AMR Ownership Reduction, upon receipt of Registrable Securities a registration request pursuant to this Section 2(a), the Company is advised in writing setting forth specific reasons (with a copy to the person requesting registration pursuant to this Section 2(a)), by a nationally recognized independent investment banking firm selected by the Company that, in such firm's opinion, a registration at the time and on the terms requested would materially and adversely affect any underwritten public equity financing by the Company that had been contemplated by the Company prior to receipt of notice requesting registration pursuant to this Section 2(a) and that had been planned to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt completed within 90 days of such demandnotice (a "Transaction Blackout"), the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts be required to effect a registration pursuant to this Section 2(a) until the earliest to occur of (A) the abandonment of such registration financing, (includingB) 90 days after the completion of such financing, without limitation, appropriate qualification under applicable blue sky (C) the termination of any "hold back" or other state securities laws and appropriate compliance with applicable regulations issued under "lock up" period obtained by the Securities Act and any other governmental requirements or regulationsunderwriter(s) of the Registrable Securities that selected by the Company has been so requested to register; provided, however, that from any person in connection with such financing or (iD) 165 days after receipt by the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price Holder requesting registration of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering written notice of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall Transaction Blackout (together with the Holders proposing copy of the investment banking firm opinion referred to distribute their securities through such underwriting) enter into an underwriting agreement above in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that subsection (i)) (the representations written notice of such Transaction Blackout and warranties by, and the other agreements on the part of, the Company to and for the benefit a copy of the underwriter(s) shall also investment banking firm opinion must be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished given to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities requesting registration pursuant to be included in this Section 2(a) within 15 days of receipt of such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or request);
(ii) if, in after the case of an Underwritten OfferingPrimary AMR Ownership Reduction, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) while a registration requested request is pending pursuant to this Section 4.2 is deemed not to have been effected 2(a), the general counsel of the Company determines in good faith that (A) the filing of a registration statement would require the disclosure of material information that the Company has a bona fide business purpose for preserving as a Demand Registration confidential or (iiB) the registration requested pursuant Company then is unable to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registrationcomply with SEC requirements, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a).be
Appears in 1 contract
Samples: Registration Rights Agreement (Sabre Group Holdings Inc)
Demand Registration. (a) Subject to the provisions hereof, at any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement), the Holders of a majority of Registrable Securities shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to register; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.. Table of Contents
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been Table of Contents effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a).
Appears in 1 contract
Demand Registration. (ai) Subject to the provisions hereof, at At any time on or after commencing September 1, 1997 and expiring five (5) years from the date that is 180 days after the Closing Date (as defined in the Merger of this Subscription Agreement), the Holders of a majority of Registrable Securities undersigned shall have the right (which right is in addition to require the registration rights under Section VI(a) hereof), exercisable by written notice to the Company, to have the Company prepare and file with the Commission, on one occasion, a registration statement and such other documents, including a prospectus, as may be necessary in the opinion of counsel for the Company, in order to file a Registration Statement registering for sale all or part comply with the provisions of their respective Registrable Securities under the Securities Act (Act, so as to permit a “Demand Registration”) by delivering a written request therefor to public offering and sale of the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, Common Shares.
(ii) specifying whether If the intended method of disposition thereof is undersigned exercises its registration request, pursuant to an Underwritten Offering Section VI(b)(i) above, between September 1st and November 1st (as defined below), and (iiithe "Window Period") containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demandany given year, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received costs and (y) use reasonable best efforts to effect filing fees incurred in connection with such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws the "Costs") shall be divided evenly between the undersigned and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to registerCompany; provided, however, that (i) the Holders Costs payable by the undersigned shall be capped at $25,000. If the undersigned exercises such registration request on a date outside of the Window Period, the Costs shall be divided evenly between the undersigned and the Company; provided, however, that the Costs payable by the undersigned shall be capped at $40,000. Costs shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price include any amounts payable to the undersigned's counsel, any transfer taxes or underwriting discounts, commissions or fees applicable to the Common Shares, which shall be payable solely by the undersigned. Notwithstanding the foregoing, if the registration statement to which the Costs are associated is, due solely to actions of less than $5,000,000the Company, (ii) not declared effective by the Holders will not be entitled to require Commission within six months from the date it is first filed with the Commission, then the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and shall pay all Costs associated with such registration statement.
(iii) In connection with any registration under Section VI(b) hereof, the Company will not be obligated covenants and agrees as follows:
a. The Company shall use its best efforts to effect more than one file a registration statement within sixty (160) Demand Registration in days of receipt of any six (6) month period.
(b) The offering demand therefor, except that if such demand is made during the Window Period, the Company shall use its best efforts to file a registration statement within 60 days of the Registrable Securities pursuant end of the Window Period, shall use its best efforts to have any registration statements declared effective at the earliest possible time, and shall furnish the undersigned such Demand Registration may number of prospectuses as shall reasonably be requested; provided, however, that the Company may, at any time, delay the filing or delay or suspend the effectiveness of such demand registration or, without suspending such effectiveness, instruct the undersigned not to sell any securities included in the form of an underwritten public offering (an “Underwritten Offering”). In such casedemand registration, (i) if the Company shall have determined upon the written advice of counsel (confirmation of which notice shall be provided to the undersigned in writing by such counsel) that the Company would be required to disclose any actions taken or proposed to be taken by the Company in good faith and for valid business reasons, including without limitation, the acquisition or divestiture of assets, which disclosure would have a material adverse effect on the Company or on such actions, or (ii) if required by law, to update the prospectus relating to any such registration to include updated financial statements (a "Suspension Period") by providing the undersigned with written notice of such Suspension Period and the reasons therefor; and provided further, that the Suspension Periods, in the aggregate, do not exceed sixty (60) days. The Company shall provide such notice as soon as practicable and in any event prior to the commencement of such a Suspension Period. The obligations of the Company hereunder with respect to the Common Shares are expressly conditioned on the undersigned furnishing to the Company such appropriate information concerning the undersigned and the Common Shares as the Company may designate reasonably request.
b. The Company agrees that it will use its best efforts to maintain the managing underwriter(seffectiveness of any registration statement filed pursuant to Section VI(b) hereof for a period of 1 year from the Underwritten Offeringeffective date of such registration statement.
c. The Company will take all necessary action which may be required in qualifying or registering the Common Shares included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are requested by the undersigned, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect execute or participate file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(aiv) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by Neither the underwriter(s) in any prior underwritten offering conducted filing of a registration statement by the Company on its own behalf or on behalf pursuant to this Section VI(b) nor the making of any request for prospectuses by the Holdersundersigned shall impose upon the undersigned any obligation to sell the Common Shares.
(cv) IfThe undersigned, in connection with an Underwritten Offering, the managing underwriter(s) advise upon receipt of notice from the Company that in its an event has occurred which requires a post-effective amendment to a registration statement or their reasonable opinion the number of securities proposed a supplement to be a prospectus included in such registration exceeds the Underwriters’ Maximum Numbertherein, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits promptly discontinue the sale of the Registrable Securities pursuant to Common Shares until the registrationundersigned receives a copy of a supplemented or amended prospectus from the Company, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then which the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in provide as soon as practicable after such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)notice.
Appears in 1 contract
Demand Registration. (a) Subject At any time and from time to time beginning on the date the Company is eligible to use Form S-3 for the offer and sale of the Registrable Securities, any Holder or group of Holders (together with any of their respective Affiliates or Related Funds) that hold, in the aggregate, at least five percent (5%) of the outstanding Common Stock at such time, may request in writing (“Demand Registration Request”) that the Company effect the registration of all or part of such Holder’s or Holders’ Registrable Securities with the Commission under and in accordance with the provisions hereofof the Securities Act (each, at any time on a “Demand Registration”). The Company will file a Registration Statement covering such Holder’s or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement), the Holders of a majority of Holders’ Registrable Securities requested to be registered, and shall have the right use its reasonable best efforts to require cause such Registration Statement to be declared effective, as promptly as practicable after receipt of such request; provided, however, that the Company will not be required to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written request therefor pursuant to the Company this Section 5(a):
(i) specifying unless the Registrable Securities requested to be sold by the Holders pursuant to such Registration Statement have an anticipated aggregate gross offering price (before deducing underwriting discounts and commissions) of at least $25 million;
(ii) if the Registrable Securities requested to be registered are already covered by an existing and effective Registration Statement and such Registration Statement may be utilized for the offer and sale of the Registrable Securities requested to be registered; or
(iii) if the number of Demand Registration Requests previously made pursuant to this Section 5(a) shall equal or exceed three (3) in any twelve (12)-month period; provided, however, that a Demand Registration Request shall not be considered made for purposes of this clause (iii) unless the requested Registration Statement has been declared effective by the Commission for more than seventy-five percent (75%) of the full amount of Registrable Securities to be included in such for which registration by has been requested.
(b) A Demand Registration Request shall specify (i) the then-current name and address of such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to register; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares registered, (iii) the total number of Common Stock held by any Person other than Registrable Securities held then beneficially owned by such Holder or Holders, and (iv) the intended means of distribution.
(c) The Company may satisfy its obligations under Section 5(a) hereof by amending (to the extent permitted by applicable law) any registration statement previously filed by the Holders shall be included Company under the Securities Act, so that such amended registration statement will permit the disposition (in accordance with the intended methods of disposition specified as aforesaid) of all of the Registrable Securities for which a Demand Registration without Request has been properly made under Section 5(b) hereof. If the prior written consent Company so amends a previously filed registration statement, it will be deemed to have effected a registration for purposes of the holders of a majority in interest of the Registrable SecuritiesSection 5(a) hereof.
(d) A registration The Company will not be deemed use its reasonable best efforts to have been effected as keep a Demand Registration unless the Registration Statement relating thereto that has been declared become effective as contemplated by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registrationthis Section 5 continuously effective, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the not subject of to any stop order, injunction or other similar order or requirement of the SEC or any Commission:
(i) in the case of a Registration Statement other governmental or administrative agencythan a Shelf Registration Statement on Form S-3, or if any court prevents or otherwise limits the sale of the until all Registrable Securities registered thereunder have been sold pursuant to such Registration Statement; and
(ii) in the registrationcase of a Shelf Registration Statement on Form S-3, until the earlier of: (x) three (3) years following the Effective Date of such Shelf Registration Statement on Form S-3; and in each case less than (y) the date that all of the Registrable Securities covered by the effective such Shelf Registration Statement are actually sold by the selling on Form S-3 shall cease to be Registrable Securities.
(e) The Holder or Holders making a Demand Registration Request may, at any time prior to the Effective Date of the Registration Statement relating to such registration, revoke their request for the Company to effect the registration of all or part of such Holder’s or Holders’ Registrable Securities by providing a written notice to the Company. If, pursuant to the preceding sentence, the entire Demand Registration Request is revoked, then, at the option of the Holder or Holders who revoke such request, either (i) such Holder or Holders shall reimburse the Company for all of its reasonable and documented out-of-pocket expenses incurred in the preparation, filing and processing of the Registration Statement, which out-of-pocket expenses, for the avoidance of doubt, shall not include overhead expenses and which requested registration shall not count as one of the permitted Demand Registration Requests hereunder or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such requested registration that has been revoked will be deemed not to have been effected for purposes of clause Section 5(a).
(iif) of the proviso to Section 4.2(a). If (i) a registration requested Registration Statement filed pursuant to this Section 4.2 5 is deemed not to have been effected as a Demand Shelf Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registrationStatement, then upon the demand of one or more Holders, the Company shall continue to be obligated to effect facilitate a Demand Registration pursuant to this Section 4.2 “takedown” of the Registrable Securities in the form of an Underwritten Offering, in the manner and subject to the conditions described in Section 6 of this Agreement, provided, that the number of shares of Common Stock included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities underwritten “takedown” shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration equal at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause least five percent (ii5%) of the proviso to Section 4.2(a)all outstanding shares of Common Stock at such time.
Appears in 1 contract
Samples: Registration Rights Agreement (Parker Drilling Co /De/)
Demand Registration. (a) Subject to the provisions hereof, at At any time on or after the date that is 180 publication by the Parent of financial results covering at least 30 days after of post Merger combined operations, upon written notice from the Closing Date Representatives (as defined hereinafter defined) in the Merger Agreement), manner set forth in Section 11(h) hereof requesting that the Holders of a majority of Registrable Securities shall have Parent effect the right to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities registration under the Securities Act (a “Demand Registration”) by delivering a written request therefor of any or all of the Registrable Securities, which notice shall specify the intended method or methods of disposition of such Registrable Securities, the Parent shall use its reasonable best efforts to effect, in the Company manner set forth in Section 5, the registration under the Securities Act of all of such Registrable Securities for disposition in accordance with the intended method or methods of disposition stated in such request, provided that:
(i) specifying if, within 5 business days of receipt of a registration request pursuant to this Section 2(a), Parent is advised in writing (with a copy to the Holder requesting registration) by the lead underwriter of the proposed offering described below that, in such firm's good faith opinion, a registration at the time and on the terms requested would materially and adversely affect any immediately planned offering of securities by Parent as to which Parent was In Registration prior to receipt of notice requesting registration pursuant to this Section 2(a) (a "Transaction Blackout"), Parent shall not be required to effect a registration pursuant to this Section 2(a) until the earliest of (A) the abandonment of such offering or (B) 120 days after receipt by the Holder requesting registration of the lead underwriter's written opinion referred to above in this subsection (i));
(ii) if, while a registration request is pending pursuant to this Section 2(a), Parent has determined in good faith that the filing of a registration statement would require the disclosure of material non-public information that Parent has a bona fide business purpose for preserving as confidential, Parent shall not be required to effect a registration pursuant to this Section 2(a) until the earlier of (1) the date upon which such material information is otherwise disclosed to the public or ceases to be material or Parent is able to so comply with applicable SEC requirements, as the case may be, and (2) 90 days after Parent makes such good-faith determination;
(iii) Parent shall not be obligated to file a registration statement relating to a registration request pursuant to this Section 2: (A) if such registration request is for a number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to register; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price then market value of less than $5,000,000, 150 million or (iiB) more than 36 months have elapsed since the Holders will not be entitled to require Effective Time;
(iv) at least four months have elapsed since the Company to effect last request made by the Representatives on behalf of any Holders; and
(v) no more than three (3) Demand Registrations in the aggregate demands under this Agreement, and (iii) the Company will not Section 2 shall be obligated required to effect more than one (1) Demand Registration in any six (6) month periodbe honored.
(b) The offering Notwithstanding any other provision of this Agreement to the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, contrary:
(i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or requested on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such a Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnairesthis Section 2, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration (and, therefore, not requested for purposes of subsection 2(a)), (A) unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the registration statement filed with respect to such Holder's Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, become effective or (B) if after it has become effective, (i) effective such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder registration is or becomes the subject of interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or administrative agencycourt for any reason other than a misrepresentation or an omission by such Holder and, as a result thereof, all of the Registrable Securities requested to be registered cannot be distributed in accordance with the plan of distribution set forth in the related registration statement or (C) if the conditions to closing specified in the purchase agreement or underwriting agreement entered into in connection with such registration are not satisfied (other than by reason of an act or omission by such Holder) or waived by the underwriters; and
(ii) a registration requested by a Holder pursuant to this Section 2 and later withdrawn at the request of such Holder shall be deemed to have been effected (and, therefore, requested for purposes of Section 2(a)), whether withdrawn by the Holder prior to or after the effectiveness of such requested registration, unless such request is withdrawn by a Holder prior to the filing of a registration statement with the SEC; and
(c) In the event that any court prevents registration pursuant to this Section 2 shall involve, in whole or otherwise limits in part, an underwritten offering, a Holder shall have the right to designate an underwriter reasonably satisfactory to Parent as a co-manager of such underwritten offering and Parent shall have the right to designate the lead underwriter reasonably satisfactory to the Holder of such underwritten offering.
(d) Parent shall have the right to cause the registration of additional securities for sale for the account of any person (including Parent) in any registration of Registrable Securities requested by a Holder pursuant to Section 2(a); provided that Parent shall not have the right to cause the registration of such additional securities if such person is advised in writing (with a copy to the Parent) by the lead underwriter that, in such firm's good faith opinion, registration of such additional securities would materially and adversely affect the offering and sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered contemplated by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)Holder.
Appears in 1 contract
Demand Registration. (a) Subject to the provisions hereof, at any time on or after the date that is 180 days after four (4) year anniversary of the Closing Date (as defined in the Merger Agreement)Effective Date, the Holders of a majority of Registrable Securities Investor shall have the right to require the Company to file a Registration Statement registering for the offer, sale and distribution of all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holdersregistration, (ii) specifying whether the intended method of disposition thereof is thereof, including whether pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder the Investor required to be included in such Registration Statement in accordance with applicable law. The date upon which the Investor delivers such request shall be referred to herein as a “Demand Date.” As soon as practicable after the receipt of such demandDemand Date, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to register; provided, however, that (iA) the Holders Investor shall not make a request for a Demand Registration under this Section 4.2(a) for unless the Registrable Securities having an anticipated requested to be so registered (i) would reasonably be expected to result in aggregate offering price gross cash sale proceeds in excess of less than $5,000,000, 20,000,000 (without regard to any underwriting discount or commission) or (ii) comprise at least 10% of the Holders Outstanding Securities prior to the applicable Demand Date, and (B) the Investor will not be entitled to require the Company to effect more than three five (35) Demand Registrations in the aggregate under this Agreement. Notwithstanding the foregoing, and the limitation set forth in proviso (iiiA) the Company above will not be obligated to effect more than one (1) apply so long as the Investor requests a Demand Registration in any six (6) month periodfor all of the Registrable Securities it holds at the time of the request.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company Company, with the written consent of the Investor (not to be unreasonably withheld) may designate the managing underwriter(s), investment banker(s) and manager(s) of the Underwritten Offering (including in any Shelf Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed ) and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwritingInvestor) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 2.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) Investor shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall not be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iiiii) the liability of each Holder the Investor in respect of any indemnification, contribution or other obligation of such Holder the Investor arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectusProspectus, final prospectusProspectus, summary prospectusProspectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder the Investor expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder the Investor (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder the Investor pursuant to such Underwritten Offering. No Holder The Investor may not participate in any such Underwritten Offering unless such Holder the Investor agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable good faith opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof Investor to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated Number pro rata among the Holders thereof holders of Registrable Securities that have requested to participate in such Demand Registration on the basis of the number percentage of the Registrable Securities requested to be included therein in such Registration Statement by each such Holderholders. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders Investor shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by (i) covers all Registrable Securities specified in the SECapplicable Demand Registration request for sale in accordance with the intended method or methods of distribution specified in such Demand Registration, subject to the underwriter cutbacks described in Section 2.1(c) (but only if the Underwriters’ Maximum Number represents at least 75% of the Registrable Securities requested to be included in the registration so specified), (ii) has been declared effective by the Holders are included in such registrationCommission, (iii) is maintained effective for the period required pursuant to this Agreement and (iv) the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (iA) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC Commission or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registrationregistration (but only if such stop order, injunction or other order or requirement did not result from a statement or alleged statement in or omission or alleged omission from such Registration Statement, any preliminary Prospectus, final Prospectus or summary Prospectus contained therein, or any amendment or supplement thereto, if such statement or alleged statement or omission or alleged omission was made in reliance upon and in conformity with information specifically furnished to the Company by the Investor for incorporation therein), and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders Investor pursuant to the Registration Statement, or (iiB) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (iiB) of the proviso to Section 4.2(a2.1(a). If (i) a registration requested pursuant to this Section 4.2 2.1 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 2.1 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders at least 75% of the Registrable Securities covered by such registrationthe effective Registration Statement have been sold, then such Demand Registration request shall not count as a Demand Registration request for the purposes of clause (B) of the proviso to Section 2.1(a) and the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 2.1 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d2.1(d), each Holder of Registrable Securities the Investor shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (iiB) of the proviso to Section 4.2(a2.1(a).
(e) The Investor shall be permitted to abandon or withdraw all or any part of their shares from a Demand Registration, in which event the Company shall abandon or withdraw such Registration Statement; provided, that such Demand Registration underlying such abandonment or withdrawal shall not be deemed to be a Demand Notice for purposes of clause (B) of the proviso to Section 2.1(a) if (a) such withdrawal or abandonment is requested prior to the filing of the applicable Registration Statement or in response to a material adverse change regarding the Company or a material adverse change in the financial markets generally or (b) the Investor reimburses the Company for the documented out-of-pocket Registration Expenses incurred by the Company in connection with such Demand Registration prior to the date of such abandonment or withdrawal.
Appears in 1 contract
Samples: Investor Rights Agreement (Sentio Healthcare Properties Inc)
Demand Registration. (a) Subject to the provisions hereof, at At any time on or after the date that is 180 days after the Closing Date (as defined in date on which the Merger Agreement)Company becomes subject to Section 13 or Section 15(d) of the Exchange Act, the Holders holders of at least fifty percent (50%) of the Registrable Securities may request the Company register under the Securities Act the Registrable Securities held by such requesting holders in a majority firm commitment underwritten public offering or any other method of distribution (including offerings involving a delayed or continuous offering pursuant to Rule 415 under the Securities Act); provided, however, that the holders of Registrable Securities shall be entitled under this Section 2 to no more than the number of shares of Common Stock sufficient to yield net proceeds equal to the aggregate number of Registrable Securities multiplied by the per share initial public offering price multiplied by 0.33 ("Minimum Demand Proceeds"); provided further however, that if the underwritten public offer (or other method of distribution) does not yield the Minimum Demand Proceeds, the holders of Registrable Securities shall be entitled to request additional registrations until the holders of Registrable Securities shall have yielded the right to require Minimum Demand Proceeds. Upon receipt of such request, the Company shall promptly deliver notice of such request to file a Registration Statement registering for sale all or part Persons holding Registrable Securities who shall then have thirty (30) days to notify the Company in writing of their respective desire to be included in such registration. The right of any Person to participate in such registration shall be conditioned upon their participation in such underwritten public offering (or such other method of distribution) and the inclusion of their Registrable Securities in the underwritten public offering (or such other method of distribution) to the extent provided herein. The Company will use its best efforts to expeditiously effect the registration of all Registrable Securities whose holders request participation in such registration under the Securities Act (a “Demand Registration”) by delivering a written request therefor and shall keep such registration effective until the Registrable Securities thereunder shall have been sold, but only to the extent provided for in the following provisions of this Agreement; provided, however, that the Company shall not be required to effect registration pursuant to a request under this Section 2 more than one (i1) specifying time for the holders of the Registrable Securities as a group; provided further however, that if a registration statement does not include the number of Registrable Securities requested by the holders thereof to be included in such registration statement, it shall not be counted as a registration statement initiated pursuant to this Section 2. Notwithstanding anything to the contrary contained herein, no request may be made under this Section 2 within 180 days after the effective date of a registration statement filed by the Company covering a firm commitment underwritten public offering in which the holders of Registrable Securities shall have been entitled to join pursuant to Section 3 and in which there shall have been effectively registered all Registrable Securities as to which registration shall have been requested.
(b) With respect to a request for registration pursuant to this Section 2 involving an underwritten public - 3 - offering, the Company may include in each such requested registration any authorized but unissued shares of Common Stock (or authorized treasury shares) for sale by the Company and the Shareholders may include in each such requested registration shares of Common Stock held by such Shareholders; provided, however, that any such shares of Common Stock shall not be included to the extent that the managing underwriter of the offering (if the offering is underwritten) or the holders of a majority of the shares of Registrable Securities who requested the registration (if the offering is not underwritten), determine(s) in good faith that the inclusion of such shares will interfere with the successful marketing of the shares of Registrable Securities to be included in the registration. If the managing underwriter of such registration by such Holder or Holdersoffering determines in good faith that the number of securities sought to be offered should be limited due to market conditions, (ii) specifying whether then the intended method number of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required securities to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of underwritten public offering shall be reduced to a number deemed satisfactory by such demandmanaging underwriter, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities provided that the Company has been so requested shares to register; provided, however, that be excluded shall be determined in the following order of priority: (i) securities held by any other Persons (other than the Holders shall not make holders of Registrable Securities) having a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000contractual, incidental "piggy back" right to include such securities in the registration statement, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval securities offered on behalf of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on holders who did not make the basis provided in such underwriting agreement and completes and executes all questionnairesoriginal request for registration and, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month periodif necessary, and (biv) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf Registrable Securities of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in holders who requested such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities pursuant to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis Section 2. If there is a reduction of the number of Registrable Securities requested pursuant to clauses (iii) or (iv), such reduction shall be included therein by each such Holder. No shares made on a pro rata basis (based upon the aggregate number of Common Stock held by any Person other than Registrable Securities held by such holders).
(c) The Company shall have the Holders shall be included in a Demand Registration without right to approve the prior written consent of managing underwriter chosen by the holders of a majority in interest of the Registrable SecuritiesSecurities to be sold in such offering (which approval will not be unreasonably withheld or delayed). The Company may not cause any other registration of securities for sale for its own account (other than a registration effected solely to implement an employee benefit plan or a transaction to which Rule 145 of the Commission is applicable) to become effective within 90 days following the effective date of any registration required pursuant to this Section 2.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SECIf, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject time of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the request to register Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten OfferingSection 2(a), the Company fails is preparing a registration statement for a public offering (other than a registration effected solely to provide Full Cooperation, then such registration will be deemed not implement an employee benefit plan or a transaction to have been effected for purposes of clause (ii) which Rule 145 of the proviso to Section 4.2(a). If Commission is applicable) which in fact is filed and becomes effective within ninety (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (4590) days after the commencement request, or is engaged in any activity (including a concurrent or proposed security issuance or - 4 - acquisition) which, in the good faith determination of the distribution Company's board of directors, would be adversely affected by the Holders requested registration to the material detriment of the Registrable Securities covered by such registrationCompany, then the Company may at its option direct that such request be delayed for a period (the "Black-Out Period") not in excess of 120 days from the effective date of such offering or the date of commencement of such other activity, as the case may be. The aggregate amount of Black-Out Periods in any consecutive twelve month period shall continue to be obligated to effect a Demand Registration pursuant to not exceed 120 days. Nothing in this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder 2(d) shall preclude a holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such enjoying registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to rights which it might otherwise possess under Section 4.2(a)3 hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Preferred Payment Systems Inc)
Demand Registration. (a) Subject to the provisions contained in this Section 2.1 and in Sections 5.2 and 5.3 hereof, at any Holder or group of Holders may, from time on or after to time (each, a “Requesting Holder” and collectively, the date that is 180 days after the Closing Date (as defined in the Merger Agreement“Requesting Holders”), make a request in writing (a “Demand Request”) that Lionsgate effect the Holders of a majority of Registrable Securities shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities registration under the Securities Act of any specified number of shares of Registrable Securities held by the Requesting Holder(s) (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to register; provided, however, that Lionsgate shall in no event be required to effect:
(ia) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three two (32) Demand Registrations in the aggregate under this Agreement, and aggregate;
(iiib) the Company will not be obligated to effect more than one (1) Demand Registration in any six 12 month period or, in the aggregate, more than one (61) month period.
Demand Registration (b) The offering of by the Registrable Securities Liberty Group pursuant to such Demand Registration may be in the form of an underwritten public offering this Agreement) or demand registration by Discovery (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject pursuant to the approval of registration rights agreement, dated the Companydate hereof, which approval shall not be unreasonably withheld or delayed between Lionsgate and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (bDiscovery Lightning Investments Ltd.) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.six month period; and
(c) Ifany Demand Registration if the Shelf Registration Statement is then effective, and such Shelf Registration Statement may be utilized by the Requesting Holders for the offering and sale of all of their Registrable Securities without a requirement under the Commission’s rules and regulations for a post-effective amendment thereto. Subject to the provisions contained in connection with an Underwritten Offeringthis Section 2.1 and in Sections 5.2 and 5.3 hereof, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number upon receipt of securities proposed a Demand Request, Lionsgate shall cause to be included in such registration exceeds a Registration Statement on an appropriate form under the Underwriters’ Maximum NumberSecurities Act, then (i) filed with the Company shall so advise all Holders of Registrable Securities to be included Commission as promptly as practicable but in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does any event not exceed such Underwriters’ Maximum Numberlater than 60 days after receiving a Demand Request, such Registrable Securities as may be requested by such Requesting Holders in their Demand Request. Lionsgate shall use its reasonable efforts to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by cause any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of declared effective under the Registrable Securities included in Act as promptly as possible after such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)filing.
Appears in 1 contract
Samples: Registration Rights Agreement (Lions Gate Entertainment Corp /Cn/)
Demand Registration. (a) Subject to The Company shall, upon the provisions hereof, written demand of the Buyer at any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement), the Holders of a majority acquisition of Registrable Securities shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or HoldersSecurities, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use its reasonable best efforts to effect such the registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued the "Demand Registration") under the Securities Act and any other governmental requirements or regulations) of the such number of Registrable Securities that held by the Buyer as shall be indicated in a written demand sent to the Company has been so requested to registerby the Buyer; provided, however, that the Company shall not be required to effect a Demand Registration if counsel for the Company reasonably acceptable to the Buyer shall deliver to the Buyer an opinion reasonably acceptable to counsel for the Buyer that, pursuant to Rule 144 under the Securities Act or otherwise, the Buyer can sell Registrable Securities proposed to be included in the Demand Registration without registration under the Act, without limitation as to the number of Registrable Securities that are proposed to be sold by the Buyer. The Company shall pay all expenses in connection with a Demand Registration. Upon receipt of the Buyer's written demand, the Company shall expeditiously (ibut in any event within 90 days) file a registration statement under the Act for the Registrable Securities and use its best efforts to have such registration statement declared effective as soon as practicable after the filing thereof; provided that (A) the Holders Company shall not make be required to cause any special audit to be undertaken in connection with any such registration and (B) the Company shall not be required to file any registration statement during any period of time (not exceeding 90 days) when (I) the Company is contemplating a request public offering of its securities and, in the judgment of the managing underwriter thereof (or the Company, if such offering is not underwritten) such filing would have a material adverse effect on the contemplated offering, (II) the Company is in possession of material information that it deems advisable not to disclose in a registration statement or (III) the Company is engaged in any program for the repurchase of voting securities of the Company. The Buyer shall have the right to select the underwriters for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten OfferingRegistration, subject to the approval of the Company, which approval shall will not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holderswithheld.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a).
Appears in 1 contract
Samples: Stock Purchase and Registration Rights Agreement (Group Technologies Corp)
Demand Registration. (ai) Subject to the provisions hereofterms and conditions of this Agreement, at any time on or and from time to time after the date that is 180 90 days after the Closing Date (as defined in the Merger Agreement)date hereof, the Holders of a majority of Registrable Securities shall have the right upon written notice to require the Company to file (a Registration Statement registering for sale all “Demand Notice”) delivered by one or part of their respective Registrable Securities under more Qualified Holders requesting that the Securities Act Company effect the registration (a “Demand Registration”) under the Securities Act (other than pursuant to a registration statement on Form S-4 or Form S-8 or any similar or successor form under the Securities Act) of any or all of the Registrable Securities held by delivering a written request therefor such Qualified Holder(s) which offering is expected to yield aggregate gross proceeds of at least $25 million or, if the expected gross proceeds of the sale of all remaining Registrable Securities is less than $25 million, then such registration shall include all remaining Registrable Securities, the Company shall promptly (ibut in any event, not later than five Business Days following the Company’s receipt of such Demand Notice) specifying the number give written notice of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demandDemand Notice to all other Holders that, to its knowledge, hold Registrable Securities (each, a “Demand Eligible Holder”). The Company shall promptly file the appropriate Registration Statement (the “Demand Registration Statement”) and use its commercially reasonable efforts to effect, at the earliest practicable date, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulationsunder the applicable state securities laws of (A) of the Registrable Securities that which the Company has been so requested to register; providedregister by the Qualified Holder(s) in the Demand Notice, however, that (iB) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for all other Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (iithe same class or series as those requested to be registered by the Qualified Holder(s) the Holders will not be entitled to require which the Company has been requested to effect more than three register by the Demand Eligible Holders by written request (3the “Demand Eligible Holder Request”) Demand Registrations in given to the aggregate under this AgreementCompany within five Business Days after the giving of such written notice by the Company, and (iiiC) any Registrable Securities to be offered and sold by the Company will not be obligated Company, in each case subject to effect more than one Section 2(b)(ii), all to the extent required to permit the disposition (1in accordance with the intended methods of disposition) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such be so registered. The Holders’ rights to request a Demand Registration may set forth in this Section 2(b) shall not be in exercisable at any time if the form of an underwritten public offering (an “Underwritten Offering”). In such case, Company (i) the Company may designate the managing underwriter(s(x) is not in violation of the Underwritten Offeringits obligations to file a Shelf Registration Statement pursuant to Section 2(a) or (y) has a currently effective Shelf Registration Statement covering all Registrable Securities in accordance with Section 2(a), provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has otherwise complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)Agreement.
Appears in 1 contract
Samples: Registration Rights Agreement (Amplify Energy Corp.)
