Demand Registration. (a) At any time beginning six months from the date of this Agreement and for a period of three years thereafter, the Holder may make one written request for registration under the Securities Act, (a "Demand Registration") of all or part of Holder's Registrable Securities (but such part, together with the number of securities requested by other Approved Investors, to be included in such Demand Registration pursuant to this Section 2, shall have an estimated market value at the time of such request (based upon the then market price of a share of Common Stock of the Company) of at least $250,000. Notwithstanding the foregoing, the Company shall not be required to file any registration statement on behalf of the Holder within twelve months after the effective date of any earlier registration statement so long as the Holder was given a notice offering it the opportunity to sell Registrable Securities under the earlier registration statement and the Holder did not request that its Registrable Securities be included; provided, however, that if Holder requested that its Registrable Securities be included in the earlier registration statement but not all were so included through no fault of the Investor, the Investor may, but shall not be obligated to, require the Company to file another registration statement pursuant to a Demand Registration. Within fifteen (15) days after receipt of a request for a Demand Registration, the Company shall give written notice (the "Notice") of such request to all other Approved Investors and shall include in such registration all Registrable Securities that the Company has received written requests for inclusion therein within 15 days after the Notice is given (the "Requested Securities"). Thereafter, the Company may elect to include in such registration additional shares of Common Stock to be issued by the Company. All requests made pursuant to this Section 2 shall specify the aggregate number of Registrable Securities to be registered. (b) A registration shall not constitute a Demand Registration under this Section 2 until it has become effective. (c) The Holder making the Demand Registration may elect whether the offering of such Registrable Securities pursuant to such Demand Registration shall be in the form of a firm commitment underwritten offering or otherwise; provided, however, that such Holder may not elect that such offering be made on a delayed or continuous basis pursuant to rule 415 under the Securities Act. In any case in which an offering is in the form of a firm commitment underwritten offering, if the managing underwriter or underwriters of such offering advise the Company in writing that in its or their opinion the number of Registrable Securities proposed to be sold in such offering exceeds the number of Registrable Securities that can be sold in such offering without aversely affecting the market for the Company's Common Stock, the Company will include in such registration the number of Registrable Securities that in the opinion of such managing underwriter or underwriters can be sold without adversely affecting the market for the Company's Common Stock. In such event, the number of Registrable Securities, if any, to be offered for the accounts of Approved Investors (including the Holder making the Demand Registration) shall be reduced pro rata on the basis of the relative number of any Registrable Securities requested by each Approved Investor to be included in such registration to the extent necessary to reduce the total number of Registrable Securities to be included in such offering to the number recommended by such managing underwriter or underwriters. In the event the Holder making the Demand shall receive notice pursuant to this Section 2(c) that the amount of Registrable Securities to be offered for such Holder shall be reduced, such Holder shall be entitled to withdraw the Demand by written notice to the Company within seven (7) days after receipt of such notice, with the effect that such Demand shall be deemed not to have been made. (d) If any of the Registrable Securities covered by a Demand Registration are to be sold in an underwritten offering, the Approved Investors, in the aggregate, that own or will own a majority of the Registrable Securities that the Company has been requested to register (including the Requested Securities but excluding any securities to be issued by the Company), shall have the right to select the investment banker or investment bankers and manager or managers that will underwrite the offering; provided, however, that such investment bankers and managers must be reasonably satisfactory to the Company.
Appears in 3 contracts
Samples: Registration Rights Agreement (International Assets Holding Corp), Registration Rights Agreement (International Assets Holding Corp), Registration Rights Agreement (International Assets Holding Corp)
Demand Registration. In addition to the registration obligations of the Company set forth in Section 2.2 herein, the following provisions shall apply:
(a) At any time beginning six months from Subject to Section 2.3(i), upon the date of this Agreement and for a period of three years thereafter, the Holder may make one written request for of the Majority Holders, requesting that the Company effect the registration under the Securities Act, (a "Demand Registration") Act of all or part of Holder's such Designated Holders’ Registrable Securities and specifying the intended method of disposition thereof (the “Demand Notice”), the Company will promptly give written notice of such requested registration to all Designated Holders, and thereupon the Company will use its reasonable best efforts to file with the SEC as soon as reasonably practicable following the Demand Notice (but in no event later than the date that is 90 days after the Demand Notice) a Registration Statement. The Company shall use its reasonable best efforts to cause such part, together Registration Statement to be declared effective by the SEC within 90 days after the initial filing of the Registration Statement. The Company shall include in such Registration Statement:
(i) the Registrable Securities which the Company has been so requested to be registered by such Designated Holders for disposition in accordance with the number intended method of securities requested by other Approved Investors, to be included disposition stated in such Demand Registration request;
(ii) all other Registrable Securities the holders of which shall have made a written request to the Company for registration thereof within 30 days after the giving of such written notice by the Company (which request shall specify the intended method of disposition of such Registrable Securities); and
(iii) all shares of Common Stock which the Company or Persons entitled to exercise “piggy-back” registration rights pursuant to contractual commitments of the Company may elect to register in connection with the offering of Registrable Securities pursuant to this Section 2, shall have an estimated market value at 2.3; all to the time extent requisite to permit the disposition (in accordance with the intended methods thereof as aforesaid) of such request (based upon the then market price of a share Registrable Securities and the additional shares of Common Stock Stock, if any, so to be registered; provided, that, the provisions of this Section 2.3 shall not require the CompanyCompany to effect more than two registrations of Registrable Securities.
(b) of at least $250,000. Notwithstanding anything to the foregoingcontrary contained in this Agreement, the Company shall not be required to file any effect a registration statement on behalf of the Holder pursuant to this Section 2.3 within twelve months after 180 days following the effective date of any earlier a registration statement so long as filed by the Company in accordance with Sections 2.2, 2.3 or 2.4 for the account of another Designated Holder was given a notice offering it of Registrable Securities if the Designated Holders were afforded the opportunity to sell include the Registrable Securities under the earlier registration statement and the Holder did not request that its Registrable Securities be included; provided, however, that if Holder requested that its Registrable Securities be included in the earlier registration statement but not all were so included through no fault of the Investor, the Investor may, but shall not be obligated to, require the Company to file another registration statement pursuant to a Demand Registration. Within fifteen (15) days after receipt of a request for a Demand Registration, the Company shall give written notice (the "Notice") of such request to all other Approved Investors and shall include in such registration all Registrable Securities that the Company has received written requests for inclusion therein within 15 days after the Notice is given (the "Requested Securities"). Thereafter, the Company may elect to include in such registration additional shares of Common Stock to be issued by the Company. All requests made pursuant to this Section 2 shall specify the aggregate number of Registrable Securities to be registered.
(b) A registration shall not constitute a Demand Registration under this Section 2 until it has become effectiveregistration.
(c) The Holder making registrations under this Section 2.3 shall be on an appropriate Registration Statement that permits the Demand Registration may elect whether the offering disposition of such Registrable Securities pursuant in accordance with the intended methods of distribution specified by the Majority Holders in their request for registration. The Company agrees to include in any such Demand Registration shall be in the form of a firm commitment underwritten offering or otherwise; provided, however, that such Holder may not elect that such offering be made on a delayed or continuous basis pursuant to rule 415 under the Securities Act. In any case in Statement all information which an offering is in the form of a firm commitment underwritten offering, if the managing underwriter or underwriters of such offering advise the Company in writing that in its or their opinion the number Designated Holders of Registrable Securities proposed being registered shall reasonably request to be sold in such offering exceeds effect the number of Registrable Securities that can be sold in such offering without aversely affecting the market for the Company's Common Stock, the Company will include in such registration the number of Registrable Securities that in the opinion of such managing underwriter or underwriters can be sold without adversely affecting the market for the Company's Common Stock. In such event, the number of Registrable Securities, if any, to be offered for the accounts of Approved Investors (including the Holder making the Demand Registration) shall be reduced pro rata on the basis of the relative number of any Registrable Securities requested by each Approved Investor to be included in such registration to the extent necessary to reduce the total number of Registrable Securities to be included in such offering to the number recommended by such managing underwriter or underwriters. In the event the Holder making the Demand shall receive notice pursuant to this Section 2(c) that the amount of Registrable Securities to be offered for such Holder shall be reduced, such Holder shall be entitled to withdraw the Demand by written notice to the Company within seven (7) days after receipt of such notice, with the effect that such Demand shall be deemed not to have been maderegistration.
(d) If any of the Registrable Securities covered by A registration requested pursuant to this Section 2.3 shall not be deemed to have been effected (i) unless a Demand Registration are to be sold in an underwritten offering, the Approved Investors, in the aggregateStatement with respect thereto has become effective; provided, that own or will own a majority of the Registrable Securities that Registration Statement which does not become effective after the Company has been requested filed a Registration Statement with respect thereto solely by reason of the refusal to register proceed of the Majority Holders (including other than a refusal to proceed based upon the Requested Securities but excluding any securities advice of counsel relating to be issued by the Company), shall have the right to select the investment banker or investment bankers and manager or managers that will underwrite the offering; provided, however, that such investment bankers and managers must be reasonably satisfactory a matter with respect to the Company) or because of a breach of this Agreement by any Designated Holder shall be deemed to have been effected by the Company at the request of the Majority Holders unless the Designated Holders electing to have Registrable Securities registered pursuant to such Registration Statement shall have elected to pay all fees and expenses otherwise payable by the Company in connection with such registration pursuant to Section 2.8, (ii) if, after it has become effective, such registration is withdrawn by the Company (other than at the request of the Majority Holders) or interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court for any reason prior to the expiration of a 180 day period following such Registration Statement’s effectiveness, or (iii) if the conditions to closing specified in any purchase agreement or underwriting agreement entered into in connection with such registration are not satisfied, other than due solely to some act or omission by the Designated Holders electing to have Registrable Securities registered pursuant to such Registration Statement.
Appears in 3 contracts
Samples: Registration Rights Agreement (Miscor Group, Ltd.), Registration Rights Agreement (Miscor Group, Ltd.), Registration Rights Agreement (Tontine Capital Partners L P)
Demand Registration. Following receipt of a Demand Notice, the Company shall (asubject to any rights set forth in the Existing Stockholders’ Agreement):
(i) At give written notice of such request for registration to all Holders of Registrable Securities within ten (10) days after receipt of a Demand Notice;
(ii) cause to be filed, as soon as practicable, but in any time beginning six months from event within, for the filing of a Shelf Registration Statement, thirty (30) days of the date of this Agreement delivery of the Demand Notice, a Registration Statement covering such Registrable Securities that the Company has been so requested to register by the Requesting Holders and other Holders of Registrable Securities who make a request to the Company, within fifteen (15) days of the mailing of the Company’s notice referred to in Section 1.2(b)(i) hereof, that their Registrable Securities also be registered, providing for a period of three years thereafter, the Holder may make one written request for registration under the Securities Act, (a "Demand Registration") Act of all or part of Holder's such Registrable Securities (but to the extent necessary to permit the disposition of such part, together Registrable Securities in accordance with the number intended method of securities requested by other Approved Investors, to be included distribution specified in such Demand Notice;
(iii) use its commercially reasonable efforts to have such Registration Statement declared effective by the SEC as soon as practicable thereafter, but in no event later than thirty (30) days or, if a Registration Statement is reviewed by the staff of the SEC, the Company shall use its commercially reasonable efforts to have such Registration Statement declared effected not later than sixty (60) days following the date of initial filing thereof with the SEC; and
(iv) if the Company shall have previously effected a Demand Registration pursuant to this Section 2, shall have an estimated market value at the time of such request (based upon the then market price of a share of Common Stock of the Company) of at least $250,000. Notwithstanding the foregoing1.2, the Company shall not be required to file effect any registration statement on behalf pursuant to Section 1.2 until a period of the Holder within twelve months after one hundred eighty (180) days shall have elapsed from the effective date of any earlier such previous registration statement so long as the Holder was given a notice offering it the opportunity to sell Registrable Securities under the earlier registration statement and the Holder did not request that its Registrable Securities be included; provided, however, that if Holder requested that its Registrable Securities be included in the earlier registration statement but not all were so included through no fault of the Investor, the Investor may, but shall not be obligated to, require the Company to file another registration statement pursuant to a Demand Registration. Within fifteen (15) days after receipt of a request for a Demand Registration, the Company shall give written notice (the "Notice") of such request to all other Approved Investors and shall include in such registration all Registrable Securities that the Company has received written requests for inclusion therein within 15 days after the Notice is given (the "Requested Securities"). Thereafter, the Company may elect to include in such registration additional shares of Common Stock to be issued by the Company. All requests made pursuant to this Section 2 shall specify the aggregate number of Registrable Securities to be registeredstatement.