Demand Registration. (a) Subject to If the provisions hereofIssuer shall receive a written request by the DLJ Entities, at any time Chase, Summit on behalf of the Summit-Investors or after the date that is 180 days after the Closing Date Windx Xxxx Xxxestors (as defined provided in Section 5.13) (any such requesting Person, a "SELLING SHAREHOLDER") that the Merger Agreement), Issuer effect the Holders of a majority of Registrable Securities shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities registration under the Securities Act (of all or a “Demand Registration”) by delivering a written request therefor to the Company (i) portion of such Selling Shareholder's shares of Common Stock, and specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant thereof, following the earlier to occur of (i) October 5, 1999 or (ii) an Underwritten Offering (as defined below)Initial Public Offering, and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after then the receipt Issuer shall promptly give written notice of such demand, requested registration (a "DEMAND REGISTRATION") at least 30 days prior to the Company shall (x) promptly notify all Holders from whom anticipated filing date of the request for registration has not been received statement relating to such Demand Registration to the other Shareholders and (y) thereupon will use reasonable its best efforts to effect such effect, as expeditiously as possible, the registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act of:
(A) the Registrable Securities which the Issuer has been so requested to register by the Selling Shareholders, then held by the Selling Shareholders; and (B) subject to the cut back provisions set forth in Section 5.2, all other Registrable Securities of the same type (it being understood that voting and non-voting common stock will be considered the same type) as that to which the request by the Selling Shareholders relates which any other governmental requirements or regulationsShareholder entitled to request the Issuer to effect an Incidental Registration (as such term is defined in Section 5.2) pursuant to Section 5.2 (all such Shareholders, together with the Selling Shareholders, the "HOLDERS") has requested the Issuer to register by written request received by the Issuer within 15 days after the receipt by such Holders of such written notice given by the Issuer, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities that the Company has been so requested to registerbe registered; providedprovided that, however, that (isubject to Section 5.1(c) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000hereof, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iiiI) the Company will shall not be obligated to effect more than one three Demand Registrations for the Summit-Investors collectively, three Demand Registrations for the DLJ Entities collectively, three Demand Registrations for the Windx Xxxx Xxxestors collectively, or three Demand Registrations for Chase pursuant to this Section 5.1, and (1II) in addition to the foregoing rights, following the Short-Form Date, the number of Short-Form Demand Registrations for the DLJ Entities, Chase, the Summit-Investors and the Windx Xxxx Xxxestors pursuant to this Section 5.1 shall be unlimited; and provided further that the Issuer shall not be obligated to effect a Demand Registration with respect to Common Stock unless the aggregate proceeds expected to be received from the sale of the Common Stock requested to be included in such Demand Registration equal at least (x) if such Demand Registration would constitute an Initial Public Offering, $50,000,000, or (y) in any six (6) other Public Offering, $20,000,000. In no event will the Issuer be required to effect more than one Demand Registration within any 6 month period.
(b) The offering of the Registrable Securities pursuant to such Issuer will pay all Registration Expenses in connection with any Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the HoldersRegistration.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will requested pursuant to this Section 5.1 shall not be deemed to have been effected as a Demand Registration (i) unless the Registration Statement registration statement relating thereto (A) has been declared become effective by under the SEC, Securities Act and (B) has remained effective for a period of at least 75% 180 days (or such shorter period in which all Registrable Securities of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under registration have actually been sold thereunder); provided that if after any registration statement requested pursuant to this Agreement with respect thereto; provided, however, that if, after it has become effective, Section 5.1 becomes effective (ix) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder registration statement is or becomes the subject of interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or administrative agency, or if any court prevents or otherwise limits the sale and (y) less than 75% of the Registrable Securities pursuant to the registration, and included in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will statement has been sold thereunder, such registration statement shall not be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as considered a Demand Registration or (ii) if the Maximum Offering Size (as defined below) is reduced in accordance with Section 5.1(d) such that less than 66 2/3% of the Registrable Securities of the Selling Shareholders sought to be included in such registration are included.
(d) If a Demand Registration involves an Underwritten Public Offering and the managing underwriter shall advise the Issuer and the Selling Shareholders that, in its view, (i) the number of shares of Common Stock or Warrants requested to be included in such registration (including Common Stock or Warrants which the Issuer proposes to be included which are not Registrable Securities) or (ii) the inclusion of some or all of the shares of Common Stock or Warrants owned by the Holders, in any such case, exceeds the largest number of shares which can be sold without having an adverse effect on such offering, including the price at which such Shares can be sold (the "MAXIMUM OFFERING SIZE"), the Issuer will include in such registration, in the priority listed below, up to the Maximum Offering Size:
(A) first, all Registrable Securities requested to be registered by any Selling Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Selling Shareholders on the basis of the relative number of Registrable Securities so requested to be included in such registration); (B) second, all Registrable Securities requested to be included in such registration by any other Holder (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such other Holders on the basis of the relative number of Registrable Securities so requested to be included in such registration); and (C) third, any Common Stock proposed to be registered by the Issuer.
(e) Upon written notice to each Selling Shareholder, the Issuer may postpone effecting a registration pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement 5.1 on one occasion during any period of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect six consecutive months for a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described reasonable time specified in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause notice but not exceeding 90 days (ii) of the proviso to Section 4.2(a).which
Appears in 1 contract
Samples: Investors' Agreement (Doane Pet Care Enterprises Inc)
Demand Registration. (a) Subject to the provisions hereof, at At any time on or after the date that is 180 days after following the Closing Date (and so many times as defined in may be required for the Merger Agreement)disposition of all Registrable Securities, each of TDR and the Initiating Holders of may give a majority of Registrable Securities shall have the right written request to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities effect the registration under the Securities Act (a “Demand Registration”) by delivering a of all or any portion of such Holder’s Registrable Securities, which written request therefor to the Company (i) specifying shall specify the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether registered and the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect each such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested shall be referred to register; provided, however, that (i) the Holders shall not make herein as a request for a “Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten OfferingRegistration”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, ; provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offeringthat, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of2.1(d), the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect any Demand Registration (w) with respect to Registrable Securities that are subject to transfer restrictions pursuant to the Subscription Agreement, (x) with respect to Registrable Securities that are held in escrow under the Escrow Agreement, (y) within 90 days after the effective date of a previous Registration Statement (or participate (asuch shorter period as the Company may determine in its sole discretion) more than two (2) Underwritten Offerings in any twelve (12) month periodpursuant to which the Holders were permitted to register the offer and sale under the Securities Act, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, actually sold at least 75% of the Registrable Securities requested to be included therein or (z) as provided in Section 2.1(f). Thereafter, the Company shall promptly, and in any event, within five (5) days after receiving such request, give written notice of the proposed registration to all other Holders and use its reasonable efforts to effect, as soon as practicable, the registration under the Securities Act of:
(i) all Registrable Securities for which any Holder has requested registration under this Section 2.1;
(ii) all Registrable Securities held by any other Holder specified in a written request received by the Holders are Company within five (5) days after written notice regarding such registration from the Company is delivered; and
(iii) any Common Stock to be offered or sold by the Company; to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities to be so registered. At any time the Company is eligible for use of an Automatic Shelf Registration Statement, if specified in such notice for a Demand Registration, such registration shall occur on such form.
(b) At any time prior to the effective date of the Registration Statement relating to such Demand Registration, any requesting Holder may, upon notice to the Company, revoke their request in whole or in part with respect to the number of shares of Registrable Securities requested to be included in such registrationRegistration Statement.
(c) The Company shall be liable for and pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Demand Registration becomes effective.
(d) A Demand Registration shall not be deemed to have occurred:
(i) unless the Registration Statement relating thereto (A) has become effective under the Securities Act and (B) has remained continuously effective for a period of at least (x) 180 days (or such shorter period in which all Registrable Securities of the Company has complied Holders included in all material respects with its obligations under this Agreement such registration have actually been sold thereunder) or (y) with respect theretoto a Shelf Registration, until the date set forth in Section 2.5(a)(ii); provided, however, provided that such Registration Statement shall not be considered a Demand Registration if, after it has become such Registration Statement becomes effective, (i1) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case (2) less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 75% of the Registrable Securities included in such registrationRegistration Statement have been sold thereunder; or
(ii) if the Maximum Offering Size is reduced in accordance with Section 2.1(e) such that less than 66.67% of the Registrable Securities of the Holders sought to be included in such registration are included.
(e) The Company shall not include in any Demand Registration or Shelf Registration any securities that are not Registrable Securities without the prior written consent of the selling Holders. In circumstances not including If a Demand Registration involves a Public Offering and the events described lead managing underwriter advises the Company and the selling Holders that, in its view, the immediately two preceding sentences number of this Section 4.2(d), each Holder shares of Registrable Securities requested to be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having a material and adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall be permitted voluntarily include in such registration, up to withdraw the Maximum Offering Size, first, all or any part of its Registrable Securities from requested to be registered by the Holders, based on the pro rata percentage of Registrable Securities held by such Holders (determined based on the aggregate number of Registrable Securities held by each such Holder) and second, any securities proposed to be registered by the Company.
(f) The Company may postpone for up to 60 days (i) the filing or effectiveness of a Registration Statement for a Demand Registration at any time prior to or Shelf Registration or (ii) the commencement of marketing a Shelf Public Offering if the Board of Directors of the Company determines in its reasonable good faith judgment that such Demand Registration, provided Shelf Registration or Shelf Public Offering, as applicable, (i) materially interferes with a significant acquisition, corporate organization, financing, securities offering or other similar transaction involving the Company; (ii) requires premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) renders the Company unable to comply with requirements under the Securities Act or Exchange Act; provided, that in such registration nonetheless event TDR or the Initiating Holders, as applicable, shall count as be entitled to withdraw such request and, if such request for a Demand Registration for purposes of clause (ii) is withdrawn, such Demand Registration shall not count as one of the proviso to Section 4.2(a)permitted Demand Registrations hereunder and the Company shall pay all registration expenses in connection with such registration. The Company may delay a Demand Registration, Shelf Registration or Shelf Public Offering hereunder only twice in any period of twelve (12) consecutive months.
Appears in 1 contract
Demand Registration. (a) Subject to the provisions hereof, at i. At any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement)and from time to time, the Holders BDI may make a written demand for one underwritten registration of a majority of Registrable Securities shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective its Registrable Securities under the Securities Act (any such registration, a “Demand Registration” and the registration statement relating thereto, a “Demand Registration Statement”). Any demand for a Demand Registration shall specify the number of shares of Registrable Securities proposed to be sold and the intended method(s) of distribution thereof. The Issuer will notify all other Investors who are holders of Registrable Securities of the demand, and each such other Investor who wishes to include all or a portion of such Investor’s Registrable Securities in the Demand Registration (each such holder including shares of Registrable Securities in such registration, a “Demanding Holder”) shall so notify the Issuer within fifteen (15) days after the receipt by delivering such holder of the notice from the Issuer. Upon any such request, the Issuer will use its reasonable best efforts to effect, as promptly as practicable, the registration under the Securities Act of the Registrable Securities which the Issuer has been so requested to register, subject to Sections 2(a) (iii), 3(a)(iv), 3(a)(v) and 6(c). All Demanding Holders proposing to distribute their securities through such underwriting shall complete and execute all questionnaires, powers of attorney, indemnities, underwriting agreements (with the Underwriter or Underwriters selected for such underwriting by the Issuer (in the case of an offering in which the Issuer does not intend to offer any of its capital stock for sale, with the consent of BDI, such consent not to be unreasonably withheld)) and other documents reasonably required under the terms of the applicable underwriting arrangements and shall take such other actions as are reasonably required in order to expedite or facilitate the disposition of the Registrable Securities included in such underwriting.
ii. A registration will count as a written Demand Registration if (A) the Registration Statement is filed with the Commission with respect to such Demand Registration and has been declared effective, (B) the Registration Statement is withdrawn after filing at the request therefor of a majority-in-interest of the Demanding Holders or (C) the Registration Statement is withdrawn prior to filing at the Company request of majority-in-interest of the Demanding Holders and the Demanding Holders fail to reimburse the Issuer for the Registration Expenses incurred by the Issuer in connection therewith within 30 days of receipt of a reasonably detailed invoice therefor; provided, however, that if, after such Registration Statement has been declared effective, the offering of Registrable Securities pursuant to a Demand Registration is interfered with by any stop order or injunction of the Commission or any other governmental agency or court, the Registration Statement with respect to such Demand Registration will be deemed not to have been declared effective, unless and until, (i) specifying such stop order or injunction is removed, rescinded or otherwise terminated, and (ii) a majority-in-interest of the Demanding Holders thereafter elect to continue the offering; provided, further, that the Issuer shall not be obligated to file a second Registration Statement until a Registration Statement that has been filed is counted as a Demand Registration or is terminated.
iii. If in the sole discretion of the managing Underwriter or Underwriters the registration of all, or part of, the Registrable Securities which BDI and any other Investors requested to be included would adversely affect such public offering, then the Issuer shall be required to include in the underwriting only that number of Registrable Securities, if any, which the managing Underwriter or Underwriters believe may be sold without causing such adverse effect. If the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement underwriting in accordance with applicable lawthe foregoing is less than the total number of shares which BDI and such other Investors have requested to be included, then BDI and such other Investors shall participate in the underwriting pro rata based upon their total ownership of Registrable Securities. As soon Any such limitation shall be imposed in such manner so as practicable after to avoid any diminution in the receipt number of such demandshares the Issuer may register for sale by giving first priority for the shares to be registered for issuance and sale by the Issuer and the Underwriter, and by giving second priority for the Company shall (x) promptly notify all Holders from whom shares to be registered for sale by BDI and the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) Investors.
iv. If BDI disapproves of the terms of any underwriting or is not entitled to include all of its Registrable Securities that in such underwritten offering, BDI may elect to withdraw from such offering by giving written notice to the Company has been so requested Issuer and the Underwriter or Underwriters of its request to register; provided, however, that (i) withdraw prior to the Holders shall not make filing of the Registration Statement. If BDI withdraws from a request for proposed offering relating to a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will because it is not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering include all of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by due to the Company on its own behalf or on behalf inclusion of securities to be sold for the account of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full CooperationIssuer, then such registration will be deemed shall not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected count as a Demand Registration or (ii) the registration requested pursuant Registration. No other withdrawal by an Investor from a proposed offering relating to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that cause such registration nonetheless shall not to count as a Demand Registration except for purposes a Registration Statement that is withdrawn prior to filing at the request of clause (ii) majority-in-interest of the proviso Demanding Holders and as to Section 4.2(a)which the Demanding Holders reimburse the Issuer for the Registration Expenses incurred by the Issuer in connection therewith within 30 days of receipt of a reasonably detailed invoice therefore.
Appears in 1 contract
Samples: Registration Rights Agreement (Comstock Homebuilding Companies, Inc.)
Demand Registration. (a) Subject to the provisions hereof, at any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement)Restricted Term, the Holders Investor and any Permitted Transferee of the Investor (each a “Holder”) holding, collectively, a majority of the Registrable Securities then outstanding shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective the Shares held by or issuable to them (collectively, the “Registrable Securities Securities”) under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an underwritten public offering of Ordinary Shares by the Company (an “Underwritten Offering (as defined belowOffering”), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable lawLaw. As soon as practicable after the receipt of such demand, the The Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use commercially reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws Laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to registerregister as soon as practicable (and in any case by the applicable Filing Date); provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a2.1(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the 25,000,000. The Holders will not shall be entitled to require the Company to effect more than three two (32) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The If the offering of the Registrable Securities pursuant to such Demand Registration may be in the form of is an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate shall select the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the CompanyHolders of a majority of the Registrable Securities to be sold in the Underwritten Offering, which such approval shall not to be unreasonably withheld withheld, conditioned or delayed delayed, and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings by a selling holder of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectusProspectus, final prospectusProspectus, summary prospectusProspectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with a Demand Registration in the form of an Underwritten Offering, the managing underwriter(s) advise give written advice to the Company that in its or their reasonable opinion of the number of securities proposed to be included in which such registration exceeds should, in the opinion of the managing underwriter(s) of such registration, in light of marketing factors, be limited (an “Underwriters’ Maximum Number”), then the Company shall (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that registration (a) first, the number of Registrable Securities securities requested to be included therein by holder(s) of Company securities having contractual rights to include Company securities in such registration (including, for the avoidance of doubt, the rights provided under the Investors’ Rights Agreement, dated as of August 14, 2015, by and between the Company and the investors party thereto (the “Prior Rights Holders”)) with priority over the Holders thereof with respect to such registration, and (b) second, the number of securities requested to be included in such registration that does not exceed such Underwriters’ Maximum Number, such by all Holders of Registrable Securities to be allocated included in such Underwritten Offering, pro rata among the Holders thereof on the basis of the aggregate number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in , and on a Demand Registration without the prior written consent of pari passu basis with the holders of a majority in interest contractual registration rights provided under the Share Purchase Agreement by and between the Company and C.P. Pharmaceuticals International C.V. dated as of May 6, 2016 (the Registrable Securities“Pfizer Holders”).
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least seventy five percent (75% %) of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registrationregistration (each, an “Interference”), which Interference does not result from any act or omission of any Holder whose Registrable Securities are registered pursuant to such Registration Statement and is not cured within forty five (45) days thereof, and (ii) in each case less than all seventy five percent (75%) of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) the last sentence of the proviso to Section 4.2(a2.1(a). If (i) a registration requested pursuant to this Section 4.2 2.1 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 2.1 does not remain continuously effective until forty-five (45) days after the commencement completion of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 2.1 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d2.1(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) the last sentence of the proviso to Section 4.2(a2.1(a).
Appears in 1 contract
Demand Registration. (a) Subject In the event that following the period the Holder is prohibited from selling the Registrable Securities by the provisions of the underwriting agreement relating to the provisions hereofInitial Public Offering, at any time on Holder or after the date that is 180 days after the Closing Date Holders (as defined in the Merger Agreement), the Holders of a majority i) desire to sell shares of Registrable Securities shall have owned by such Holder or Holders and (ii) an exemption from registration under the right Securities Act or the rules and regulations promulgated thereunder, including, without limitation, Rule 144 (or any successor rules or regulation thereto), is not available to require enable the Holder or Holders to dispose of the number of shares of Registrable Securities it desires to sell at the time and in the manner it desires to do so, then upon the written request of any Holder or Holders requesting that the Company to file a Registration Statement registering for sale effect the registration under the Securities Act of all or part of their respective such Holder's or Holders' Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) and specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant thereof, but subject to an Underwritten Offering (as defined below)the limitations set forth herein, the Company will promptly give written notice of such requested registration to all other Holders of Registrable Securities, and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance the Company shall file with applicable law. As soon the Commission as promptly as practicable after the receipt of sending such demandnotice, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable its best efforts to effect such cause to become effective, a registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued statement under the Securities Act registering the offering and any other governmental requirements or regulationssale of:
(i) of the Registrable Securities that which the Company has been so requested to registerregister by such Holder or Holders; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, and
(ii) the Holders will not be entitled to require all other Registrable Securities which the Company has been requested to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) register by any other Holder thereof by written request given to the Company will not be obligated within 15 days after the giving of such written notice by the Company (which request shall specify the intended method of disposition of such Registrable Securities), all to effect more than one the extent necessary to permit the disposition (1in accordance with the intended method thereof as aforesaid) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant so to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreementregistered; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect file a registration statement relating to any registration request under this Section 2(a) (A) unless the aggregate requests by the Holder or participate Holders for such registration cover not less than 5.0% of the outstanding Common Stock, (aB) with respect to more than two an aggregate of 3 registrations (2which shall be increased to an unlimited number of registrations if such additional registrations are effected on Form S-3 or any successor similar short-form registration statement) Underwritten Offerings in under this Section 2(a), (C) within a period of 180 days after the effective date of any twelve other registration statement relating to any registration request under this Section 2(a), or (12D) month periodif with respect thereto, the managing underwriter, the Commission, the Securities Act or the rules and (b) in any Underwritten Offering during any lock-up period required by regulations thereunder, or the underwriter(s) in any prior underwritten offering form on which the registration statement is to be filed, would require the conduct of an audit other than the regular audit conducted by the Company on at the end of its own behalf or on behalf fiscal year, in which case the filing may be delayed until the completion of such regular audit (unless the Holders requesting such registration agree to pay the expenses of the Holders.
(c) If, Company in connection with such an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person audit other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(aregular audit).
Appears in 1 contract
Samples: Registration Rights Agreement (Provantage Health Services Inc)
Demand Registration. (a) Subject Except as provided in Section 2.2(b) below, upon the written request of the Holder, which request shall specify the Registerable Securities so requested to the provisions hereof, at any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement)be registered by Holder, the Holders of a majority of Registrable Securities shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether Proposed Amount thereof and the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demandby Holder, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) will, as expeditiously as reasonably possible, use reasonable its best efforts to effect such the registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that resale of the Company has been so requested to registerProposed Amount of Registerable Securities, for disposition in accordance with the intended method of disposition stated in such request; provided, however, however that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations if in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering good faith judgment of the Registrable Securities pursuant to such Demand Registration may be in the form Board of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval Directors of the Company, which approval shall not such registration would be unreasonably withheld or delayed detrimental to the Company and the Board of Directors of the Company concludes, as a result, that it is in the best interests of the Company to defer the filing of such registration statement at such time, and (ii) the Company shall (together with furnish to the Holders proposing Holder a certificate signed by an executive officer of the Company that the Board of Directors of the Company has made such a determination and that it is, therefore, necessary to distribute their securities through defer the filing of such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with registration statement, then the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement Company shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; providedright to defer such filing for the period during which such registration would be detrimental, provided that (i) the representations and warranties by, and the other agreements on the part of, the Company to and may not defer the filing for the benefit a period of more than 120 days after receipt of the underwriter(s) shall also be made to and for the benefit request of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreementHolder. The Company shall not be obligated entitled to effect or participate (a) more than two (2) Underwritten Offerings include in any twelve registration statement filed pursuant to this Section 2.2: (12A) month periodsecurities of the Company held by any other security holder of the Company, and (bB) in any Underwritten Offering during any lock-up period required by an underwritten public offering, securities of the underwriter(s) in any prior underwritten offering conducted Company to be sold by the Company on for its own behalf or on behalf account, except as and to the extent that (x) in the opinion of the Holders.
managing underwriter (c) Ifif such method of disposition shall be an underwritten public offering), in connection with an Underwritten Offering, such inclusion would adversely affect the managing underwriter(s) advise marketing of the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Registerable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested sold by the Holders thereof to be included Holder or (y) in the reasonable opinion of the Holder (if such registration that does method of disposition is not exceed such Underwriters’ Maximum Numberan underwritten public offering), such Registrable inclusion would adversely affect the price at which such Registerable Securities may be sold pursuant to be allocated pro rata among the Holders thereof on the basis plan of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect theretodistribution; provided, however, that if, after such registration statement has been filed, the managing underwriter believes that the inclusion of all securities requested to be included in the proposed underwritten public offering would adversely affect the marketing of the Registerable Securities or, in the case of a distribution that is not an underwritten public offering, if the Holder reasonably believes that the inclusion of all securities requested to be included in such registration statement would adversely affect the price at which the Registerable Securities may be sold pursuant to the plan of distribution, then the aggregate amount of securities to be offered by the Company and such other security holders of the Company shall be reduced so as to permit the offering of all Registerable Securities requested by the Holder without such adverse effects.
(b) The Company shall not be obligated to take any action to effect any registration requested by the Holder pursuant to Section 2.2(a) hereof (i) after the Company has effected two (2) such registrations pursuant to this Agreement and each such registration has been declared or ordered effective, (ii) for a period of two (2) years after the Company has effected one such registration pursuant to Section 2.2(a) hereof and such registration has been declared or ordered effective, such two year period to commence on the date the registration statement was declared or ordered effective or (iii) at any time after the second anniversary of the expiration date of the Warrant.
(c) Notwithstanding any other provision of this Agreement to the contrary, a registration requested pursuant to this Section 2.2 shall not be deemed to have been effected (i) unless it has become effective, provided that a registration that does not become effective after the Company has filed a registration statement with respect thereto by reason of the refusal of Holder to proceed shall be deemed to have been effected by the Company unless the Holder shall have elected to pay all Company Registration Expenses in connection with such registration, (iii) if after it has become effective such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder registration is or becomes the subject of interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or administrative agency, court for any reason other than a misrepresentation or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered an omission by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration StatementHolder, or (iiiii) if, if the conditions to closing specified in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then purchase agreement or underwriting agreement entered into in connection with such registration will be deemed are not to have been effected for purposes satisfied other than by reason of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration some wrongful act or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution omission, or act or omission in bad faith, by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)Holder.
Appears in 1 contract
Samples: Registration Rights Agreement (General Electric Capital Corp)
Demand Registration. (a) On or prior to each Filing Date, the Company shall prepare and file with the Commission a Registration Statement covering the resale of all of the Registrable Securities that are not then registered on an effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. Each Registration Statement filed hereunder shall be on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, subject to the provisions of Section 2(e)) and shall contain (unless otherwise directed by at least 85% in interest of the Holders or to make any disclosure contained therein not misleading) substantially the “Plan of Distribution” attached hereto as Annex A and substantially the “Selling Stockholder” section attached hereto as Annex B; provided, however, that no Holder shall be required to be named as an “underwriter” without such Holder’s express prior written consent. Subject to the provisions hereof, at any time on or after the date that is 180 days after the Closing Date (as defined in the Merger terms of this Agreement), the Holders of a majority of Registrable Securities Company shall have the right use its reasonable best efforts to require the Company to file cause a Registration Statement registering for sale all or part of their respective Registrable Securities filed under this Agreement (including, without limitation, under Section 3(c)) to be declared effective under the Securities Act as promptly as possible after the filing thereof, but in any event no later than the applicable Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act until the date that all Registrable Securities covered by such Registration Statement (a “Demand Registration”i) have been sold, thereunder or pursuant to Rule 144, or (ii) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by delivering a written request therefor the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders (ithe “Effectiveness Period”). The Company shall notify the Holders via e-mail of the effectiveness of a Registration Statement as promptly as practicable, and shall, if requested, provide the Holders with copies of the final Prospectus to be used in connection with the sale or other disposition of the securities covered thereby.
(b) specifying Notwithstanding the registration obligations set forth in Section 2(a), if the Commission informs the Company that all of the Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly inform each of the Holders thereof and use its reasonable best efforts to file an amendment or amendments to the Initial Registration Statement as required by the Commission, covering the maximum number of Registrable Securities permitted to be registered by the Commission, on Form S-3 or such other form available to register for resale the Registrable Securities as a secondary offering, subject to the provisions of Section 2(e); and subject to the provisions of Section 2(d) with respect to payment of liquidated damages with respect to filing on Form S-3 or other appropriate form; provided, however, that prior to filing such amendment, the Company shall be obligated to use diligent efforts to advocate with the Commission for the registration of all of the Registrable Securities in accordance with the SEC Guidance, including without limitation, Securities Act Rules Compliance and Disclosure Interpretation 612.09.
(c) Notwithstanding any other provision of this Agreement and subject to the payment of liquidated damages pursuant to Section 2(d), if the Commission or any SEC Guidance sets forth a limitation on the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering (and notwithstanding that the Company used diligent efforts to advocate with the Commission to maximize the number of Registrable Securities to be registered), unless otherwise directed in writing by a Holder as to its Registrable Securities, the number of Registrable Securities to be registered on such Registration Statement will be reduced as follows:
(i) First, the Company shall reduce or eliminate any securities to be included in such registration by such Holder or Holders, other than Registrable Securities; and
(ii) specifying whether Second, the intended method Company shall reduce Registrable Securities represented by Warrant Shares (applied, in the case that some Warrant Shares may be registered, to the Holders on a pro rata basis based on the total number of disposition thereof is pursuant unregistered Warrant Shares held by such Holders). In the event of a reduction hereunder, the Company shall give the Holder at least five (5) Trading Days’ prior written notice along with the calculations as to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Xxxxxx’s allotment. In the event the Company amends the Initial Registration Statement in accordance with the foregoing, then the Company shall use its reasonable best efforts to file with the Commission, as promptly thereafter as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on Form S-3 or such other form available to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended.
(d) If: (i) the Initial Registration Statement is not filed on or prior to its Filing Date (if the Company files the Initial Registration Statement without affording the Lead Investors the opportunity to review and comment on the same as required by Section 3(a) herein, the Company shall be deemed to have not satisfied this clause as of the Filing Date (i)), (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the Securities Act, within five (5) Trading Days of the date that the Company is notified in writing by the Commission that such Registration Statement will not be “reviewed” or will not be subject to further review, (iii) a Registration Statement registering for resale all of the Registrable Securities is not declared effective by the Commission by the Effectiveness Date of the Initial Registration Statement or (iv) after the effective date of a Registration Statement, such Registration Statement ceases for any reason to remain continuously effective as to all Registrable Securities included in such Registration Statement, or the Holders are otherwise not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowed Delay), for more than fifteen (15) consecutive calendar days or more than an aggregate of twenty (20) calendar days (which need not be consecutive calendar days) during any 12-month period (any such failure or breach being referred to as an “Event”, and for purposes of clauses (i) and (iii), the date on which such Event occurs, and for purpose of clause (ii) the date on which such five (5) Trading Day period is exceeded, and for purpose of clause (iv) the date on which such fifteen (15) or twenty (20) calendar day period, as applicable, is exceeded being referred to as “Event Date”), then, in addition to any other rights the Holders may have hereunder or under applicable law, on each such Event Date and on each monthly anniversary of each such Event Date (if the applicable Event shall not have been cured by such date) until the applicable Event is cured, the Company shall pay to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to the product of 2.0% multiplied by the aggregate Subscription Amount paid by such Holder pursuant to the Purchase Agreement. As soon as practicable The parties agree that the maximum aggregate liquidated damages payable to a Holder under this Agreement shall be 12.0% of the aggregate Subscription Amount paid by such Holder pursuant to the Purchase Agreement. If the Company fails to pay any partial liquidated damages pursuant to this Section in full within seven Trading Days after the receipt date payable, the Company will pay interest thereon at a rate of 18% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro rata basis for any portion of a month prior to the cure of an Event. The parties agree that notwithstanding anything to the contrary herein or in the Purchase Agreement, no liquidated damages shall be payable (i) if as of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Holder and the Company’s transfer agent, if any, (ii) to a Holder with respect to an Event caused by any action of such demandHolder or failure of such Holder to take any action that such Xxxxxx is required to take hereunder, or (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities because of possession of material non-public information.
(e) If Form S-3 is not available for the registration of the resale of Registrable Securities hereunder, the Company shall (xi) promptly notify all Holders from whom register the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) resale of the Registrable Securities that the Company has been so requested to register; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the on another appropriate form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) undertake to register the Registrable Securities on Form S-3 as soon as such form is available, provided that the Company shall (together with maintain the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit effectiveness of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter Registration Statement then in effect until such time as a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or Statement on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of Form S-3 covering the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required has been declared effective by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the HoldersCommission.
(cf) IfNotwithstanding anything to the contrary contained in this Agreement, in connection with an Underwritten Offering, the managing underwriter(s) advise no event shall the Company that in its be permitted to name any Holder or their reasonable opinion the number affiliate of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by a Holder as any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration underwriter without the prior written consent of the holders of a majority in interest of the Registrable Securitiessuch Holder.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a).
Appears in 1 contract
Samples: Registration Rights Agreement (Harpoon Therapeutics, Inc.)
Demand Registration. (a) Subject to the provisions hereof, at any time on or On and after the date that is 180 days after end of the Closing Date (as defined in the Merger Agreement)Earn Out Period, the Holders of Stockholders’ Representative may in his sole and absolute discretion request in a majority of Registrable Securities shall have the right to require written notice that the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities registration statement under the Securities Act (or a “Demand Registration”) by delivering a written request therefor similar document pursuant to any other statute then in effect corresponding to the Company (iSecurities Act) specifying covering the number registration of any or all Registrable Securities to Stock held by the Stockholders; provided, that there must be included in such registration Registrable Stock having a minimum value of Ten Million Dollars ($10,000,000) (based on the then current market price of such Registrable Stock) or such lesser amount if it constitutes all of the Registrable Stock held by such Holder Shareholders participating in the registration (the “Registration Threshold”); provided, that the Registration Threshold shall be increased to Twenty Million Dollars ($20,000,000) or Holderssuch lesser amount if it constitutes all of the Registrable Stock held by such Shareholders participating in the registration, but in no event less than a minimum value of Five Million Dollars (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below$5,000,000), and if the Company is not eligible to register the sale or other disposition of Registrable Securities on Form S-3 (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable lawor a successor form). As soon as practicable after the Following receipt of such demandany notice under this Section 5.1, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use its reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued cause to be registered under the Securities Act and any other governmental requirements or regulations) of the all Registrable Securities Stock that the Company has been so Stockholders have requested be registered in a manner of disposition reasonably acceptable to register; providedthe Company, howeverincluding but not limited to, that an offering on a delayed or continuous basis pursuant to Rule 415 (ior any successor rule) under the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month periodAct.
(b) The offering of If the Company intends to have the Registrable Securities pursuant to such Demand Registration may be in the form Stock distributed by means of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval Stockholders shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the underwriter or underwriters. If any Stockholder who intends to sell Registrable Securities in the offering disapproves of the terms of the underwriting, such Stockholder may elect to withdraw all its Registrable Stock from the registration by written notice to the Company and the managing underwriter(sunderwriter. The underwriters shall be selected by the Company in its sole discretion.