(b) A registration shall not constitute a Demand Registration under this Section 2 until it has become effective.
(c) The Holder making the Demand Registration may elect whether the offering of such Registrable Securities pursuant to such Demand Registration shall be in the form of a firm commitment underwritten offering or otherwise; provided, however, that such Holder may not elect that such offering be made on a delayed or continuous basis pursuant to rule 415 under the Securities Act. In any case in which an offering is in the form of a firm commitment underwritten offering, if the managing underwriter or underwriters of such offering advise the Company in writing that in its or their opinion the number of Registrable Securities proposed to be sold in such offering exceeds the number of Registrable Securities that can be sold in such offering without aversely affecting the market for the Company's Common Stock, the Company will include in such registration the number of Registrable Securities that in the opinion of such managing underwriter or underwriters can be sold without adversely affecting the market for the Company's Common Stock. In such event, the number of Registrable Securities, if any, to be offered for the accounts of Approved Investors (including the Holder making the Demand Registration) shall be reduced pro rata on the basis of the relative number of any Registrable Securities requested by each Approved Investor to be included in such registration to the extent necessary to reduce the total number of Registrable Securities to be included in such offering to the number recommended by such managing underwriter or underwriters. In the event the Holder making the Demand shall receive notice pursuant to this Section 2(c) that the amount of Registrable Securities to be offered for such Holder shall be reduced, such Holder shall be entitled to withdraw the Demand by written notice to the Company within seven (7) days after receipt of such notice, with the effect that such Demand shall be deemed not to have been made.
(d) If any of the Registrable Securities covered by a Demand Registration are to be sold in an underwritten offering, the Approved Investors, in the aggregate, that own or will own a majority of the Registrable Securities that the Company has been requested to register (including the Requested Securities but excluding any securities to be issued by the Company), shall have the right to select the investment banker or investment bankers and manager or managers that will underwrite the offering; provided, however, that such investment bankers and managers must be reasonably satisfactory to the Company.
Appears in 3 contracts
Samples: Registration Rights Agreement (AEON Biopharma, Inc.), Registration Rights Agreement (AEON Biopharma, Inc.), Registration Rights Agreement (AEON Biopharma, Inc.)
Demand Registration. (a) At any time beginning six months from the date of this Agreement and for a period of three years thereafter, the Holder may make one written request for Any investors demanding registration under the Securities Act, (a "Demand Registration") of all or part of Holder's Registrable Securities (but such part, together with the number of securities requested by other Approved Investors, to be included in such Demand Registration pursuant to this Section 2, Article II are sometimes referred to in this Agreement as the “Demand Investors” and the registration requested by Demand Investors pursuant to this Article II is sometimes referred to in this Agreement as a “Demand Registration”. The management of the Company shall have an estimated market value at the time power to appoint investment banking and legal advisors to assist the Company with the actions required of it under this Article II, such request (based upon investment banking and legal advisors to be reasonably acceptable to the then market price of a share of Common Stock of the Company) of at least $250,000Demand Investors. Notwithstanding the foregoing, the The Company shall not be required to file effect any Demand Registration on Form S-3 or any comparable or successor form or forms or any similar short-form registration statement (“Short-Form Registrations”).
(b) Commencing on behalf of the Holder within twelve that date that is six (6) months after the effective date hereof, subject to the terms and conditions of any earlier registration statement so long as the Holder was given a notice offering it the opportunity to sell Registrable Securities under the earlier registration statement and the Holder did not request that its Registrable Securities be included; providedthis Agreement, however, that if Holder requested that its Registrable Securities be included in the earlier registration statement but not all were so included through no fault of the Investor, the Investor may, but shall not be obligated to, require the Company to file another registration statement pursuant to a Demand Registration. Within fifteen (15) days after receipt of a request for a Demand Registration, the Company shall give upon written notice (the "Notice") of such request to all other Approved Investors and shall include in such registration all Registrable Securities that the Company has received written requests for inclusion therein within 15 days after the Notice is given (the "Requested Securities"). Thereafter, the Company may elect to include in such registration additional shares of Common Stock to be issued delivered by the Company. All requests made pursuant to this Section 2 shall specify the GEI Parties holding an aggregate number of Registrable Securities equal to be registered.
more than twenty-five percent (b25%) A of the number of shares of Registrable Securities held by the GEI Parties on the date of such notice (a “GEI Demand”) requesting that the Company effect the registration (a “GEI Demand Registration”) under the Securities Act of any or all of the Registrable Securities held by the GEI Parties, which GEI Demand shall not constitute a Demand Registration under this Section 2 until it has become effective.
(c) The Holder making specify the Demand Registration may elect whether the offering number of such Registrable Securities pursuant to be registered and the intended method or methods of disposition of such Registrable Securities, the Company shall promptly give written notice of such GEI Demand to all Persons who may have piggyback registration rights with respect to such GEI Demand Registration and shall be in use its best efforts to effect the form of a firm commitment underwritten offering or otherwise; provided, however, that such Holder may not elect that such offering be made on a delayed or continuous basis pursuant to rule 415 registration under the Securities Act. In any case in which an offering is in the form of a firm commitment underwritten offering, if the managing underwriter or underwriters of such offering advise the Company in writing that in its or their opinion the number of Registrable Securities proposed to be sold in such offering exceeds the number of Registrable Securities that can be sold in such offering without aversely affecting the market for the Company's Common Stock, the Company will include in such registration the number of Registrable Securities that in the opinion of such managing underwriter or underwriters can be sold without adversely affecting the market for the Company's Common Stock. In such event, the number of Registrable Securities, if any, to be offered for the accounts of Approved Investors (including the Holder making the Demand Registration) shall be reduced pro rata on the basis of the relative number of any Registrable Securities requested by each Approved Investor to be included in such registration to the extent necessary to reduce the total number of Registrable Securities to be included in such offering to the number recommended by such managing underwriter or underwriters. In the event the Holder making the Demand shall receive notice pursuant to this Section 2(c) that the amount of Registrable Securities to be offered for such Holder shall be reduced, such Holder shall be entitled to withdraw the Demand by written notice to the Company within seven (7) days after receipt of such notice, with the effect that such Demand shall be deemed not to have been made.Act and applicable state securities laws of:
(dx) If any of the Registrable Securities covered which the Company has been so requested to register by a Demand Registration are to be sold in an underwritten offering, the Approved Investors, such Persons in the aggregateGEI Demand, that own or will own a majority of the and
(y) all other Registrable Securities that which the Company has been requested to register by the Holders thereof by written request given to the Company within thirty (including 30) days after the Requested giving of such written notice by the Company (which request shall specify the intended method of disposition of such Registrable Securities), all to the extent requisite to permit the disposition (in accordance with such intended methods of disposition) of the Registrable Securities but excluding any securities to be issued by the Company), shall have the right to select the investment banker or investment bankers and manager or managers that will underwrite the offering; provided, however, that such investment bankers and managers must be reasonably satisfactory to the Companyso registered.
Appears in 3 contracts
Samples: Stockholders Agreement (Container Store Group, Inc.), Stockholders Agreement (Tindell William A), Stockholders Agreement (Container Store Group, Inc.)
Demand Registration. (a) At The Holder shall have the right, at any time beginning six months from after the date Public Offering, to require the Company to register for offer and sale under the Securities Act all or a portion of this Agreement and for a period of three years thereafter, the Registrable Securities then held by the Holder; it being understood that the Holder may make one written request for registration exercise its rights under this Section 2(a) on not more than three occasions in the Securities Act, aggregate. As promptly as practicable after the Company receives a notice from the Holder (a "Demand RegistrationNotice") of all or part of Holder's demanding that the Company register for offer and sale under the Securities Act Registrable Securities (but such partconsisting, together with as to each Registration, of an amount of Registrable Securities held by the number of securities requested by other Approved Investors, to be included in such Demand Registration pursuant to this Section 2, shall have Holder having an estimated market value at the time of such request (based upon the then market price of a share of Common Stock of the Company) of at least $250,000. Notwithstanding the foregoing5 million, subject to Section 2(b), the Company shall not (i) prepare and, within 60 days after such request, file 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 consents, be required obligated to file register any securities on a "shelf" registration statement or otherwise to register securities for offer or sale on behalf of a continuous or delayed basis) and, thereafter, (ii) use reasonable efforts to cause such Registration Statement to be declared effective under the Holder within twelve months Securities Act as promptly as practicable after the effective date of any earlier registration statement so long as the Holder was given a notice offering it the opportunity filing of such Registration Statement. Subject to sell Registrable Securities under the earlier registration statement and the Holder did not request that its Registrable Securities be included; provided, however, that if Holder requested that its Registrable Securities be included in the earlier registration statement but not all were so included through no fault of the Investor, the Investor may, but shall not be obligated to, require the Company to file another registration statement pursuant to a Demand Registration. Within fifteen (15) days after receipt of a request for a Demand RegistrationSection 2(b), the Company shall give written notice use reasonable efforts to keep each Registration Statement continuously effective in order to permit the Prospectus forming a part thereof to be usable by the Holder for resales of Applicable Securities for an Effectiveness Period ending on the earlier of (i) 30 days from the "Notice") Effective Time of such request to Registration Statement or (ii) such time as all other Approved Investors and shall include in of such registration all Registrable Applicable Securities that the Company has received written requests for inclusion therein within 15 days after the Notice is given (the "Requested Securities"). Thereafter, the Company may elect to include in such registration additional shares have been disposed of Common Stock to be issued by the Company. All requests made pursuant to this Section 2 shall specify the aggregate number of Registrable Securities to be registeredHolder.
(b) A The 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 Registration Statement or included Prospectus, if (i) the filing or causing to be declared effective or keeping continuously effective any such Registration Statement would require an audit of the Company's financial statements at a time such audit would not otherwise be required pursuant to the Exchange Act, (ii) the Company determines in good faith and on the advice of counsel that it would be required to disclose in such Registration Statement information which the Company has not otherwise publicly disclosed and is not at the time required to publicly disclose, (iii) the Company determines in good faith that such Registration would interfere with any pending financing, acquisition, corporate reorganization or any other corporate development involving the Company or any of its subsidiaries or (iv) within the 90 day period preceding the receipt by the Company of a Demand Notice, the Company has effected any other registration shall not constitute of its securities; provided that the Company may postpone a Demand Registration under this Section 2 until it has become effectiveno more than once in any 18 month period and that any such postponement period shall not exceed 90 days in the aggregate. The Company shall advise the Holder of any such determination as promptly as practicable.
(c) The Holder making the Demand Registration Company may elect whether the offering of such Registrable Securities include in any registration requested pursuant to such Demand Registration shall be in Section 2(a) hereof other securities for sale for its own account or for the form account of a firm commitment another Person, subject to the following sentence. In connection with an underwritten offering or otherwise; provided, however, that such Holder may not elect that such offering be made on a delayed or continuous basis pursuant to rule 415 under the Securities Act. In any case in which an offering is in the form of a firm commitment underwritten offeringSection 2(a) hereof, if the managing underwriter or underwriters of such offering advise the Company in writing that in its or their opinion the number of Registrable Securities proposed securities requested to be sold in such offering registered exceeds the number of Registrable Securities that which can be sold in such offering without aversely affecting the market for the Company's Common Stockoffering, the Company will shall include in such registration Registration the number of Registrable Securities that securities that, in the opinion of such managing underwriter or underwriters underwriters, can be sold without adversely affecting the market for the Company's Common Stock. In such eventas follows: (i) first, the number of Registrable Securities, if any, Applicable Securities requested to be offered for the accounts of Approved Investors registered, (including the Holder making the Demand Registrationii) shall be reduced pro rata on the basis of the relative number of second, any other Registrable Securities requested by each Approved Investor to be included in such registration Registration pursuant to the extent necessary to reduce the total number of Registrable Securities Section 3(a) hereof and (iii) third, any other securities requested to be included in such offering Registration.