(c) proposing Notwithstanding any provision of this Agreement to distribute their the contrary,
(i) the Company shall not be required to effect a registration pursuant to this Section 5.1 during the period starting with the date of filing by the Company of, and ending on a date 120 days following the effective date of, a registration statement pertaining to a public offering of securities through such Underwritten Offeringfor the account of the Company or on behalf of the selling stockholders under any other registration rights agreement which the Stockholders have been entitled to join pursuant to Section 5.2;
(ii) if the Board determines in good faith that it is in the best interests of the Company (A) not to disclose the existence of facts surrounding any proposed or pending acquisition, which underwriting agreement shall have indemnification provisions in substantially disposition, strategic alliance or financing transaction or other potential material event involving the form as Company or (B) to suspend the registration rights set forth in herein, the Company may (1) postpone the filing of any registration pursuant to this Section 4.9 5.1 and (2) suspend the rights of this Agreementany Stockholder to make sales pursuant to any registration statement for such a period of time as the Board may determine; provided, that (i) such periods of postponement and suspension may not exceed 120 days in the representations aggregate during any period of 12 consecutive months; and warranties by, and each Stockholder agrees in consideration of the other agreements obligations of the Company set forth herein to maintain any communication by the Company with respect to the postponement or suspension of the any registration pursuant to this Section 5.1 in confidence such that the Company may rely on the part ofsafe harbor provisions of Rule 100(b)(2)(ii) of Regulation FD under the Exchange Act with respect to such communications; provided, further, that in the event the Company shall give such notice, the Company to and for shall extend the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder period during which such registration statement shall be required to make any representations and warranties to, or agreements with, any underwriter maintained effective as provided in a Section 5.3(a) by the number of days by which the Company suspends such registration other than customary representations, warranties and agreements and statement; and
(iii) the liability of each Holder Company shall not be required to effect a registration pursuant to this Section 5.1 more than one time in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) twelve-month period and shall not be limited obligated to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made cause any audit to be undertaken in such Registration Statement, connection with any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to registration that the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall is not otherwise required to undertake at that time in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell connection with its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required obligations under the terms of such underwriting agreement. Securities Act, the Exchange Act and the rules and regulations thereunder.
(d) The Company shall not be obligated to effect or participate (a) and pay for more than two (2) Underwritten Offerings in any twelve (12) month periodthree registrations pursuant to this Section 5.1; provided, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed a registration requested pursuant to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company this Section 5.1 shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration for purposes of this Section 5.1(d) unless the Registration Statement relating thereto (i) it has been declared effective by the SECCommission, at least 75% of (ii) it has remained effective for the Registrable Securities requested to be included period set forth in the registration by the Holders are included in such registrationSection 5.3(a), and (iii) the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution offering of Registrable Securities thereunder Stock pursuant to such registration is or becomes the not subject of to any stop order, injunction or other order or requirement of the SEC or Commission (other than any other governmental or administrative agencysuch stop order, injunction, or if any court prevents or otherwise limits the sale other requirement of the Registrable Securities pursuant to the registration, and in each case less than all Commission prompted by any act or omission of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder holders of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(aStock).
Appears in 1 contract
Demand Registration. (a) Subject In addition to the provisions hereof, at any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement)Section 10.01, the Majority Holders of as a majority of Registrable Securities group, shall have the right (though such right need not be jointly exercised by the Holders of the Certificates), on not more than one occasion in the aggregate (except as provided in clause (d) below) (it being understood and agreed that two or more Holders of Certificates may make a joint Demand hereunder or any Holder of Certificates may join in a Demand made by any other Holder of Certificates, and any such joint Demand or joining in of a Demand shall be deemed to be a single Demand for all purposes hereof), and no more than once during any six-month period, to require the Company to file a Registration Statement registering register for offer and sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”"Demand") all or a portion of the Certificate Shares held, or represented by delivering a written request therefor Certificates held by such Holders, subject to the Company (i) specifying restrictions set forth herein; provided that no Holders of Certificates shall be entitled to make a Demand hereunder unless the number aggregate offering price of Registrable Securities the securities to be included offered in such registration by Demand (net of underwriting discounts and commissions) exceeds the amounts set forth below depending on the time such Holder or HoldersDemand is exercised, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. follows: As soon promptly as practicable after the receipt Company receives from a Holder of such demandCertificates (together with any other Holder who elects to participate in the registration requested under the Demand, the "Demanding Holder") a notice pursuant to this Section 10.02(a) (a "Demand Notice"), a copy of which shall have also been delivered to each of the other Holders of Certificates at the same time as to the Company, demanding that the Company register for offer and sale under the Securities Act Certificate Shares, subject to Section 10.02(b), the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (yi) use all reasonable best efforts to effect file as promptly as reasonably practicable with the Commission a Registration Statement relating to the offer and sale of the Applicable Securities on such registration form as the Company may reasonably deem appropriate (includingprovided that the Company shall not, without limitationunless the Company otherwise determines, appropriate qualification under applicable blue sky be obligated to register any securities on a "shelf" Registration Statement or other state otherwise to register securities laws for offer or sale on a continuous or delayed basis and appropriate compliance with applicable regulations issued the Company actually maintains such "shelf" Registration Statement effective) and, thereafter, (ii) after the filing of an initial version of the Registration Statement, use reasonable efforts to cause such Registration Statement to be declared effective under the Securities Act and any other governmental requirements or regulations) as promptly as practicable after the date of the Registrable Securities that the Company has been so requested to registerfiling of such Registration Statement; provided, however, that no Demanding Holder shall be entitled to be named as a selling securityholder in the Registration Statement or to use the Prospectus forming a part thereof for resales of Certificate Shares unless such Demanding Holder has made an Election. Subject to Section 10.02(b), the Company shall use reasonable efforts to keep each Registration Statement continuously effective in order to permit the Prospectus forming a part thereof to be usable by such Demanding Holder or Holders for resales of Certificate Shares for an Effectiveness Period ending on the earlier of (i) 30 days from the Holders shall not make a request for a Demand Effective Time of such Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, Statement and (ii) such time as all of such Certificate Shares have been disposed of by the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month periodselling Holders.
(b) The offering Company shall have the right to postpone (or, if necessary or advisable, withdraw) the filing, or delay the effectiveness, of a Registration Statement, or fail to keep such Registration Statement continuously effective or not amend or supplement the Registrable Securities pursuant Registration Statement or included Prospectus, if the Company determines based upon the advice of counsel that it would be advisable to such Demand Registration may be not disclose in the form of an underwritten public offering (an “Underwritten Offering”). In such caseRegistration Statement a planned or proposed financing, (i) the Company may designate the managing underwriter(s) of the Underwritten Offeringacquisition or other corporate transaction or other material information, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with have determined in good faith that such disclosure is not in the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings best interests of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) its stockholders; provided that no one such postponement shall also be made to exceed 90 days in any six-month period and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of all such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) postponements shall not exceed 180 days in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreementaggregate. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf advise each of the HoldersDemanding Holders in writing of any such determination as promptly as practicable after such determination.
(c) If, in In connection with an Underwritten Offeringunderwritten offering, if the managing underwriter(s) underwriter or underwriters advise the Company that in its or their reasonable opinion the number of securities proposed Applicable Securities subject to a Demand exceeds the number which can be included sold in such registration exceeds the Underwriters’ Maximum Numberoffering, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that Registration the number of Registrable Applicable Securities requested by that, in the Holders thereof to opinion of such managing underwriter or underwriters, can be included sold in such registration that does not exceed such Underwriters’ Maximum Numberoffering (provided that, such Registrable in the event of a joint Demand, the Applicable Securities to included shall be allocated pro rata among the Demanding Holders thereof on the basis of the relative number of Registrable Applicable Securities each such Demanding Holder has requested to be included therein by each in such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable SecuritiesRegistration).
(d) The Company may include in any Registration requested pursuant to Section 10.02(a) hereof other securities for sale for its own account or for the account of another Person, subject to the provisions of the following sentence. In connection with an underwritten offering, if the managing underwriter or underwriters advise the Company that in its or their opinion the number of Applicable Securities requested by the Demanding Holders, together with other securities for sale for the account of the Company or any other Person, to be registered exceeds the number which can be sold in such offering, the Company shall include in such Registration the number of Applicable Securities and other securities that, in the opinion of such managing underwriter or underwriters, can be sold in such offering as follows: (i) first, shares requested to be included in such underwritten offering by any securityholder of the Company other than the Holder (each an "Other Registering Stockholder") possessing contractual rights to have its shares included in such offering prior to the Applicable Securities, on the date hereof, (ii) second, the Applicable Securities requested to be registered by the Demanding Holder and (iii) third, any other securities requested to be included in such Registration. In the event that 20% or more of the Certificate Shares requested by the Holders to be included in such Demand initiated by the Holders are excluded therefrom and securities held by other security holders (other than the Holders) are included in such Demand, the Holders shall be entitled to exercise an additional Demand in accordance with this Section 10.02.
(e) A registration will not Demanding Holder shall have the right to withdraw any Demand (i) prior to the time the Registration Statement in respect of such Demand has been declared effective, (ii) upon the issuance by the Commission or any other governmental agency of a stop order, injunction or other order which interferes with such Registration, (iii) upon the Company's availing itself of Section 10.02(b), or (iv) if such Demanding Holder is prevented pursuant to Section 10.02(c) or (d) from selling all of the Applicable Securities it requested to be registered. Notwithstanding such request to withdraw the Demand, the Registration requested by such Demanding Holder shall nonetheless be deemed to have been effected as a (and, therefore, requested) for purposes of Section 10.02(a) hereof if such Demanding Holder withdraws any Demand Registration unless (A) pursuant to clause (i) of the Registration Statement relating preceding sentence after the Commission filing fee is paid with respect thereto has been declared effective by or (B) pursuant to clause (iv) of the SEC, preceding sentence in circumstances where at least 7550% of the Registrable Applicable Securities requested to be included in such Registration by such Demanding Holder could have been included, and in each case, (x) the Company has not availed itself of Section 10.02(b) with respect to such Registration request or (y) the Company has availed itself of Section 10.02(b) and the withdrawal request is not made within 10 days after the termination of the suspension period occasioned by the Company's exercise of its rights under Section 10.02(b). If a Demanding Holder withdraws a Demand but the Company nevertheless determines to complete, within 30 days after such withdrawal, the Registration so requested as to securities other than the Applicable Securities, such Demanding Holder shall be entitled to participate in such Registration pursuant to Section 10.03, but in such case the Intended Offering Notice shall be required to be given to such Demanding Holder at least five (5) consecutive Business Days immediately prior to the anticipated filing date of the Registration Statement, or if such Registration Statement has already been filed, within 10 consecutive Business Days immediately following after receipt of the request to withdraw Demand from such Demanding Holder and such Demanding Holder shall be required to give the Piggy-back Notice no later than three (3) consecutive Business Days immediately after the Company's delivery of such Intended Offering Notice.
(f) In the event that any Registration pursuant to this Section 10.02 shall involve, in whole or in part, an underwritten offering, one co-lead managing underwriter shall be selected by the Company and shall be reasonably acceptable to the Demanding Holder, and the other co-lead underwriter shall be selected by such Demanding Holder and shall be reasonably acceptable to the Company, provided that, in the event of a joint Demand, the other co-lead underwriter shall be selected by a majority in interest (by reference to the number of Applicable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (iiRegistration) of the proviso Demanding Holders, and shall be reasonably acceptable to Section 4.2(a)the Company. If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until fortyAny additional co-five (45) days after the commencement of the distribution managing underwriters shall be selected by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registrationCompany. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a).37
Appears in 1 contract
Samples: Contingent Appreciation Certificate Agreement (Crown Media Holdings Inc)
Demand Registration. (a) Subject to the provisions hereof, at At any time on or and after the date of this Agreement, any Stockholders that is 180 days after on the Closing Date date a Demand (as defined in the Merger Agreement), the Holders hereinafter defined) is made constitute Demand Stockholders (a “Requesting Stockholder”) shall be entitled to make a written request of a majority of Registrable Securities shall have the right to require the Company to file (a Registration Statement registering “Demand”) for sale all or part of their respective Registrable Securities registration under the Securities Act of a number of Registrable Securities that equals or is greater than the Registrable Amount (a “Demand Registration”) by delivering a written request therefor and thereupon the Company will, subject to the Company (i) specifying the number terms of Registrable Securities to be included in such registration by such Holder or Holdersthis Agreement, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use its reasonable best efforts to effect such the registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued as promptly as practicable under the Securities Act and any other governmental requirements or regulationsof:
(i) of the Registrable Securities that which the Company has been so requested to registerregister by the Requesting Stockholders for disposition in accordance with the intended method of disposition stated in such Demand which may be an Underwritten Offering;
(ii) all other Registrable Securities which the Company has been requested to register pursuant to Section 5.1(b); providedand
(iii) all Class A Shares which the Company may elect to register in connection with any offering of Registrable Securities, howeverbut subject to Section 5.1(f); all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and the additional Class A Shares, that if any, to be so registered.
(b) A Demand shall specify: (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for aggregate number of Registrable Securities having an anticipated aggregate offering price of less than $5,000,000requested to be registered in such Demand Registration, (ii) the Holders will not be entitled intended method of disposition in connection with such Demand Registration, to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, extent then known and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering identity of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering Requesting Stockholder (an “Underwritten Offering”or Requesting Stockholders). In such caseWithin two (2) Business Days after receipt of a Demand, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall give written notice of such Demand to all other Stockholders. Subject to Section 5.1(f), the Company shall include in the Demand Registration covered by such Demand all Registrable Securities with respect to which the Company has received a written request for inclusion therein within five (together 5) Business Days after the Company’s notice required by this paragraph has been given. Such written request shall comply with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings requirements of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form a Demand as set forth in this Section 4.9 5.1(b).
(c) Each Demand Stockholder shall be entitled to an unlimited number of this Agreement; providedDemand Registrations until such time as such Stockholder Beneficially Owns together with its Affiliates less than a Registrable Amount.
(d) Demand Registrations shall be on such registration form of the SEC for which the Company is eligible as shall be selected by the Requesting Stockholders, that (i) including, to the representations and warranties byextent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the SEC, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished reasonably acceptable to the Company by or on behalf of such Holder expressly for inclusion therein and Company.
(be) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate any Demand Registration (aA) more than two within ninety (290) Underwritten Offerings in any twelve (12) month period, and (b) in any days of a “firm commitment” Underwritten Offering during any lock-up period required by the underwriter(sin which all Stockholders were given “piggyback” rights pursuant to Section 5.2 (subject to Section 5.1(f)) in any prior underwritten offering conducted by the Company on its own behalf or on behalf and provided that at least 50% of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof such Stockholders to be included in such Demand Registration were included or (B) within ninety (90) days of any other Underwritten Offering pursuant to Section 5.3(e). In addition, the Company shall be entitled to postpone (upon written notice to all Stockholders) for a reasonable period of time not to exceed ninety (90) days in succession, the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice, or for more than one hundred and twenty (120) days in the aggregate, in any period of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that does not exceed the filing or effectiveness of the registration statement relating to such Underwriters’ Maximum NumberDemand Registration would cause the disclosure of material, such non-public information that the Company has a bona fide business purpose for preserving as confidential. In the event of a postponement by the Company of the filing or effectiveness of a registration statement for a Demand Registration, the holders of a majority of Registrable Securities held by the Requesting Stockholders shall have the right to withdraw such Demand in accordance with Section 5.4.
(f) The Company shall not include any securities other than Registrable Securities in a Demand Registration, except with the written consent of Stockholders participating in such Demand Registration that hold a majority of the Registrable Securities included in such Demand Registration. If, in connection with a Demand Registration, any managing underwriter (or, if such Demand Registration is not an Underwritten Offering, a nationally recognized investment bank engaged in connection with such Demand Registration) advises the Company, in writing, that, in its opinion, the inclusion of all of the securities, including securities of the Company that are not Registrable Securities, sought to be allocated pro rata among registered in connection with such Demand Registration would adversely affect the Holders thereof on marketability of the basis Registrable Securities sought to be sold pursuant thereto, then the Company shall include in such registration statement only such securities as the Company is advised by such underwriter or investment bank can be sold without such adverse effect as follows and in the following order of priority: (i) first, up to the number of Registrable Securities requested to be included therein in such Demand Registration by each the Stockholders, which, in the opinion of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Holder. No shares Stockholders requesting such Demand Registration on the basis of Common Stock the number of such securities held by any Person such Stockholders and such Stockholders that are Piggyback Sellers (as defined below); (ii) second, securities the Company proposes to sell; and (iii) third, all other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent securities of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities Company duly requested to be included in such registration statement, pro rata on the registration basis of the number of such other securities requested to be included or such other method determined by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement Company.
(g) Any investment bank(s) that will serve as an underwriter with respect thereto; providedto such Demand Registration or, however, that if, after it has become effective, (i) if such Demand Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected by the Company fails to provide Full Cooperation, then Stockholder participating in such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement that holds a number of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences Demand Registration constituting a plurality of this Section 4.2(d), each Holder of all Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of included in such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a).
Appears in 1 contract
Demand Registration. (a) Subject In the event that following the period the Holder is prohibited from selling the Registrable Securities by the provisions of the underwriting agreement relating to the provisions hereofInitial Public Offering, at any time on Holder or after the date that is 180 days after the Closing Date Holders (as defined in the Merger Agreement), the Holders of a majority i) desire to sell shares of Registrable Securities shall have owned by such Holder or Holders and (ii) an exemption from registration under the right Securities Act or the rules and regulations promulgated thereunder, including, without limitation, Rule 144 (or any successor rules or regulation thereto), is not available to require enable the Holder or Holders to dispose of the number of shares of Registrable Securities it desires to sell at the time and in the manner it desires to do so, then upon the written request of any Holder or Holders requesting that the Company to file a Registration Statement registering for sale effect the registration under the Securities Act of all or part of their respective such Holder's or Holders' Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) and specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant thereof, but subject to an Underwritten Offering (as defined below)the limitations set forth herein, the Company will promptly give written notice of such requested registration to all other Holders of Registrable Securities, and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance the Company shall file with applicable law. As soon the Commission as promptly as practicable after the receipt of sending such demandnotice, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable its best efforts to effect such cause to become effective, a registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued statement under the Securities Act registering the offering and any other governmental requirements or regulationssale of:
(i) of the Registrable Securities that which the Company has been so requested to registerregister by such Holder or Holders; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, and
(ii) the Holders will not be entitled to require all other Registrable Securities which the Company has been requested to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) register by any other Holder thereof by written request given to the Company will not be obligated within 15 days after the giving of such written notice by the Company (which request shall specify the intended method of disposition of such Registrable Securities), all to effect more than one the extent necessary to permit the disposition (1in accordance with the intended method thereof as aforesaid) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant so to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreementregistered; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate file a registration statement relating to any registration request under this Section 2(a) (aA) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required unless the aggregate requests by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf Holder or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in Holders for such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does cover not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other less than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 755.0% of the Registrable Securities requested outstanding Common Stock, (B) with respect to more than an aggregate of 3 registrations (which shall be included in the increased to an unlimited number of registrations if such additional registrations are effected on Form S-3 or any successor similar short-form registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations statement) under this Agreement with respect thereto; provided, however, that if, after it has become effectiveSection 2(a), (iC) such Registration Statement or the related offer, sale or distribution within a period of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) 180 days after the commencement effective date of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue any other registration statement relating to be obligated to effect a Demand Registration pursuant to any registration request under this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a).Section
Appears in 1 contract
Samples: Registration Rights Agreement (Provantage Health Services Inc)
Demand Registration. (a) Subject to (i) HEI shall have the provisions hereofright, at any time on or after the date that is 180 days after the Closing Date (as defined not more than four occasions in the Merger Agreement)aggregate, and no more frequently than once during any six-month period, and (ii) the Holders of Minority Stockholders as a majority of Registrable Securities group shall have the right (though such right need not be jointly exercised by the Minority Stockholders), on not more than two occasions in the aggregate (it being understood and agreed that two or more Minority Stockholders may make joint Demands hereunder or any Minority Stockholder may join in a Demand made by any other Minority Stockholder, and any such joint Demand or joining in of a Demand shall be deemed to be a single Demand for all purposes hereof), and no more frequently than once during any six- month period, to require the Company to file a Registration Statement registering register for offer and sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”"Demand") all or a portion of the Registrable Securities held by delivering a written request therefor such Stockholder, subject to the Company (i) specifying restrictions set forth herein; provided that no Stockholder shall be entitled to make a Demand hereunder unless the number of Registrable Securities subject to be included in such registration by such Holder or Holders, (ii) specifying whether Demand represent at least 7% of the intended method aggregate shares of disposition thereof is pursuant to an Underwritten Offering (as defined below), Company Common Stock then issued and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable lawoutstanding. As soon promptly as practicable after the receipt Company receives from a Stockholder (the "Demanding Stockholder") a notice pursuant to this Section 4.1(a) (a "Demand Notice"), a copy of such demandwhich shall have also been delivered to each other Minority Stockholder at the same time as to the Company, demanding that the Company register for offer and sale under the Securities Act Registrable Securities, subject to Section 4.1(b), the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (yi) use all reasonable best efforts to effect file as promptly as reasonably practicable with the Commission a Registration Statement relating to the offer and sale of the Applicable Securities on such form as the Company may reasonably deem appropriate (provided that the Company shall not, unless the Company otherwise determines, be obligated to register any securities on a "shelf" registration statement or otherwise to register securities for offer or sale on a continuous or delayed basis) and, thereafter, (includingii) after the filing of an initial version of the Registration Statement, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued use reasonable efforts to cause such Registration Statement to be declared effective under the Securities Act and any other governmental requirements or regulations) as promptly as practicable after the date of the Registrable Securities that the Company has been so requested to registerfiling of such Registration Statement; provided, however, that no Demanding Stockholder shall be entitled to be named as a selling securityholder in the Registration Statement or to use the Prospectus forming a part thereof for resales of Registrable Securities unless such Demanding Stockholder has made an Election. Subject to Section 4.1(b), the Company shall use reasonable efforts to keep each Registration Statement continuously effective in order to permit the Prospectus forming a part thereof to be usable by such Demanding Stockholder for resales of Registrable Securities for an Effectiveness Period ending on the earlier of (i) 30 days from the Holders shall not make a request for a Demand Effective Time of such Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, Statement and (ii) such time as all of such securities have been disposed of by the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month periodselling securityholders.
(b) The offering Company shall have the right to postpone (or, if necessary or advisable, withdraw) the filing, or delay the effectiveness, of a Registration Statement, or fail to keep such Registration Statement continuously effective or not amend or supplement the Registrable Securities pursuant Registration Statement or included Prospectus, if the Company determines based upon the advice of counsel that it would be advisable to such Demand Registration may be not disclose in the form of an underwritten public offering (an “Underwritten Offering”). In such caseRegistration Statement a planned or proposed financing, (i) the Company may designate the managing underwriter(s) of the Underwritten Offeringacquisition or other corporate transaction or other material information, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with have determined in good faith that such disclosure is not in the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings best interests of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) its stockholders; provided that no one such postponement shall also be made to exceed 90 days in any six-month period and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of all such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) postponements shall not exceed 180 days in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreementaggregate. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in advise the Demanding Stockholder of any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holderssuch determination as promptly as practicable after such determination.
(c) If, in In connection with an Underwritten Offeringunderwritten offering, if the managing underwriter(s) underwriter or underwriters advise the Company that in its or their reasonable opinion the number of securities proposed Applicable Securities subject to a Demand exceeds the number which can be included sold in such registration exceeds the Underwriters’ Maximum Numberoffering, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that Registration the number of Registrable Applicable Securities requested by that, in the Holders thereof to opinion of such managing underwriter or underwriters, can be included sold in such registration that does not exceed such Underwriters’ Maximum Numberoffering (provided that, such Registrable in the event of a joint Demand, the Applicable Securities to included shall be allocated pro rata among the Holders thereof Demanding Stockholders on the basis of the relative number of Registrable Applicable Securities each such Demanding Stockholder has requested to be included therein by each in such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable SecuritiesRegistration).
(d) The Company may include in any registration requested pursuant to Section 4.1(a) hereof other securities for sale for its own account or for the account of another Person, subject to the following sentence. In connection with an underwritten offering, if the managing underwriter or underwriters advise the Company that in its or their opinion the number of Applicable Securities requested by the Demanding Stockholder, together with other securities for sale for the account of the Company or any other Person, to be registered exceeds the number which can be sold in such offering, the Company shall include in such Registration the number of Applicable Securities and other securities that, in the opinion of such managing underwriter or underwriters, can be sold in such offering as follows: (i) first, the Applicable Securities requested to be registered by the Demanding Stockholder and (ii) second, any other securities requested to be included in such Registration.
(e) A registration will not Demanding Stockholder shall have the right to withdraw any Demand (i) prior to the time the Registration Statement in respect of such Demand has been declared effective, (ii) upon the issuance by the Commission or any other governmental agency of a stop order, injunction or other order which interferes with such Registration, (iii) upon the Company's availing itself of Section 4.1(b), or (iv) if such Demanding Stockholder is prevented pursuant to Section 4.1(c) or (d) from selling all of the Applicable Securities it requested to be registered. Notwithstanding such request to withdraw the Demand, the Registration requested by such Demanding Stockholder shall nonetheless be deemed to have been effected as a (and, therefore, requested) for purposes of Section 4.1(a) hereof if such Demanding Stockholder withdraws any Demand Registration unless (A) pursuant to clause (i) of the Registration Statement relating preceding sentence after the Commission filing fee is paid with respect thereto has been declared effective by or (B) pursuant to clause (iv) of the SEC, preceding sentence in circumstances where at least 7550% of the Registrable Applicable Securities requested to be included in such Registration by such Demanding Stockholder could have been included, and in each case, (x) the Company has not availed itself of Section 4.1(b) with respect to such Registration request or (y) the Company has availed itself of Section 4.1(b) and the withdrawal request is not made within 10 days after the termination of the suspension period occasioned by the Company's exercise of its rights under Section 4.1(b). If a Demanding Stockholder withdraws a Demand but the Company nevertheless determines to complete, within 30 days after such withdrawal, the Registration so requested as to securities other than the Applicable Securities, such Demanding Stockholder shall be entitled to participate in such Registration pursuant to Section 4.2, but in such case the Intended Offering Notice shall be required to be given to such Demanding Stockholder at least five business days prior to the anticipated filing date of the Registration Statement, or if such Registration Statement has already been filed, within 10 business days after receipt of the request to withdraw Demand from such Demanding Stockholder and such Demanding Stockholder shall be required to give the Piggy-back Notice no later than 3 business days after the Company's delivery of such Intended Offering Notice.
(f) In the event that any Registration pursuant to this Section 4.1 shall involve, in whole or in part, an underwritten offering, one co-lead managing underwriter shall be selected by the Company and shall be reasonably acceptable to the Demanding Stockholder, and the other co-lead underwriter shall be selected by the Demanding Stockholder, provided that, in the event of a joint Demand, the other co-lead underwriter shall be selected by a majority in interest (by reference to the number of Applicable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (iiRegistration) of the proviso Demanding Stockholders, and shall be reasonably acceptable to Section 4.2(a)the Company. If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until fortyAny additional co-five (45) days after the commencement of the distribution managing underwriters shall be selected by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)Company.
Appears in 1 contract
Demand Registration. (a) Subject to the provisions hereof, at At any time on or after the date that is 180 one hundred eighty (180) days after the Closing Date (as defined in initial public offering of the Merger Agreement)Company’s Common Stock pursuant to an effective registration under the Securities Act, the Holders holders of a majority of the Registrable Securities shall have the right to require may notify the Company that they intend to file a Registration Statement registering offer or cause to be offered for public sale all or part any portion of their respective Registrable Securities under in the Securities Act (a “Demand Registration”) by delivering a written request therefor to manner specified in such request. Upon receipt of such request, the Company (i) specifying the number shall promptly deliver notice of such request to all Investors holding Registrable Securities who shall then have thirty (30) days to notify the Company in writing of their desire to be included in such registration. If the request for registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to contemplates an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demandunderwritten public offering, the Company shall (x) promptly notify all Holders from whom state such in the request for written notice and in such event the right of any Person to participate in such registration has not been received shall be conditioned upon such Person’s participation in such underwritten public offering and (y) the inclusion of such Person’s Registrable Securities in the underwritten public offering to the extent provided herein. The Company will use reasonable its best efforts to expeditiously effect (but in any event no later than sixty (60) days after such request) the registration of all Registrable Securities whose holders request participation in such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of Act, but only to the Registrable Securities that the Company has been so requested to registerextent provided for in this Agreement; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated required to effect or participate (a) registration pursuant to a request under this Section 2 more than two (2) Underwritten Offerings times for the holders of the Registrable Securities as a group. Notwithstanding anything to the contrary contained herein, no request may be made under this Section 2 within ninety (90) days after the effective date of a registration statement filed by the Company covering a firm commitment underwritten public offering in any twelve (12which the holders of Registrable Securities shall have been entitled to join pursuant to Section 4 and in which there shall have been effectively registered all Registrable Securities as to which registration shall have been requested. A registration will not count as a requested registration under this Section 2(a) month periodunless and until the registration statement relating to such registration has been declared effective by the Commission at the request of the initiating shareholders; provided, however, that a majority in interest of the participating holders of Registrable Securities may request, in writing, that the Company withdraw a registration statement which has been filed under this Section 2(a) but has not yet been declared effective, and a majority in interest of such holders may thereafter request the Company to reinstate such registration statement, if permitted under the Securities Act, or to file another registration statement, in accordance with the procedures set forth herein and without reduction in the number of demand registrations permitted under this Section 2(a).
(b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior If a requested registration involves an underwritten public offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, and the managing underwriter(s) advise the Company underwriter of such offering determines in good faith that in its or their reasonable opinion the number of securities proposed sought to be offered should be limited due to market conditions, then the number of securities to be included in such registration exceeds underwritten public offering shall be reduced to a number deemed satisfactory by such managing underwriter; provided, that the Underwriters’ Maximum Number, then shares to be excluded shall be determined in the following order of priority: (i) persons not having any contractual or other right to include such securities in the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and registration statement, (ii) securities held by any other Persons (other than the holders of Registrable Securities) having a contractual, incidental “piggy back” right to include such securities in the registration statement, (iii) securities to be registered by the Company will be obligated and required pursuant to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Numberstatement and, such if necessary, (iv) Registrable Securities to be allocated pro rata among the Holders thereof on the basis Securities. If there is a reduction of the number of Registrable Securities requested pursuant to clause (iv), such reduction shall be included therein by each such Holder. No shares made on a pro rata basis (based upon the aggregate number of Common Stock held by any Person other than Registrable Securities held by such holders).
(c) With respect to a request for registration pursuant to Section 2(a) which is for an underwritten public offering, the Holders managing underwriter shall be included in a Demand Registration without the prior written consent of chosen by the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included sold in such registration, and offering (which approval will not be unreasonably withheld or delayed). The Company may not cause any other registration of securities for sale for its own account (other than a registration effected solely to implement an employee benefit plan or a transaction to which Rule 145 of the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has Securities Act is applicable) to become effective, effective within one hundred twenty (i120) such Registration Statement or days following the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject effective date of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested required pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)2.
Appears in 1 contract
Demand Registration. (a) Subject to In the provisions event the Holders have not sold all of their Registrable Securities within one year from the date hereof, if the Holder or Holders of an aggregate of at any time on least 50% of the Registrable Securities then outstanding propose to dispose of at least 20% of the then Registrable Securities (such Holder or after Holders being herein called the date that is 180 days after the Closing Date (as defined in the Merger Agreement"Initiating Holders"), the Initiating Holders of a majority of Registrable Securities shall have may request, on one occasion, the right Company, in writing, to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying effect such registration, stating the number of shares of Registrable Securities to be included in such registration disposed of by such Holder or Holders, Initiating Holders (iiwhich shall be not less than 20% of the then Registrable Securities) specifying whether and the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable lawdisposition. As soon as practicable after the Upon receipt of such demandrequest, the Company will give prompt written notice thereof to all other Holders whereupon such other Holders shall give written notice to the Company within twenty (x20) promptly notify all Holders from whom days after the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) date of the Registrable Securities that Company's notice (the Company has been so requested "Notice Period") if they propose to register; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price dispose of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering shares of the Registrable Securities pursuant to such Demand Registration may be in registration, stating the form number of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition shares of the Registrable Securities to be disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement or Holders and completes and executes all questionnaires, powers intended method of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreementdisposition. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by promptly after the underwriter(s) in any prior underwritten offering conducted by Notice Period the Company on its own behalf or on behalf registration under the 1933 Act of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included specified in the registration by requests of the Initiating Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect theretorequests of the other Holders; provided, however, that such period may be delayed by the Company for up to ninety (90) days in total if, after it has (A) upon the advice of counsel, at the time the Company is required to exercise its best efforts to cause such registration statement to become effective, (i) such Registration Statement or delay is advisable and in the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement best interests of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale Company because of the Registrable Securities pursuant to the registration, and in each case less than all existence of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statementnon-public material information, or (iiB) if, in the case of an Underwritten Offering, to allow the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or complete any part pending audit of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)financial statements.