(d) The Holder shall have the right to withdraw such request for Registration under Section 2(a) (i) prior to the number recommended time the Registration Statement in respect of such Registration has been declared effective, (ii) upon the issuance by a governmental agency or the Commission of a stop order, injunction or other order which interferes with such managing underwriter Registration, (iii) upon the Company availing itself of Section 2(b) hereof, or underwriters. In the event (iv) if the Holder making the Demand shall receive notice is prevented pursuant to this Section 2(c) that hereof from selling any of the amount of Registrable Applicable Securities it requested to be offered for such Holder shall be reduced, such Holder shall be entitled to withdraw the Demand by written notice to the Company within seven (7) days after receipt of such notice, with the effect registered; it being understood that such Demand Registration shall be deemed not to have been maderequested for purposes of Section 2(a) hereof if the Holder withdraws its request pursuant to clause (i), (ii), (iii) or (iv) above. If the Holder withdraws a request made pursuant to Section 2(a) 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, the Holder shall be entitled to participate in such Registration pursuant to Section 3 hereof, but in such case the Intended Offering Notice shall be required to be given to the Holder at least 10 business days prior to the anticipated filing date of the Registration Statement and the Holder shall be required to give the Piggy-back Notice no later than 5 business day after the Company's delivery of such Intended Offering Notice.
(de) If In the event that any of the Registrable Securities covered by a Demand Registration are pursuant to be sold this Section 2 shall involve, in whole or in part, an underwritten offering, the Approved Investors, in the aggregate, that own managing underwriter or will own a majority of the Registrable Securities that underwriters shall be selected by the Company has been requested to register (including the Requested Securities but excluding any securities to be issued by the Company), in good faith and shall have the right to select the investment banker or investment bankers and manager or managers that will underwrite the offering; provided, however, that such investment bankers and managers must be reasonably satisfactory to the CompanyHolder.
Appears in 2 contracts
Samples: Registration Rights Agreement (Starband Communications Inc), Registration Rights Agreement (Starband Communications Inc)
Demand Registration. (a) At any time beginning six months from Commencing on the date of this Agreement and for a period of three years thereafterClosing Date, the Holder holders of at least sixty-six and two-thirds percent (662/3%) of the aggregate number of (i) Shares that were sold to Purchasers in the Transaction, (ii) the Shares into which the Notes are or may make one written be convertible, (iii) Warrant Shares that are issuable upon exercise of the Warrants and (iv) Warrant Shares that are issuable upon exercise of the Agent Warrants (collectively, the “Registrable Securities”) shall have the right to request for registration under the Securities Act, (a "Demand Registration") of Act for all or part any portion of Holder's the Registrable Securities (but such part, together with upon the number of securities requested by other Approved Investors, to be included terms and conditions set forth in such Demand Registration pursuant to this Section 2, shall have an estimated market value at the time of such request (based upon the then market price of a share of Common Stock of the Company) of at least $250,0001(a). Notwithstanding the foregoing, the Company shall not be required to file any registration statement on behalf of the Holder within twelve months after the effective date of any earlier registration statement so long as the Holder was given a notice offering it the opportunity to sell Registrable Securities under the earlier registration statement and the Holder did not request that its Registrable Securities be included; provided, however, that if Holder requested that its Registrable Securities be included in the earlier registration statement but not all were so included through no fault of the Investor, the Investor may, but shall not be obligated to, require the Company to file another registration statement pursuant to a Demand Registration. Within fifteen (15) days Promptly after receipt of a request for a Demand Registration, registration pursuant to this Section 1(a) the Company shall give written notice notify each registered holder of the Registrable Securities (the "Notice"a “Holder”) in writing of such request for registration except to all other Approved Investors and shall include in the extent that such registration all Holder’s Registrable Securities that were included in the demand. Upon receipt of such notice from the Company has received (the “Company Notice”), the Holder or the Holder’s agent may give the Company a written requests for inclusion therein request to register all or some of the Holder’s Shares in the Registration Statement described in the Company Notice (the “Demand Notice”), provided that such Demand Notice is given within 15 ten (10) days after the date on which the Company Notice is given (with such request stating (i) the "Requested Securities"amount of Shares to be included and (ii) any other information reasonably requested by the Company to properly effect the registration of such Shares). ThereafterThe Company shall, as soon as practicable after the date on which the Company may elect Notice is given, use reasonable commercial efforts to include file a Registration Statement with the Securities and Exchange Commission (the “SEC”) covering the Shares specified in such registration additional shares of Common Stock to be issued the Demand Notice and in any written request from any other Purchaser received by the CompanyCompany within ten (10) days of the date on which the Company Notice is given and will use reasonable commercial efforts to cause the Registration Statement to become effective. All requests made pursuant No right to this Section 2 shall specify the aggregate number registration of Registrable Securities to be registered.
(b) A registration shall not constitute a Demand Registration Shares under this Section 2 until it has become effective.
(c) The Holder making the Demand Registration may elect whether the offering of such Registrable Securities pursuant to such Demand Registration shall be in the form of a firm commitment underwritten offering or otherwise; provided, however, that such Holder may not elect that such offering be made on a delayed or continuous basis pursuant to rule 415 under the Securities Act. In any case in which an offering is in the form of a firm commitment underwritten offering, if the managing underwriter or underwriters of such offering advise the Company in writing that in its or their opinion the number of Registrable Securities proposed to be sold in such offering exceeds the number of Registrable Securities that can be sold in such offering without aversely affecting the market for the Company's Common Stock, the Company will include in such registration the number of Registrable Securities that in the opinion of such managing underwriter or underwriters can be sold without adversely affecting the market for the Company's Common Stock. In such event, the number of Registrable Securities, if any, to be offered for the accounts of Approved Investors (including the Holder making the Demand Registration1(a) shall be reduced pro rata on the basis construed to limit any registration required under Section 1(b) hereof. The obligations of the relative number of any Registrable Securities requested by each Approved Investor to be included in such registration to the extent necessary to reduce the total number of Registrable Securities to be included in such offering to the number recommended by such managing underwriter or underwriters. In the event the Holder making the Demand shall receive notice pursuant to Company under this Section 2(c1(a) that the amount of Registrable Securities to be offered for such Holder shall be reduced, such Holder shall be entitled to withdraw the Demand by written notice to the Company within seven (7) days expire after receipt of such notice, with the effect that such Demand shall be deemed not to have been made.
(d) If any of the Registrable Securities covered by a Demand Registration are to be sold in an underwritten offering, the Approved Investors, in the aggregate, that own or will own a majority of the Registrable Securities that the Company has been requested afforded the Holders the opportunity to register (including the Requested Securities but excluding any securities to be issued by the Company), shall have the right to select the investment banker or investment bankers and manager or managers that will underwrite the offering; provided, however, that such investment bankers and managers must be reasonably satisfactory to the Companyexercise registration rights under this Section 1(a) for one registration.
Appears in 2 contracts
Samples: Securities Purchase Agreement (SMF Energy Corp), Securities Purchase Agreement (SMF Energy Corp)
Demand Registration. (a) At any time beginning six months after 180 days after the date issuance of the Series 1 Shares, holders of a majority of the Registrable Securities then outstanding may request a Registration of at least 50% of the outstanding Registrable Securities (a “Demand Registration”). Each request for a Demand Registration shall specify the approximate number of Registrable Securities required to be registered. Upon receipt of such request, the Company shall promptly (but in no event later than 15 days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have 15 days from the date such notice is given to notify the Company in writing of this Agreement and for a period of three years thereafter, the Holder may make one written request for registration under the Securities Act, (a "Demand Registration") of all or part of Holder's Registrable Securities (but such part, together with the number of securities requested by other Approved Investors, their desire to be included in such Demand Registration. The Company shall cause a Registration pursuant Statement to this Section 2, be filed within 60 days after the date on which the initial request is given and shall have an estimated market value at use commercially reasonable efforts to cause such Registration Statement to be declared effective by the time of such request (based upon the then market price of a share of Common Stock of the Company) of at least $250,000Commission as soon as practicable thereafter. Notwithstanding the foregoing, the The Company shall not be required to file any registration statement on behalf effect a Demand Registration more than once for the holders of the Holder within twelve months after the effective date of any earlier registration statement so long as the Holder was given a notice offering it the opportunity to sell Registrable Securities under the earlier registration statement and the Holder did not request that its Registrable Securities be includedas a group; provided, however, that if Holder requested that its Registrable Securities be included in the earlier registration statement but not all were so included through no fault of the Investor, the Investor may, but a Registration Statement shall not be obligated to, require the Company to file another registration statement pursuant to a Demand Registration. Within fifteen (15) days after receipt of a request for a Demand Registration, the Company shall give written notice (the "Notice") of such request to all other Approved Investors and shall include in such registration all Registrable Securities that the Company has received written requests for inclusion therein within 15 days after the Notice is given (the "Requested Securities"). Thereafter, the Company may elect to include in such registration additional shares of Common Stock to be issued by the Company. All requests made pursuant to this Section 2 shall specify the aggregate number of Registrable Securities to be registered.
(b) A registration shall not constitute count as a Demand Registration requested under this Section 2 2(a) unless and until it has become effective.
(cb) The Holder making the Company shall not be obligated to effect any Demand Registration may elect whether within 180 days after the offering effective date of such a previous Piggyback Registration (as defined below) in which holders of Registrable Securities pursuant were permitted to register, and actually sold, at least 50% of the shares of Registrable Securities requested to be included therein. The Company may postpone for up to 90 days the filing or effectiveness of a Registration Statement for a Demand Registration if the Company’s Board determines in its reasonable good faith judgment that such Demand Registration would (i) materially interfere with a significant acquisition, corporate organization or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act; provided, that in such event the holders of a majority of the Registrable Securities initiating such Demand Registration shall be entitled to withdraw such request and, if such request is withdrawn, such Demand Registration shall not count as the one permitted Demand Registration hereunder and the Company shall pay all registration expenses in connection with such registration. The Company may delay a Demand Registration hereunder only twice in any period of twelve consecutive months.
(c) If the form holders of the Registrable Securities initially requesting a firm commitment underwritten offering or otherwise; provided, however, that such Holder may not Demand Registration elect that such offering be made on a delayed or continuous basis pursuant to rule 415 under distribute the Registrable Securities Act. In any case covered by their request in which an offering is in the form of a firm commitment underwritten offering, if they shall so advise the Company as a part of their request made pursuant to Section 2(a), and the Company shall include such information in its notice to the other holders of Registrable Securities. The holders of a majority of the Registrable Securities initially requesting the Demand Registration shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering; provided, that such selection shall be subject to the consent of such the Company, which consent shall not be unreasonably withheld or delayed.
(d) If a Demand Registration involves an underwritten offering advise and the managing underwriter of the requested Demand Registration advises the Company and the holders of Registrable Securities in writing that in its or their opinion the number of shares of Common Stock proposed to be included in the Demand Registration, including all Registrable Securities and all other shares of Common Stock proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock which can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to be included in such registration would adversely affect the price per share of the Registrable Securities proposed to be sold in such underwritten offering, the Company shall include in such Demand Registration (i) first, the number of shares of Common Stock that the holders of Registrable Securities propose to sell, and (ii) second, the number of shares of Common Stock proposed to be included therein by any other Persons (including shares of Common Stock to be sold for the account of the Company and/or other holders of Common Stock) allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities proposed to be sold can be included in such offering, then the Registrable Securities that are included in such offering exceeds shall be allocated pro rata among the respective holders thereof on the basis of the number of Registrable Securities that can be sold in such offering without aversely affecting the market for the Company's Common Stock, the Company will include in such registration the number of Registrable Securities that in the opinion of such managing underwriter or underwriters can be sold without adversely affecting the market for the Company's Common Stock. In such event, the number of Registrable Securities, if any, to be offered for the accounts of Approved Investors (including the Holder making the Demand Registration) shall be reduced pro rata on the basis of the relative number of any Registrable Securities requested owned by each Approved Investor to be included in such registration to the extent necessary to reduce the total number of Registrable Securities to be included in such offering to the number recommended by such managing underwriter or underwriters. In the event the Holder making the Demand shall receive notice pursuant to this Section 2(c) that the amount of Registrable Securities to be offered for such Holder shall be reduced, such Holder shall be entitled to withdraw the Demand by written notice to the Company within seven (7) days after receipt of such notice, with the effect that such Demand shall be deemed not to have been madeholder.
(d) If any of the Registrable Securities covered by a Demand Registration are to be sold in an underwritten offering, the Approved Investors, in the aggregate, that own or will own a majority of the Registrable Securities that the Company has been requested to register (including the Requested Securities but excluding any securities to be issued by the Company), shall have the right to select the investment banker or investment bankers and manager or managers that will underwrite the offering; provided, however, that such investment bankers and managers must be reasonably satisfactory to the Company.
Appears in 2 contracts
Samples: Registration Rights Agreement (Kingsway Financial Services Inc), Registration Rights Agreement (Kingsway Financial Services Inc)
Demand Registration. (a) At 4.1 If, at any time beginning six months after the Required Filing Date and prior to the expiration of the Effectiveness Period, (i) (A) additional Registrable Securities, which have not been included in the Shelf Registration Statement of the Company pursuant to Section 3.1 above, are issued or issuable to, or otherwise acquired by, a Designated Holder or (B) a Registration Statement covering the sale of all of the Registrable Securities is not then effective and available for sales thereof by a Designated Holder for any reason (other than the fault of such Designated Holder or as a result of a suspension or discontinuance or restriction permitted under Section 7.4, Section 7.5 or Section 7.6), and (ii) the Company receives from one or more Designated Holders a written request (the “Demand Request”) (which request shall state the number of shares of Registrable Securities to be disposed of and the intended methods of disposition of such shares by the Designated Holders), the Company shall as soon as practicable, file and use reasonable best efforts to effect no more than two (2) such registrations during the period from the Required Filing Date to the expiration of the Effectiveness Period (but not more frequently than once per 180 day period) and to permit or facilitate the sale and distribution of all of such Registrable Securities. The Company shall file a Shelf Registration Statement on a Form F-3 no later than thirty (30) days following its receipt of a Demand Request; provided that if the Company is required to file the Registration Statement on a Form F-1, then the Company shall have seventy-five (75) days from the date of this Agreement and for a period of three years thereafter, the Holder may make one written request for registration under the Securities Act, (a "Demand Registration") of all or part of Holder's Registrable Securities (but such part, together with the number of securities requested by other Approved Investors, to be included in such Demand Registration pursuant to this Section 2, shall have an estimated market value at the time of such request (based upon the then market price its receipt of a share of Common Stock of Demand Request to prepare and file the Company) of Registration Statement. The Company shall give written notice at least $250,000. Notwithstanding the foregoing, the Company shall not be required to file any registration statement on behalf of the Holder within twelve months after the effective date of any earlier registration statement so long as the Holder was given a notice offering it the opportunity to sell Registrable Securities under the earlier registration statement and the Holder did not request that its Registrable Securities be included; provided, however, that if Holder requested that its Registrable Securities be included in the earlier registration statement but not all were so included through no fault of the Investor, the Investor may, but shall not be obligated to, require the Company to file another registration statement pursuant to a Demand Registration. Within fifteen (15) days after receipt of a request for a Demand Registration, prior to filing the Company shall give written notice (the "Notice") of such request Registration Statement to all other Approved Investors Designated Holders and shall include in such registration Registration Statements all Registrable Securities that the Company has received written requests for inclusion therein within 15 days after the Notice is given (the "Requested Securities"). Thereafter, the Company may elect to include in such registration additional shares of Common Stock to be issued by the Company. All requests made pursuant to this Section 2 shall specify the aggregate number of Registrable Securities to be registered.
(b) A registration shall not constitute a Demand Registration under this Section 2 until it has become effective.
(c) The Holder making the Demand Registration may elect whether the offering of such Registrable Securities pursuant to such Demand Registration shall be in the form of a firm commitment underwritten offering or otherwise; provided, however, that such Holder may not elect that such offering be made on a delayed or continuous basis pursuant to rule 415 under the Securities Act. In any case in which an offering is in the form of a firm commitment underwritten offering, if the managing underwriter or underwriters of such offering advise the Company in writing that in its or their opinion the number of Registrable Securities proposed to be sold in such offering exceeds the number of Registrable Securities that can be sold in such offering without aversely affecting the market for the Company's Common Stock, the Company will include in such registration the number of Registrable Securities that in the opinion of such managing underwriter or underwriters can be sold without adversely affecting the market for the Company's Common Stock. In such event, the number of Registrable Securities, if any, to be offered for the accounts of Approved Investors (including the Holder making the Demand Registration) shall be reduced pro rata on the basis of the relative number of any Registrable Securities requested by each Approved Investor to be included in such registration to the extent necessary to reduce the total number of Registrable Securities to be included in such offering to the number recommended by such managing underwriter or underwriters. In the event the Designated Holder making the Demand shall receive notice pursuant to this Section 2(c) that the amount of Registrable Securities to be offered for such Holder shall be reduced, such Holder shall be entitled to withdraw the Demand by has delivered a written notice request to the Company within seven to include its Registrable Securities at least five (75) days after receipt of such notice, with prior to the effect that such Demand shall be deemed not to have been made.
(d) If any filing date of the Registrable Securities covered by a Demand applicable Registration are to be sold in an underwritten offering, the Approved Investors, in the aggregate, that own or will own a majority of the Registrable Securities that the Company has been requested to register (including the Requested Securities but excluding any securities to be issued by the Company), shall have the right to select the investment banker or investment bankers and manager or managers that will underwrite the offering; provided, however, that such investment bankers and managers must be reasonably satisfactory to the CompanyStatement.
Appears in 2 contracts
Samples: Registration Rights Agreement (Xinyuan Real Estate Co., Ltd.), Securities Purchase Agreement (Xinyuan Real Estate Co., Ltd.)
Demand Registration. (a) At any time beginning six months from The Shareholders shall each have the date right to request on an unlimited number of this Agreement and occasions that the Company file a Registration Statement with the SEC on the appropriate registration form for a period of three years thereafter, the Holder may make one written request for registration under the Securities Act, (a "Demand Registration") of all or part of Holder's the Registrable Securities Shares held (but or that would be held upon conversion of any securities into Registrable Shares) by such part, together Shareholder once such Shareholder is no longer subject to the lock-up applicable to it entered into in connection with the IPO (which may be due to the expiration or waiver of such lock-up with respect to such Registrable Shares) (a “Demand Notice”) by delivering a written request to the Company specifying the number of securities requested by Registrable Shares such Shareholder wishes to Register and the intended method of distribution thereof (a “Demand Registration” and the Shareholder submitting such Demand Registration, the “Initiating Holder”). The Company shall (i) within 10 Business Days of the receipt of such request, give written notice of such Demand Registration (the “Company Notice”) to all Shareholders other Approved Investorsthan the relevant Initiating Holder (the “Eligible Holders”), (ii) use its reasonable best efforts to file a Registration Statement in respect of such Demand Registration within 45 days of receipt of the request, provided that all necessary documents for the registration can be obtained and prepared within such 45-day period; and (iii) use its reasonable best efforts to cause such Registration Statement to become effective as soon as reasonably practicable thereafter. The Company shall include in such Registration all Registrable Shares that the Eligible Holders request to be included within the 10 Business Days following their receipt of the Company Notice. If the method of distributing the offering is an underwritten public offering, the Company may designate (i) in its sole discretion, the managing underwriter for such offering, subject to there being no reasonable objection from the Shareholders holding a majority of Registrable Shares referred to in the Demand Registration Notice and (ii) in its reasonable discretion, the underwriters for such offering, provided that the Shareholders agree that the designation of XP Investments US, LLC and Itaú BBA USA Securities, Inc., or either of them separately, as an underwriter or underwriters, as the case may be, shall at all times be reasonable; provided, however, that in connection with a Block Trade pursuant to this a Block Trade Notice delivered by the Itaú Shareholders as Initiating Holders in accordance with Section 2, shall have an estimated market value at the time of such request (based upon the then market price of a share of Common Stock of the Company) of at least $250,000. Notwithstanding the foregoing3 below, the Itaú Shareholders may designate in their sole discretion, the underwriters for such offering.
(b) The Company shall not be required obligated to use its commercially reasonable efforts to file and cause to become effective: (i) more than two Registration Statements initiated pursuant to Section 2(a) in a 12 -month period; or (ii) any Registration Statement pursuant to Section 2(a) during any period in which any other registration statement (other than on Form F-4 or Form S-8 promulgated under the Securities Act or any successor forms thereto) pursuant to which Shares are to be or were sold under the Securities Act (A) has been filed and not withdrawn or has been declared effective within the prior 180 days and (B) in connection with any such registration statement that has not been declared effective, the Company is in good faith using commercially reasonable efforts to cause such registration statement to become effective. The Registrable Shares requested to be Registered pursuant to Section 2(a) (including, for the avoidance of doubt, the Registrable Shares of Eligible Holders requested to be registered) must represent (i) an aggregate offering price of Registrable Shares that is reasonably expected to equal at least $25,000,000 or (ii) all of the remaining Registrable Shares owned by the Initiating Holder and its Affiliates or that would be owned upon conversion of all of the Class B Common Shares held by the Initiating Holder and its Affiliates into Class A Common Shares.
(c) With respect to any registration statement on behalf of pursuant to Section 2(a), the Holder within twelve months after the effective date of Company may include in such registration any earlier registration statement so long as the Holder was given a notice offering it the opportunity to sell Registrable Securities under the earlier registration statement and the Holder did not request that its Registrable Securities be includedPrimary Shares or Other Shares; provided, however, that if Holder requested the managing underwriter or underwriters formally advise(s) the Company in writing and with sufficient explanation that its the inclusion of all Registrable Securities Shares, Primary Shares and Other Shares proposed to be included in such registration would interfere with the successful marketing (including, but not limited to, pricing) of all such securities, then the number of Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration shall be included in the earlier registration statement but not all were so included through no fault of the Investorfollowing order:
(i) first, the Investor mayRegistrable Shares held by the Shareholders requesting that their Registrable Shares be included in such registration pursuant to Section 2(a), but pro rata based upon the number of Registrable Shares owned by each such Shareholder at the time of such registration; provided, however, that the number of Registrable Shares held by the Shareholders to be included in such underwriting shall not be obligated to, require reduced unless all Primary Shares and Other Shares are first entirely excluded from the Company to file another registration statement pursuant to a Demand Registration. Within fifteen underwriting;
(15ii) days after receipt of a request for a Demand Registrationsecond, the Company Primary Shares; and
(iii) third, the Other Shares; provided, however, that, a registration shall give written notice (not be counted as “effected” for the "Notice") purposes of such request to all other Approved Investors this Section 2 and shall include in such not count as a registration all Registrable Securities that the Company has received written requests for inclusion therein within 15 days after the Notice is given (the "Requested Securities"). Thereafter, the Company may elect to include in such registration additional shares of Common Stock to be issued by the Company. All requests made initiated pursuant to this Section 2 shall specify for purposes of Section 2(b)(i) above, if, as a result of an exercise of the aggregate underwriter’s cutback provisions in this clause (c), fewer than 25% of the total number of Registrable Securities Shares that the Shareholders have requested to be registeredincluded in such registration statement are actually included.
(bd) A requested registration shall not constitute a Demand Registration under this Section 2 until it has become effective.
(c) The Holder making the Demand Registration may elect whether the offering of such Registrable Securities pursuant be rescinded at any time prior to such Demand Registration shall be in registration being declared effective by the form of a firm commitment underwritten offering or otherwiseSEC by written notice to the Company from those Shareholders who initiated the request, at their discretion; provided, however, that such Holder may rescinded registration shall not elect that such offering be made on count as a delayed or continuous basis pursuant to rule 415 under the Securities Act. In any case in which an offering is in the form of a firm commitment underwritten offering, if the managing underwriter or underwriters of such offering advise the Company in writing that in its or their opinion the number of Registrable Securities proposed to be sold in such offering exceeds the number of Registrable Securities that can be sold in such offering without aversely affecting the market for the Company's Common Stock, the Company will include in such registration the number of Registrable Securities that in the opinion of such managing underwriter or underwriters can be sold without adversely affecting the market for the Company's Common Stock. In such event, the number of Registrable Securities, if any, to be offered for the accounts of Approved Investors (including the Holder making the Demand Registration) shall be reduced pro rata on the basis of the relative number of any Registrable Securities requested by each Approved Investor to be included in such registration to the extent necessary to reduce the total number of Registrable Securities to be included in such offering to the number recommended by such managing underwriter or underwriters. In the event the Holder making the Demand shall receive notice initiated pursuant to this Section 2(c2 for purposes of Section 2(b)(i) that the amount of Registrable Securities to be offered for such Holder shall be reduced, such Holder shall be entitled to withdraw the Demand by written notice to above if the Company within seven (7) days after receipt of such notice, with the effect that such Demand shall be deemed not to have been made.
reimbursed (dpro rata by the Shareholders requesting registration or in such other proportion as they may agree) If any of the Registrable Securities covered for all reasonable and documented out-of-pocket expenses incurred by a Demand Registration are to be sold in an underwritten offering, the Approved Investors, in the aggregate, that own or will own a majority of the Registrable Securities that the Company has been requested to register (including the Requested Securities but excluding any securities to be issued by the Company), shall have the right to select the investment banker or investment bankers and manager or managers that will underwrite the offeringin connection with such rescinded registration; provided, further, however, that if, at the time of such investment bankers rescission, the Shareholders who initiated the request shall have learned of an event that is, or is reasonably likely to result in, a material adverse change in the Company’s business, financial condition or results of operations from that known to such Shareholders at the time of their request and managers must have withdrawn the request with reasonable promptness after learning of such information then the Shareholders shall not be reasonably satisfactory required to reimburse the Company for any out-of-pocket expenses incurred by the Company in connection with such rescinded registration and such rescinded registration shall not count as a registration initiated pursuant to this Section 2 for purposes of clause (i) of subsection (b).