Appears in 1 contract
Samples: Employment Agreement (Diplomat Corp)
Demand Registration. From and after the earlier of (ax) Subject to the provisions hereof, at any time on or date that is one calendar year after the date hereof, (y) the occurrence of a Seller Breach, and (z) the date that is 180 days the Purchaser no longer owns 5% of the outstanding Common Stock, in each case after receipt of a written request from the Closing Date Holders owning 50% of the Registrable Securities of each class requesting that the Company effect the registration of all or a portion of the Registrable Securities and specifying the intended method or methods of disposition thereof (as defined in the Merger Agreementa "Holder Notice"), the Holders of a majority of Registrable Securities shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holdersshall, (ii) specifying whether the intended method of disposition thereof as expeditiously as is pursuant to an Underwritten Offering (as defined below)possible, and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use its reasonable best efforts to effect such the registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued for sale under the Securities Act and any other governmental requirements or regulations) of the all shares of Registrable Securities that which the Company has been so requested to registerregister by such Holders, all to the extent required to permit the disposition (in accordance with the intended method or methods thereof, as aforesaid) of such Registrable Securities so registered; provided, however, that (i) the Holders Company shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated required to effect more than one (1) Demand Registration in registration of any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may this Section 2(a) except as otherwise expressly provided herein. Notwithstanding any provision of this Agreement to the contrary, however, the rights granted to the Purchaser and the Holders pursuant to this Agreement including, without limitation, this Section 2(a), shall be in irrevocably terminated upon the form occurrence of an underwritten a Purchaser Breach. 5 If the managing underwriter of a proposed public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in writing that, in its or their reasonable opinion opinion, the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% distribution of the Registrable Securities requested to be included in the registration concurrently with the securities being registered by the Holders are included in Company or such registration, other registering security holders would materially and adversely affect the distribution of such securities by the Company has complied in or such registering security holders, then the Company may require all material respects with its obligations under this Agreement with respect theretoselling security holders (other than the Company) to reduce the amount of securities each intended to distribute through such offering on a pro rata basis; provided, however, that ifif the Company requires such reduction, and if Holders requesting such registration pursuant to this Section 2(a) are unable to include in such registration Registable Securities that they requested be included in such registration in the related Holder Notice that constitute Substantial Market Value Securities, due to such pro rata reduction (the Registrable Securities that such Holder so requested to be included in such registration that were not included in such registration due to such pro rata reduction being referred to herein as the "Reduction Shares", and the registration in which such reduction occurred being referred to herein as a "Failed Registration"), then subject to the other provisions hereof applicable to a demand registration the Holders of the Reduction Shares shall have the right, exercisable commencing on the day that is two calendar months after it has become effectivethe termination of the Registration Period relating to the Failed Registration by written notice sent to the Company by Holders of 50% of the Reduction Shares (a "Repurchase/Register Notice"), to require the Company to elect (at the Company's option) to either register the Reduction Shares otherwise pursuant to this Section 2(a) or, if the foregoing offer to sell or resulting sale is then lawful, to repurchase the Reduction Shares at the higher of (i) such Registration Statement or the related offer, sale or distribution of price per share for which Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are were actually sold by in the selling Holder or Holders pursuant to the Registration StatementFailed Registration, or (ii) if, in the case of an Underwritten Offering, Market Price on the date the Repurchase/Register Notice is sent to the Company fails to provide Full Cooperationin compliance with this Agreement; provided, then such registration will however, that the Holders shall not be deemed not hereby or thereby to have been effected for purposes of clause (ii) of made any offer to sell to the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 Company that does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then comply with applicable law and the Company shall continue not be entitled or deemed to be obligated entitled to effect repurchase such Reduction Shares or to be offered the right to or solicit the right to repurchase such Reduction Shares or deemed to have bid for such Reduction Shares hereby or thereby if such repurchase, offer, or bid would violate any applicable securities law; and provided further, however, that any such repurchase shall otherwise comply with the procedures applicable to the Company's right to repurchase securities upon the occurrence of a Demand Registration pursuant to this Section 4.2 Purchaser Breach set forth in Article VIII of the Registrable Securities included in Stock Purchase Agreement, to the extent that such registrationprocedures do not conflict with the provisions hereof, without requirement for the occurrence of a Purchaser Breach. In circumstances The Company shall respond to such Repurchase/Register Notice by written notice to the Purchaser within 30 business days after its receipt of the Repurchase/ Register Notice (an "Election Notice"), which Election Notice shall set forth whether the Company desires to so register such Reduction Shares or to repurchase such Reduction Shares; provided, however, that the Company shall be deemed to have elected to register such Reduction Shares if it does not including give such notice within such 30 business day period. If the events described Company so elects to repurchase such Reduction Shares, and if the Market Price requires an agreement of the Company and such holders as to the fair market value of such Reduction Shares, the consummation of such repurchase shall not be required to be consummated until as 6 soon as practicable after such fair market value has been determined as set forth in the immediately two preceding sentences definition of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)Market Price set forth herein.
Appears in 1 contract
Samples: Registration Rights Agreement (Crown Northcorp Inc)
Demand Registration. (ai) Subject to the provisions hereofterms and conditions of this Agreement, including Section 2(a)(ii) below, at any time on or and from time to time after the date that is 180 days after expiration or earlier termination of the Closing Date lock-up period applicable to the Company’s IPO, one or more Demand Registration Holder(s) (as defined in the Merger Agreementany such requesting Demand Registration Holder(s), the Holders of a majority of Registrable Securities “Initiating Holder(s)”) shall have the right to require the Company to file a Registration Statement registering for sale all one or part of their respective Registrable Securities more registration statements under the Securities Act (other than pursuant to a registration statement on Form S-4 or Form S-8 or any similar or successor forms under the Securities Act) covering all or any part of their Registrable Securities upon written notice to the Company (a “Demand Notice”). The registration so requested is referred to herein as a “Demand Registration.” The Company shall promptly (but in any event, not later than five Business Days following the Company’s receipt of a Demand Notice) give written notice (“Demand Eligible Holder Notice”) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demandDemand Notice to all Holders (other than the Initiating Holder(s)) that, to its knowledge, hold Registrable Securities (each a “Demand Eligible Holder”). The Company shall promptly file the appropriate Registration Statement (the “Demand Registration Statement”) and use its commercially reasonable efforts to effect, at the earliest practicable date, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulationsunder applicable state securities laws of (A) of the Registrable Securities that which the Company has been so requested to register; providedregister by the Initiating Holder(s) in the Demand Notice, however, that (iB) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for all other Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not same class or series as those requested to be entitled to require registered in the Demand Notice which the Company has been requested to effect more than three register by the Demand Eligible Holders by written request (3the “Demand Eligible Holder Request”) given to the Company within five Business Days after the giving of the Demand Registrations in the aggregate under this AgreementEligible Holder Notice, and (iiiC) any shares of Company Common Stock to be offered and sold by the Company will not be obligated Company, in each case subject to effect more than one Section 2(a)(ii), all to the extent required to permit the disposition (1in accordance with the intended methods of disposition) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreementso registered. The Company shall not be obligated to effect any requested Demand Registration using a registration statement on Form S-3 whenever the Company is a Seasoned Issuer or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month perioda WKSI, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with shall use an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Automatic Shelf Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after if it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)WKSI.
Appears in 1 contract
Samples: Registration Rights Agreement (YETI Holdings, Inc.)
Demand Registration. (a) Subject Upon written notice to the provisions hereof, Issuer from one or more Holders at any time on or after the Shelf Termination Date (but not later than the date that is 180 days after the Closing Date Shelf Termination Date) (as defined in the Merger Agreement)"Demand Request") requesting that the Issuer effect the registration under the 1933 Act of any or all of the Registrable Securities held by such requesting Holders, which notice shall specify the intended method or methods of disposition of such Registrable Securities, the Holders of Issuer shall prepare and, within 60 days after such request, file with the Commission a majority of registration statement with respect to such Registrable Securities shall have the right and thereafter use its reasonable best efforts to require the Company cause such registration statement to file a Registration Statement registering for sale all or part of their respective Registrable Securities be declared effective under the Securities 1933 Act (a “Demand Registration”) by delivering a written request therefor for purposes of dispositions in accordance with the intended method or methods of disposition stated in such request. Notwithstanding any other provision of this Agreement to the Company contrary:
(i) specifying the Holders may collectively exercise their rights to request registration under this Section 2.02(a) on not more than one occasion (such registration being referred to herein as the "Demand Registration");
(ii) the Issuer shall not be required to effect the Demand Registration hereunder unless the aggregate number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is registered pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to register; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled is equal to require the Company to effect or more than three (3) Demand Registrations in the aggregate under this Agreement, and 3,000,000 shares;
(iii) the Company will method of disposition requested by Holders in connection with any Demand Registration may not, without the Issuer's written consent, be a Rule 415 Offering; and
(iv) the Issuer shall not be obligated required to effect more than one (1) the Demand Registration in any six (6) month periodhereunder if all securities that were Registrable Securities on the date hereof have ceased to be Registrable Securities.
(b) The offering Notwithstanding any other provision of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject this Agreement to the approval of the Companycontrary, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will requested by Holders pursuant to this Section 2.02 shall not be deemed to have been effected as a effected, and, therefore, not requested and the rights of each Holder shall be deemed not to have been exercised for purposes of paragraph (a) above, if such Demand Registration unless has not become effective under the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in 1933 Act or if such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that ifDemand Registration, after it has become effectivebecame effective under the 1933 Act, was not maintained effective under the 1933 Act (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject other than as a result of any stop order, injunction or other order or requirement of the SEC Commission or any other governmental government agency or administrative agencycourt solely on the account of a material misrepresentation or omission of a Holder) for at least 30 days (or such shorter period ending when all the Registrable Securities covered thereby have been disposed of pursuant thereto) and, as a result thereof, the Registrable Securities requested to be registered cannot be distributed in accordance with the plan of distribution set forth in the related registration statement. So long as a Demand Request is made by the Holders within the 180-day period referred to in Section 2.02(a), the Holders shall not lose their right to their Demand Registration under Section 2.02 if the Demand Registration related to such Demand Request is delayed or not effected in the circumstances set forth in this clause (b).
(c) The Issuer shall have the right to cause the registration of additional equity securities for sale for the account of the Issuer in the registration of Registrable Securities requested by the Holders pursuant to Section 2.02(a) above; provided that if any court prevents such Holders are advised in writing (with a copy to the Issuer) by the lead or otherwise limits managing underwriter referred to in Section 2.03(b) that, in such underwriter's good faith view, all or a part of such Registrable Securities and additional equity securities cannot be sold and the inclusion of such Registrable Securities and additional equity securities in such registration would be likely to have an adverse effect on the price, timing or distribution of the offering and sale of the Registrable Securities and additional equity securities then contemplated, then the number of securities that can, in the good faith view of such underwriter, be sold in such offering without so adversely affecting such offering shall be allocated pro rata among the requesting Holders and the Issuer on the basis of the relative number requested to be included therein by the Issuer and each such Holder (in which case Section 2.02(a)(ii) shall be disregarded for purposes of such Demand Registration); provided that in the event such a pro rata allocation shall be made in connection with the Demand Request, the remaining Holders shall be entitled to request one additional Demand Registration (without needing to make a Demand Request therefor within the 180-day period referred to in Section 2.02(a) and disregarding Section 2.02(a)(ii) for purposes of such additional Demand Registration); provided further that in conection with such additional Demand Registration, if any, the Issuer may not include additional securities therein for its own account if such inclusion would result in any reduction in the Registrable Securities proposed to be sold therein by the Holders. The Holders of the Registrable Securities to be offered pursuant to paragraph (a) above may require that any such additional equity securities be included by the registrationIssuer in the offering proposed by such Holders on the same conditions as the Registrable Securities that are included therein.
(d) Within 7 days after delivery of a Demand Request by a Holder, and in the Issuer shall provide a written notice to each case less than Holder (or, if so requested by the Issuer after appropriate notice to the Zell Xxxders' Agent by the Issuer, the Zell Xxxders' Agent shall provide written notice to each Zell Xxxxxx), xdvising such Holder of its right to include any or all of the Registrable Securities covered held by the effective Registration Statement are actually sold by the selling such Holder or Holders for sale pursuant to the Demand Registration Statement, or (ii) if, and advising such Holder of procedures to enable such Holder to elect to so include Registrable Securities for sale in the case Demand Registration. Any Holder may, within 7 days of an Underwritten Offering, the Company fails delivery to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes Holder of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested notice pursuant to this Section 4.2 is deemed not 2.02(d), elect to have been effected as a so include Registrable Securities in the Demand Registration or (ii) by written notice to such effect to the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after Issuer specifying the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder number of Registrable Securities shall desired to be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of so included by such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)Holder.
Appears in 1 contract
Demand Registration. Rights
(a) Subject to the provisions hereoflimitations set out in Section 4.1(b) and the Intercap Lock- up Agreements, upon the written request (the “Demand Notice”) of an Intercap Shareholder (each an “Intercap Demanding Shareholder”), made at any time on and from time to time as long as the Intercap Shareholders, as a group, own, control or after the date that is 180 days after the Closing Date (as defined direct, directly or indirectly, in the Merger Agreementaggregate, at least 10% of the then-outstanding Shares, the Company will, subject to Applicable Securities Laws, Applicable U.S. Securities Laws and applicable stock exchange requirements, use reasonable commercial efforts to file one or more Registration Statements or prospectus supplements under any existing Registration Statement, if an offering shall be made contemporaneously in the United States, and take such other steps as may be reasonably necessary to facilitate an offering in Canada and the United States, if applicable, of all or any portion of the Shares held by the Intercap Demanding Shareholder and, in the Intercap Demanding Shareholder’s sole discretion but subject to Section 4.14, Shares held by any of the Released Shareholders that such Released Shareholders wish to Distribute and described in the Demand Notice (the “Qualifying Shares”), the Holders of a majority of Registrable Securities shall have the right plus any other Shares to require the Company be included in such Distribution pursuant to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act Section 4.1(g) (a “Demand Registration”). The Company and the Intercap Demanding Shareholder shall cooperate in a timely manner in connection with such disposition and the procedures in Schedule A of this Agreement shall apply.
(b) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined belowNotwithstanding Section 4.1(a), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts be obliged to effect such registration a Demand Registration:
(includingi) if, without limitationwithin any twelve-month period, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested already effected two (2) Demand Registrations pursuant to register; providedSection 4.1(a). For the purposes of this Subsection, however, that (i) the Holders a Demand Registration shall not make be considered as having been effected until (a) a receipt has been issued by, or deemed to be issued by, the applicable Canadian Securities Regulatory Authorities for a final prospectus pursuant to which the Qualifying Shares are to be Distributed, or (b) a prospectus supplement in connection with a base shelf prospectus is filed pursuant to which the Qualified Shares are to be Distributed. However, if an Intercap Demanding Shareholder withdraws or does not pursue a request for a Demand Registration under this Section 4.2(aafter (A) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, filing a preliminary prospectus pursuant to which the Qualifying Shares are to be Distributed or (iiB) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form entering into of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld enforceable bought deal letter or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting or agency agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise Demand Registration (provided that at such time the Company that is in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied compliance in all material respects with its obligations under this Agreement Agreement), then such Demand Registration shall be deemed to be effected. (ii) within 90 days after the date of completion of a previous Demand Registration; (iii) during the period starting 14 calendar days prior to and ending upon the expiry of any black-out periods applicable to the Company, except as may be otherwise agreed by the Company and the underwriters managing such offering; (iv) that is a Demand Registration in respect of Shares that would reasonably be expected to result in gross proceeds of less than $10 million; (v) in a jurisdiction outside any of the provinces and territories of Canada or the United States (unless otherwise agreed among the Company, the underwriters managing such offering and the Intercap Demanding Shareholder); or (vi) in the event that the Board (with respect thereto; providedIntercap Directors abstaining) determines in its good faith judgement that there is a Valid Business Reason (as defined below) and that it is, howevertherefore, that if, after it has become effective, (i) such in the best interests of the Company to defer the filing of a Prospectus and/or a Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or prospectus supplement under any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the existing Registration Statement, or (ii) ifif applicable, at such time, in which case the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration Company’s obligations under this Section 4.1 will be deemed deferred for a period of not to have been effected for purposes more than 90 calendar days from the date of clause (ii) receipt of the proviso to Section 4.2(a)Demand Notice; provided that such right of deferral may not be exercised more than once in any one (1) year period. If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) For the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences purposes of this Section 4.2(d4.1(b)(vi), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a).“Valid
Appears in 1 contract
Samples: Side Letter to the Investor Rights Agreement (Docebo Inc.)
Demand Registration. Upon the written request of one or more record holders of Securities, which request will state the intended method of disposition by such holders and will request that the Company effect the registration under the Securities Act of all or part of the Registerable Common Stock (aas hereinafter defined) Subject of such holders, the Company will, within 10 days after receipt of such request, give written notice of such requested registration to all registered holders of Securities, and thereupon (except as expressly provided herein) will use its best efforts to effect the registration ("Demand Registration") under the Securities Act of (x) the shares of Registerable Common Stock included in the initial request for registration (for disposition in accordance with the intended method of disposition stated in such request) and (y) all other shares of Registerable Common Stock the holders of which have made written request to the provisions hereof, at any time on or after the date that is 180 Company for registration thereof within 30 days after the Closing Date receipt of such written notice from the Company, provided that:
(as defined in i) the Merger AgreementCompany shall be required to effect only two Demand Registrations hereunder, each of which must be initially requested by the holders of record of at least a majority of the Securities outstanding at the time of the request; PROVIDED that the Company shall not be required to effect more than one registration during any one year period pursuant to this paragraph 7(a) (except that, upon request of any holder of Securities (regardless of the number of Securities held by such holder), the Holders Company, if it is then qualified to do so, shall be required to effect up to four registrations on Form S-3, or a similar short form registration statement, which registrations (hereinafter referred to as "Short Form Registrations") shall not be counted for purposes of this subparagraph 7(a)(i) as the Demand Registration which the Company is required to effect);
(ii) if the holders of Registerable Common Stock who initiated the request for registration intend to sell their Registerable Common Stock by means of an underwriting (whether on a majority "best efforts" or a "firm commitment" basis), they shall so advise the Company as part of Registrable their request, and the Company shall include such information in the notice to the other holders of Securities. In that event, the other holders of Securities shall have the right to require include their shares of Registerable Common Stock in the underwriting (unless otherwise mutually agreed by a majority in interest of the holders of the Securities). The managing underwriter for such offering shall be selected by the Board of Directors of the Company. Each such holder agrees, with respect to an underwritten public offering which occurs following the Closing Date, by its acquisition of Securities not to effect any public sale or distribution of such Securities or Registerable Common Stock (other than as part of such underwritten public offering) during such period, if any, not to exceed 120 days, as shall reasonably be requested by any underwriter;
(iii) the Company shall not include and shall not permit third parties to file include additional securities in a Demand Registration Statement registering for sale all or part without the consent of their respective Registrable Securities under the Securities Act (holders of a “Demand Registration”) by delivering a written request therefor to majority of the Company (i) specifying the number shares of Registrable Securities to be Registerable Common Stock included in such registration by such Holder or Holders, Demand Registration;
(iiiv) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to register; provided, however, that (i) the Holders shall not make a request for if a Demand Registration under this Section 4.2(aparagraph 7(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, is in connection with an Underwritten Offeringunderwritten public offering, and if the managing underwriter(s) underwriters advise the Company in writing that in its or their reasonable opinion the number amount of securities proposed Registerable Common Stock requested to be included in such registration exceeds the Underwriters’ Maximum Numberamount of such Registerable Common Stock which can be successfully sold in such offering, then (i) the Company shall so advise all Holders will nevertheless include in such registration, prior to the inclusion of Registrable Securities any securities which are not Registerable Common Stock (notwithstanding any consent obtained in accordance with subparagraph 7(a)(iii) hereof), the amount of Registerable Common Stock requested to be included which in the opinion of such Underwritten Offering and (ii) the Company will underwriters can be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Numbersold, such Registrable Securities to be allocated pro rata among the Holders thereof holders of Registerable Common Stock requesting inclusion on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Registrable Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect theretoholders; provided, however, that if, after it has become effective, if the holders of Registerable Common Stock are unable to include in such offering at least fifty percent (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii50%) of the proviso Registerable Common Stock sought to Section 4.2(abe registered in a Demand Registration under this paragraph 7(a). If , the holders of Securities will be entitled to an additional Demand Registration under this paragraph;
(iv) if the Company shall furnish to the holders requesting a registration requested pursuant to this Section 4.2 is deemed not to have been effected as 7 a Demand Registration or (ii) certificate signed by the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement President of the distribution by Company stating that, in the Holders good faith judgment of the Registrable Securities covered by such registrationBoard of Directors of the Company, then it would be seriously detrimental to the Company for a registration statement to be filed as requested, the Company shall continue have the right to defer such filing for a period of not more than 120 days after receipt of the initial request for registration under this paragraph 7(a); provided, however, that the Company may not utilize this right more than once in any one-year period;
(vi) registrations under this paragraph 7(a) will be obligated on a form permitted by the rules and regulations of the Commission selected by the underwriters if the Demand Registration is in connection with an underwritten public offering or otherwise by the Company; and
(vii) notwithstanding anything else contained herein the Company will not be required to effect a Demand Registration pursuant to this Section 4.2 paragraph 7(a) unless the aggregate number of shares of Common Stock to be registered exceeds 20% of the Registrable Securities included in such registration. In circumstances not including shares of Common Stock then held by the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) holders of the proviso Securities or issuable to Section 4.2(a)such holders upon conversion of the Shares.
Appears in 1 contract
Demand Registration. (a) Subject to the provisions hereof, at At any time on or after the date that is 180 days after the Closing Date date hereof (or such earlier date (i) as defined would permit the Company to cause any filings required hereunder to be filed on the 180th day after the date hereof or (ii) as is permitted by waiver by the underwriters of the lock-up provisions in the Merger IPO Underwriting Agreement), the any Holder or Holders shall be entitled to make a written request of a majority of Registrable Securities shall have the right to require the Company to file (a Registration Statement registering “Demand”) for sale all or part of their respective Registrable Securities registration under the Securities Act of a number of Registrable Securities that in the aggregate equals or is greater than the Minimum Registration Amount (a “Demand Registration”) by delivering a written request therefor and thereupon the Company will, subject to the Company (i) specifying the number terms of Registrable Securities to be included in such registration by such Holder or Holdersthis Agreement, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use its commercially reasonable best efforts to effect such the registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulationsof:
(i) of the Registrable Securities that the Company has been so requested to registerregister by the Holder or Holders for disposition in accordance with the intended method of disposition stated in such Demand, which may be an Underwritten Offering; providedand
(ii) all other Ordinary Shares that the Company may elect to register in connection with any offering of Registrable Securities pursuant to this Section 4.1, however, that but subject to Section 4.1(f).
(b) A Demand shall specify: (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for aggregate number of Registrable Securities having an anticipated aggregate offering price of less than $5,000,000requested to be registered in such Demand Registration, (ii) the Holders will not be entitled intended method of disposition in connection with such Demand Registration, to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, extent then known and (iii) the Company will not be obligated to effect more than one identity of the Holder (1) Demand Registration in any six (6) month periodor Holders).
(bc) The offering Each Holder shall be entitled to an unlimited number of Demand Registrations until such time as the Holders, together, Beneficially Own less than the Minimum Registration Amount.
(d) Demand Registrations shall be on such registration form of the Commission for which the Company is eligible as shall be selected by the requesting Holder whose shares represent a majority of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) that the Company may designate the managing underwriter(s) of the Underwritten Offeringhas been requested to register, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offeringincluding, subject to the approval of extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the Commission, and shall be reasonably acceptable to the Company, which approval shall not be unreasonably withheld or delayed and .
(iie) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate any Demand Registration (aA) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any within three months of a “firm commitment” Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf which all of the Holders.
Holders were given the opportunity to exercise “piggyback” rights pursuant to Section 4.2 (csubject to Section 4.1(f) If, in connection with an Underwritten Offering, and provided that at least 50% of the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the such Holders thereof to be included in such Demand Registration were included) or (B) within three months of any other Underwritten Offering pursuant to Section 4.1(a) and Section 4.3(f). In addition, the Company shall be entitled to postpone (upon written notice to all Holders) for a reasonable period of time not to exceed 45 days in succession the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice, or for more than 90 days in the aggregate, in any twelve-month period) if the Board determines in good faith and in its reasonable judgment that does the filing or effectiveness of the registration statement relating to such Demand Registration would cause the disclosure of (i) material, non-public information that the Company has a bona fide business purpose for preserving as confidential, (ii) a significant business opportunity (including a potential acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, share exchange, tender offer or other similar transaction) available to the Company which the Board reasonably determines to be significantly disadvantageous for the Company to disclose or (iii) any other event or condition of similar significance to the Company that the Board reasonably determines to be significantly disadvantageous for the Company to disclose and which the Company is not exceed otherwise required to disclose at such Underwriters’ Maximum Numbertime (each of the conditions in (i), (ii) and (iii), a “Disadvantageous Condition”), and the Company shall furnish to the Initial Shareholder a notice stating that the Company is deferring such registration pursuant to this Section 4.1(e) and an approximation of the anticipated duration of the delay. In the event of a postponement by the Company of the filing or effectiveness of a registration statement for a Demand Registration due to a Disadvantageous Condition, the Holder(s) shall have the right to withdraw such Demand in accordance with Section 4.4.
(f) The Company shall not include any securities other than Registrable Securities in a Demand Registration, except with the written consent of the Holders participating in such Demand Registration that hold a majority of the Registrable Securities included in such Demand Registration. If, in connection with a Demand Registration, any managing underwriter (or, if such Demand Registration is not an Underwritten Offering, a nationally recognized investment bank engaged in connection with such Demand Registration) advises the Company, that, in its opinion, the inclusion of all of the securities, including securities of the Company that are not Registrable Securities, sought to be allocated pro rata among registered in connection with such Demand Registration would adversely affect the Holders thereof on marketability of the basis Registrable Securities sought to be sold pursuant thereto, then the Company shall include in such registration statement only such securities as the Company is advised by such underwriter or investment bank can be sold without such adverse effect as follows and in the following order of priority: (i) first, up to the number of Registrable Securities requested to be included therein in such Demand Registration by each the Holders, which, in the opinion of the underwriter, can be sold without adversely affecting the marketability of the offering pro rata among such Holder. No shares Holders requesting such Demand Registration on the basis of Common Stock the number of such securities held by any Person other than Registrable Securities held by such Holders; and (ii) second, securities the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable SecuritiesCompany proposes to sell.
(dg) A registration Any investment bank(s) that will not be deemed serve as an underwriter with respect to have been effected as a such Demand Registration unless the or, if such Demand Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of not an Underwritten Offering, the Company fails to provide Full Cooperationany investment bank engaged in connection therewith, then such registration will shall be deemed not to have been effected for purposes selected by Holders holding a plurality of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the all Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)Demand.
Appears in 1 contract
Samples: Shareholders Agreement (Hanson Building Products LTD)
Demand Registration. (a) Subject Upon written notice to the provisions hereof, Issuer from one or more Holders at any time on during such periods as are provided for in the Lock-Up Agreement or after as are agreed by the date Issuer (the “Demand Request”) requesting that is 180 the Issuer effect the registration under the 1933 Act of any or all of the Registrable Securities held by such requesting Holders, which notice shall specify the intended method or methods of disposition of such Registrable Securities, the Issuer shall prepare and, within 30 days after such request, file with the Closing Date Commission a registration statement with respect to such Registrable Securities and thereafter use its commercially reasonable efforts to cause such registration statement to be declared effective under the 1933 Act for purposes of dispositions in accordance with the intended method or methods of disposition stated in such request. Notwithstanding any other provision of this Agreement to the contrary:
(as defined in the Merger Agreement), i) the Holders of a majority of Registrable Securities shall have the right may collectively exercise their rights to require the Company request registration under this Section 2.01(a) on not more than two occasions (each such registration being referred to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (herein as a “Demand Registration”);
(ii) by delivering a written request therefor the Issuer shall not be required to effect the Company (i) specifying Demand Registration hereunder unless the aggregate number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is registered pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to register; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled is equal to require the Company to effect or more than three (3) Demand Registrations in the aggregate under this Agreement, and 1,000,000 shares;
(iii) the Company will method of disposition requested by Holders in connection with any Demand Registration may not, without the Issuer's written consent, be a Rule 415 Offering; and
(iv) the Issuer shall not be obligated required to effect more than one (1) any Demand Registration in any six (6) month periodhereunder if all securities that were Registrable Securities on the date hereof have ceased to be Registrable Securities.
(b) The offering Notwithstanding any other provision of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject this Agreement to the approval of the Companycontrary, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will requested by Holders pursuant to this Section 2.01 shall not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SECeffected, at least 75% of the Registrable Securities and, therefore, not requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effectiverights of each Holder shall be deemed not to have been exercised for purposes of paragraph (a) above, (i) if such Demand Registration Statement has not become effective under the 1933 Act or (ii) if such Demand Registration, after it became effective under the related offer1933 Act, sale or distribution of Registrable Securities thereunder is or becomes was not maintained effective under the subject 1933 Act (other than as a result of any stop order, injunction or other order or requirement of the SEC Commission or any other governmental government agency or administrative agencycourt solely on the account of a material misrepresentation or omission of a Holder) for at least 30 days (or such shorter period ending when all the Registrable Securities covered thereby have been disposed of pursuant thereto) and, as a result thereof, the Registrable Securities requested to be registered cannot be distributed in accordance with the plan of distribution set forth in the related registration statement. So long as a Demand Request is made by the Holders within the periods referred to in Section 2.01(a), the Holders shall not lose their right to their Demand Registration under Section 2.01 if the Demand Registration related to such Demand Request is delayed or not effected in the circumstances set forth in this clause (b).
(c) The Issuer shall have the right to cause the registration of additional equity securities for sale for the account of the Issuer (but not for the account of stockholders other than Holders) in the registration of Registrable Securities requested by the Holders pursuant to Section 2.01(a) above; provided that if any court prevents such Holders are advised in writing (with a copy to the Issuer) by the lead or otherwise limits managing underwriter referred to in Section 2.03(b) that, in such underwriter’s good faith view, the number of shares of such Registrable Securities and additional equity securities exceeds the largest number of shares that can be sold in such registration without having an adverse effect on the price, timing or distribution of the offering and sale of the Registrable Securities and additional equity securities then contemplated (or that the inclusion of shares for the account of the Issuer would, in such underwriter’s good faith view, have such an adverse effect), then the number of securities that can, in the good faith view of such underwriter, be sold in such offering without so adversely affecting such offering (the “Maximum Offering Size”) shall be allocated in the following priority:
(i) first, so much of the Issuer Securities proposed to be registered for the account of the Holders as would not cause the offering to exceed the Maximum Offering Size (to be allocated among such Holders on the basis of the relative number of shares of Registrable Securities so requested to be included in such registration by each); and
(ii) second, all Registrable Securities requested to be included in such registration for the account of the Issuer; provided that the Issuer may not include securities therein for its own account if such inclusion would result in any reduction in the Registrable Securities proposed to be sold therein by the Holders. The Holders of the Registrable Securities to be offered pursuant to paragraph (a) above may require that any equity securities be included by the registrationIssuer in the offering proposed by such Holders on the same conditions as the Registrable Securities that are included therein.
(d) Within 7 days after delivery of a Demand Request by a Holder, and in the Issuer shall provide a written notice to each case less than Holder, advising such Holder of its right to include any or all of the Registrable Securities covered held by the effective Registration Statement are actually sold by the selling such Holder or Holders for sale pursuant to the Demand Registration Statement, or (ii) if, and advising such Holder of procedures to enable such Holder to elect to so include Registrable Securities for sale in the case Demand Registration. Any Holder may, within 7 days of an Underwritten Offering, the Company fails delivery to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes Holder of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested notice pursuant to this Section 4.2 2.01(d), elect to so include Registrable Securities in the Demand Registration by written notice to such effect to the Issuer specifying the number of Registrable Securities desired to be so included by such Holder.
(e) If the Issuer invokes a Market Interfering Delay during the Subsequent Period, the Issuer shall give prompt notice at least 30 days prior to the anticipated filing date of the registration statement relating to the registration which is deemed the subject of such Market Interfering Delay, to each Holder, which notice shall set forth such Holder’s rights under this Section 2.01(e) and shall offer such Holder the opportunity to include in such registration statement such number of Registrable Securities as the Holders so desire but not to have been effected as a Demand Registration or exceed up to 50% of the Registrable Securities then held by all such Holders. Upon the request of any such Holder made within 20 days after the receipt of notice from the Issuer (ii) which request shall specify the number of Registrable Securities intended to be registered by such Holder), the Issuer shall use its commercially reasonable efforts to effect the registration under the 1933 Act of all Registrable Securities that the Issuer has been so requested to register by all such Holders, to the extent requisite to permit the disposition of the Registrable Securities so to be registered, provided that if, at any time after giving notice of its intention to register any Issuer Securities pursuant to this Section 4.2 does not remain continuously 2.01(e) and prior to the effective until forty-five (45) days after the commencement date of the distribution by the Holders of the Registrable Securities covered by registration statement filed in connection with such registration, then the Company Issuer shall continue determine for any reason not to register the securities to be obligated offered by Issuer, the Issuer shall terminate the Market Interfering Delay and shall give notice to effect a Demand Registration pursuant all such Holders and, thereupon, shall be relieved of its obligation to this Section 4.2 of the register any Registrable Securities included in connection with such registration. In circumstances not including the events described in the immediately two preceding sentences of No registration effected under this Section 4.2(d)2.01(e) shall relieve the Issuer of its obligations to effect any Demand Registration to the extent required by this Agreement. The Issuer shall pay all Registration Expenses in connection with such registration during the Subsequent Period. Notwithstanding the foregoing, each Holder the Issuer shall not be entitled to both a Disadvantageous Condition Delay and a Market Interfering Delay during the Subsequent Period and is entitled to only one Market Interfering Delay during the Subsequent Period in any event. Furthermore, the duration of Registrable Securities the Subsequent Period shall be permitted voluntarily to withdraw all or any part extended by the number of its Registrable Securities from a Demand Registration at any time prior days equal to the commencement period of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of any Disadvantageous Condition Delay occurring during the proviso to Section 4.2(a)Subsequent Period.