(e) The Company shall be deemed to have effected a Registration for purposes of Section 2(a) if the Registration Statement is declared effective by the SEC or becomes effective upon filing with the SEC, and remains effective until the earlier of (i) the date when all Registrable Shares thereunder have been sold and (ii) 60 days from the effective date of the Registration Statement (the “Registration Period”).
(f) In the event that the Company intends to effect a Registration for purposes of Section 2(a) by means of an Underwritten Offering, no Holder may include Registrable Shares in such Registration unless such Holder, subject to the limitations set forth in Section 9, (i) agrees to sell its Registrable Shares on the basis provided in the applicable underwriting arrangements; (ii) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents reasonably required and in customary form under the terms of such underwriting arrangements and (iii) cooperates with the Company’s reasonable and customary requests in connection with such Registration (it being understood that the Company’s failure to perform its obligations hereunder, which failure is caused by such Holder’s failure to cooperate, will not constitute a breach by the Company of this Agreement).
Appears in 2 contracts
Samples: Agreement on Registration Rights and Other Resales (XP Inc.), Registration Rights Agreement (XP Control LLC)
Demand Registration. (ai) At any time beginning six months from A Holder or Holders that hold not less than a majority of the date of this Agreement and for a period of three years thereafter, the Holder may make one written request for registration under the Securities Act, (a "Demand Registration") of all or part of Holder's then outstanding Registrable Securities (but such partHolder or group being referred to as the “Initiating Holder”) shall have the option and right, together exercisable by delivering a written notice to the Corporation (a “Demand Notice”), to require the Corporation to, pursuant to the terms of and subject to the limitations contained in this Agreement, prepare and file with the number of securities requested by other Approved Investors, to be included in such Demand SEC a Registration pursuant to this Section 2, shall have an estimated market value at Statement registering the time of such request (based upon the then market price of a share of Common Stock offering and sale of the Company) of at least $250,000. Notwithstanding the foregoing, the Company shall not be required to file any registration statement on behalf of the Holder within twelve months after the effective date of any earlier registration statement so long as the Holder was given a notice offering it the opportunity to sell Registrable Securities under the earlier registration statement number and the Holder did not request that its Registrable Securities be included; provided, however, that if Holder requested that its Registrable Securities be included in the earlier registration statement but not all were so included through no fault of the Investor, the Investor may, but shall not be obligated to, require the Company to file another registration statement pursuant to a Demand Registration. Within fifteen (15) days after receipt of a request for a Demand Registration, the Company shall give written notice (the "Notice") of such request to all other Approved Investors and shall include in such registration all Registrable Securities that the Company has received written requests for inclusion therein within 15 days after the Notice is given (the "Requested Securities"). Thereafter, the Company may elect to include in such registration additional shares of Common Stock to be issued by the Company. All requests made pursuant to this Section 2 shall specify the aggregate number type of Registrable Securities to be registered.
(b) A registration shall not constitute a Demand Registration under this Section 2 until it has become effective.
(c) The Holder making on the terms and conditions specified in the Demand Registration may elect whether Notice in accordance with the offering intended timing and method or methods of such Registrable Securities pursuant to such Demand Registration shall be distribution thereof specified in the form of a firm commitment underwritten offering or otherwise; providedDemand Notice, however, that such Holder which may not elect that such offering be made include sales on a delayed or continuous basis pursuant to rule Rule 415 under the Securities Act(a “Demand Registration”). In any case in which an offering is in the form of a firm commitment underwritten offering, if the managing underwriter or underwriters of such offering advise the Company in writing that in its or their opinion the number of Registrable Securities proposed to be sold in such offering exceeds The Demand Notice must set forth the number of Registrable Securities that can be sold in such offering without aversely affecting the market for the Company's Common Stock, the Company will Initiating Holder intends to include in such registration Demand Registration. Notwithstanding anything to the number of contrary herein, in no event shall the Corporation be required to effectuate a Demand Registration for Registrable Securities that in having an aggregate value of less than $3.5 million based on the opinion VWAP of such managing underwriter or underwriters can be sold without adversely affecting Registrable Securities as of the market for the Company's Common Stock. In such event, the number date of Registrable Securities, if any, to be offered for the accounts of Approved Investors (including the Holder making the Demand Registration) shall be reduced pro rata on the basis of the relative number of any Registrable Securities requested by each Approved Investor to be included in such registration to the extent necessary to reduce the total number of Registrable Securities to be included in such offering to the number recommended by such managing underwriter or underwriters. In the event the Holder making the Demand shall receive notice pursuant to this Section 2(c) that the amount of Registrable Securities to be offered for such Holder shall be reduced, such Holder shall be entitled to withdraw the Demand by written notice to the Company within seven (7) days after receipt of such notice, with the effect that such Demand shall be deemed not to have been madeNotice.
(dii) If any Within five Business Days of the Registrable Securities covered by a receipt of the Demand Registration are to be sold in an underwritten offeringNotice, the Approved InvestorsCorporation shall give written notice of such Demand Notice to all Holders and, as soon as reasonably practicable thereafter, but in no event more than 60 days following receipt of the aggregateDemand Notice, that own or will own shall, subject to the limitations of this Section 2(a), file a majority Registration Statement covering all of the Registrable Securities that the Company has been requested to register Holders shall in writing request (including the Requested Securities but excluding any securities such request to be issued given to the Corporation within three days of receipt of such notice of the Demand Notice given by the CompanyCorporation pursuant to this Section 2(a)(ii)) to be included in such Demand Registration as promptly as practicable as directed by the Initiating Holder in accordance with the terms and conditions of the Demand Notice and use all commercially reasonable efforts to cause such Registration Statement to become effective under the Securities Act and remain effective under the Securities Act until all Registrable Securities covered by such Registration Statement have been sold or otherwise cease to be Registrable Securities (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, the Corporation is not obligated hereunder to effect (A) more than two Demand Registrations in any 12 month period, (B) more than a total of six Demand Registrations pursuant to this Agreement and (C) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of the Registrable Securities held by the Holders providing such Demand Notice shall have become effective under the right Securities Act and remains effective under the Securities Act and is sufficient to select permit offers and sales of the investment banker number and type of Registrable Securities on substantially the terms and conditions specified in the Demand Notice in accordance in all material respects with the intended timing and method or investment bankers and manager or managers that methods of distribution thereof specified in the Demand Notice. In addition, the Corporation will underwrite not be required to file a Registration Statement at a time when filing a Registration Statement would be prohibited by the offering; provided, however, that such investment bankers and managers must be reasonably satisfactory to the Company.terms of a customary
Appears in 2 contracts
Samples: Registration Rights Agreement (Magellan Petroleum Corp /De/), Registration Rights Agreement (Magellan Petroleum Corp /De/)
Demand Registration. (ai) At any time beginning six months from after the expiration of the Lock-Up Period and no sooner than 180 days after the date hereof, each of this Agreement CSL, GS and for BHGE (each, a period of three years thereafter“Demand Holder”) shall have the option and right, exercisable by delivering a written notice to the Holder may make one written request for registration under the Securities Act, Company (a "“Demand Registration") of all or part of Holder's Registrable Securities (but such part, together with the number of securities requested by other Approved InvestorsNotice”), to be included in such Demand Registration pursuant to this Section 2, shall have an estimated market value at the time of such request (based upon the then market price of a share of Common Stock of the Company) of at least $250,000. Notwithstanding the foregoing, the Company shall not be required to file any registration statement on behalf of the Holder within twelve months after the effective date of any earlier registration statement so long as the Holder was given a notice offering it the opportunity to sell Registrable Securities under the earlier registration statement and the Holder did not request that its Registrable Securities be included; provided, however, that if Holder requested that its Registrable Securities be included in the earlier registration statement but not all were so included through no fault of the Investor, the Investor may, but shall not be obligated to, require the Company to file another registration statement to, pursuant to the terms of and subject to the limitations contained in this Agreement, prepare and file with the Commission a Demand Registration. Within fifteen (15) days after receipt Registration Statement registering the offering and sale of a request for a Demand Registration, the Company shall give written notice (the "Notice") of such request to all other Approved Investors number and shall include in such registration all Registrable Securities that the Company has received written requests for inclusion therein within 15 days after the Notice is given (the "Requested Securities"). Thereafter, the Company may elect to include in such registration additional shares of Common Stock to be issued by the Company. All requests made pursuant to this Section 2 shall specify the aggregate number type of Registrable Securities to be registered.
(b) A registration shall not constitute a Demand Registration under this Section 2 until it has become effective.
(c) The Holder making on the terms and conditions specified in the Demand Registration Notice, which may elect whether the offering of such Registrable Securities pursuant to such Demand Registration shall be in the form of a firm commitment underwritten offering or otherwise; provided, however, that such Holder may not elect that such offering be made include sales on a delayed or continuous basis pursuant to rule Rule 415 under the Securities Act. In any case in which an offering is in the form of pursuant to a firm commitment underwritten offering, if the managing underwriter or underwriters of such offering advise Shelf Registration Statement (a “Demand Registration”); provided that the Company in writing that in its or their opinion shall not be obligated to file a Registration Statement with respect to a Requested Underwritten Offering pursuant to this Section 2(a) unless (x) the number anticipated aggregate offering price of the Registrable Securities proposed to be sold in such offering, net of underwriting discounts and commissions, is reasonably expected to exceed $50 million or (y) the Registrable Securities to be sold by such Demand Holder in such offering exceeds represent all of the remaining Registrable Securities held by such Demand Holder. The Demand Notice must set forth the number of Registrable Securities that can be sold in such offering without aversely affecting the market for the Company's Common Stock, the Company will Initiating Holder intends to include in such registration Demand Registration and the number intended methods of Registrable Securities that in the opinion of such managing underwriter or underwriters can be sold without adversely affecting the market for the Company's Common Stockdisposition thereof. In such event, the number of Registrable Securities, if any, to be offered for the accounts of Approved Investors (including the Holder making the Demand Registration) shall be reduced pro rata on the basis of the relative number of any Registrable Securities requested by each Approved Investor to be included in such registration to the extent necessary to reduce the total number of Registrable Securities to be included in such offering to the number recommended by such managing underwriter or underwriters. In the event the Holder making the Demand shall receive notice pursuant to this Section 2(c) that the amount of Registrable Securities to be offered for such Holder shall be reduced, such Holder BHGE shall be entitled to withdraw no less than three Demand Registrations, and CSL and GS each shall be entitled to no less than two Demand Registrations.
(ii) 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 by Notice, the Company shall give written notice of such Demand Notice to the Company all Holders and, within seven (7) 30 days after receipt of such notice, with the effect that such Demand shall be deemed Notice (except if the Company is not then eligible to have been made.
(d) If any of register for resale the Registrable Securities covered by a Demand Registration are to be sold in an underwritten offering, the Approved Investorson Form S-3, in which case, within 90 days thereof), shall, subject to the aggregatelimitations of this Section 2(a), that own or will own file a majority Registration Statement in accordance with the terms and conditions of the Demand Notice, which Registration Statement shall cover all of the Registrable Securities that the Company has been requested to register (including the Requested Securities but excluding any securities Holders shall in writing request to be issued included in the Demand Registration (such request to be given to the Company within three Business Days (or if the Registration Statement will be a Shelf Registration Statement, within one Business Day) after receipt of notice of the Demand Notice given by the CompanyCompany pursuant to this Section 2(a)(ii), ). The Company shall use reasonable best efforts to cause such Registration Statement to become and remain effective under the Securities Act until the earlier of (A) 180 days (or two years if a Shelf Registration Statement is requested) after the Effective Date or (B) the date on which all Registrable Securities covered by such Registration Statement have been sold (the right to select the investment banker or investment bankers and manager or managers that will underwrite the offering“Effectiveness Period”); provided, however, that such investment bankers period shall be extended for a period of time equal to the period the Holders refrain from selling any securities included in such Registration Statement at the request of an underwriter of the Company or the Company pursuant to this Agreement.
(iii) Subject to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect (A) (1) with respect to BHGE, more than a total of three Demand Registrations within any 365 day period and managers must (2) with respect to each of CSL and GS, more than a total of two Demand Registrations within any 365 day period, and (B) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of the Registrable Securities held by the Initiating Holder shall have become and remains effective under the Securities Act and is sufficient to permit offers and sales of the number and type of Registrable Securities on the terms and 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 reasonably satisfactory deemed to have occurred for purposes of this Section 2(a)(iii) if the Registration Statement relating thereto does not become effective or is not maintained effective for its entire Effectiveness Period, in which case the Initiating Holder shall be entitled to an additional Demand Registration in lieu thereof.
(iv) A Holder may withdraw all or any portion of its Registrable Securities included in a Demand Registration from such Demand Registration at any time prior to the effectiveness of the applicable Registration Statement.
(v) The Company may include in any such Demand Registration other Company Securities for sale for its own account or for the account of any other Person, subject to Section 2(a)(vi) and Section 2(d)(iii).
(vi) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration on such appropriate registration form of the Commission (A) as shall be selected by the Company and (B) as shall permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the Demand Notice; provided that if the Company becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to the Company). If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Company that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, the Company will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(vii) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), the Company 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, the Company would become subject to general service of process or to taxation or qualification to do business in such jurisdiction solely as a result of registration and (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.
(viii) In the event a Holder transfers Registrable Securities included on a Registration Statement and such Registrable Securities remain Registrable Securities following such transfer, at the request of such Holder, the Company 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 the Company be required to file a post-effective amendment to the Registration Statement unless (A) such Registration Statement includes only Registrable Securities held by the Holder, Affiliates of the Holder or transferees of the Holder or (B) the Company has received written consent therefor from a Person for whom Registrable Securities have been registered on (but not yet sold under) such Registration Statement, other than the Holder, Affiliates of the Holder or transferees of the Holder.
Appears in 2 contracts
Samples: Registration Rights Agreement, Registration Rights Agreement (BJ Services, Inc.)
Demand Registration. (a) At any time beginning six months from On or prior to the date (the "Filing Date") which is forty-five (45) days after the date on which a request (a "Demand") is given by a Holder to the Company, the Company shall prepare and file with the Commission a Registration Statement pursuant to Rule 415 covering the offering and resale of this Agreement all or any portion of the Registrable Securities not already covered by an existing and effective Registration Statement and representing not less than 5,000,000 Common Shares or Common Shares having an aggregate market value of at least $5,000,000, or if Rule 415 is not available for a period offers or sales of three years thereafterthe Registrable Securities, for such other means of distribution of Registrable Securities as the Holder may make one written reasonably request for registration under (or, at the Securities Act, Holder's option to delay such registration) (a "Demand Registration"). The Registration Statement required hereunder shall be on Form S-3 or Form F-3, as applicable (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3 or Form F-3, in which case the Registration shall be on Form S-1 or F-1 or another appropriate form as shall be selected by the Company upon advice of its counsel). The Registration Statement required hereunder shall contain (except if otherwise directed by the Holder) a section substantially similar to the "Plan of Distribution" attached hereto as Annex A. The Company shall use its reasonable best efforts to cause the Registration Statement to be declared effective under the Securities Act as promptly as possible after the filing thereof, but no later than 120 days following the filing thereof (the "Effectiveness Date"), and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act (including the filing of any necessary amendments, post-effective amendments and supplements) until all Registrable Securities covered under such Registration Statement have been disposed of pursuant to such Registration Statement or part of Holder's have otherwise ceased to be Registrable Securities (but such part, together with the number of securities requested by other Approved Investors, to be included in such Demand Registration pursuant to this Section 2, shall have an estimated market value at the time of such request (based upon the then market price of a share of Common Stock of the Company) of at least $250,000. Notwithstanding the foregoing, the Company shall not be required to file any registration statement on behalf of the Holder within twelve months after the effective date of any earlier registration statement so long as the Holder was given a notice offering it the opportunity to sell Registrable Securities under the earlier registration statement and the Holder did not request that its Registrable Securities be included; provided, however, that if Holder requested that its Registrable Securities be included in the earlier registration statement but not all were so included through no fault of the Investor, the Investor may, but shall not be obligated to, require the Company to file another registration statement pursuant to a Demand Registration. Within fifteen (15) days after receipt of a request for a Demand Registration, the Company shall give written notice (the "Notice") of such request to all other Approved Investors and shall include in such registration all Registrable Securities that the Company has received written requests for inclusion therein within 15 days after the Notice is given (the "Requested SecuritiesEffectiveness Period"). Thereafter, the Company may elect to include in such registration additional shares of Common Stock to be issued by the Company. All requests made pursuant to this Section 2 shall specify the aggregate number of Registrable Securities to be registered.
(b) A registration shall not constitute a Demand Registration under this Section 2 until it has become effective.
(c) The Holder making the Demand Registration may elect whether the offering of such Registrable Securities pursuant to such Demand Registration shall be in the form of a firm commitment underwritten offering or otherwise; provided, however, that such Holder may not elect that such offering be made on a delayed or continuous basis pursuant to rule 415 under the Securities Act. In any case in which an offering is in the form of a firm commitment underwritten offering, if the managing underwriter or underwriters of such offering advise the Company in writing that in its or their opinion the number of Registrable Securities proposed to be sold in such offering exceeds the number of Registrable Securities that can be sold in such offering without aversely affecting the market for the Company's Common Stock, the Company will include in such registration the number of Registrable Securities that in the opinion of such managing underwriter or underwriters can be sold without adversely affecting the market for the Company's Common Stock. In such event, the number of Registrable Securities, if any, to be offered for the accounts of Approved Investors (including the Holder making the Demand Registration) shall be reduced pro rata on the basis of the relative number of any Registrable Securities requested by each Approved Investor to be included in such registration to the extent necessary to reduce the total number of Registrable Securities to be included in such offering to the number recommended by such managing underwriter or underwriters. In the event the Holder making the Demand shall receive notice pursuant to this Section 2(c) that the amount of Registrable Securities to be offered for such Holder shall be reduced, such Holder shall be entitled to withdraw the Demand by written notice to the Company within seven (7) days after receipt of such notice, with the effect that such Demand shall be deemed not to have been made.
(d) If any of the Registrable Securities covered by a Demand Registration are to be sold in an underwritten offering, the Approved Investors, in the aggregate, that own or will own a majority of the Registrable Securities that the Company has been requested to register (including the Requested Securities but excluding any securities to be issued by the Company), shall have the right to select the investment banker or investment bankers and manager or managers that will underwrite the offering; provided, however, that such investment bankers and managers must be reasonably satisfactory to the Company.
Appears in 2 contracts
Samples: Registration Rights Agreement (Seanergy Maritime Holdings Corp.), Securities Purchase Agreement (Seanergy Maritime Holdings Corp.)
Demand Registration. (aSubject to Sections 3.1(d) At and 3.2 hereof, at any time beginning six months from after the date that is 180 days after the IPO Closing Date, if one or more Designated Holders (the “Initiating Holders”) desire to exercise their Registration Rights with respect to the Registrable Securities, such Initiating Holders may deliver to the Company a written notice (a “Registration Notice”) informing the Company of their desire to have the Registrable Securities registered for sale and specifying the number of Registrable Securities to be registered by the Company (a “Demand Registration”). Upon receipt of the Registration Notice, if the Company is not able to cause the Registrable Securities to be included as part of an existing shelf registration statement and related prospectus that the Company then has on file with, and which has been declared effective by, the Commission and which remains in effect and not subject to any stop order, injunction or other order or requirement of the Commission (the “Shelf Registration Statement”) (in which event the Company shall be deemed to have satisfied its registration obligation under this Section 3.1(a) with respect to the Registrable Securities, and, for the avoidance of doubt, such registration shall not be deemed a Demand Registration), then the Company shall cause to be filed with the Commission as soon as reasonably practicable after receiving the Registration Notice, but in no event more than thirty (30) days following receipt of such notice, a new registration statement and related prospectus (the “New Registration Statement”) that complies as to form in all material respects with applicable Commission rules providing for the sale by the Designated Holders of the Registrable Securities, and agrees (subject to Section 3.2 hereof) to use reasonable best efforts to cause the New Registration Statement and Related Prospectus to be declared and remain effective by the Commission as soon as practicable. (As used herein, “Registration Statement” and “Prospectus” refer to a registration statement and related prospectus (including any preliminary prospectus) filed pursuant to the Securities Act utilized by the Company to satisfy a Designated Holder’s Registration Rights pursuant to this Agreement, including, but not limited to, a Shelf Registration Statement and related prospectus (including any preliminary prospectus) or a New Registration Statement and related prospectus (including any preliminary prospectus), including, in each case, any documents incorporated therein by reference). Subject to Section 3.2 hereof, the Company agrees to use commercially reasonable efforts to keep the Registration Statement continuously effective (including the preparation and filing of any amendments and supplements necessary for that purpose) until the earlier of (i) the date that is two (2) years after the date of this Agreement and effectiveness of the Registration Statement, (ii) the date on which all of the Registrable Securities registered in the Demand Registration are eligible for a period of three years thereafter, the Holder may make one written request for sale without registration pursuant to Rule 144 (or any successor provision) under the Securities ActAct without volume limitations or other restrictions on transfer thereunder, or (a "Demand Registration"iii) the date on which all of all or part of Holder's the Registrable Securities (but such part, together with registered in the number of securities requested by other Approved Investors, to be included in such Demand Registration pursuant to this Section 2, shall have an estimated market value at the time of such request (based upon the then market price of a share of Common Stock of the Company) of at least $250,000are sold. Notwithstanding the foregoing, the Company shall not be required may at any time prior to file any registration statement on behalf receiving a Registration Notice from a Designated Holder, but subject to the prior consent of the Holder within twelve months after Designated Holders, include all of the effective date Designated Holders’ Registrable Securities or any portion thereof in any Registration Statement (other than a Registration Statement on Form S-4 or S-8 or any successor thereto), including by virtue of any earlier adding such Registrable Securities as additional securities to an existing Shelf Registration Statement pursuant to Rule 462(b) under the Securities Act (in which event the Company shall be deemed to have satisfied its registration statement obligation under this Section 3.1(a) with respect to the Registrable Securities so included, so long as the Holder was given a notice offering it the opportunity to sell Registrable Securities under the earlier such registration statement remains effective and not the Holder did not request that its Registrable Securities be includedsubject of any stop order, injunction or other order of the Commission); provided, however, that if Holder requested that its Registrable Securities be included in the earlier registration statement but not all were so included through no fault of the Investor, the Investor may, but shall not be obligated to, require the Company to file another registration statement pursuant to a Demand Registration. Within fifteen (15) days after receipt of a request for a Demand Registration, the Company shall give written notice (the "Notice") of such request to all other Approved Investors and shall include in such registration all Registrable Securities that the Company has received written requests for inclusion therein within 15 days after the Notice is given (the "Requested Securities"). Thereafter, the Company may elect to include in such registration additional shares of Common Stock to be issued by the Company. All requests made pursuant to this Section 2 shall specify the aggregate number of Registrable Securities to be registered.
(b) A registration shall not constitute a Demand Registration under this Section 2 until it has become effectiveRegistration.