Appears in 1 contract
Samples: Registration Rights Agreement (Nptest Holding Corp)
Demand Registration. (a) Subject to the provisions hereofconditions of this Section 2.2, if the Company shall receive at any time on a written request from any UniPhy Preferred Shareholders or after the date that is 180 days after the Closing Date ARC Key Shareholders (as defined in the Merger Agreement)for purposes of this Section 2.2, the Holders "Demand Registration Investors") holding ten percent (10%) or more of a majority of the Registrable Securities shall have then outstanding which are held by the right to require Demand Registration Investors (the "Initiating Investors") that the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities registration statement under the Securities Act (a “Demand Registration”) by delivering a written request therefor to covering the Company (i) specifying the number registration of Registrable Securities having an aggregate offering price to be included in the public of not less than $1,000,000, then the Company shall, within thirty (30) days of the receipt thereof, give written notice of such registration by such Holder or Holders, (ii) specifying whether request to all of the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below)Demand Registration Investors, and (iii) containing all information about such Holder required subject to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt limitations of such demandthis Section 2.2, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable its best efforts to effect such effect, as soon as practicable, the registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the all Registrable Securities that the Company has been so requested to register; provided, however, that (i) the Holders shall not make a request for a Demand Registration under Investors (for purposes of this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,0002.2, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) "Demand Registration in any six (6Investors") month periodrequest to be registered.
(b) The offering of If the Initiating Investors intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.2 and the Company shall include such Demand Registration may be information in the form of an underwritten public offering (an “Underwritten Offering”written notice referred to in Section 2.2(a). In such caseevent, the right of any Demand Registration Investor to include his Registrable Securities in such registration shall be conditioned upon such Demand Registration Investor's participation in such underwriting and the inclusion of such Demand Registration Investor's Registrable Securities in the underwriting (i) the Company may designate the managing underwriter(s) unless otherwise mutually agreed by a majority in interest of the Underwritten Offering, provided that Initiating Investors and such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject Demand Registration Investor) to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders extent provided herein. All Demand Registration Investors proposing to distribute their securities through such underwriting) underwriting shall enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Investors (which underwriter or underwriters shall be reasonably acceptable to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 Company). Notwithstanding any other provision of this Agreement; providedSection 2.2, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (iincluding Registrable Securities) then the representations and warranties byCompany shall so advise all Demand Registration Investors holding Registrable Securities which would otherwise be underwritten pursuant hereto, and the other agreements number of shares that may be included in the underwriting shall be allocated to the Demand Registration Investors on a pro rata basis based on the part of, number of Registrable Securities held by all such Demand Registration Investors (including the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder Initiating Investors). Any Registrable Securities excluded or withdrawn from such underwriting shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) withdrawn from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. registration.
(c) The Company shall not be obligated required to effect or participate a registration pursuant to this Section 2.2 with respect to the Registrable Securities:
(ai) more than prior to an Initial Offering; or
(ii) after the Company has effected two (2) Underwritten Offerings registration pursuant to this Section 2.2.
(d) The Company shall not be required to effect a registration pursuant to this Section 2.2 with respect to any Registrable Securities:
(i) if within thirty (30) days of receipt of a written request from Initiating Investors pursuant to Section 2.2(a), the Company gives notice to the Demand Registration Investors of the Company's intention to make its Initial Offering within ninety (90) days; or
(ii) if the Company shall furnish to Demand Registration Investors requesting a registration statement pursuant to this Section 2.2, a certificate signed by the Chairman of the Board stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its 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 Investors; provided that such right to delay a request shall be exercised by the Company not more than once in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a).
Appears in 1 contract
Demand Registration. (a) Subject In the event that following the period the Holder is prohibited from selling the Registrable Securities by the provisions of the underwriting agreement relating to the provisions hereofInitial Public Offering, at any time on Holder or after the date that is 180 days after the Closing Date Holders (as defined in the Merger Agreement), the Holders of a majority i) desire to sell shares of Registrable Securities shall have owned by such Holder or Holders and (ii) an exemption from registration under the right Securities Act or the rules and regulations promulgated thereunder, including, without limitation, Rule 144 (or any successor rules or regulation thereto), is not available to require enable the Holder or Holders to dispose of the number of shares of Registrable Securities it desires to sell at the time and in the manner it desires to do so, then upon the written request of any Holder or Holders requesting that the Company to file a Registration Statement registering for sale effect the registration under the Securities Act of all or part of their respective such Holder's or Holders' Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) and specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant thereof, but subject to an Underwritten Offering (as defined below)the limitations set forth herein, the Company will promptly give written notice of such requested registration to all other Holders of Registrable Securities, and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance the Company shall file with applicable law. As soon the Commission as promptly as practicable after the receipt of sending such demandnotice, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable its best efforts to effect such cause to become effective, a registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued statement under the Securities Act registering the offering and any other governmental requirements or regulationssale of:
(i) of the Registrable Securities that which the Company has been so requested to registerregister by such Holder or Holders; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, and
(ii) the Holders will not be entitled to require all other Registrable Securities which the Company has been requested to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) register by any other Holder thereof by written request given to the Company will not be obligated within 15 days after the giving of such written notice by the Company (which request shall specify the intended method of disposition of such Registrable Securities), all to effect more than one the extent necessary to permit the disposition (1in accordance with the intended method thereof as aforesaid) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant so to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreementregistered; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect file a registration statement relating to any registration request under this
Section 2(a) (A) unless the aggregate requests by the Holder or participate Holders for such registration cover not less than 5.0% of the outstanding Common Stock, (aB) with respect to more than two an aggregate of 3 registrations (2which shall be increased to an unlimited number of registrations if such additional registrations are effected on Form S-3 or any successor similar short-form registration statement) Underwritten Offerings in under this Section 2(a), (C) within a period of 180 days after the effective date of any twelve other registration statement relating to any registration request under this Section 2(a), or (12D) month periodif with respect thereto, the managing underwriter, the Commission, the Securities Act or the rules and (b) in any Underwritten Offering during any lock-up period required by regulations thereunder, or the underwriter(s) in any prior underwritten offering form on which the registration statement is to be filed, would require the conduct of an audit other than the regular audit conducted by the Company on at the end of its own behalf or on behalf fiscal year, in which case the filing may be delayed until the completion of such regular audit (unless the Holders requesting such registration agree to pay the expenses of the Holders.
(c) If, Company in connection with such an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person audit other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(aregular audit).
Appears in 1 contract
Demand Registration. (a) Subject to the provisions hereof, at At any time on or after the date that is commencing 180 days after the Closing Date (------------------- Initial Public Offering and for so long as defined in the Merger Agreement), the Holders of a majority of Registrable Securities shall have the right to require the Company shall not be eligible to file a Registration Statement registering for sale all on Form F-3 (or part any successor form relating to secondary offerings), each of their respective Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written request therefor to Holders may request, in writing, that the Company effect a registration on Form F-1 or Form F-2 (ior any successor form) specifying the number of Registrable Securities to be included in such registration Shares held by such Holder or Holders, (ii) specifying whether having an aggregate offering price to the intended method public of disposition thereof is at least $50,000,000.00. Following receipt of any notice pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demandthis Section 2, the Company shall (x) promptly immediately notify all Holders from whom the request for registration notice has not been received and (y) shall use reasonable its best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued register under the Securities Act Act, for public sale in accordance with the method of distribution specified in such notice from the requesting Holder or Holders, the number of Registrable Shares specified in such notice (and any in all notices received by the Company from other governmental requirements or regulations) Holders within 30 days after the giving of such notice by the Company). If such method of distribution shall be an underwritten public offering, the Holder of a majority of the Registrable Securities that the Company has been so requested Shares to register; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate be sold in such offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) underwriter of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offeringoffering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) delayed. If a registration pursuant to this Section 2 is, in whole or in part, an underwritten public offering, the Company shall (together provide such assistance with respect to the offering as may be reasonably requested by the requesting Holders proposing or the underwriters, including, but not limited to, causing members of the Company's senior management team to distribute their securities through such underwriting) enter into an underwriting agreement participate in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and "roadshow" presentations for the benefit purpose of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition marketing of the Registrable Securities disposed of Shares to be sold by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreementunderwriters. The Company shall not be obligated required to effect or participate (a) more than two one such registration at the request of each of the CGIP Group and the Floscule Group under this Section 2; provided that such -------- obligation shall be deemed satisfied only when a Registration Statement covering all Registrable Shares specified in notices received as aforesaid, for sale in accordance with the method of disposition specified by the requesting Holders, 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. The Company will use its best efforts to maintain the effectiveness for up to 90 days (or such shorter period of time as the underwriters need to complete the distribution of the registered offering) of any Registration Statement pursuant to this Section 2) Underwritten Offerings in any twelve (12) month period, and .
(b) The Company shall be entitled to include in any Underwritten Offering during any lock-up period required Registration Statement referred to in this Section 2, for sale in accordance with the method of disposition specified by the underwriter(s) in any prior underwritten offering conducted requesting Holders, Class A Common Shares to be sold by the Company on for its own behalf or on behalf account; provided, that if the proposed method -------- of disposition specified by the Holders.
(c) If, in connection with requesting Holders shall be an Underwritten Offeringunderwritten public offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed shares to be included in such registration exceeds an offering shall be reduced if and to the Underwriters’ Maximum Number, then extent that the managing underwriter shall be of the opinion that such inclusion would adversely affect the marketing of the Registrable Shares to be sold. Such reduction will be effected as follows:
(i) First, any shares to be sold by the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and reduced; and
(ii) Second, if all of the shares to be sold by the Company will are excluded from the offering, then the Registrable Shares of the requesting Holders shall be obligated and required to include in reduced, such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof reduction to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated made pro rata among the ---- requesting Holders thereof based on the basis of the number of Registrable Securities requested to be included therein Shares owned by each such Holderrequesting Holders. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A Except for registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SECstatements on Form X-0, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC X-0 or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offeringsuccessor thereto, the Company fails will not file with the Commission any other Registration Statement with respect to provide Full Cooperationits Class A Common Shares, then such registration will be deemed not to have been effected whether for purposes its own account or that of clause (ii) other stockholders, from the date of the proviso to Section 4.2(a). If (i) receipt of a registration requested notice from requesting Holders pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) 2 until the completion of the period of distribution of the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)contemplated thereby.
Appears in 1 contract
Samples: Registration Rights Agreement (Compagnie Generale D Industrie Et De Participations)
Demand Registration. (a) Subject to the provisions hereof, at any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement), the Holders After receipt of a majority of Registrable Securities shall have the right to require written request from one or more Holders requesting that the Company to file effect a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act registration (a “Demand Registration”) under the Securities Act covering all or part of the New Registrable Securities which specifies the intended method or methods of disposition thereof, the Company shall promptly notify all Holders in writing of the receipt of such request and each such Holder, in lieu of exercising its rights under Section 4 hereof, may elect (by delivering a written request therefor notice sent to the Company within ten (i10) specifying Business Days from the number date of such Holder’s receipt of the aforementioned notice from the Company) to have all or part of such Holder’s New Registrable Securities to be included in such registration by thereof pursuant to this Section 3, and such Holder or Holders, (ii) specifying whether shall specify in such notice the intended method number of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about New Registrable Securities that such Holder required elects to be included include in such Registration Statement in accordance with applicable lawregistration. As soon as practicable after the receipt of such demandThereupon, the Company shall shall, as expeditiously as is possible, but in any event no later than thirty (x30) promptly notify all Holders from whom the days (excluding any days which occur during a permitted Blackout Period under Section 6 below) after receipt of a written request for registration has not been received a Demand Registration, file with the SEC and (y) use its reasonable best efforts to effect such cause to be declared effective, a registration statement (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulationsa “Demand Registration Statement”) relating to all shares of the New Registrable Securities that the Company has been so requested to registerregister by such Holders (“Participating Demand Holders”) for sale, to the extent required to permit the disposition (in accordance with the intended method or methods thereof, as aforesaid) of the New Registrable Securities so registered; provided, however, that the aggregate value of the New Registrable Securities requested to be registered (i) be at least $10,000,000, based on the Holders shall not make a request for a closing trading price of the Common Stock on the date the demand to file such Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, Statement is made or (ii) be at least 20% of the Holders will not be entitled to require New Registrable Securities initially issuable upon exercise of the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month periodWarrants.
(b) The offering If the majority-in-interest of the Registrable Securities pursuant to such Participating Demand Holders in a Demand Registration may relating to a public offering requests that the offering be underwritten with a managing underwriter selected in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as manner set forth in Section 4.9 14 below and such managing underwriter of this Agreement; providedsuch Demand Registration advises the Company in writing that, in its opinion, the number of securities to be included in such offering is greater than the total number of securities which can be sold therein without having a material adverse effect on the distribution of such securities or otherwise having a material adverse effect on the marketability thereof (the “Maximum Number of Securities”), then the Company shall include in such Demand Registration the Registrable Securities that (i) the representations and warranties by, Participating Demand Holders and the other agreements participating Old Piggy-Back Holders have requested to be registered thereunder only to the extent the number of such Registrable Securities does not exceed the Maximum Number of Securities. If such amount exceeds the Maximum Number of Securities, the number of Registrable Securities included in such Demand Registration shall be allocated among all the Participating Demand Holders and the participating Old Piggy-Back Holders on a pro rata basis (based on the part ofnumber of Registrable Securities held by each Participating Demand Holder and participating Old Piggy-Back Holder). If the amount of such Registrable Securities does not exceed the Maximum Number of Securities, the Company to and for the benefit may include in such Demand Registration any other securities of the underwriter(s) shall also be made to Company and for the benefit other securities held by other security holders of the Holders proposing Company as the Company may in its discretion determine or be obligated to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or reportallow, in reliance upon and in conformity an amount, which together with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided included in such underwriting agreement and completes and executes all questionnairesDemand Registration, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by exceed the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf Maximum Number of the HoldersSecurities.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included entitled to an aggregate of two (2) registrations of New Registrable Securities pursuant to this Section 3 (each, a “Demand for Registration”) in addition to the Shelf Registration Statement pursuant to Section 2; provided that a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will requested pursuant to this Section 3 shall not be deemed to have been effected as a Demand Registration for purposes of this Section 3(c) unless the Registration Statement relating thereto (i) it has been declared effective by the SEC, at least 75% (ii) it has remained effective for the period set forth in Section 7(a), (iii) Holders of the New Registrable Securities requested to be included in the registration by the Holders are included in such registrationregistration have not, prior to the filing of the relevant Demand Registration Statement, withdrawn sufficient shares from such registration such that the remaining Holders requesting registration would not have been able to request registration under the provisions of Section 3, and (iv) the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution offering of New Registrable Securities thereunder pursuant to such registration is or becomes the not subject of to any stop order, injunction or other order or requirement of the SEC or (other than any other governmental or administrative agencysuch stop order, injunction, or if any court prevents other order or otherwise limits the sale requirement of the SEC prompted by act or omission of Holders of New Registrable Securities); provided, however, that if, as a result of the inclusion of Old Registrable Securities pursuant held by participating Old Piggy-Back Holders, the Participating Demand Holders are not able to the registration, register and in each case less than all sell at least two-thirds of the New Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant requested to the Registration Statement, or (ii) if, be included in the case of an Underwritten Offering, the Company fails to provide Full Cooperationa Demand Registration, then such registration will Demand Registration shall not be deemed not to have been effected for purposes of clause (ii) counted as one of the proviso to Section 4.2(a). If (i) a registration requested two Demands for Registration provided for pursuant to this Section 4.2 is deemed 3(c).
(d) Notwithstanding anything to the contrary contained herein, the Company shall not be required to have been effected as a prepare and file (i) more than two (2) Demand Registration or Statements in any twelve-month period, (ii) any Demand Registration Statement within 180 days following the date of effectiveness of any other Registration Statement or (iii) any Demand Registration Statement within 90 days following the date of effectiveness of any other registration requested statement filed pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement Old Registration Agreement or with respect to the sale of the distribution Common Stock by the Holders Company (or such longer period of the Registrable Securities covered by such registration, then the Company shall continue time as may be specified in an underwriting agreement relating to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(astatement).
Appears in 1 contract
Samples: Registration Rights Agreement (Pac-West Telecomm Inc)
Demand Registration. (a) Subject to (i) HEI shall have the provisions hereofright, at any time on or after the date that is 180 days after the Closing Date (as defined not more than four occasions in the Merger Agreement)aggregate, and no more frequently than once during any six-month period, and (ii) the Holders of Minority Stockholders as a majority of Registrable Securities group shall have the right (though such right need not be jointly exercised by the Minority Stockholders), on not more than two occasions in the aggregate (it being understood and agreed that two or more Minority Stockholders may make joint Demands hereunder or any Minority Stockholder may join in a Demand made by any other Minority Stockholder, and any such joint Demand or joining in of a Demand shall be deemed to be a single Demand for all purposes hereof), and no more frequently than once during any six-month period, to require the Company to file a Registration Statement registering register for offer and sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”"Demand") all or a portion of the Registrable Securities held by delivering a written request therefor such Stockholders, subject to the restrictions set forth herein; provided that no Stockholders shall be entitled to make a Demand hereunder unless the Registrable Securities subject to such Demand represent at least 7% of the aggregate shares of Company Common Stock then issued and outstanding and provided further that HEI shall exercise its Demands under subsection (i) specifying the number of Registrable Securities hereof prior to be included in such registration by such Holder or Holders, exercising any Demand as a Minority Stockholder under (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable lawhereof. As soon promptly as practicable after the receipt Company receives from a Stockholder (the "Demanding Stockholder") a notice pursuant to this Section 4.1(a) (a "Demand Notice"), a copy of such demandwhich shall have also been delivered to each other Minority Stockholder at the same time as to the Company, demanding that the Company register for offer and sale under the Securities Act Registrable Securities, subject to Section 4.1(b), the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (yi) use all reasonable best efforts to effect file as promptly as reasonably practicable with the Commission a Registration Statement relating to the offer and sale of the Applicable Securities on such form as the Company may reasonably deem appropriate (provided that the Company shall not, unless the Company otherwise determines, be obligated to register any securities on a "shelf" registration statement or otherwise to register securities for offer or sale on a continuous or delayed basis) and, thereafter, (includingii) after the filing of an initial version of the Registration Statement, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued use reasonable efforts to cause such Registration Statement to be declared effective under the Securities Act and any other governmental requirements or regulations) as promptly as practicable after the date of the Registrable Securities that the Company has been so requested to registerfiling of such Registration Statement; provided, however, that no Demanding Stockholder shall be entitled to be named as a selling securityholder in the Registration Statement or to use the Prospectus forming a part thereof for resales of Registrable Securities unless such Demanding Stockholder has made an Election. Subject to Section 4.1(b), the Company shall use reasonable efforts to keep each Registration Statement continuously effective in order to permit the Prospectus forming a part thereof to be usable by such Demanding Stockholder for resales of Registrable Securities for an Effectiveness Period ending on the earlier of (i) 30 days from the Holders shall not make a request for a Demand Effective Time of such Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, Statement and (ii) such time as all of such securities have been disposed of by the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month periodselling securityholders.
(b) The offering Company shall have the right to postpone (or, if necessary or advisable, withdraw) the filing, or delay the effectiveness, of a Registration Statement, or fail to keep such Registration Statement continuously effective or not amend or supplement the Registrable Securities pursuant Registration Statement or included Prospectus, if the Company determines based upon the advice of counsel that it would be advisable to such Demand Registration may be not disclose in the form of an underwritten public offering (an “Underwritten Offering”). In such caseRegistration Statement a planned or proposed financing, (i) the Company may designate the managing underwriter(s) of the Underwritten Offeringacquisition or other corporate transaction or other material information, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with have determined in good faith that such disclosure is not in the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings best interests of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) its stockholders; provided that no one such postponement shall also be made to exceed 90 days in any six-month period and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of all such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) postponements shall not exceed 180 days in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreementaggregate. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in advise the Demanding Stockholder of any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holderssuch determination as promptly as practicable after such determination.
(c) If, in In connection with an Underwritten Offeringunderwritten offering, if the managing underwriter(s) underwriter or underwriters advise the Company that in its or their reasonable opinion the number of securities proposed Applicable Securities subject to a Demand exceeds the number which can be included sold in such registration exceeds the Underwriters’ Maximum Numberoffering, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that Registration the number of Registrable Applicable Securities requested by that, in the Holders thereof to opinion of such managing underwriter or underwriters, can be included sold in such registration that does not exceed such Underwriters’ Maximum Numberoffering (provided that, such Registrable in the event of a joint Demand, the Applicable Securities to included shall be allocated pro rata among the Holders thereof Demanding Stockholders on the basis of the relative number of Registrable Applicable Securities each such Demanding Stockholder has requested to be included therein by each in such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable SecuritiesRegistration).
(d) The Company may include in any registration requested pursuant to Section 4.1(a) hereof other securities for sale for its own account or for the account of another Person, subject to the following sentence. In connection with an underwritten offering, if the managing underwriter or underwriters advise the Company that in its or their opinion the number of Applicable Securities requested by the Demanding Stockholder, together with other securities for sale for the account of the Company or any other Person, to be registered exceeds the number which can be sold in such offering, the Company shall include in such Registration the number of Applicable Securities and other securities that, in the opinion of such managing underwriter or underwriters, can be sold in such offering as follows: (i) first, the Applicable Securities requested to be registered by the Demanding Stockholder and (ii) second, any other securities requested to be included in such Registration.
(e) A registration will not Demanding Stockholder shall have the right to withdraw any Demand (i) prior to the time the Registration Statement in respect of such Demand has been declared effective, (ii) upon the issuance by the Commission or any other governmental agency of a stop order, injunction or other order which interferes with such Registration, (iii) upon the Company's availing itself of Section 4.1(b), or (iv) if such Demanding Stockholder is prevented pursuant to Section 4.1(c) or (d) from selling all of the Applicable Securities it requested to be registered. Notwithstanding such request to withdraw the Demand, the Registration requested by such Demanding Stockholder shall nonetheless be deemed to have been effected as a (and, therefore, requested) for purposes of Section 4.1(a) hereof if such Demanding Stockholder withdraws any Demand Registration unless (A) pursuant to clause (i) of the Registration Statement relating preceding sentence after the Commission filing fee is paid with respect thereto has been declared effective by or (B) pursuant to clause (iv) of the SEC, preceding sentence in circumstances where at least 7550% of the Registrable Applicable Securities requested to be included in such Registration by such Demanding Stockholder could have been included, and in each case, (x) the Company has not availed itself of Section 4.1(b) with respect to such Registration request or (y) the Company has availed itself of Section 4.1(b) and the withdrawal request is not made within 10 days after the termination of the suspension period occasioned by the Company's exercise of its rights under Section 4.1(b). If a Demanding Stockholder withdraws a Demand but the Company nevertheless determines to complete, within 30 days after such withdrawal, the Registration so requested as to securities other than the Applicable Securities, such Demanding Stockholder shall be entitled to participate in such Registration pursuant to Section 4.2, but in such case the Intended Offering Notice shall be required to be given to such Demanding Stockholder at least five business days prior to the anticipated filing date of the Registration Statement, or if such Registration Statement has already been filed, within 10 business days after receipt of the request to withdraw Demand from such Demanding Stockholder and such Demanding Stockholder shall be required to give the Piggy-back Notice no later than 3 business days after the Company's delivery of such Intended Offering Notice.
(f) In the event that any Registration pursuant to this Section 4.1 shall involve, in whole or in part, an underwritten offering, one co-lead managing underwriter shall be selected by the Company and shall be reasonably acceptable to the Demanding Stockholder, and the other co-lead underwriter shall be selected by the Demanding Stockholder, provided that, in the event of a joint Demand, the other co-lead underwriter shall be selected by a majority in interest (by reference to the number of Applicable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (iiRegistration) of the proviso Demanding Stockholders, and shall be reasonably acceptable to Section 4.2(a)the Company. If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until fortyAny additional co-five (45) days after the commencement of the distribution managing underwriters shall be selected by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)Company.
Appears in 1 contract
Demand Registration. (a) Subject to the provisions hereofSection 4.2(a), if, at any time on or after the date that which is 180 days after eleven (11) months from the Closing Date (as defined date hereof, the Company shall receive from a Holder or Holders beneficially owning in the Merger Agreementaggregate more than 50% of the Registrable Securities a written request (a "Demand Request") that the Company register under the Securities Act the Registrable Securities, then the Company shall use its commercially reasonable efforts to cause all Registrable Securities specified in such Demand Request to be registered as soon as reasonably practicable so as to permit the offering and sale thereof and, in connection therewith, shall, as expeditiously as possible, but in any event not later than thirty (30) days (excluding any days which occur during the period of a permitted Suspension Condition under Section 4.2 below) after receipt of a Demand Request, prepare and file with the SEC, a registration statement, which may, at the option of such Holder(s), the Holders of be a majority of Registrable Securities shall have the right to require shelf registration statement on Form S-3 (if such Form S-3 is available for use by the Company to file a Registration Statement registering for sale all or part effect the registration and distribution of their respective the Registrable Securities Securities) pursuant to Rule 415(a)(1)(i) under the Securities Act (a “"Demand Registration”Registration Statement") by delivering a written request therefor and use its commercially reasonable efforts to the Company (i) specifying the number of Registrable Securities cause such Demand Registration Statement to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to registerdeclared effective; provided, however, that such Demand Request shall: (i) specify the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for number of Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, intended to be offered and sold by the Holder(s) pursuant thereto; (ii) express the Holders will not be entitled present intention of the Holder(s) to require offer or cause the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the such Registrable Securities pursuant to such Demand Registration may be in Statement; (iii) describe the form nature or method of distribution of such Registrable Securities pursuant to such Demand Registration Statement, including by means of an underwritten public offering offering; and (an “Underwritten Offering”). In such case, (iiv) contain the Company may designate the managing underwriter(s) undertaking of the Underwritten Offering, provided that Holder(s) to provide all such Holders information and materials and take all such actions as may designate a co-managing underwriter be required in order to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, permit the Company to and for the benefit comply with all applicable requirements of the underwriter(s) shall also be made to Securities Act, the Exchange Act and for the benefit rules and regulations of the Holders proposing SEC thereunder, and to distribute their securities through obtain any desired acceleration of the Underwritten Offeringeffective date of such Demand Registration Statement.
(b) Notwithstanding anything herein to the contrary, (ii) if a Form S-3 is available for use by the Company to effect the registration and distribution of the Registrable Securities, the Demand Registration Statement shall be on Form S-3, and no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to Demand Request that the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in register any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers Form S-1 or other form of attorney, indemnities and other documents reasonably required registration under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the HoldersSecurities Act.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise The procedures to be followed by the Company that in its or their reasonable opinion and the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registrationHolders, and the respective rights and obligations of the Company has complied in all material respects with its obligations under this Agreement and the Holders, with respect thereto; providedto the preparation, however, that if, after it has become effective, (i) such filing and effectiveness of the Demand Registration Statement or and the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Demand Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to under this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this 4.1 are set forth in Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)hereof.
Appears in 1 contract
Samples: Standstill and Registration Rights Agreement (Cell Genesys Inc)
Demand Registration. (a) On or prior to each Filing Date, the Company shall prepare and file with the Commission a Registration Statement covering the resale of all of the Registrable Securities that are not then registered on an effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. Each Registration Statement filed hereunder shall be on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, subject to the provisions of Section 2(e)) and shall contain (unless otherwise directed by at least 85% in interest of the Holders or to make any disclosure contained therein not misleading) substantially the “Plan of Distribution” attached hereto as Annex A and substantially the “Selling Stockholder” section attached hereto as Annex B; provided, however, that no Holder shall be required to be named as an “underwriter” without such Holder’s express prior written consent. Subject to the provisions hereof, at any time on or after the date that is 180 days after the Closing Date (as defined in the Merger terms of this Agreement), the Holders of a majority of Registrable Securities Company shall have the right use its reasonable best efforts to require the Company to file cause a Registration Statement registering for sale all or part of their respective Registrable Securities filed under this Agreement (including, without limitation, under Section 3(c)) to be declared effective under the Securities Act as promptly as possible after the filing thereof, but in any event no later than the applicable Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act until the date that all Registrable Securities covered by such Registration Statement (a “Demand Registration”i) have been sold, thereunder or pursuant to Rule 144, or (ii) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by delivering a written request therefor the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders (ithe “Effectiveness Period”). The Company shall notify the Holders via e-mail of the effectiveness of a Registration Statement as promptly as practicable, and shall, if requested, provide the Holders with copies of the final Prospectus to be used in connection with the sale or other disposition of the securities covered thereby.
(b) specifying Notwithstanding the registration obligations set forth in Section 2(a), if the Commission informs the Company that all of the Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly inform each of the Holders thereof and use its reasonable best efforts to file an amendment or amendments to the Initial Registration Statement as required by the Commission, covering the maximum number of Registrable Securities permitted to be registered by the Commission, on Form S-3 or such other form available to register for resale the Registrable Securities as a secondary offering, subject to the provisions of Section 2(e); and subject to the provisions of Section 2(d) with respect to payment of liquidated damages with respect to filing on Form S-3 or other appropriate form; provided, however, that prior to filing such amendment, the Company shall be obligated to use diligent efforts to advocate with the Commission for the registration of all of the Registrable Securities in accordance with the SEC Guidance, including without limitation, Securities Act Rules Compliance and Disclosure Interpretation 612.09.
(c) Notwithstanding any other provision of this Agreement and subject to the payment of liquidated damages pursuant to Section 2(d), if the Commission or any SEC Guidance sets forth a limitation on the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering (and notwithstanding that the Company used diligent efforts to advocate with the Commission to maximize the number of Registrable Securities to be registered), unless otherwise directed in writing by a Holder as to its Registrable Securities, the number of Registrable Securities to be registered on such Registration Statement will be reduced as follows:
(i) First, the Company shall reduce or eliminate any securities to be included in such registration by such Holder or Holders, other than Registrable Securities;
(ii) specifying whether Second, the intended method Company shall reduce Registrable Securities represented by Warrant Shares (applied, in the case that some Warrant Shares may be registered, to the Holders on a pro rata basis based on the total number of disposition thereof is pursuant to an Underwritten Offering (as defined belowunregistered Warrant Shares held by such Holders), and ; and
(iii) containing all information about Third, the Company shall reduce Registrable Securities represented by Shares (applied to the Holders on a pro rata basis based on the total number of unregistered Shares held by such Holders). In the event of a reduction hereunder, the Company shall give the Holder required at least five (5) Trading Days’ prior written notice along with the calculations as to be included in such Xxxxxx’s allotment. In the event the Company amends the Initial Registration Statement in accordance with the foregoing, then the Company shall use its reasonable best efforts to file with the Commission, as promptly thereafter as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on Form S-3 or such other form available to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended.
(d) If: (i) the Initial Registration Statement is not filed on or prior to its Filing Date (if the Company files the Initial Registration Statement without affording the Lead Investor the opportunity to review and comment on the same as required by Section 3(a) herein, the Company shall be deemed to have not satisfied this clause as of the Filing Date (i)), (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the Securities Act, within five (5) Trading Days of the date that the Company is notified in writing by the Commission that such Registration Statement will not be “reviewed” or will not be subject to further review, (iii) a Registration Statement registering for resale all of the Registrable Securities is not declared effective by the Commission by the Effectiveness Date of the Initial Registration Statement or (iv) after the effective date of a Registration Statement, such Registration Statement ceases for any reason to remain continuously effective as to all Registrable Securities included in such Registration Statement, or the Holders are otherwise not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowed Delay), for more than fifteen (15) consecutive calendar days or more than an aggregate of twenty (20) calendar days (which need not be consecutive calendar days) during any 12-month period (any such failure or breach being referred to as an “Event”, and for purposes of clauses (i) and (iii), the date on which such Event occurs, and for purpose of clause (ii) the date on which such five (5) Trading Day period is exceeded, and for purpose of clause (iv) the date on which such fifteen (15) or twenty (20) calendar day period, as applicable, is exceeded being referred to as “Event Date”), then, in addition to any other rights the Holders may have hereunder or under applicable law, on each such Event Date and on each monthly anniversary of each such Event Date (if the applicable Event shall not have been cured by such date) until the applicable Event is cured, the Company shall pay to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to the product of 2.0% multiplied by the aggregate Subscription Amount paid by such Holder pursuant to the Purchase Agreement. As soon as practicable The parties agree that the maximum aggregate liquidated damages payable to a Holder under this Agreement shall be 12.0% of the aggregate Subscription Amount paid by such Holder pursuant to the Purchase Agreement. If the Company fails to pay any partial liquidated damages pursuant to this Section in full within seven Trading Days after the receipt date payable, the Company will pay interest thereon at a rate of 18% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro rata basis for any portion of a month prior to the cure of an Event. The parties agree that notwithstanding anything to the contrary herein or in the Purchase Agreement, no liquidated damages shall be payable (i) if as of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Holder and the Company’s transfer agent, if any, (ii) to a Holder with respect to an Event caused by any action of such demandHolder or failure of such Holder to take any action that such Xxxxxx is required to take hereunder, or (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities because of possession of material non-public information.
(e) If Form S-3 is not available for the registration of the resale of Registrable Securities hereunder, the Company shall (xi) promptly notify all Holders from whom register the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) resale of the Registrable Securities that the Company has been so requested to register; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the on another appropriate form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) undertake to register the Registrable Securities on Form S-3 as soon as such form is available, provided that the Company shall (together with maintain the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit effectiveness of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter Registration Statement then in effect until such time as a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or Statement on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of Form S-3 covering the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required has been declared effective by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the HoldersCommission.