(c) The Holder making the Demand Registration may elect whether the offering of such Registrable Securities pursuant to such Demand Registration shall be in the form of a firm commitment underwritten offering or otherwise; provided, however, that such Holder may not elect that such offering be made on a delayed or continuous basis pursuant to rule 415 under the Securities Act. In any case in which an offering is in the form of a firm commitment underwritten offering, if the managing underwriter or underwriters of such offering advise the Company in writing that in its or their opinion the number of Registrable Securities proposed to be sold in such offering exceeds the number of Registrable Securities that can be sold in such offering without aversely affecting the market for the Company's Common Stock, the Company will include in such registration the number of Registrable Securities that in the opinion of such managing underwriter or underwriters can be sold without adversely affecting the market for the Company's Common Stock. In such event, the number of Registrable Securities, if any, to be offered for the accounts of Approved Investors (including the Holder making the Demand Registration) shall be reduced pro rata on the basis of the relative number of any Registrable Securities requested by each Approved Investor to be included in such registration to the extent necessary to reduce the total number of Registrable Securities to be included in such offering to the number recommended by such managing underwriter or underwriters. In the event the Holder making the Demand shall receive notice pursuant to this Section 2(c) that the amount of Registrable Securities to be offered for such Holder shall be reduced, such Holder shall be entitled to withdraw the Demand by written notice to the Company within seven (7) days after receipt of such notice, with the effect that such Demand shall be deemed not to have been made.
(d) If any of the Registrable Securities covered by a Demand Registration are to be sold in an underwritten offering, the Approved Investors, in the aggregate, that own or will own a majority of the Registrable Securities that the Company has been requested to register (including the Requested Securities but excluding any securities to be issued by the Company), shall have the right to select the investment banker or investment bankers and manager or managers that will underwrite the offering; provided, however, that such investment bankers and managers must be reasonably satisfactory to the Company.
Appears in 2 contracts
Samples: Registration Rights Agreement (QTS Realty Trust, Inc.), Registration Rights Agreement (QTS Realty Trust, Inc.)
Demand Registration. (a) At any time beginning six after the date that is ten months from the date hereof, upon written notice to the Issuer from a Holder or Holders holding a majority in interest of this Agreement and for the Registrable Securities (a period of three years thereafter, "Demand Request") requesting that the Holder may make one written request for Issuer effect the registration under the Securities Act, (a "Demand Registration") Act of any or all or part of Holder's the Registrable Securities (but held by such partrequesting Holders, together which notice shall specify the intended method or methods of disposition of such Registrable Securities, the Issuer shall prepare as soon as practicable and, within 15 days after such request, file with the number of securities requested by other Approved Investors, Commission a registration statement with respect to such Registrable Securities and thereafter use its reasonable best efforts to cause such registration statement to be included declared effective under the Securities Act for purposes of dispositions in accordance with the intended method or methods of disposition stated in such Demand Registration pursuant to this Section 2, shall have an estimated market value at request within 30 days after the time filing of such request (based upon the then market price of a share of Common Stock of the Company) of at least $250,000. Notwithstanding the foregoing, the Company shall not be required to file any registration statement on behalf of the Holder within twelve months after the effective date of any earlier registration statement so long as the Holder was given a notice offering it the opportunity to sell Registrable Securities under the earlier registration statement and the Holder did not request that its Registrable Securities be includedstatement; provided, however, that if Holder requested that its Registrable Securities be included in the earlier Issuer shall have no obligation to (i) cause such registration statement but not all were so included through no fault of the Investor, the Investor may, but shall not be obligated to, require the Company to file another registration statement pursuant to a Demand Registration. Within fifteen (15) days after receipt of a request for a Demand Registration, the Company shall give written notice (the "Notice") of such request to all other Approved Investors and shall include in such registration all Registrable Securities that the Company has received written requests for inclusion therein within 15 days after the Notice is given (the "Requested Securities"). Thereafter, the Company may elect to include in such registration additional shares of Common Stock to be issued by the Company. All requests made filed pursuant to this Section 2 shall specify 2.2 to be declared effective on a date that is prior to the aggregate number first anniversary of this Agreement or (ii) cause such registration statement filed pursuant to this Section 2.2 to be declared effective during any period during which a Shelf Registration Statement filed pursuant to Section 2.1 remains effective. Notwithstanding any other provision of this Agreement to the contrary:
(i) the Holders may collectively exercise their Demand Request rights for registration of their Registrable Securities under this Section 2.2(a) on not more than three occasions (any such registration being referred to herein as a "Demand Registration");
(ii) the 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;
(iii) the Issuer shall not be required to effect a Demand Registration hereunder if all securities owned by the Holders have ceased to be registeredRegistrable Securities; and
(iv) the Issuer shall not be required to effect more than one Demand Registration during any 12 month period.
(b) A registration shall not constitute Notwithstanding any other provision of this Agreement to the contrary, a Demand Registration under this Section 2 until it has become effective.
(c) The Holder making the Demand Registration may elect whether the offering of such Registrable Securities pursuant to such Demand Registration shall be in the form of a firm commitment underwritten offering or otherwise; provided, however, that such Holder may not elect that such offering be made on a delayed or continuous basis pursuant to rule 415 under the Securities Act. In any case in which an offering is in the form of a firm commitment underwritten offering, if the managing underwriter or underwriters of such offering advise the Company in writing that in its or their opinion the number of Registrable Securities proposed to be sold in such offering exceeds the number of Registrable Securities that can be sold in such offering without aversely affecting the market for the Company's Common Stock, the Company will include in such registration the number of Registrable Securities that in the opinion of such managing underwriter or underwriters can be sold without adversely affecting the market for the Company's Common Stock. In such event, the number of Registrable Securities, if any, to be offered for the accounts of Approved Investors (including the Holder making the Demand Registration) shall be reduced pro rata on the basis of the relative number of any Registrable Securities requested by each Approved Investor to be included in such registration to the extent necessary to reduce the total number of Registrable Securities to be included in such offering to the number recommended by such managing underwriter or underwriters. In the event the Holder making the Demand shall receive notice Holders pursuant to this Section 2(c) that 2.2 shall not be deemed to have been effected, and, therefore, not requested and the amount rights of Registrable Securities to be offered for such each Holder shall be reduced, such Holder shall be entitled to withdraw the Demand by written notice to the Company within seven (7) days after receipt of such notice, with the effect that such Demand shall be deemed not to have been made.
exercised for purposes of paragraph (da) If any of the Registrable Securities covered by a above, (i) if such Demand Registration are to be sold in an underwritten offeringhas not become effective under the Securities Act or (ii) if such Demand Registration, after it became effective under the Approved InvestorsSecurities Act, in was not maintained effective under the aggregateSecurities Act (including, that own without limitation, if it was interfered with by any stop order, injunctions or will own a majority of the Registrable Securities that the Company has been requested to register (including the Requested Securities but excluding any securities to be issued by the Company), shall have the right to select the investment banker or investment bankers and manager or managers that will underwrite the offering; provided, however, that such investment bankers and managers must be reasonably satisfactory to the Company.other
Appears in 2 contracts
Samples: Registration Rights Agreement (Amfm Inc), Registration Rights Agreement (Lamar Advertising Co/New)
Demand Registration. (a) At any time beginning six months from Upon the date written request of this Agreement and for a period one or more Stockholders that the Company effect the registration under the Securities Act of three years thereafterall but not less than all of the Registrable Securities owned by such Stockholder(s) in an underwritten offering pursuant to the terms of Section 4 hereof, but subject to the limitations set forth herein, the Holder may make one Company will promptly (but in no event more than five business days after the receipt of such request) give written request for notice of such requested registration to all other Stockholders and Xxxxx, and the Company shall file with the Commission as promptly as practicable after sending such notice, and use its best efforts to cause to become effective, a registration statement under the Securities Act, or a prospectus supplement under or post-effective amendment to the Initial Registration Statement, registering the underwritten offering and sale of:
(i) the Registrable Securities which the Company has been so requested to register by the Stockholders, and
(ii) all but not less than all of the Registrable Securities held by any other Stockholder or Xxxxx that has requested the Company to register by written request given to the Company within 30 days after the giving of such written notice by the Company, all to the extent necessary to permit the disposition of the Registrable Securities so to be registered (a "“Demand Registration"”); provided, that the Company shall not be obligated to file a registration statement pursuant to this Section 2(a) of with respect to more than one registration in which all or part of Holder's Registrable Securities requested to be included in such registration are actually included without reduction as provided by Section 2(b).
(but such partb) If the managing underwriter advises the Company in writing that, together with in its opinion, the number of securities requested by other Approved Investors, to be included in such Demand Registration pursuant to this Section 2, shall have an estimated market value at the time of such request registration (based upon the then market price of a share of Common Stock including securities of the CompanyCompany which are not Registrable Securities) of at least $250,000. Notwithstanding the foregoing, the Company shall not be required to file any registration statement on behalf of the Holder within twelve months after the effective date of any earlier registration statement so long as the Holder was given a notice offering it the opportunity to sell Registrable Securities under the earlier registration statement and the Holder did not request that its Registrable Securities be included; provided, however, that if Holder requested that its Registrable Securities be included in the earlier registration statement but not all were so included through no fault of the Investor, the Investor may, but shall not be obligated to, require the Company to file another registration statement pursuant to a Demand Registration. Within fifteen (15) days after receipt of a request for a Demand Registration, the Company shall give written notice (the "Notice") of such request to all other Approved Investors and shall include in such registration all Registrable Securities that the Company has received written requests for inclusion therein within 15 days after the Notice is given (the "Requested Securities"). Thereafter, the Company may elect to include in such registration additional shares of Common Stock to be issued by the Company. All requests made pursuant to this Section 2 shall specify the aggregate number of Registrable Securities to be registered.
(b) A registration shall not constitute a Demand Registration under this Section 2 until it has become effective.
(c) The Holder making the Demand Registration may elect whether the offering of such Registrable Securities pursuant to such Demand Registration shall be in the form of a firm commitment underwritten offering or otherwise; provided, however, that such Holder may not elect that such offering be made on a delayed or continuous basis pursuant to rule 415 under the Securities Act. In any case in which an offering is in the form of a firm commitment underwritten offering, if the managing underwriter or underwriters of such offering advise the Company in writing that in its or their opinion the number of Registrable Securities proposed to be sold in such offering exceeds the number of Registrable Securities that which can be sold in such offering without aversely affecting a significant adverse effect on the market for price, timing or distribution of the Company's Common StockRegistrable Securities offered, the Company will (subject to the last sentence of this paragraph) include in such registration only the Registrable Securities held by the Stockholders and Xxxxx which has been requested to be included in such registration (the “Stockholder/Xxxxx Registrable Securities”). In the event that the number of Stockholder/Xxxxx Registrable Securities exceeds the number which, in the opinion of such managing underwriter, can be sold, then the Company will include in such registration only the Registrable Securities held by the Stockholders which has been requested to be included in such registration (the “Stockholder Registrable Securities”). In the event the number of Stockholder Registrable Securities that exceeds the number which, in the opinion of such managing underwriter or underwriters underwriter, can be sold without adversely affecting sold, then the market for the Company's Common Stock. In Company will include in such event, registration only the number of Stockholder Registrable SecuritiesSecurities which, if anyin the opinion of the managing underwriter, can be sold, such number to be offered for the accounts of Approved Investors (including the Holder making the Demand Registration) shall be reduced allocated pro rata among all requesting Stockholders on the basis of the relative number of shares of Registrable Securities then held by each such holder (provided that any shares thereby allocated to any such holder that exceed such holder’s request shall be reallocated among the remaining requesting holders of Registrable Securities in like manner). Notwithstanding anything set forth above, in the event that the number of Registrable Securities requested by each Approved Investor to be included in such registration is less than the number which, in the opinion of the managing underwriter, can be sold, the Company may include in such registration the securities of the Company or any other holder of the Company’s securities proposes to sell up to the extent necessary number of securities that, in the opinion of the managing underwriter, can be sold without an adverse effect on the price, timing or distribution of the Registrable Securities offered.
(c) The Company shall be entitled to reduce postpone for a reasonable period of time (not to exceed 120 days, which may not thereafter be extended) the total number filing of any registration statement otherwise required to be prepared and filed by it pursuant to Section 2(a) hereof if, at the time it receives a request for such registration, the Board of Directors of the Company determines in good faith that such offering will materially interfere with a pending or contemplated financing, merger, sale of assets, recapitalization or other similar corporate action of the Company, in which case the Company shall have furnished to holders of Registrable Securities requesting such registration an officers’ certificate to be included in such offering that effect; provided that the Company shall not exercise the right to the number recommended by such managing underwriter or underwriters. In the event the Holder making the Demand shall receive notice postpone registration pursuant to this Section 2(c) that more than once in any 12 month period. After such period of postponement the amount Company shall effect such registration as promptly as practicable without further request from the holders of Registrable Securities to be offered for Securities, unless such Holder shall be reduced, such Holder shall be entitled to withdraw the Demand by written notice to the Company within seven (7) days after receipt of such notice, with the effect that such Demand shall be deemed not to have been made.