(cf) IfNotwithstanding anything to the contrary contained in this Agreement, in connection with an Underwritten Offering, the managing underwriter(s) advise no event shall the Company that in its be permitted to name any Holder or their reasonable opinion the number affiliate of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by a Holder as any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration underwriter without the prior written consent of the holders of a majority in interest of the Registrable Securitiessuch Holder.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a).
Appears in 1 contract
Samples: Registration Rights Agreement (Harpoon Therapeutics, Inc.)
Demand Registration. (a) Subject At any time subject to the provisions hereof, at any time on or after the date that is 180 days after the Closing Date limitations of paragraphs (as defined in the Merger Agreement)c) and (d) of this Section 7.2, the Holders of a majority of Registrable Securities shall have the right to require Investor may by written notice request that the Company to file a Registration Statement registering for sale register under the Securities Act all or part of their respective such Investor's Registrable Securities in accordance with such Investor's intended methods of distribution as specified in such notice.
(b) Upon receipt of any notice of a request for registration pursuant to paragraph (a) above (a "Demand Registration"), the Company will proceed expeditiously to prepare and file a registration statement on the appropriate form to permit the sale or transfer of the Registrable Securities requested to be included by the Investor.
(c) Notwithstanding the foregoing, (i) the Company shall not be obligated to file a registration statement relating to a Demand Registration under this Section 7.2 if counsel to the Company renders an opinion to the effect that registration under the Securities Act is not required for the proposed transfer of Registrable Securities, (a “Demand Registration”ii) by delivering a written request therefor to the Company shall not be required to effect more than two registrations pursuant to this Section 7.2, (iiii) specifying the number Company shall not be required to file any registration statement pursuant to this Section 7.2 prior to nine (9) months after the Company's Initial Public Offering and (iv) the Company shall not be required to file a registration statement relating to a Demand Registration under this Section 7.2 if the amount of Registrable Securities to be included in sold pursuant to such registration by is less than $7,500,000 in market value at the time the request for such Holder or Holders, (ii) specifying whether registration is made to the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable lawCompany. As soon as practicable after the receipt of such demandIn addition, the Company shall may defer the filing of a registration statement relating to a Demand Registration if (xl) promptly notify all Holders from whom the request for Company has filed, or is about to file, a registration statement relating to the offering of or (2) has not been received and (y) use reasonable best efforts undertaken or is about to effect such undertake without a registration statement the offering of (including, without limitation, appropriate qualification under applicable blue sky a so-called private investment in public equity securities or other state securities laws "PIPES" offering and appropriate compliance with applicable regulations issued an offering pursuant to Rule 144A under the Securities Act ("Rule 144")) any of the Company's securities (a "Company Offering"), and the managing underwriter (or placement agent, initial purchaser or other entity serving in a similar capacity) of the Company Offering in its sole discretion is of the opinion that the filing of a registration statement with respect to such Demand Registration could be expected to adversely affect the Company Offering, including, without limitation, the price at which the securities to be offered in the Company Offering may be sold; provided, that the -------- Company shall use reasonable efforts to file its proposed registration statement, if applicable, and to commence and complete the Company Offering in a diligent manner and, in any other governmental requirements event, the Company shall not defer the filing of a registration statement relating to the Demand Registration for more than 120 days from the completion of the Company Offering. Furthermore, the Company may defer the filing of a registration statement relating to a Demand Registration for up to 120 days after the request for registration is made if the Board determines in good faith that such registration would adversely affect or regulationsotherwise interfere with a proposed or pending transaction by the Company, including, without limitation, a material financing or a corporate reorganization, or during any period of time in which the Company is in possession of material inside information concerning the Company or its securities, which information the Company determines in good faith is not ripe for disclosure. The Company shall not be required to undergo or pay for any special audit to effect any registration statement under this Section 7.2, and if such a special audit would be required in order to file or effect a registration statement hereunder, the Company shall be entitled to delay the filing or effectiveness of such registration statement until a reasonable period of time following the completion of the next audit scheduled in the ordinary course of the Company's activities; provided, that the Company shall not be -------- entitled to further defer the filing or effectiveness of such registration statement if the Investor agrees in writing to pay for the cost of any such special audit.
(d) A registration will not count as a registration under paragraph (a) of this Section 7.2, until it has become effective; provided, that if the -------- Investor shall cause or request the Company to withdraw any such registration statement, the Investor may thereafter request the Company to reinstate such registration statement, if permitted under the Securities Act, or to file another Demand Registration, in accordance with the procedures set forth herein, only upon agreeing in writing to reimburse the Company for all expenses whatsoever over and above those expenses which the Company would have incurred had such Demand Registration not been initiated. The Company shall use its best efforts to maintain the effectiveness of any registration statement relating to a Demand Registration until the earlier to occur of (x) 120 days after the effective date of such registration statement and (y) the date on which all of the Registrable Securities that the Company has registered thereunder have been so requested to register; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month periodsold.
(be) The If the Investor so notifies the Company, the offering of the Registrable Securities pursuant to such any Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such caseoffering, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided it being understood that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall have no obligation under this Agreement to cause such offering to be underwritten.
(together with the Holders proposing to distribute their securities through such underwritingf) enter into an underwriting agreement If a Demand Registration is in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreementan underwritten offering, the Company shall select and use reasonable efforts to retain the investment banker or investment bankers and manager or managers that will administer the offering; provided, that (i) the representations such investment bankers and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also managers -------- must be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished reasonably satisfactory to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the HoldersInvestor.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a).
Appears in 1 contract
Samples: Series B Preferred Stock Purchase Agreement (Catalytica Combustion Systems Inc)
Demand Registration. (ai) Subject to After the provisions hereofearlier of (x) December 29, at any time on 1998 or after (y) the date completion by the Company of the first underwritten public offering of Common Stock that is 180 days after effected pursuant to a registration statement filed with, and declared effective by the Closing Date (SEC under the Securities Act, except as defined provided in Section 9(b)(ii) below, upon the Merger Agreement), the Holders written request of a majority of Registrable Securities shall have the right to require one or more Registering Mas Stockholders that the Company effect pursuant to file a Registration Statement registering for sale all or part this Agreement the registration of their respective Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written which request therefor to shall specify the Company (i) specifying the number of Registrable Securities so requested to be included in such registration by such Holder or Holdersregistered, (ii) specifying whether the Proposed Amounts thereof and the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined belowby the Registering Mas Stockholders), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) will, as expeditiously as reasonably possible, use reasonable its best efforts to effect such the registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Proposed Amount of Registrable Securities Securities, for disposition in accordance with the intended method of disposition stated in such request; PROVIDED, HOWEVER, that (A) if in the good faith judgment of the Board of Directors of the Company, such registration would be detrimental to the Company and the Board of Directors of the Company concludes, as a result, that it is in the best interests of the Company to defer the filing of such registration statement at such time, and (B) the Company shall furnish to the Registering Mas Stockholders a certificate signed by an executive officer of the Company that the Board of Directors of the Company has made such a determination and that it is, therefore, necessary to defer the filing of such registration statement, then the Company shall have the right to defer such filing for the period during which such registration would be detrimental, provided that the Company has been so requested to register; provided, however, that (i) may not defer the Holders shall not make a request filing for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price period of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations 180 days after receipt of the request of the Registering Mas Stockholders in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form case of an underwritten public offering or for more than 120 days if such method of disposition is not an underwritten public offering. The Company shall be entitled to include in any registration statement filed pursuant to this Section 9(b): (an “Underwritten Offering”). In such case, (ix) securities of the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval held by any other securities holder of the Company, which approval shall not be unreasonably withheld or delayed and (iiy) the Company shall (together with the Holders proposing to distribute their in an underwritten public offering, securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to be sold by the Company for its own account, except as and for to the benefit extent that (1) in the written opinion of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offeringmanaging underwriter, (ii) no Holder which shall be required to make any representations and warranties to, or agreements with, any an underwriter in a registration other than customary representations, warranties and agreements and of nationally recognized standing (iii) the liability if such method of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) disposition shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in underwritten public offering), such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to inclusion would materially adversely affect the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition marketing of the Registrable Securities disposed to be sold by the Registering Mas Stockholders or (2) in the written opinion of an investment banker of nationally recognized standing jointly selected by the Registering Mas Stockholder and the Company (if such Holder method of disposition is not an underwritten public offering), such inclusion would materially adversely affect the price at which the Registrable Securities may be sold pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers plan of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. distribution.
(ii) The Company shall not be obligated to take any action to effect or participate any registration requested by the Registering Mas Stockholders pursuant to Section 9(b)(i) hereof (aA) more than after the Company has effected two (2) Underwritten Offerings in any twelve such registrations pursuant to this Agreement and each such registration has been declared or ordered effective, (12B) month periodduring the period starting with the date 30 days prior to the Company's estimate of the date of filing of, and (b) in any Underwritten Offering during any lock-up period required by ending on a date 180 days after the underwriter(s) in any prior underwritten offering conducted by effective date of, a Company initiated registration, provided that the Company is using all reasonable efforts to cause such registration statement to become effective, or (C) for a period of six (6) months after the Company has effected one such registration pursuant to this Agreement and such registration has been declared or ordered effective, such 180 day period to commence on its own behalf the date the registration statement was declared or on behalf of the Holdersordered effective.
(ciii) IfNotwithstanding any other provision of this Agreement to the contrary, in connection with an Underwritten Offering, the managing underwriter(sa registration requested pursuant to this Section 9(b) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration (A) unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, provided that a registration that does not become effective after the Company has filed a registration statement with respect thereto solely by reason of the refusal of the Registering Mas Stockholders to proceed shall be deemed to have been effected by the Company at the request of the Registering Mas Stockholders unless the Registering Mas Stockholders shall have elected to pay all Company Registration Expenses in connection with such registration, (iB) if after it has become effective such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder registration is or becomes the subject of interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or administrative agency, court for any reason other than a misrepresentation or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered an omission by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration StatementRegistering Mas Stockholders, or (iiC) if, if the conditions to closing specified in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then purchase agreement or underwriting agreement entered into in connection with such registration will be deemed are not to have been effected for purposes satisfied other than by reason of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration some wrongful act or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution omission, or act or omission in bad faith, by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)Registering Mas Stockholders.
Appears in 1 contract
Samples: Stockholders' Agreement (Neff Corp)
Demand Registration. (a) Subject to the provisions hereof, at any time on or after the date that is 180 days after the Initial Closing Date (as defined in the Merger Agreement)Date, the Holders Purchaser and any assignee of the Purchaser pursuant to Section 10.6 of this Agreement (each a majority of Registrable Securities “Holder”) shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective the Conversion Shares held by or issuable to them (including Conversion Shares that may be issued in respect of PIK Interest) (collectively, the “Registrable Securities Securities”) under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below)Offering, and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all any Holders from whom the request for registration has not been received and (y) use commercially reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to register; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a8.1(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company Holders of a majority of the Registrable Securities to be sold in the Underwritten Offering may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed Offering and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings by a selling holder of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with a Demand Registration in the form of an Underwritten Offering, the managing underwriter(s) advise give written advice to the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the an Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration and that does not exceed such Underwriters’ Maximum NumberNumber prior to the inclusion of other securities that have been requested to be so included by any other person, and such Registrable Securities to shall be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperationfull cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a8.1(a). If (i) a registration requested pursuant to this Section 4.2 8.1 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 8.1 does not remain continuously effective until forty-five (45) days after the commencement completion of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 8.1 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d8.1(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a8.1(a).
Appears in 1 contract
Demand Registration. (a) Subject to the provisions hereof, at At any time on or after the date that is 180 publication by the Parent of financial results covering at least 30 days after of post Merger combined operations, upon written notice from the Closing Date Representatives (as defined hereinafter defined) in the Merger Agreement), manner set forth in Section 11(h) hereof requesting that the Holders of a majority of Registrable Securities shall have Parent effect the right to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities registration under the Securities Act (a “Demand Registration”) by delivering a written request therefor of any or all of the Registrable Securities, which notice shall specify the intended method or methods of disposition of such Registrable Securities, the Parent shall use its reasonable best efforts to effect, in the Company manner set forth in Section 5, the registration under the Securities Act of all of such Registrable Securities for disposition in accordance with the intended method or methods of disposition stated in such request, provided that: (i) specifying if, within 5 business days of receipt of a registration request pursuant to this Section 2(a), Parent is advised in writing (with a copy to the Holder requesting registration) by the lead underwriter of the proposed offering described below that, in such firm's good faith opinion, a registration at the time and on the terms requested would materially and adversely affect any immediately planned offering of securities by Parent as to which Parent was In Registration prior to receipt of notice requesting registration pursuant to this Section 2(a) (a "Transaction Blackout"), Parent shall not be required to effect a registration pursuant to this Section 2(a) until the earliest of (A) the abandonment of such offering or (B) 120 days after receipt by the Holder requesting registration of the lead underwriter's written opinion referred to above in this subsection (i)); (ii) if, while a registration request is pending pursuant to this Section 2(a), Parent has determined in good faith that the filing of a registration statement would require the disclosure of material non-public information that Parent has a bona fide business purpose for preserving as confidential, Parent shall not be required to effect a registration pursuant to this Section 2(a) until the earlier of (1) the date upon which such material information is otherwise disclosed to the public or ceases to be material or Parent is able to so comply with applicable SEC requirements, as the case may be, and (2) 90 days after Parent makes such good-faith determination; (iii) Parent shall not be obligated to file a registration statement relating to a registration request pursuant to this Section 2: (A) if such registration request is for a number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to register; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price then market value of less than $5,000,000, 150 million or (iiB) more than 36 months have elapsed since the Holders will not be entitled to require Effective Time; (iv) at least four months have elapsed since the Company to effect last request made by the Representatives on behalf of any Holders; and (v) no more than three (3) Demand Registrations in the aggregate demands under this Agreement, and (iii) the Company will not Section 2 shall be obligated required to effect more than one (1) Demand Registration in any six (6) month periodbe honored.
(b) The offering Notwithstanding any other provision of this Agreement to the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, contrary: (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or requested on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such a Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnairesthis Section 2, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration (and, therefore, not requested for purposes of subsection 2(a)), (A) unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the registration statement filed with respect to such Holder's Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, become effective or (B) if after it has become effective, (i) effective such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder registration is or becomes the subject of interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or administrative agencycourt for any reason other than a misrepresentation or an omission by such Holder and, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registrationas a result thereof, and in each case less than all of the Registrable Securities covered requested to be registered cannot be distributed in accordance with the plan of distribution set forth in the related registration statement or (C) if the conditions to closing specified in the purchase agreement or underwriting agreement entered into in connection with such registration are not satisfied (other than by reason of an act or omission by such Holder) or waived by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or underwriters; and (ii) if, in a registration requested by a Holder pursuant to this Section 2 and later withdrawn at the case request of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will Holder shall be deemed not to have been effected (and, therefore, requested for purposes of clause (ii) Section 2(a)), whether withdrawn by the Holder prior to or after the effectiveness of such requested registration, unless such request is withdrawn by a Holder prior to the proviso to Section 4.2(a). If (i) filing of a registration requested statement with the SEC; and (c) In the event that any registration pursuant to this Section 4.2 is deemed not 2 shall involve, in whole or in part, an underwritten offering, a Holder shall have the right to have been effected designate an underwriter reasonably satisfactory to Parent as a Demand Registration or (ii) co-manager of such underwritten offering and Parent shall have the registration requested pursuant right to this Section 4.2 does not remain continuously effective until forty-five (45) days after designate the commencement of lead underwriter reasonably satisfactory to the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)underwritten offering.
Appears in 1 contract
Demand Registration. (a) Subject to the provisions hereof, at any time on or after the date that is 180 days after one (1) year anniversary of the Closing Date (as defined in the Merger Purchase Agreement), the Holders of a majority of Registrable Securities shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to register; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a4.1(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 4.8 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a4.1(a). If (i) a registration requested pursuant to this Section 4.2 4.1 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 4.1 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 4.1 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d4.1(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a4.1(a).
Appears in 1 contract
Samples: Securities Purchase Agreement (Parkway Properties Inc)
Demand Registration. (a) Subject to the provisions hereofArticle III, at any time on or after the date that is 180 days six (6) month anniversary of the Company’s initial Public Offering after the Closing Date Effective Date, (as defined in i) any Holder of at least 10% of the Merger Agreement), the Holders of a majority of Registrable Securities shall have then outstanding or (ii) the right GSAM Investors or their Affiliates, so long as they Beneficially Own at least one-third of the Registrable Securities Beneficially Owned by the GSAM Investors on the Effective Date, may request in writing (specifying that such request is being made pursuant to require this Section 2.01(a) and the intended method or methods of disposition thereof) that the Company to file a Registration Statement registering for sale registration statement (or corresponding successor document) under the Securities Act, of all or part of its or their respective Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written request therefor to ). Thereafter, the Company (i) specifying the number shall promptly notify all other Holders in writing of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demandrequest, and each such Holder in lieu of exercising its rights under Section 2.02 may elect (by written notice sent to the Company shall within ten (x10) promptly notify all Holders Business Days from whom the request for registration has not been received and (ydate of the aforementioned notice) to have Registrable Securities included in such Demand Registration thereof pursuant to this Section 2.01(a). Thereupon the Company shall, as expeditiously as is reasonably possible, use its commercially reasonable best efforts to effect such the registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the all shares of Registrable Securities that which the Company has been so requested to registerregister by such Holders for sale, all to the extent required to permit the disposition (in accordance with the intended method or methods thereof, as aforesaid) of the Registrable Securities so registered; provided, however, that (i) the Holders Company shall not make be required to effect a request for registration of Registrable Securities on a Demand Registration under Form S-1 or other “long-form” registration pursuant to this Section 4.2(a2.01(a) for unless the Registrable Securities having requested by all Holders to be registered have an anticipated aggregate public offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in before any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from of not less than Fifteen Million Dollars ($15,000,000); and further provided, however, the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated required to effect or participate (a) more than two (2) Underwritten Offerings in registrations on Form S-1 or other “long form” registration of any twelve Registrable Securities pursuant to this Section 2.01(a). There shall be no aggregate limit on short-form registrations on Form S-3 or any successor form so long as the anticipated aggregate public offering price (12before any underwriting discounts and commissions) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included registered on each such short-form registration is not less than Three Million Dollars ($3,000,000). Except as otherwise provided in Section 2.04, all expenses of such Underwritten Offering and (ii) the Company will registration shall be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested borne by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable SecuritiesCompany.
(db) A registration will not be deemed to have been effected count as a Demand Registration until the applicable registration statement has become effective (unless the requesting Holder withdraws all of its Registrable Securities and the Company has performed its obligations hereunder in all material respects, in which case such demand will count as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included requesting Holder pays all registration expenses in the registration by the Holders are included in connection with such withdrawn registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto); provided, however, that if, after it has become effective, an offering of Registrable Securities pursuant to a registration is either (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of interfered with by any stop order, injunction or other order or requirement action of the SEC Commission or any other governmental agency or administrative agency, or if any court prevents or otherwise limits the sale (other than because of the Registrable Securities pursuant to the registration, and in each case less than all a violation of the Registrable Securities covered applicable law by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, a Holder) or (iiy) ifwithdrawn because of any development affecting the Company, in the either case of an Underwritten Offering, the Company fails to provide Full Cooperationbefore being in effect for more than 90 days, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed and will not to have been effected count as a Demand Registration or unless at least ninety percent (ii90%) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included thereon have been sold or otherwise disposed of.
(c) If the managing underwriter of a Demand Registration shall advise the Company in such registration. In circumstances not including writing that, in its opinion, the events described inclusion of all of the Registrable Securities requested to be included in the immediately two preceding sentences Demand Registration would materially and adversely affect the distribution of this Section 4.2(d)a smaller amount of such Registrable Securities, each Holder then all selling Holders shall reduce the amount of Registrable Securities each intended to distribute through such offering on a pro-rata basis such that the Registrable Securities to be included in the Demand Registration shall be permitted voluntarily reduced to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)smaller amount.
Appears in 1 contract
Samples: Restructuring Agreement (Ener1 Inc)
Demand Registration. If the Investor is unable to sell shares of Common Stork within eighteen (a18) Subject to the provisions hereof, at any time on or months after the date that is 180 days after end of the Closing Date Restriction Period pursuant to Rule 144(k) (as defined in or a successor rule) under the Merger Agreement)Securities Act or on a Piggyback Registration Statement, the Holders of a majority of Registrable Securities Investor shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities one registration statement under the Securities Act (on a “Demand Registration”) by delivering a written request therefor Form S-3, provided such registration form is available to the Company (i) specifying the number Company, to register shares of Registrable Securities Common Stock acquired under this Agreement for sale in a public offering that is not to be included in such registration by such Holder made on a continuous or Holders, (ii) specifying whether the intended method of disposition thereof is delayed basis pursuant to an Underwritten Offering Rule 415 (as defined below), and (iiior a successor rule) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and that is expected to yield net proceeds to the Investor of at least Five Million Dollars ($5,000,000), as specified in a written notice from the Investor to the Company.
(i) Following the Company's receipt of any other governmental requirements notice under this Section 8(b), the Company shall use its best efforts to register under the Securities Act, as soon as reasonably practicable, the number of shares of Common Stock specified by the Investor in such notice (or regulationssuch lesser number as the managing underwriter(s) in such offering believes will not unduly jeopardize the success of the Registrable Securities that the Company has been so requested to registeroffering); provided, however, that the Company may delay the filing of the registration statement for as long as
(iA) the Holders shall not make a request for a Demand Registration under registration pursuant to this Section 4.2(a8(b) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to would require the Company to effect more than three (3) Demand Registrations include in the aggregate registration statement on the filing date or on the expected effective date audited financial statements which are not yet required to be filed with the Commission under this Agreement, and the Exchange Act; or
(iiiB) the Company's board of directors reasonably determines that the disclosure required in the registration statement or the pricing of the offering would adversely affect the Company will not be obligated or its ability to effect more than one (1) Demand Registration engage in a planned registered public offering or in any six (6) month periodother planned activity.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) In the event that the Investor makes a demand for registration as described in this Section 8(b), the Company shall (together with have the Holders proposing right to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the register other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person in the registration statement; PROVIDED, HOWEVER, that such shares shall not be included to the extent provided in Section 8(f) below, if applicable, and in all other situations, such shares (other than Registrable Securities held by the Holders Original Registration Stock) shall not be included to the extent that the Investor determines in good faith that the inclusion of such shares will interfere with the successful marketing of the Investor's shares to be included therein; PROVIDED, FURTHER, that, if the number of shares to be so included exceeds the number of the Investor's shares included therein, such registration shall be included in deemed to be a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securitiesregistration pursuant to Section 8(a) hereof.
(diii) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (iThe managing underwriter(s) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of for any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested underwritten public offering pursuant to this Section 4.2 is deemed not 8(b), shall be mutually acceptable to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of and the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)Investor.
Appears in 1 contract
Demand Registration. (a) Subject Upon written notice to the provisions hereof, Issuer from one or more Holders at any time on during such periods as are provided for in the Lock-Up Agreement or after as are agreed by the date Issuer (the “Demand Request”) requesting that is 180 the Issuer effect the registration under the 1933 Act of any or all of the Registrable Securities held by such requesting Holders, which notice shall specify the intended method or methods of disposition of such Registrable Securities, the Issuer shall prepare and, within 30 days after such request, file with the Closing Date Commission a registration statement with respect to such Registrable Securities and thereafter use its commercially reasonable efforts to cause such registration statement to be declared effective under the 1933 Act for purposes of dispositions in accordance with the intended method or methods of disposition stated in such request. Notwithstanding any other provision of this Agreement to the contrary:
(as defined in the Merger Agreement), i) the Holders of a majority of Registrable Securities shall have the right may collectively exercise their rights to require the Company request registration under this Section 2.01(a) on not more than two occasions (each such registration being referred to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (herein as a “Demand Registration”);
(ii) by delivering a written request therefor the Issuer shall not be required to effect the Company (i) specifying Demand Registration hereunder unless the aggregate number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is registered pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to register; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled is equal to require the Company to effect or more than three (3) Demand Registrations in the aggregate under this Agreement, and 1,000,000 shares;
(iii) the Company will method of disposition requested by Holders in connection with any Demand Registration may not, without the Issuer’s written consent, be a Rule 415 Offering; and
(iv) the Issuer shall not be obligated required to effect more than one (1) any Demand Registration in any six (6) month periodhereunder if all securities that were Registrable Securities on the date hereof have ceased to be Registrable Securities.
(b) The offering Notwithstanding any other provision of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject this Agreement to the approval of the Companycontrary, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will requested by Holders pursuant to this Section 2.01 shall not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SECeffected, at least 75% of the Registrable Securities and, therefore, not requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effectiverights of each Holder shall be deemed not to have been exercised for purposes of paragraph (a) above, (i) if such Demand Registration Statement has not become effective under the 1933 Act or (ii) if such Demand Registration, after it became effective under the related offer1933 Act, sale or distribution of Registrable Securities thereunder is or becomes was not maintained effective under the subject 1933 Act (other than as a result of any stop order, injunction or other order or requirement of the SEC Commission or any other governmental government agency or administrative agencycourt solely on the account of a material misrepresentation or omission of a Holder) for at least 30 days (or such shorter period ending when all the Registrable Securities covered thereby have been disposed of pursuant thereto) and, as a result thereof, the Registrable Securities requested to be registered cannot be distributed in accordance with the plan of distribution set forth in the related registration statement. So long as a Demand Request is made by the Holders within the periods referred to in Section 2.01(a), the Holders shall not lose their right to their Demand Registration under Section 2.01 if the Demand Registration related to such Demand Request is delayed or not effected in the circumstances set forth in this clause (b).
(c) The Issuer shall have the right to cause the registration of additional equity securities for sale for the account of the Issuer (but not for the account of stockholders other than Holders) in the registration of Registrable Securities requested by the Holders pursuant to Section 2.01(a) above; provided that if any court prevents such Holders are advised in writing (with a copy to the Issuer) by the lead or otherwise limits managing underwriter referred to in Section 2.03(b) that, in such underwriter’s good faith view, the number of shares of such Registrable Securities and additional equity securities exceeds the largest number of shares that can be sold in such registration without having an adverse effect on the price, timing or distribution of the offering and sale of the Registrable Securities and additional equity securities then contemplated (or that the inclusion of shares for the account of the Issuer would, in such underwriter’s good faith view, have such an adverse effect), then the number of securities that can, in the good faith view of such underwriter, be sold in such offering without so adversely affecting such offering (the “Maximum Offering Size”) shall be allocated in the following priority:
(i) first, so much of the Issuer Securities proposed to be registered for the account of the Holders as would not cause the offering to exceed the Maximum Offering Size (to be allocated among such Holders on the basis of the relative number of shares of Registrable Securities so requested to be included in such registration by each); and
(ii) second, all Registrable Securities requested to be included in such registration for the account of the Issuer; provided that the Issuer may not include securities therein for its own account if such inclusion would result in any reduction in the Registrable Securities proposed to be sold therein by the Holders. The Holders of the Registrable Securities to be offered pursuant to paragraph (a) above may require that any equity securities be included by the registrationIssuer in the offering proposed by such Holders on the same conditions as the Registrable Securities that are included therein.
(d) Within 7 days after delivery of a Demand Request by a Holder, and in the Issuer shall provide a written notice to each case less than Holder, advising such Holder of its right to include any or all of the Registrable Securities covered held by the effective Registration Statement are actually sold by the selling such Holder or Holders for sale pursuant to the Demand Registration Statement, or (ii) if, and advising such Holder of procedures to enable such Holder to elect to so include Registrable Securities for sale in the case Demand Registration. Any Holder may, within 7 days of an Underwritten Offering, the Company fails delivery to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes Holder of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested notice pursuant to this Section 4.2 2.01(d), elect to so include Registrable Securities in the Demand Registration by written notice to such effect to the Issuer specifying the number of Registrable Securities desired to be so included by such Holder.
(e) If the Issuer invokes a Market Interfering Delay during the Subsequent Period, the Issuer shall give prompt notice at least 30 days prior to the anticipated filing date of the registration statement relating to the registration which is deemed the subject of such Market Interfering Delay, to each Holder, which notice shall set forth such Holder’s rights under this Section 2.01(e) and shall offer such Holder the opportunity to include in such registration statement such number of Registrable Securities as the Holders so desire but not to have been effected as a Demand Registration or exceed up to 50% of the Registrable Securities then held by all such Holders. Upon the request of any such Holder made within 20 days after the receipt of notice from the Issuer (ii) which request shall specify the number of Registrable Securities intended to be registered by such Holder), the Issuer shall use its commercially reasonable efforts to effect the registration under the 1933 Act of all Registrable Securities that the Issuer has been so requested to register by all such Holders, to the extent requisite to permit the disposition of the Registrable Securities so to be registered, provided that if, at any time after giving notice of its intention to register any Issuer Securities pursuant to this Section 4.2 does not remain continuously 2.01(e) and prior to the effective until forty-five (45) days after the commencement date of the distribution by the Holders of the Registrable Securities covered by registration statement filed in connection with such registration, then the Company Issuer shall continue determine for any reason not to register the securities to be obligated offered by Issuer, the Issuer shall terminate the Market Interfering Delay and shall give notice to effect a Demand Registration pursuant all such Holders and, thereupon, shall be relieved of its obligation to this Section 4.2 of the register any Registrable Securities included in connection with such registration. In circumstances not including the events described in the immediately two preceding sentences of No registration effected under this Section 4.2(d)2.01(e) shall relieve the Issuer of its obligations to effect any Demand Registration to the extent required by this Agreement. The Issuer shall pay all Registration Expenses in connection with such registration during the Subsequent Period. Notwithstanding the foregoing, each Holder the Issuer shall not be entitled to both a Disadvantageous Condition Delay and a Market Interfering Delay during the Subsequent Period and is entitled to only one Market Interfering Delay during the Subsequent Period in any event. Furthermore, the duration of Registrable Securities the Subsequent Period shall be permitted voluntarily to withdraw all or any part extended by the number of its Registrable Securities from a Demand Registration at any time prior days equal to the commencement period of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of any Disadvantageous Condition Delay occurring during the proviso to Section 4.2(a)Subsequent Period.
Appears in 1 contract
Samples: Registration Rights Agreement (Credence Systems Corp)
Demand Registration. (a) Subject After the consummation of an IPO or at such time prior to the provisions hereofconsummation of an IPO as is permitted by Section 10.3 with respect to a given Shareholder, at any time on or after upon a Shareholder's written request specifying the date that is 180 days after intended manner of disposition (including the Closing Date number of shares of Vail Equity to be sold) (as defined in the Merger Agreementa "Demand Notice"), Vail will use its best efforts to prepare and file with the Holders of a majority of Registrable Securities shall have the right to require the Company to file SEC, as expeditiously as possible, a Registration Statement registering on an available form for sale all or part which Vail then qualifies (but not including by means of their respective Registrable Securities a shelf registration pursuant to Rule 415 under the Securities Act (a “Demand Registration”) by delivering a written request therefor Act), which legal counsel for Vail deems appropriate and which is available for the sale of Vail Equity to permit an underwritten public offering of some or all of the Company (i) specifying the number shares of Registrable Securities to be included in such registration Vail Equity then held by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), Shareholder and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable its best efforts to effect cause such registration statement to become effective (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to register; provided, however, that (i) the Holders shall not make a request for a "Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month periodRegistration").
(b) The offering of the Registrable Securities pursuant to such A Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as occurred until it has become effective under the Securities Act (unless a Shareholder delivers a Demand Notice and subsequently withdraws the Demand Notice, in which case such Demand Registration will be deemed to have occurred unless the Registration Statement relating thereto has been declared effective such Shareholder agrees to pay all reasonable out-of-pocket expenses associated with such registration actually incurred by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect theretoVail); provided, however, that if, after it a Demand Registration has become effective, (i) the offering of Vail Equity pursuant to such Demand Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of prohibited by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or administrative agencya court, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective such Demand Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause occurred (ii) unless such prohibition on the sale of the proviso Vail Equity is based on actions or omissions of such Shareholder, in which case such Demand Registration will be deemed to have occurred unless such Shareholder agrees to pay all reasonable out-of-pocket expenses associated with such registration actually incurred by Vail).
(c) Vail shall only be obligated to effect one Demand Registration per Shareholder in any twelve month period under this Section 4.2(a). If 5.1; provided, however, that Vail will not be required to register the Vail Equity pursuant to a Demand Notice under this Section 5.1 if at such time (i) the shares of Vail Equity which a registration requested Shareholder is requesting to be registered pursuant to this Section 4.2 is deemed not 5.1 constitute less than 6.0% (or, if less, all of the shares of Vail Equity owned by such Shareholder) of the outstanding Vail Securities so requested to have been effected as a Demand Registration be registered or (ii) such Demand Notice is given within six (6) months after the effective date of any other registration requested of any Vail Securities under the Securities Act.
(d) The managing underwriter will be selected by the Shareholder requesting registration pursuant to this Section 4.2 does 5.1 (the "Requesting Shareholder"); provided, however, that such underwriter shall be subject to the approval of Vail, which approval shall not remain continuously effective until fortybe unreasonably withheld. In the event there is one or more co-five (45) days after managers, the commencement first such co-manager shall be selected by Vail, provided that such co-manager shall be subject to the approval of the distribution Requesting Shareholder, which approval shall not be unreasonably withheld or delayed, and all other co- managers will be selected by the Holders Requesting Shareholder.
(e) In connection with a Demand Registration, both the Shareholder not requesting the Demand Registration (the "Non- Requesting Shareholder") and Vail may elect to include additional shares of Vail Securities in such offering on the Registrable same terms and conditions as the Vail Equity to be sold by the Requesting Shareholder; provided, however, that if the managing underwriter(s) advises the Requesting Shareholder, the Non- Requesting Shareholder and Vail that, in its judgment, the number of shares proposed to be included in such offering exceeds the largest number of Vail Securities covered by which can be sold without having an adverse effect on such registrationoffering, including the price at which such securities can be sold (the "Marketable Number"), then the Company shall continue total number of shares to be obligated included in such offering shall be limited as follows: (i) first, all the shares of Vail Equity that the Requesting Shareholder and the Non-Requesting Shareholder propose to effect a Demand Registration pursuant sell up to this Section 4.2 the Marketable Number, allocated pro rata between the Requesting Shareholder and the Non-Requesting Shareholder on the basis of the Registrable relative number of Vail Securities that the Requesting Shareholder and the Non-Requesting Shareholder have proposed to be included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause and (ii) second, all the shares of Vail Securities that Vail proposes to sell, which does not exceed the proviso difference, if any, between the Marketable Number and that number of shares which the Requesting Shareholder and the Non-Requesting Shareholder have included pursuant to Section 4.2(a)clauses (i) and (ii) above.
Appears in 1 contract
Samples: Stock Purchase Agreement (New Ralcorp Holdings Inc)
Demand Registration. (a) Subject to the provisions hereof, at At any time on or after the date that is 180 days after the Closing Date date hereof (or such earlier date (i) as defined in would permit the Merger Company to cause any filings required hereunder to be filed on the 180th day after the date hereof or (ii) as is permitted by waiver of the IPO Underwriting Agreement), any Person that is a Stockholder (a “Requesting Stockholder”) on the Holders date a Demand is made shall be entitled to make a written request of a majority of Registrable Securities shall have the right to require the Company to file (a Registration Statement registering “Demand”) for sale all or part of their respective Registrable Securities registration under the Securities Act of a number of Registrable Securities that, when taken together with the number of Registrable Securities requested to be registered under the Securities Act by such Requesting Stockholder’s Affiliates, equals or is greater than the Registrable Amount (a “Demand Registration”) by delivering a written request therefor and thereupon the Company will, subject to the Company (i) specifying the number terms of Registrable Securities to be included in such registration by such Holder or Holdersthis Agreement, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use its commercially reasonable best efforts to effect such the registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulationsof:
(i) of the Registrable Securities that the Company has been so requested to registerregister by the Requesting Stockholders for disposition in accordance with the intended method of disposition stated in such Demand, which may be an Underwritten Offering;
(ii) all other Registrable Securities that the Company has been requested to register by the Registering Stockholder pursuant to Section 4.1(b);
(iii) all shares of Common Stock that the Company may elect to register in connection with any offering of Registrable Securities pursuant to this Section 4.1, but subject to Section 4.1(f); providedand
(iv) all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and the additional Common Stock, howeverif any, that to be so registered.
(b) A Demand shall specify: (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for aggregate number of Registrable Securities having an anticipated aggregate offering price of less than $5,000,000requested to be registered in such Demand Registration, (ii) the Holders will not be entitled intended method of disposition in connection with such Demand Registration, to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, extent then known and (iii) the identity of the Requesting Stockholder (or Requesting Stockholders). Within five days after receipt of a Demand, the Company will not be obligated shall give written notice of such Demand to effect more than one (1) any other Persons that on the date a Demand is delivered to the Company is a Stockholder. Subject to Section 4.1(f), the Company shall include in the Demand Registration covered by such Demand all Registrable Securities with respect to which the Company has received a written request for inclusion therein within five days after such notice by the Company has been given. Such written request shall comply with the requirements of a Demand as set forth in any six (6) month periodthis Section 4.1(b).
(bc) The offering Each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as the Stockholders, together, Beneficially Own less than a Registrable Amount.
(d) Demand Registrations shall be on such registration form of the Commission for which the Company is eligible as shall be selected by the Requesting Stockholders whose shares represent a majority of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) that the Company may designate the managing underwriter(s) of the Underwritten Offeringhas been requested to register, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offeringincluding, subject to the approval of extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the Commission, and shall be reasonably acceptable to the Company, which approval shall not be unreasonably withheld or delayed and .
(iie) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate any Demand Registration (aA) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any within three months of a “firm commitment” Underwritten Offering during any lock-up period required by the underwriter(sin which all Stockholders were given “piggyback” rights pursuant to Section 4.2 (subject to Section 4.1(f)) in any prior underwritten offering conducted by the Company on its own behalf or on behalf and provided that at least 50% of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof such Stockholders to be included in such Demand Registration were included) or (B) within three months of any other Underwritten Offering pursuant to Section 4.3(e). In addition, the Company shall be entitled to postpone (upon written notice to all Stockholders) for a reasonable period of time not to exceed 60 days in succession the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice, or for more than 90 days in the aggregate, in any twelve-month period) if the Board determines in good faith and in its reasonable judgment that does not exceed the filing or effectiveness of the registration statement relating to such Underwriters’ Maximum NumberDemand Registration would cause the disclosure of material, such non-public information that the Company has a bona fide business purpose for preserving as confidential. In the event of a postponement by the Company of the filing or effectiveness of a registration statement for a Demand Registration, the holders of a majority of Registrable Securities held by the Requesting Stockholder(s) shall have the right to withdraw such Demand in accordance with Section 4.4.
(f) The Company shall not include any securities other than Registrable Securities in a Demand Registration, except with the written consent of Stockholders participating in such Demand Registration that hold a majority of the Registrable Securities included in such Demand Registration. If, in connection with a Demand Registration, any managing underwriter (or, if such Demand Registration is not an Underwritten Offering, a nationally recognized investment bank engaged in connection with such Demand Registration) advises the Company, that, in its opinion, the inclusion of all of the securities, including securities of the Company that are not Registrable Securities, sought to be allocated pro rata among registered in connection with such Demand Registration would adversely affect the Holders thereof on marketability of the basis Registrable Securities sought to be sold pursuant thereto, then the Company shall include in such registration statement only such securities as the Company is advised by such underwriter or investment bank can be sold without such adverse effect as follows and in the following order of priority: (i) first, up to the number of Registrable Securities requested to be included therein in such Demand Registration by each the Stockholders, which, in the opinion of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Holder. No shares Stockholders requesting such Demand Registration on the basis of Common Stock the number of such securities held by any Person such Stockholders and such Stockholders that are Piggyback Sellers; (ii) second, securities the Company proposes to sell; and (iii) third, all other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent securities of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities Company duly requested to be included in such registration statement, pro rata on the registration basis of the number of such other securities requested to be included or such other method determined by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement Company.
(g) Any investment bank(s) that will serve as an underwriter with respect thereto; providedto such Demand Registration or, however, that if, after it has become effective, (i) if such Demand Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected (i) by FIG LLC, for so long as a majority of the Common Stock of the Company fails to provide Full Cooperationis owned by the Initial Stockholder, then such registration will be deemed not to have been effected for purposes of clause its Permitted Transferees and any Fortress Affiliate Stockholder, and thereafter (ii) of by the proviso to Section 4.2(a). If Stockholder participating in such Demand Registration that holds (itogether with its Permitted Transferees) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement number of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences Demand Registration constituting a plurality of this Section 4.2(d), each Holder of all Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of included in such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a).
Appears in 1 contract
Samples: Shareholder Agreements (Nationstar Mortgage Holdings Inc.)
Demand Registration. (a) Subject to From and after the provisions hereof, at any time on or after earlier of the date that is 180 days one calendar year after the Closing Date date hereof, after receipt of a written request from the Holders owning 50% of the Registrable Securities of each class requesting that the Company effect the registration of all or a portion of the Registrable Securities and specifying the intended method or methods of disposition thereof (as defined in the Merger Agreementa "Holder Notice"), the Holders of a majority of Registrable Securities shall have Company shall, as expeditiously as is possible, use its reasonable commercial efforts to effect the right to require the Company to file a Registration Statement registering registration for sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of all shares of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that which the Company has been so requested to registerregister by such Holders, all to the extent required to permit the disposition (in accordance with the intended method or methods thereof, as aforesaid) of such Registrable Securities so registered; providedPROVIDED, howeverHOWEVER, that (i) the Holders Company shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated required to effect more than one (1) Demand Registration in registration of any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in this Section 2(a) except as otherwise expressly provided herein. If the form managing underwriter of an underwritten a proposed public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in writing that, in its or their reasonable opinion opinion, the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% distribution of the Registrable Securities requested to be included in the registration concurrently with the securities being registered by the Company or such other registering security holders would materially and adversely affect the distribution of such securities by the Company or such registering security holders, then the Company may require all selling security holders (other than the Company) to reduce the amount of securities each intended to distribute through such offering on a pro rata basis; PROVIDED, HOWEVER, that if the Company requires such reduction, and if Holders requesting such registration pursuant to this Section 2(a) are unable to include in such registration Registable Securities that they requested be included in such registrationregistration in the related Holder Notice that constitute Substantial Market Value Securities, due to such pro rata reduction (the Registrable Securities that such Holder so requested to be included in such registration that were not included in such registration due to such pro rata reduction being referred to herein as the "Reduction Shares", and the registration in which such reduction occurred being referred to herein as a "Failed Registration"), then subject to the other provisions hereof applicable to a demand registration the Holders of the Reduction Shares shall have the right, exercisable commencing on the day that is two calendar months after the termination of the Registration Period relating to the Failed Registration by written notice sent to the Company has complied in all material respects with its obligations under by Holders of 50% of the Reduction Shares (a "Repurchase/Register Notice"), to require the Company to elect (at the Company's option) to either register the Reduction Shares otherwise pursuant to this Agreement with respect thereto; providedSection 2(a) or, howeverif the foregoing offer to sell or resulting sale is then lawful, that if, after it has become effective, to repurchase the Reduction Shares at the higher of (i) such Registration Statement or the related offer, sale or distribution of price per share for which Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are were actually sold by in the selling Holder or Holders pursuant to the Registration StatementFailed Registration, or (ii) if, in the case of an Underwritten Offering, Market Price on the date the Repurchase/Register Notice is sent to the Company fails to provide Full Cooperationin compliance with this Agreement; PROVIDED, then such registration will HOWEVER, that the Holders shall not be deemed not hereby or thereby to have been effected for purposes of clause (ii) of made any offer to sell to the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 Company that does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then comply with applicable law and the Company shall continue not be entitled or deemed to be obligated entitled to effect a Demand Registration pursuant repurchase such Reduction Shares or to this Section 4.2 of be offered the Registrable Securities included in right to or solicit the right to repurchase such registration. In circumstances not including Reduction Shares or deemed to have bid for such Reduction Shares hereby or thereby if such repurchase, offer, or bid would violate any applicable securities law; and PROVIDED FURTHER, HOWEVER, that any such repurchase shall occur at such time within three calendar months after the events described in date that the immediately two preceding sentences Company receives the related Repurchase/Register Notice subject to the other provisions of this Section 4.2(d2(a), and otherwise at such time and place as the Company may determine, and each Holder of Registrable Securities the parties hereto agrees to execute and deliver such agreements, instruments, and other documents, and to take such other actions, as may be necessary or desirable to effect any such repurchase in compliance with all applicable laws. The Company shall respond to such Repurchase/Register Notice by written notice to the Purchaser within 30 business days after its receipt of the Repurchase/Register Notice (an "Election Notice"), which Election Notice shall set forth whether the Company desires to so register such Reduction Shares or to repurchase such Reduction Shares; PROVIDED, HOWEVER, that the Company shall be permitted voluntarily deemed to withdraw all or any part have elected to register such Reduction Shares if it does not give such notice within such 30 business day period. If the Company so elects to repurchase such Reduction Shares, and if the Market Price requires an agreement of its Registrable Securities from a Demand Registration at any time prior the Company and such holders as to the commencement of marketing fair market value of such Demand RegistrationReduction Shares, provided that the consummation of such registration nonetheless repurchase shall count not be required to be consummated until as a Demand Registration for purposes soon as practicable after such fair market value has been determined as set forth in the definition of clause (ii) of the proviso to Section 4.2(a)Market Price set forth herein.
Appears in 1 contract
Samples: Registration Rights Agreement (Crown Northcorp Inc)
Demand Registration. (a) Subject to the provisions hereof, at any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement), the Holders of a majority of Registrable Securities shall have the right to require If the Company to file shall receive a Registration Statement registering for sale all or part of their respective Registrable Securities written request by THL that the Company effect the registration under the Securities Act (of all or a “Demand Registration”) by delivering a written request therefor to portion of the Company (i) THL Entities' Registrable Securities, and specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below)thereof, and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, then the Company shall promptly give written notice of such requested registration (xa "THL Demand Registration") promptly notify all Holders from whom at least five days prior to the request for anticipated filing date of the registration has not been received statement relating to such THL Demand Registration to the Non-THL Shareholders and (y) thereupon will use reasonable its best efforts to effect such effect, as expeditiously as possible, the registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulationsof:
(i) of the Registrable Securities that of the THL Entities which the Company has been so requested to register; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, and
(ii) subject to the Holders will not be entitled restrictions set forth in Section 5.2, all other Registrable Securities of the same class as that to require which THL's request relates for which an effective Piggyback Registration (as such term is defined in Section 5.2) request has been made; provided, that subject to Section 5.1(d) hereof, the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will shall not be obligated to effect more than six THL Demand Registrations. In no event will the Company be required to effect more than one (1) THL Demand Registration in within any six (6) four-month period.
(b) The offering Promptly after the expiration of the Registrable Securities pursuant 2-day period referred to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i5.2(a) the representations and warranties by, and the other agreements on the part ofhereof, the Company to and for will notify all the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed Shareholders to be included in such registration exceeds the Underwriters’ Maximum Number, then THL Demand Registration (ithe "Holders") of the Company shall so advise all other Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holdertherein. No shares of Common Stock held by THL may, at any Person other than Registrable Securities held by time prior to the Holders shall be included in a Demand Registration without the prior written consent effective date of the holders of a majority in interest registration statement relating to such registration, revoke such request, without liability to any of the Registrable Securitiesother Holders, by providing a written notice to the Company revoking such request, in which case such request, so revoked, shall not be considered a THL Demand Registration.
(c) The Company will pay all Registration Expenses in connection with any THL Demand Registration.
(d) A registration will requested pursuant to this Section 5.1 shall not be deemed to have been effected as a Demand Registration (i) unless the Registration Statement registration statement relating thereto (A) has been declared become effective by under the SEC, Securities Act and (B) has remained effective for a period of at least 75% 180 days (or such shorter period in which all Registrable Securities of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect theretoregistration have actually been sold thereunder); provided, however, that if, if after it has become effective, any registration statement requested pursuant to this Section 5.1 becomes effective (ix) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder registration statement is or becomes the subject of interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case (y) less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 75% of the Registrable Securities included in such registration. In circumstances registration statement has been sold thereunder, such registration statement shall not including be considered a THL Demand Registration, or (ii) if the events described Maximum Offering Size (as defined below) is reduced in accordance with Section 5.1(e) such that less than 66 2/3% of the immediately two preceding sentences Registrable Securities of this Section 4.2(d)the THL Entities sought to be included in such registration are included.
(e) If a THL Demand Registration involves an Underwritten Public Offering and the managing underwriter shall advise the Company and THL that, each Holder in its view, (i) the number of shares of Registrable Securities shall requested to be permitted voluntarily included in such registration (including any securities which the Company proposes to be included which are not Registrable Securities) or (ii) the inclusion of some or all of the shares of Registrable Securities owned by the Holders, in any such case, exceeds the largest number of shares which can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the "Maximum Offering Size"), the Company will include in such registration, in the priority listed below, up to the Maximum Offering Size:
(A) first, all Registrable Securities requested by THL to be registered and all Registrable Securities requested to be included in such registration by any other Holder pursuant to an effective Piggyback Registration request (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among the THL Entities and such Holders on the basis of the relative number of Registrable Securities held by such Share holder); and
(B) second, any securities proposed to be registered by the Company. provided, however, that in such case, any Holder may elect to withdraw all or any part of its such Holder's Registrable Securities from the registration.
(f) Upon written notice to THL, the Company may postpone effecting a Demand Registration at registration pursuant to this Section 5.1 on one occasion during any period of six consecutive months for a reasonable time prior to specified in the commencement notice but not exceeding 90 days (which period may not be extended or renewed), if (i) an investment banking firm of marketing recognized national standing shall advise the Company and THL in writing that effecting the registration would materially and adversely affect an offering of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes securities of clause the Company the preparation of which had then been commenced or (ii) the Company has a bona fide business reason for determining that it is in possession of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, would not be in the best interests of the proviso Company.
(g) After the Company has effected two Demand Registrations pursuant to this Section 4.2(a5.1 of Common Stock, the Institutional Shareholders, upon request of such Institutional Shareholders owning a majority of the Shares acquired by such Institutional Shareholders on the Closing Date, may request that the Company register shares of Registrable Securities then owned by such Institutional Shareholders (an "Institutional Shareholder Demand Registration"). In no event will the Company be required to effect more than one such Institutional Shareholder Demand Registration. The provisions of this Article 5 shall apply, mutatis mutandis, to any such Institutional Shareholder Demand Registration.
(h) After the Transfer of Shares of Common Stock representing more than 20% of the Shares collectively owned by the Equity Investors of the Initial Ownership on a Fully Diluted basis owned by such Equity Investors, the Primary Executives may request that the Company register Shares which are Registrable Securities then owned by them (a "Primary Executive Demand Registration"). In no event will the Company be required to effect more than three such Primary Executive Demand Registrations. The provisions of this Article 5 shall apply, mutatis mutandis, to any such Primary Executive Demand Registration; provided, that, notwithstanding anything to the contrary herein, (i) no Primary Executive Demand Registrations may be made during the six month period following the Effective Time or within six months after the effective date any other registration statement (other than registration statement on From S-4 or S-8 or similar form), and (ii) the Company must use its best efforts to effect such Primary Executive Demand Registration as soon as practicable, but in no event later than 120 days following the date of the demand.
Appears in 1 contract
Samples: Investors' Agreement (Fisher Scientific International Inc)
Demand Registration. (a) Subject to At any time (i) upon the provisions written request of the Crest Group (the "Exclusive Demand Right") or, if a Qualified Public Offering shall not have occurred within four years of the date hereof, at upon the written request of Jackxxx xx any time on or after thereafter and (ii) following the date that is 180 days after earlier of (A) the Closing Date consummation of a registration of Registrable Securities in connection with the Exclusive Demand Right and (B) 6 months following the expiration of any lockup period imposed by the underwriter(s) in connection with a Qualified Public Offering, upon the written request of Jackxxx, XxncBoston, the RTK Stockholder, the CRI Stockholder, the Telecrafter Stockholder, the TeleCore Stockholder, the Excalibur Stockholder, PNC or, following exercise of its warrants dated as defined in of September 7, 1999 and assuming it has not sold any of its shares of capital stock, GECC (each, with the Merger AgreementCrest Group, an "Initiating Holder"), the Holders Company shall use its best efforts to effect the registration of a majority of Registrable Securities shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective such Initiating Holder's Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written as described below. Such request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether shall state the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), by such holders of the Registrable Securities and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt Company will promptly give written notice of such demand, the requested registration to all holders of Registrable Securities. The Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) will use reasonable its best efforts to effect such registration of (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulationsi) of the Registrable Securities that which the Company has been so requested to registerregister for disposition in accordance with the intended method of disposition stated in such request, and (ii) all other Registrable Securities the holders of which shall have, within 30 days after the receipt of such written notice from the Company, made written request (stating the intended method of disposition of such securities by such holders) to the Company for registration thereof, all to the extent required to permit the disposition (in accordance with the intended method thereof as aforesaid) by all such holders of the Registrable Securities so to be registered; provided, that, the RTK Stockholder, the CRI Stockholder, Jackxxx, XxncBoston, the Telecrafter Stockholder, the TeleCore Stockholder, the Excalibur Stockholder, PNC and GECC shall be entitled to no more than one such demand request each; provided, further, that such Initiating Holder shall not be deemed to have made a demand request (including the Exclusive Demand Right) unless a registration statement shall have become effective with respect to at least 65% of the shares requested to be included therein by such Initiating Holder. The Company, after consultation with the holders requesting any registration pursuant to this paragraph, shall select the underwriter or underwriters of recognized standing to be used in connection with any public offering of securities registered pursuant to this paragraph; provided, however, that (i) the Holders so long as Crest Group shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled continue to require the Company to effect more than three (3) Demand Registrations hold in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect 5% or more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant total outstanding shares of Capital Stock, Crest Group shall have the right, in its sole discretion, to such Demand Registration may be in the form approve of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Companyany underwriter, which approval shall not be unreasonably withheld or delayed and withheld.
(iib) the Company shall (together with the Holders proposing If a requested registration pursuant to distribute their securities through such underwriting) enter into this Section 5.01 involves an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties byunderwritten offering, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) managing underwriter shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in writing (with a copy to each holder of Registrable Securities requesting registration) that, in its or their reasonable opinion opinion, the number of securities proposed requested to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to number which can be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a).in
Appears in 1 contract
Samples: Stockholders Agreement (Viasource Communications Inc)
Demand Registration. (a) Subject For a period of 270 days (plus any additional days during which a registration has been postponed pursuant to the provisions Section 2.1(f) hereof, at any time on or ) from and after the date that is 180 days after one (1) year from the Closing Date (as defined in the Merger date of this Agreement), the Holders of a majority of Registrable Securities Holder shall be entitled to have the right to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act effect one (a “Demand Registration”1) by delivering a written request therefor demand registration on Form S-3 (to the Company (i) specifying extent available to the number of Registrable Securities to Company, or any applicable substitute, replacement or successor form that may be included in such registration adopted by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulationsSEC) of the Registrable Securities that the Company has been so requested to register; provided, however, that (i) the Holders shall not make a then owned of record and beneficially by such Holder. A request for such demand registration (a Demand "Registration under this Section 4.2(aRequest") for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) must be made in writing by the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month periodHolder.
(b) The offering of Company shall use its best efforts to cause the Registrable Securities pursuant to such Demand Registration may be specified in the form of an underwritten public offering Registration Request to be registered as soon as reasonably practicable so as to permit the sale thereof and, in connection therewith, shall, within thirty (an “Underwritten Offering”). In such case, (i30) days after the Holder provides the Company may designate the managing underwriter(s) of the Underwritten Offeringwith such notice, provided that such Holders may designate prepare and file a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together registration statement with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required SEC under the terms of such underwriting agreement. The Company shall not be obligated Securities Act to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holderssuch registration.
(c) IfSuch registration statement shall contain such required information pursuant to the rules and regulations promulgated under the Securities Act and such additional information as deemed necessary by the managing underwriter or, in if there is no managing underwriter, as deemed under the Securities Act to be necessary by the Company.
(d) In connection with an Underwritten Offeringthe preparation of the registration statement, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then Holder shall:
(i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of Specify the number of Registrable Securities requested intended to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held offered and sold by the Holders shall be included in a Demand Registration without Holder;
(ii) Express the prior written consent Holder's intention to offer or cause the offering of such shares for distribution;
(iii) Describe the nature or method of the holders of a majority proposed offer and sale thereof by the Holder; and
(iv) Undertake to provide all such information and materials and take all such action as may be required in interest order to permit the Company to comply with all applicable requirements of the Registrable SecuritiesSEC and to obtain any desired acceleration of the effective date of such registration statement.
(de) A registration will not be deemed Notwithstanding the foregoing, if the Company shall furnish to have been effected as the Holder a Demand Registration unless the Registration Statement relating thereto has been declared effective certificate signed by the SEC, at least 75% a duly authorized officer of the Registrable Securities requested Company stating that in the good faith judgment of the Board of Directors of the Company it would be seriously detrimental to the Company for such registration statement to be included in filed on or before the registration by the Holders are included in date such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will filing would be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registrationrequired, then the Company shall continue be entitled to be obligated to effect a Demand Registration pursuant to this Section 4.2 postpone the filing of the Registrable Securities included registration statement for up to ninety (90) days; provided, that no period of postponement shall be counted in tolling the 270-day period referred to in Section 2.1(a) above.
(f) If a registration has become effective but is withdrawn before completion of the offering contemplated thereby because of adverse business developments at the Company that were not known to the Holder when it requested that the Company initiate such registration. In circumstances registration proceedings, or which developments came into existence subsequent to such request, such registration shall not including count as the events described demand registration referred to in the immediately two preceding sentences first sentence of this Section 4.2(d), each 2.1.
(g) If a registration is filed on behalf of the Holder and such registration is withdrawn at the request of Registrable Securities shall be permitted voluntarily to withdraw all or the Holder for any part of its Registrable Securities from a Demand Registration reason other than adverse business developments at any time prior the Company that were not known to the commencement of marketing of such Demand RegistrationHolder, provided that such registration nonetheless shall count as the demand registration referred to in the first sentence of this Section 2.1.
(h) The Company shall not cause the registration under the Securities Act of any other shares of Common Stock to become effective (other than the registration of an employee stock plan, or registration in connection with any Rule 145 or similar transaction) during the effectiveness of a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)registration requested hereunder.
Appears in 1 contract
Samples: Registration Rights Agreement (Electronic Game Card Inc)
Demand Registration. (a) Subject to the provisions hereof, at any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement)Date, the Holders of a majority of Registrable Securities shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable lawLaw. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws Laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to register; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a3.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 3.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any Table of Contents event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Numbermaximum number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Numbermaximum number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a3.2(a). If (i) a registration requested pursuant to this Section 4.2 3.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 3.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 3.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d3.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a3.2(a).
Appears in 1 contract
Demand Registration. (a) Subject to the provisions hereof, at At any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement), the Holders first anniversary of a majority of Registrable Securities shall have the right to require Qualified IPO, if the Company to file shall receive a Registration Statement registering for sale all or part of their respective Registrable Securities written request by a Holder (such requesting Holder, a "Selling Stockholder") that the Company effect the registration under the Securities Act of all or a portion of such Selling Stockholder's Registrable Securities, and specifying the intended method of disposition thereof, then the Company shall promptly give written notice of such requested registration (a “"Demand Registration”") by delivering a written request therefor at least 20 days prior to the Company anticipated filing date of the registration statement relating to such Demand Registration to all other Holders (the "Other Stockholders") and thereupon will use its best efforts to effect, as expeditiously as possible, the registration under the Securities Act of:
(i) specifying the number Registrable Securities which the Company has been so requested to register by the Selling Stockholder; and
(ii) all other Registrable Securities which the Other Stockholders have requested the Company to register by written request received by the Company within 10 days after the receipt by the Other Stockholders of the written notice given by the Company, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered; provided that, subject to Section 2.01(d) hereof, the Company shall not be obligated to effect more than two Demand Registrations for Urvanos and its Permitted Transferees and no more than six Demand Registrations for Urpasis and its Permitted Transferees; provided further that the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Registrable Securities to be included in such registration by such Holder Demand Registration, in the reasonable opinion of the Board, equals or Holdersexceeds $50,000,000; and provided further that the Company shall not, (ii) specifying whether the intended method of disposition thereof is in any event, be required to effect more than one Demand Registration pursuant to an Underwritten Offering (as defined below), and (iiithis Section 2.01(a) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable lawwithin any twelve month period. As soon as practicable after the receipt of such demandIn addition, the Company shall have the right to preempt any Demand Registration with a primary registration by delivering written notice (x) promptly notify all Holders within 10 days after the Company has received from whom the Selling Stockholder a request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulationsDemand Registration) of such intention to the Registrable Securities Selling Stockholder indicating that the Company has been so requested identified a specific business need and use for the proceeds of the sale of such securities and the Company shall use all commercially reasonable efforts to register; providedeffect a primary registration within 120 days of such notice. In the ensuing primary registration, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will have such incidental registration rights as are set forth in Section 2.02 hereof. Upon the Company's preemption of a requested Demand Registration, such requested registration will not count as a Demand Registration. The Company shall not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under exercise this Agreement, and (iii) the Company will not be obligated to effect right of preemption more than one (1) Demand Registration time in any six (6) 12-month period. Notwithstanding the foregoing, in connection with any Demand Registration, Holders shall not be permitted to request that a registration statement be filed pursuant to Rule 415 (a "Shelf Registration Statement").
(b) The offering Selling Stockholders requesting a registration under this Section may, at any time prior to the effective date of the Registrable Securities pursuant registration statement relating to such registration (or, at any time prior to the date of any Shelf Takedown if a Shelf Registration Statement has been filed and declared effective (as such terms are defined below)), revoke such request, without liability to any Holders, by providing a written notice to the Company revoking such request, in which case such request, so revoked, shall be considered a Demand Registration may be in unless the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) Selling Stockholders reimburse the Company may designate for all Registration Expenses incurred by the managing underwriter(s) Company in connection with such registration, or unless such revocation arose out of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval fault of the Company, in which approval case such request shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in considered a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the HoldersDemand Registration.
(c) IfSubject to Section 2.01(b) above, the Company will pay all Registration Expenses in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable SecuritiesRegistration.
(d) A registration will Demand Registration requested pursuant to this Section shall not be deemed to have been effected as a Demand Registration (i) unless the Registration Statement registration statement relating thereto (A) has been declared become effective by under the SEC, at least 75% of Securities Act and (B) has remained effective until such time as the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects registration have actually been sold thereunder); provided that if after any registration statement requested pursuant to this Section becomes effective such registration statement is interfered with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or administrative agencycourt, or if any court prevents or otherwise limits such a Demand Registration shall not be deemed to have been effected.
(e) If the sale managing underwriter of an offering advises the Company that, in its view, the number of Registrable Securities pursuant requested to be included in a registration effected under this Section 2.01 (including any securities which the Company proposes to be included which are not Registrable Securities) exceeds the largest number of securities which can be sold without having an adverse effect on such offering, including the price at which such securities can be sold (the "Maximum Offering Size"), the Company will include in such registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offeringpriority listed below, up to the Company fails Maximum Offering Size:
(A) first, all Registrable Securities requested to provide Full Cooperation, then be included in such registration will be deemed by the Selling Stockholder and the Other Stockholders (allocated, if necessary for the offering not to have been effected for purposes of clause (ii) exceed the Maximum Offering Size, pro rata among such Selling Stockholder and such Other Stockholders on the basis of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement relative number of the distribution by the Holders shares of the Registrable Securities covered by such registration, then the Company shall continue requested to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration); and
(B) second, any securities proposed to be registered by the Company.
(f) At any time on or after the first anniversary of a Qualified IPO, the Company may, in its sole discretion, file with the SEC a Shelf Registration Statement with respect to Registrable Securities then outstanding. After a Shelf Registration Statement has been filed, but before it has been declared effective by the SEC, Holders may not request a Demand Registration. After a Shelf Registration Statement has been declared effective by the SEC, a Holder may no longer exercise Demand Registrations for the purpose of effecting a registration, however, a Holder may exercise any Demand Registrations remaining under Section 2.01(a) to effect takedowns from such Shelf Registration Statement (a "Shelf Takedown"). In circumstances not including the events described in the immediately two preceding sentences connection with a demand relating to a Shelf Takedown, all other provisions of this Section 4.2(d), each Holder of Registrable Securities Agreement shall be permitted voluntarily continue to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)apply.
Appears in 1 contract
Demand Registration. (a) Subject to the provisions hereof, at At any time on or after the date that is 180 days after the Closing Date Date, any Avista Holder or PGS may request, in writing (as defined in the Merger Agreementa “Demand Request”), the Holders of a majority of Registrable Securities shall have the right to require that the Company to file a Registration Statement registering for sale effect the registration under the Securities Act of all or part of its or their respective Registrable Securities under the Securities Act Shares (a “Demand Registration”). Notwithstanding the foregoing, no Demand Request will be effective hereunder unless the Registrable Shares proposed to be sold by the Holder or Holders requesting the Demand Registration (the “Requesting Holders,” which term shall include parties deemed “Requesting Holders” pursuant to Section 2.1(g) hereof) represent, in the aggregate, more than 25% of the total number of Registrable Shares held by delivering a written request therefor to all Avista Holders or PGS, as the Company case may be.
(ib) specifying Each Demand Request shall specify the number of Registrable Securities Shares proposed to be included in such registration by such Holder or Holders, (ii) specifying whether sold and the intended method of disposition thereof is pursuant to of the Registrable Shares (including an Underwritten Offering (as defined belowpursuant to Section 2.1(d) or a Shelf Registration pursuant to Section 2.1(f), and (iii) containing all information about such Holder required ). Subject to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demandSection 2.1(h), the Company shall file the Demand Registration within 90 days after receiving a Demand Request (xthe “Required Filing Date”) promptly notify and shall use all Holders from whom the request for registration has not been received and (y) use commercially reasonable best efforts to effect cause the same to be declared effective by the SEC as promptly as practicable after such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to registerfiling; provided, however, that the Company shall not be required to effect (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three four (34) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in Requests made by the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Avista Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall more than four (together with the Holders proposing 4) Demand Registrations pursuant to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing Demand Requests made by PGS, each pursuant to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement2.1(a); provided, further, that (iif any Registrable Shares requested to be registered pursuant to a Demand Request are excluded from the applicable Demand Registration pursuant to Section 2.1(e) the representations and warranties by, and the other agreements on the part ofbelow, the Company applicable Holders shall each have the right, with respect to and for the benefit of the underwriter(s) shall also be made each such exclusion, to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holdersrequest one additional Demand Registration.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected count as a Demand Registration until it has become effective (unless the Requesting Holders withdraw all their Registrable Shares and the Company has performed its obligations hereunder in all material respects, in which case such demand will count as a Demand Registration unless the Requesting Holders pay all Registration Statement relating thereto has been declared effective by the SECExpenses, at least 75% of the Registrable Securities requested to be included as hereinafter defined, in the registration by the Holders are included in connection with such withdrawn registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto); provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution an offering of Registrable Securities thereunder Shares pursuant to a registration is or becomes the subject of interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or administrative agencycourt, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected and will not count as a Demand Registration.