(d) If any of the Registrable Securities covered by a Demand Registration are to be sold in an underwritten offering, the Approved Investors, in the aggregate, that own or will own a majority of the Registrable Securities that the Company request has been requested to register (including the Requested Securities but excluding any securities to be issued withdrawn by the Company), shall have the right to select the investment banker or investment bankers and manager or managers that will underwrite the offering; provided, however, that such investment bankers and managers must be reasonably satisfactory to the Companyall participating Stockholders.
Appears in 2 contracts
Samples: Registration Rights Agreement (Polar Molecular Holding Corp), Registration Rights Agreement (Murdock Communications Corp)
Demand Registration. (a) At any time beginning six months from ninety (90) days after the date closing of this Agreement and for a period of three years thereafterthe Offering, the Holder holders of a majority of the Registrable Securities then outstanding may make one written request for registration under the Securities Act, (a "Demand Registration") Act of all of the Registrable Securities that are not then registered on an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 or part any other form for which the Company then qualifies or which counsel for the Company shall deem appropriate and which form shall be available for the resale by the Holders of Holder's all of the Registrable Securities (each, a “Demand Registration”). Upon receipt of such request, the Company shall promptly (but in no event later than twenty (20) calendar days after receipt of such part, together with request) deliver notice of such request to all other holders of Registrable Securities who shall then have ten (10 calendar days from the number date such notice is given to notify the Company in writing of securities requested by other Approved Investors, their desire to be included in such Demand registration. The Company shall (i) use its commercially reasonable efforts to make the initial filing of the Registration Statement within ninety (90) calendar days after the date on which the initial request is given] (ii) use its commercially reasonable efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter, and (iii) use its commercially reasonable efforts to keep such Registration Statement effective until the date on which all securities under such Registration Statement have ceased to be Registrable Securities (the “Effectiveness Period”). The Registration Statement filed hereunder shall contain (except if otherwise required pursuant to this Section 2, shall have an estimated market value at written comments received from the time Commission upon a review of such request (based upon Registration Statement) that “Plan of Distribution” in substantially the then market price of a share of Common Stock of the Company) of at least $250,000. form attached hereto as Annex A. Notwithstanding the foregoing, in the event that the staff (the “Staff”) of the Commission should limit the number of Registrable Securities that may be sold pursuant to the Registration Statement, the Company may remove from the Registration Statement such number of Registrable Securities as specified by the Commission on behalf of all of the holders of Registrable Securities on a pro rata basis among the holders thereof. In such event, the Company shall give the Purchasers prompt notice of the number of Registrable Securities excluded therefrom. The Company shall not be required to file effect a registration pursuant to Form S-3 (or any registration statement on behalf of the Holder within twelve months after the effective date of any earlier registration statement so long as the Holder was given a notice offering it the opportunity to sell Registrable Securities under the earlier registration statement and the Holder did not request that its Registrable Securities be included; provided, however, that if Holder requested that its Registrable Securities be included in the earlier registration statement but not all were so included through no fault of the Investor, the Investor may, but shall not be obligated to, require other form for which the Company to file another registration statement pursuant to a Demand Registration. Within fifteen (15) days after receipt of a request then qualifies or which counsel for a Demand Registration, the Company shall give written notice (deem appropriate and which form shall be available for the "Notice") of such request to all other Approved Investors and shall include in such registration all Registrable Securities that the Company has received written requests for inclusion therein within 15 days after the Notice is given (the "Requested Securities"). Thereafter, the Company may elect to include in such registration additional shares of Common Stock to be issued resale by the Company. All requests made pursuant to this Section 2 shall specify Holders of all of the aggregate number Registrable Securities) more than two (2) times for the holders of Registrable Securities to be registeredas a group.
(b) A registration shall not constitute a Demand Registration under this Section 2 until it has become effective.
(c) The Holder making the Demand Registration may elect whether the offering of such Registrable Securities pursuant to such Demand Registration shall be in the form of a firm commitment underwritten offering or otherwise; provided, however, that such Holder may not elect that such offering be made on a delayed or continuous basis pursuant to rule 415 under the Securities Act. In any case in which an offering is in the form of a firm commitment underwritten offering, if the managing underwriter or underwriters of such offering advise the Company in writing that in its or their opinion the number of Registrable Securities proposed to be sold in such offering exceeds the number of Registrable Securities that can be sold in such offering without aversely affecting the market for the Company's Common Stock, the Company will include in such registration the number of Registrable Securities that in the opinion of such managing underwriter or underwriters can be sold without adversely affecting the market for the Company's Common Stock. In such event, the number of Registrable Securities, if any, to be offered for the accounts of Approved Investors (including the Holder making the Demand Registration) shall be reduced pro rata on the basis of the relative number of any Registrable Securities requested by each Approved Investor to be included in such registration to the extent necessary to reduce the total number of Registrable Securities to be included in such offering to the number recommended by such managing underwriter or underwriters. In the event the Holder making the Demand shall receive notice pursuant to this Section 2(c) that the amount of Registrable Securities to be offered for such Holder shall be reduced, such Holder shall be entitled to withdraw the Demand by written notice to the Company within seven (7) days after receipt of such notice, with the effect that such Demand shall be deemed not to have been made.
(d) If any of the Registrable Securities covered by a Demand Registration are to be sold in an underwritten offering, the Approved Investors, in the aggregate, that own or will own a majority of the Registrable Securities that the Company has been requested to register (including the Requested Securities but excluding any securities to be issued by the Company), shall have the right to select the investment banker or investment bankers and manager or managers that will underwrite the offering; provided, however, that such investment bankers and managers must be reasonably satisfactory to the Company.
Appears in 2 contracts
Samples: Registration Rights Agreement (Avinger Inc), Registration Rights Agreement (Avinger Inc)
Demand Registration. (a) At any time beginning six months and from time to time after the effective date hereof but prior to the fifth anniversary of the effective date hereof, the holders of Underwriter Warrants shall have the right to make written request of the Company on one occasion to register under the Act at least fifty percent (50%) of the Underlying Stock which would be issuable upon exercise of the Underwriter Warrants pursuant to the terms and conditions hereof. The Underlying Stock specified in such request or a request pursuant to Section 3(d) hereof is referred to herein as the "Subject Stock." Promptly upon receipt of such request, the Company shall file with the Commission a Registration Statement on the applicable form for the registration of the Subject Stock and use its best efforts to cause such Registration Statement to become effective (including, without limitation, filing post-effective amendments, appropriate qualifications under applicable blue sky or other state securities laws and appropriate compliance with the Act and the Rules and Regulations promulgated thereunder) as soon as practicable to permit or facilitate the sale and distribution of the Subject Stock. Immediately upon receipt of a request for registration pursuant to this Section 3(c), the Company shall notify each of the holders of Underwriter Warrants of such request. Notwithstanding the provisions of this Agreement Section 3(c), if the Company shall furnish to the holders of Underwriter Warrants a certificate signed by the Chief Executive Officer of the Company stating that in the good faith judgment of the Board of Directors of the Company it would be seriously detrimental to the Company and its stockholders for such a Registration Statement to be filed and it is therefore essential to defer a filing of such Registration Statement, the Company shall have the right to defer such filing for a period of three years thereafter, the Holder may make not more than one written request for registration under the Securities Act, hundred twenty (a "Demand Registration"120) of all or part of Holder's Registrable Securities (but such part, together with the number of securities requested by other Approved Investors, to be included in such Demand Registration pursuant to this Section 2, shall have an estimated market value at the time of such request (based upon the then market price of a share of Common Stock days after receipt of the Company) request from the holders of at least $250,000. Notwithstanding the foregoing, the Company shall not be required Underwriter Warrants to file any registration statement on behalf of the Holder within twelve months after the effective date of any earlier registration statement so long as the Holder was given effect such a notice offering it the opportunity to sell Registrable Securities under the earlier registration statement and the Holder did not request that its Registrable Securities be includedregistration; provided, however, that if Holder requested that its Registrable Securities be included in the earlier registration statement but not all were so included through no fault of the Investor, the Investor may, but shall not be obligated to, require the Company to file another registration statement pursuant to a Demand Registration. Within fifteen (15) days after receipt of a request for a Demand Registration, the Company shall give written notice (the "Notice") of such request to all other Approved Investors and shall include in such registration all Registrable Securities that the Company has received written requests for inclusion therein within 15 days after the Notice is given (the "Requested Securities"). Thereafter, the Company may elect to include not utilize the right more than once in any twenty-four (24) month period; and, provided further, that the holders of Underwriter Warrants may, at any time in writing, withdraw such request for such registration additional shares of Common Stock to be issued by and therefore preserve the Company. All requests made pursuant to right provided in this Section 2 shall specify the aggregate number of Registrable Securities to be registered.
(b3(c) A registration shall not constitute a Demand Registration under this Section 2 until it has become effective.
(c) The Holder making the Demand Registration may elect whether the offering of such Registrable Securities pursuant to such Demand Registration shall be in the form of a firm commitment underwritten offering or otherwise; provided, however, that such Holder may not elect that such offering be made on a delayed or continuous basis pursuant to rule 415 under the Securities Act. In any case in which an offering is in the form of a firm commitment underwritten offering, if the managing underwriter or underwriters of such offering advise the Company in writing that in its or their opinion the number of Registrable Securities proposed to be sold in such offering exceeds the number of Registrable Securities that can be sold in such offering without aversely affecting the market for the Company's Common Stock, the Company will include in holders of Underwriter Warrants to request such registration the number of Registrable Securities that in the opinion of such managing underwriter or underwriters can be sold without adversely affecting the market for the Company's Common Stock. In such event, the number of Registrable Securities, if any, to be offered for the accounts of Approved Investors (including the Holder making the Demand Registration) shall be reduced pro rata on the basis of the relative number of any Registrable Securities requested by each Approved Investor to be included in such registration to the extent necessary to reduce the total number of Registrable Securities to be included in such offering to the number recommended by such managing underwriter or underwriters. In the event the Holder making the Demand shall receive notice pursuant to this Section 2(c) that the amount of Registrable Securities to be offered for such Holder shall be reduced, such Holder shall be entitled to withdraw the Demand by written notice to the Company within seven (7) days after receipt of such notice, with the effect that such Demand shall be deemed not to have been maderegistration.
(d) If any of the Registrable Securities covered by a Demand Registration are to be sold in an underwritten offering, the Approved Investors, in the aggregate, that own or will own a majority of the Registrable Securities that the Company has been requested to register (including the Requested Securities but excluding any securities to be issued by the Company), shall have the right to select the investment banker or investment bankers and manager or managers that will underwrite the offering; provided, however, that such investment bankers and managers must be reasonably satisfactory to the Company.
Appears in 2 contracts
Samples: Warrant Agreement (Autobond Acceptance Corp), Warrant Agreement (Autobond Acceptance Corp)
Demand Registration. Subject to the conditions of this Section 2(a), if the Company receives a written request from one or more of the Investors (athe "Initiating Investors") At any time beginning six months from that the Company file a Registration Statement under the Securities Act registering the resale of the Registrable Securities, then the Company shall, (i) give notice of such request to all Investors as soon as practicable, but in no event later than the tenth (10th) day following the date of this Agreement such request, and for (ii) prepare promptly and file with the SEC as soon as practicable, but in no event later than the thirtieth (30th) day following the date of such request, and thereafter use its best efforts to cause to become effective as soon as practicable, a period Registration Statement registering the resale of three years thereafterall Registrable Securities that the Initiating Investors request to be registered and all Registrable Securities owned by any other Investor that notifies the Company in writing, within fifteen (15) days after receipt of the Holder may make one written request for registration Company's notice contemplated in clause (i) above, that it intends to participate in such demand registration, which notification shall include the number of Registrable Securities sought to be included by such Investor and the intended method or methods of distribution of such Registrable Securities. The Registration Statement filed hereunder, to the extent allowable under the Securities ActAct (including Rule 416), (a "Demand Registration") of all or part of Holder's Registrable Securities (but shall state that such part, together with the Registration Statement also covers such indeterminate number of securities requested by other