(d) The Requesting Holders may provide in the Demand Request that the offering of Registrable Shares pursuant to a Demand Registration shall be in the form of a “firm commitment” underwritten offering (an “Underwritten Offering”). The Requesting Holders of a majority of the Registrable Shares to be registered in a Demand Registration shall select the investment banking firm or firms to manage the Underwritten Offering, provided that such selection shall be subject to the consent of the Company, which consent shall not be unreasonably withheld. No Person may participate in any registration pursuant to Section 2.1(a) unless such Person (i) agrees to sell such Person’s Registrable Shares on the basis provided in any underwriting arrangements described above and (ii) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents reasonably required under the terms of such underwriting arrangements; provided, however, that no such Person shall be required to make any representations or warranties in connection with any such registration other than representations and warranties as to (A) such Person’s ownership of his or its Registrable Shares to be transferred free and clear of all liens, claims and encumbrances, (B) such Person’s power and authority to effect such transfer and (C) such matters pertaining to compliance with securities laws as may be reasonably requested; provided, further, however, that the obligation of such Person to indemnify pursuant to any such underwriting arrangements shall be several, not joint and several, among such Persons selling Registrable Shares, and the liability of each such Person will be in proportion to the number of Registrable Shares included in such Demand Registration, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Shares pursuant to such registration.
(e) No securities to be sold for the account of any Person (including the Company) other than a Requesting Holder shall be included in a Demand Registration for an Underwritten Offering unless the managing underwriter or underwriters shall advise the Company or the Requesting Holders in writing that the inclusion of such securities will not materially and adversely affect the price or success of the Underwritten Offering (a “Material Adverse Effect”). Furthermore, in the event the managing underwriter or underwriters shall advise the Company or the Requesting Holders that even after exclusion of all securities of other Persons pursuant to the immediately preceding sentence, the amount of Registrable Shares proposed to be included in such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effect, the Registrable Shares of the Requesting Holders to be included in such Demand Registration shall equal the number of shares which the Company is so advised can be sold in such offering without a Material Adverse Effect and such shares shall be allocated pro rata among the Requesting Holders on the basis of the number of Registrable Shares owned by each such Requesting Holder.
(f) The Requesting Holders may provide in the Demand Request that the offering of Registrable Shares pursuant to a Demand Registration shall be in the form of a “shelf offering” under the Securities Act to be made on a continuous basis pursuant to Rule 415 under the Securities Act, or any similar rule that may be adopted by the SEC (such offering, a “Shelf Offering”). The Shelf Offering shall be on Form S-1 (or on Form S-3 or any similar successor form, if the Company is eligible to utilize such Form to register its shares). Subject to the terms of this Agreement, the Company shall use its best efforts to cause the Shelf Offering to be declared effective under the Securities Act as promptly as possible after the filing thereof and shall use its best efforts to keep such Shelf Offering continuously effective under the Securities Act until all Registrable Shares covered by such Shelf Offering have been sold or may be sold at one time pursuant to Rule 144 as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Company’s transfer agent and the affected Avista Holders or the affected PGS Holders, as the case may be.
(g) Upon receipt of any Demand Request (including a Demand Request pursuant to Section 2.1(i)), the Company shall promptly (but in any event within 10 days) give written notice of such proposed Demand Registration to all other Holders (which notice shall include the number of Registrable Shares of the Requesting Holder proposed to be included in the Demand Registration and a description of the proposed disposition of such Registrable Shares), who shall have the right, exercisable by written notice to the Company within 20 days of their receipt of the Company’s notice, to elect to include in such Demand Registration (including a Shelf Funded Repurchase pursuant to Section 2.1(i)) such portion of their Registrable Shares as they may request. All Holders requesting to have all or any part of their Registrable Shares included in a Demand Registration in accordance with the preceding sentence shall be deemed to be “Requesting Holders” for purposes of this Agreement.
(h) The Company may defer the filing (but not the preparation) of a registration statement required by Section 2.1(a) until a date not later than 90 days after the Required Filing Date (or, if longer, 90 days after the effective date of the registration statement contemplated by clause (ii) below) if (i) at the time the Company receives the Demand Request, the Company or any of its Subsidiaries are engaged in confidential negotiations or other confidential business activities, disclosure of which would be required in such registration statement (but would not be required if such registration statement were not filed), and the Board of Directors of the Company determines in good faith that such disclosure would be materially detrimental to the Company and its stockholders or (ii) prior to receiving the Demand Request, the Board of Directors had determined to effect a registered underwritten public offering of the Company’s securities for the Company’s account and the Company had taken substantial steps (including, but not limited to, selecting a managing underwriter for such offering) and is proceeding with reasonable diligence to effect such offering. A deferral of the filing of a registration statement pursuant to this Section 2.1(h) shall be lifted, and the requested registration statement shall be filed forthwith, if, in the case of a deferral pursuant to clause (i) of the preceding sentence, the negotiations or other activities are disclosed or terminated, or, in the case of a deferral pursuant to clause (ii) of the proviso preceding sentence, the proposed registration for the Company’s account is abandoned. In order to Section 4.2(a). If (i) defer the filing of a registration requested statement pursuant to this Section 4.2 2.1(h), the Company shall promptly (but in any event within ten days), upon determining to seek such deferral, deliver to each Requesting Holder a certificate signed by an executive officer of the Company stating that the Company is deferring such filing pursuant to this Section 2.1(h) and a general statement of the reason for such deferral and an approximation of the anticipated delay. Within 20 days after receiving such certificate, the holders of a majority of the Registrable Shares held by the Requesting Holders and for which registration was previously requested may withdraw such Demand Request by giving notice to the Company; if withdrawn, the Demand Request shall be deemed not to have been effected as made for all purposes of this Agreement. The Company may defer the filing of a Demand Registration or (ii) the particular registration requested statement pursuant to this Section 4.2 does not remain continuously effective until forty-five 2.1(h) only once.
(45i) days after the commencement In lieu of any of the distribution by Demand Registrations and if the Company has established a “shelf offering” of newly issued shares of Common Stock (the “Company Shelf Shares”) under the Securities Act to be made on a continuous basis pursuant to Rule 415 on Form S-3 (the “Company Shelf”), each of the Avista Holders and PGS may issue a Demand Request for the Company to sell Company Shelf Shares and use the proceeds from such sale to purchase all or any portion of the Registrable Securities covered Shares held by such registrationRequesting Holder (the “Shelf Funded Repurchase”) at a price equal to the price at which the Company Shelf Shares were sold less any underwriting discounts and commissions. Subject to the terms of this Agreement, then the Company shall continue use its best efforts to keep such Company Shelf continuously effective under the Securities Act until all Registrable Shares included in the applicable Demand Request have been purchased by the Company or may be obligated to effect a Demand Registration sold at one time pursuant to this Section 4.2 of Rule 144 as determined by the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior counsel to the commencement of marketing of Company pursuant to a written opinion letter to such Demand Registrationeffect, addressed and acceptable to the Company’s transfer agent and the affected Avista Holders or PGS, as the case may be. The Company will not be responsible for any fees or expenses incurred by the Avista Holders or PGS in connection with the Shelf Funded Repurchase other than as provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to in Section 4.2(a)2.7 hereto.
Appears in 1 contract
Demand Registration. (a) Subject to the provisions hereof, at any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement), the Holders The Rightholders of a majority of all Registrable Securities Securities, voting as a single class, shall have the right right, exercisable by giving written notice to the Company, to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities registration statement under the Securities Act to register the offer and sale of all or any portion of such holders’ (in either case, the “Rightholders”) Registrable Securities in the Company (in either case, a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, ; provided that the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts be obligated to effect such a registration pursuant to this Section 2.1(a) (including, without limitation, appropriate qualification under applicable blue sky other than a registration on Form S-3 or other state securities laws any successor form from and appropriate compliance with applicable regulations issued under after the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that time the Company has been so requested is eligible to register; provideduse Form S-3 or any successor form, howeveras applicable, that (i) as to which the Holders Rightholders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled have unlimited rights to require the Company to effect a registration) on more than three (3) Demand Registrations in occasions. In the aggregate under this Agreementevent of such a demand, and (iii) the Company will not be obligated to effect more than one shall, within twenty (120) Demand Registration in any six (6) month period.
(b) The offering days of the Registrable Securities pursuant receipt thereof, give written notice of such request to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”)all other Rightholders. In the event that any such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter Rightholders wish to participate in the Underwritten Offeringregistration (the “Opt-in Shareholders”), subject they shall so advise the Company within twenty (20) days of receipt of such notice and shall include in their notice the number of Registrable Securities they desire to so register. Notwithstanding any other provision of this section, if the managing underwriter determines that marketing factors require a limitation on the number of shares to be underwritten, then the Company shall so advise the Opt-in Shareholders which would otherwise be underwritten pursuant to this provision, and the number of shares that may be included in the underwriting shall be allocated to the Opt-in Shareholders in proportion, as nearly as practicable, to the respective amounts of Common Shares held by such Opt-in Shareholders at the time of filing the registration statement.; provided, further, that the number of shares owned by the Rightholders to be included in such underwriting and registration shall not be reduced unless all other securities held by other shareholders of the Company are first entirely excluded from the underwriting and registration. The managing underwriter(s) for such offering shall be selected by the Company with the prior written approval of the CompanyRightholders holding a majority of the Common Shares held by Rightholders to be offered for sale pursuant to the Demand Registration, which approval shall not be unreasonably withheld or delayed and (ii) withheld. In the event the Company shall has not selected an underwriter approved by such Rightholders within thirty (together with 30) days of the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part ofRightholders’ notice, the Company to and for the benefit Rightholders holding a majority of the underwriter(s) shall also Common Shares held by Rightholders to be made to and offered for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished sale pursuant to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to Demand Registration may select the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreementunderwriter. The Company shall not be obligated deemed to effect or participate (ahave effected a Demand Registration pursuant to this Section 2.1(a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by unless the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company Rightholders shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only have sold that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, representing at least 75% fifty percent (50%) of the Registrable Securities requested to be included registered by the Rightholders.
(b) The Company may postpone for up to 120 days the filing or effectiveness of a registration statement with respect to a Demand Registration if the Company furnishes to Rightholders requesting a registration pursuant to this Section 2.1 a certificate signed by the Company’s chief executive officer stating that, in the good faith judgment of the Company’s Board of Directors, it would be materially detrimental to the Company and its stockholders for such registration by statement to be filed during the Holders are included period of such postponement for one or more of the following reasons: (i) the filing of such registration statement during such period would materially interfere with an acquisition, corporate reorganization or other transaction that the Company would disclose in a periodic report filed pursuant to the Securities Exchange Act; (ii) the filing of such registrationregistration statement during such period would require disclosure of material, and non-public information relating to the Company which the Company has complied a bona fide business purpose for preserving as confidential; or (iii) the filing of such registration statement during such period would result in all material respects the Company’s inability to comply with its obligations under this Agreement with respect theretoapplicable requirements of the Securities Act; and it is therefore necessary to defer the filing of such registration statement for such period; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution Company may not invoke this right more than once in any 12-month period. In the event of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offeringpostponement, the Company fails Rightholders shall be entitled to provide Full Cooperationwithdraw such request and if withdrawn, then such registration will Demand Registration shall not be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a2.1(a).
Appears in 1 contract
Demand Registration. (a) Subject to the provisions hereofSection 2.2, at any time on or beginning six months after the effective date that is 180 days after of the Closing Date Company's initial public offering of common shares, any one Specified Shareholder (as defined a "Demanding Shareholder"), but only, in the Merger Agreementcase of Securitas Capital Fund, with respect to one Registered Public Offering as provided in Section 2.1(b), the Holders of a majority of Registrable Securities shall have the right to require the Company to file use its reasonable best efforts to fulfill such requirements as may be necessary to permit a Registration Statement registering for sale all or part Registered Public Offering (on a firm-commitment, underwritten basis) of their respective Registrable Securities under for the Securities Act (a “Demand Registration”account(s) of Specified Shareholders, by delivering a written request therefor notice of such demand to the Company (i) specifying the number of Registrable Securities that are held of record, and are proposed to be included sold in such registration offering, by the Demanding Shareholder (a "Demand Request"). If more than one Demand Request is submitted to the Company before the Company delivers a Notice of Demand Request in respect thereof pursuant to, and as defined in, Section 2.1(c), then all such Holder or HoldersDemand Requests and their Demanding Shareholders shall be treated collectively, as a single Demand Request and a single Demanding Shareholder, respectively, provided that, if a Demand Request is permitted to be withdrawn under Section 2.2(a), (iib) specifying or (c), and if such request involves individual Demand Requests that have been submitted by more than one Demanding Shareholder and are being treated collectively as a single Demand Request under this sentence, then each such Demanding Shareholder that submitted such an individual request shall be entitled to withdraw its own individual request, and its determination whether the intended method of disposition thereof is pursuant or not to an Underwritten Offering withdraw shall apply solely with respect to its own individual request, provided, further, that any such individual request or requests that are not withdrawn need not be withdrawn and shall continue to be counted as a single Demand Request as long as, collectively, they satisfy any requirement that may apply under Section 2.1(b) and, if they do not, they shall be deemed to have been withdrawn as well, and, provided, further, that all Joining Requests (as defined below) shall (except as provided in the next sentence) remain in effect as long as any one or more of such individual Demand Requests remain in effect. Notwithstanding the foregoing, a Founder (or, solely with respect to one Registered Public Offering, Securitas Capital Fund as provided in Section 2.1(b)) making a Joining Request shall have the right to withdraw such request if at such time a Demand Request is permitted to be withdrawn under Section 2.2(a), (b) or (c).
(b) Notwithstanding the foregoing, if the total number of Registrable Securities specified in any Demand Request is less than a number of shares of Common Stock equal to the lesser of (i) 10% of all shares of Common Stock outstanding as of the date of such Demand Request, or (ii) shares of Common Stock having a value of $100 million, based on the Current Market Price as of the date of such Demand Request, then neither the rights of any Specified Shareholder, nor the obligations of the Company set forth in this Article II, shall arise in respect of such Demand Request(s), which shall be deemed null and void and without effect and will not be counted as a Demand Request for any purpose hereunder. Notwithstanding any provision hereof, Securitas Capital Fund shall be entitled to make a Demand Request only once (whether or not any such request is joined with another Demand Request made by a Founder, but excluding any such request that is withdrawn and nullified pursuant to Section 2.2(a), (b) or (c)), and all rights that Securitas Capital Fund may have under this Article II in its capacity as a Seller Specified Shareholder (iiias defined below) containing all information about such Holder required shall apply solely with respect to be included in such Registration Statement in accordance with applicable law. As soon one Registered Public Offering as practicable after to which it has made an effective Demand Request.
(c) The Company shall give prompt written notice (the "Notice of Demand Request") of its receipt of any such demand, Demand Request to all Specified Shareholders who hold of record any Registrable Securities and thereupon the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use its reasonable best efforts to effect such the registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to register; provided, however, that of: (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described Demand Request for disposition in the immediately two preceding sentences of this Section 4.2(d)a firm-commitment, each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause underwritten public offering; and (ii) all other Registrable Securities as to which Specified Shareholders who are the holders thereof shall have made a written request (a "Joining Request") to the Company for registration thereof within fifteen (15) days after the transmittal of such Notice of Demand Request by the proviso Company, in each case as necessary to Section 4.2(apermit such holders, together with a Demanding Shareholder (each, a "Seller" and, collectively, the "Sellers"), to sell Registrable Securities in such firm-commitment, underwritten public offering.
Appears in 1 contract
Samples: Registration Rights Agreement (Allied World Assurance Co Holdings LTD)
Demand Registration. (a) Subject Upon written notice to the provisions hereof, Issuer from one or more Holders at any time on or after the Effective Time (but not later than the date that is 180 two years after the Effective Time) (a "Demand Request") requesting that the Issuer effect the registration under the 1933 Act of any or all of the Registrable Securities held by such requesting Holders, which notice shall specify the intended method or methods of disposition of such Registrable Securities, the Issuer shall prepare and, within 60 days after the Closing Date such request (as defined or 20 days in the Merger Agreementcase of the first such request), file with the Commission a registration statement with respect to such Registrable Securities and thereafter use its reasonable best efforts to cause such registration statement to be declared effective under the 1933 Act for purposes of dispositions in accordance with the intended method or methods of disposition stated in such request. Notwithstanding any other provision of this Agreement to the contrary:
(i) the Holders of may collectively exercise their rights to request registration under this Section 2.01(a) on not more than three occasions (it being understood that a majority demand with respect to a two-tranche contemporaneous offering of Registrable Securities and related derivative securities shall have the right be deemed to require the Company be only one demand) (each such registration being referred to file herein as a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (a “"Demand Registration”");
(ii) by delivering the Issuer shall not be required to effect a written request therefor to Demand Registration hereunder unless the Company (i) specifying the number aggregate market value of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is registered pursuant to an Underwritten Offering (as defined below), and such Demand Registration is equal to or more than $100 million;
(iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to register; provided, however, that (i) the Holders shall not be permitted to make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less more than $5,000,000, once in any six-month period; and
(iiiv) the method of disposition requested by Holders will in connection with any Demand Registration may not be entitled to require a Rule 415 Offering without the Company to effect more than three (3) Demand Registrations Issuer's prior written consent, which consent shall be in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month periodIssuer's sole discretion.
(b) The offering Notwithstanding any other provision of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject this Agreement to the approval of the Companycontrary, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will requested by Holders pursuant to this Section 2.01 shall not be deemed to have been effected as a effected, and, therefore, not requested and the rights of each Holder shall be deemed not to have been exercised for purposes of paragraph (a) above, if such Demand Registration unless has not become effective under the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in 1933 Act or if such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that ifDemand Registration, after it has become effectivebecame effective under the 1933 Act, was not maintained effective under the 1933 Act (i) such Registration Statement other than as a result of the request of Holders, or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC Commission or any other governmental government agency or administrative agencycourt solely on the account of a material misrepresentation or omission of a Holder) for at least 30 days (or such shorter period ending when all the Registrable Securities covered thereby have been disposed of pursuant thereto) and, as a result thereof, the Registrable Securities requested to be registered cannot be distributed in accordance with the plan of distribution set forth in the related registration statement.
(c) The Issuer shall have the right to cause the registration of additional equity securities for sale for the account of the Issuer in the registration of Registrable Securities requested by the Holders pursuant to Section 2.01(a) above; provided that if such Holders are advised in writing (with a copy to the Issuer) by the lead or if any court prevents managing underwriter referred to in Section 2.03(b) that, in such underwriter's good faith view, all or otherwise limits a part of such Registrable Securities and additional equity securities cannot be sold and the inclusion of such Registrable Securities and additional equity securities in such registration would be likely to have an adverse effect on the price, timing or distribution of the offering and sale of the Registrable Securities and additional equity securities then contemplated, then Issuer shall be entitled to include in such registration only such number of additional equity securities, if any, which, when added to the Registrable Securities requested by the Holders pursuant to Section 2.01(a) above, would not exceed the registrationnumber of securities that can, and in the good faith view of such underwriter, be sold in such offering without so adversely affecting such offering.
(d) Within 10 days after delivery of a Demand Request by a Holder, the Issuer shall provide a written notice to each case less than Holder, advising such Holder of its right to include any or all of the Registrable Securities covered held by the effective Registration Statement are actually sold by the selling such Holder or Holders for sale pursuant to the Demand Registration Statement, or (ii) if, and advising such Holder of procedures to enable such Holder to elect to so include Registrable Securities for sale in the case Demand Registration. Any Holder may, within 10 days of an Underwritten Offering, the Company fails delivery to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes Holder of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested notice pursuant to this Section 4.2 is deemed not 2.01(d), elect to have been effected as a so include Registrable Securities in the Demand Registration or (ii) by written notice to such effect to the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after Issuer specifying the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder number of Registrable Securities shall desired to be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of so included by such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)Holder.
Appears in 1 contract
Demand Registration. (a) Subject At any time from and after 180 days following the Effective Date and subject to the provisions Sections 2(c) and 2(d) hereof, at any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement), the Holders receipt of a majority of Registrable Securities shall have written request from a Holder (the right to require "INITIATING DEMAND HOLDER") requesting that the Company to file effect a Registration Statement registering for sale registration (a "DEMAND REGISTRATION") under the Securities Act covering all or part of their respective the Registrable Securities held by such Holder, which specifies the intended method or methods of disposition thereof, the Company shall promptly notify all Holders in writing of the receipt of such request and each such Holder, in lieu of exercising its rights under the Securities Act Section 3 hereof, may elect (a “Demand Registration”) by delivering a written request therefor notice sent to the Company within twenty (i20) specifying days from the date of such Holder's receipt of the aforementioned Company's notice) to have all or part of such Holder's Registrable Securities included in such registration thereof pursuant to this Section 2, and such Holder shall specify in such notice the number of Registrable Securities that such Holder elects to include in such registration. Thereupon the Company shall, as expeditiously as is reasonably possible, file with the SEC and use commercially reasonable efforts to cause to be included in such declared effective, a registration by such Holder or Holders, statement (iia "DEMAND REGISTRATION STATEMENT") specifying whether the intended method of disposition thereof is pursuant relating (subject to an Underwritten Offering (as defined below), and (iiiSection 2(b) containing hereof) to all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that which the Company has been so requested to register; register by such Holders ("PARTICIPATING DEMAND HOLDERS") for sale, to the extent required to permit the disposition (in accordance with the intended method or methods thereof, as aforesaid) of the Registrable Securities so registered, provided, however, that the aggregate number of Registrable Securities requested to be registered by all Participating Demand Holders shall be, subject to Section 2(b) below, at least the greater of (a) five percent (5%) of the Class A Stock issued and outstanding on the Effective Date, calculated on an As Converted Basis (as defined in the Certificate of Incorporation) as of the date of the Demand Registration Statement, and (b) an aggregate value of $100,000,000, based on the closing trading price of the Class A Stock on the date the demand to file such Demand Registration Statement is made.
(b) If the Initiating Demand Holder so requests that the offering be underwritten with a managing underwriter (which shall be selected in the manner set forth in Section 12 below) and such managing underwriter of such Demand Registration advises the Company in writing that, in its opinion, the number of Securities to be included in such offering is greater than the total number of Securities which can be sold therein without having a material adverse effect on the distribution of such Securities or otherwise having a material adverse effect on the marketability thereof (the "MAXIMUM NUMBER OF SECURITIES"), then the Company shall include in such Demand Registration the Registrable Securities that the Participating Demand Holders have requested to be registered thereunder only to the extent the number of such Registrable Securities does not exceed the Maximum Number of Securities. The Company shall include such Registrable Securities in a Demand Registration even if the Maximum Number of Securities is less than the threshold set forth in Section 2(a) above. If such amount exceeds the Maximum Number of Securities, the number of Registrable Securities included in such Demand Registration shall be allocated among all the Participating Demand Holders on a pro rata basis, unless any of the Participating Demand Holders otherwise agree between or among themselves and notifies the Company in writing of such agreement. If the amount of such Registrable Securities does not exceed the Maximum Number of Securities, the Company may include in such Registration any other Securities of the Company, and then other Securities held by other security holders of the Company, on a pro rata basis if necessary, in an amount which together with the Registrable Securities included in such Demand Registration shall not exceed the Maximum Number of Securities.
(c) The Shareholders together with all Holders who are assignees or transferees of the Shareholders, or assignees or transferees of an assignee or transferee of the Shareholders shall collectively be entitled to sixteen (16) registrations of Registrable Securities pursuant to this Section 2. Each Shelf Registration pursuant to Section 4 hereof shall be deemed one Demand Registration pursuant hereto.
(d) Notwithstanding anything to the contrary contained herein, the Company shall not be required to prepare and file (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration Statement under this Agreement in any six (6) six-month period, or (ii) any Demand Registration Statement within ninety (90) days following the date of effectiveness of any Registration Statement (other than a Shelf Registration Statement).
(be) The offering of the Registrable Securities A Demand Registration requested pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (iSection 2(a) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval hereof shall not be unreasonably withheld or delayed deemed to have been effected with respect to any Participating Demand Holder that is not able to register and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit sell at least 80% of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each on behalf of such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included Holder in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securitiessuch registration.
(df) A registration will not be deemed to have been effected as a Participating Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with Holder may withdraw its obligations under this Agreement request with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement effective date of marketing the Demand Registration Statement relating thereto by providing to the Company written notice. Upon any such withdrawal, if the Company determines not to otherwise continue with such Registration Statement for the purpose of registering Class A Stock of the Company, another Holder or another shareholder of the Company, the withdrawing Participating Demand Holder shall be obligated, pro rata with any other withdrawing Participating Demand Holder, to reimburse the Company, within 20 days of the date of the written notice of withdrawal, for all Expenses (as defined in Section 12 below) incurred by the Company, in connection with such withdrawn Demand Registration that would not otherwise have been incurred by the Company. Any such withdrawn Demand Registration shall be counted with respect to such Holder for purposes of Section 2(c) hereof as a completed Demand Registration, provided unless such withdrawal was the result of a change in market conditions that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) would materially adversely effect the amount and/or price of the proviso Registrable Securities to Section 4.2(a)be included in the Demand Registration.
Appears in 1 contract
Demand Registration. (a) Subject to the provisions hereof, at any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement)Restricted Term, the Holders Investor and any Permitted Transferee of the Investor (each a “Holder”) holding, collectively, a majority of the Registrable Securities then outstanding shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective the Shares held by or issuable to them (collectively, the “Registrable Securities Securities”) under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an underwritten public offering of Ordinary Shares by the Company (an “Underwritten Offering (as defined belowOffering”), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable lawLaw. As soon as practicable after the receipt of such demand, the The Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use commercially reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws Laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to registerregister as soon as practicable (and in any case by the applicable Filing Date); provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a2.1(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the 25,000,000. The Holders will not shall be entitled to require the Company to effect more than three two (32) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The If the offering of the Registrable Securities pursuant to such Demand Registration may be in the form of is an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate shall select the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the CompanyHolders of a majority of the Registrable Securities to be sold in the Underwritten Offering, which such approval shall not to be unreasonably withheld withheld, conditioned or delayed delayed, and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings by a selling holder of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectusProspectus, final prospectusProspectus, summary prospectusProspectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with a Demand Registration in the form of an Underwritten Offering, the managing underwriter(s) advise give written advice to the Company that in its or their reasonable opinion of the number of securities proposed to be included in which such registration exceeds should, in the opinion of the managing underwriter(s) of such registration, in light of marketing factors, be limited (an “Underwriters’ Maximum Number”), then the Company shall (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that registration the number of Registrable Securities securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such by all Holders of Registrable Securities to be allocated included in such Underwritten Offering, pro rata among the Holders thereof on the basis of the aggregate number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by , and, subject to the Holders shall be included conditions set forth in Section 2.8 hereto, on a Demand Registration without the prior written consent of pari passu basis with the holders of a majority in interest contractual registration rights provided under (i) the Investor Agreement, dated as of April 2, 2018, by and between the Registrable SecuritiesCompany and Takeda Pharmaceutical Company Limited (the “Takeda Holders”) and (ii) the Share Purchase Agreement by and between the Company and C.P. Pharmaceuticals International C.V. dated as of May 6, 2016 (the “Pfizer Holders”).
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least seventy five percent (75% %) of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registrationregistration (each, an “Interference”), which Interference does not result from any act or omission of any Holder whose Registrable Securities are registered pursuant to such Registration Statement and is not cured within forty five (45) days thereof, and (ii) in each case less than all seventy five percent (75%) of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) the last sentence of the proviso to Section 4.2(a2.1(a). If (i) a registration requested pursuant to this Section 4.2 2.1 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 2.1 does not remain continuously effective until forty-five (45) days after the commencement completion of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 2.1 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d2.1(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) the last sentence of the proviso to Section 4.2(a2.1(a).
Appears in 1 contract
Demand Registration. (a) Subject to the provisions hereof, at At any time on or after the earlier of (i) three (3) years from the date that is hereof and (ii) 180 days after the Closing Date (as defined in initial public offering of the Merger Agreement)Company’s Common Stock pursuant to an effective registration under the Securities Act, the Holders holders of at least a majority of the Registrable Securities shall have the right to require may notify the Company that they intend to file a Registration Statement registering offer or cause to be offered for public sale all or part any portion of their respective Registrable Securities under in the Securities Act (a “Demand Registration”) by delivering a written request therefor to manner specified in such request. Upon receipt of such request, the Company (i) specifying the number shall promptly deliver notice of such request to all Investors holding Registrable Securities who shall then have thirty (30) days to notify the Company in writing of their desire to be included in such registration. If the request for registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to contemplates an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demandunderwritten public offering, the Company shall (x) promptly notify all Holders from whom state such in the request for registration has not been received written notice and (y) use reasonable best efforts in such event the right of any Person to effect participate in such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to register; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations conditioned upon such Person’s participation in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter including entering into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(sunderwriter selected in accordance with Section 2(c) proposing below and the inclusion of such Person’s Registrable Securities in the underwritten public offering to distribute their securities through the extent provided herein. The Company will use its best efforts to expeditiously effect the registration of all Registrable Securities whose holders request participation in such Underwritten Offeringregistration under the Securities Act, which underwriting agreement shall have indemnification provisions but only to the extent provided for in substantially the form as set forth in Section 4.9 of this Agreement; provided, however, that the Company shall not be required to effect registration pursuant to a request under this Section 2 (i) the representations and warranties by, and the other agreements on the part of, the Company to and more than two times within any twelve (12) month period for the benefit holders of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten OfferingRegistrable Securities as a group, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) unless the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition aggregate anticipated sales price of the Registrable Securities disposed of by such Holder pursuant proposed to such Underwritten Offering. No Holder may participate be sold in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on offering is at least $5,000,000, (iii) if the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall furnish to such holders requesting a registration statement pursuant to this Section 2(a), a certificate signed by the Chairman of the Board stating that, in the good faith judgment of the Board of Directors of the Company and upon the advice of securities law counsel reasonably acceptable to the Investors, it would be seriously detrimental to the Company and it 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 be obligated to effect or participate (a) more than two ninety (290) Underwritten Offerings days after receipt of the request of the initiating shareholders; provided, however, that such right to delay a request shall be exercised by the Company not more than once in any twelve (12) month period, and (biv) in any Underwritten Offering during any lock-up period required by if the underwriter(sinitiating shareholders 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 3 below. Notwithstanding anything to the contrary contained herein, no request may be made under this Section 2 within ninety (90) in any prior underwritten offering conducted days after the effective date of a registration statement filed by the Company on its own behalf or on behalf covering a firm commitment underwritten public offering in which the holders of Registrable Securities shall have been entitled to join pursuant to Section 4 and in which there shall have been effectively registered all Registrable Securities as to which registration shall have been requested. A registration will not count as a requested registration under this section 2(a) unless and until the registration statement relating to such registration has been declared effective by the Commission at the request of the Holdersinitiating shareholders; provided, however, that a majority in interest of the participating holders of Registrable Securities may request, in writing, that the Company withdraw a registration statement which has been filed under this Section 2(a) but has not yet been declared effective, and a majority in interest of such holders may thereafter request the Company to reinstate such registration statement, if permitted under the Securities Act, or to file another registration statement, in accordance with the procedures set forth herein and without reduction in the number of demand registrations permitted under this Section 2(a).
(cb) If, in connection with If a requested registration involves an Underwritten Offering, underwritten public offering and the managing underwriter(s) advise the Company underwriter of such offering determines in good faith that in its or their reasonable opinion the number of securities proposed sought to be offered should be limited due to market conditions, then the number of securities to be included in such registration exceeds underwritten public offering shall be reduced to a number deemed satisfactory by such managing underwriter; provided, that the Underwriters’ Maximum Number, then shares to be excluded shall be determined in the following order of priority: (i) persons not having any contractual or other right to include such securities in the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and registration statement, (ii) securities held by any other Persons (other than the holders of Registrable Securities) having a contractual, incidental “piggy back” right to include such securities in the registration statement, (iii) securities to be registered by the Company will be obligated and required pursuant to include in such Underwritten Offering only that number of registration statement, (iv) Registrable Securities of holders who did not make the original request for registration and, if necessary, (v) Registrable Securities of holders who requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities pursuant to be allocated pro rata among the Holders thereof on the basis Section 2(a). If there is a reduction of the number of Registrable Securities requested pursuant to clauses (iv) or (v), such reduction shall be included therein by each such Holder. No shares made on a pro rata basis (based upon the aggregate number of Common Stock held by any Person other than Registrable Securities held by such holders).
(c) With respect to a request for registration pursuant to Section 2(a) which is for an underwritten public offering, the Holders managing underwriter shall be included in a Demand Registration without the prior written consent of chosen by the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included sold in such registrationoffering (which approval will not be unreasonably withheld or delayed), and provided that such underwriter shall be reasonably acceptable to the Company. The Company has complied in all material respects with may not cause any other registration of securities for sale for its obligations under this Agreement with respect thereto; provided, however, that if, after it has own account (other than a registration effected solely to implement an employee benefit plan or a transaction to which Rule 145 of the Securities Act is applicable) to become effective, effective within one hundred twenty (i120) such Registration Statement or days following the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject effective date of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested required pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)2.
Appears in 1 contract
Samples: Registration Rights Agreement (Lumber Liquidators, Inc.)
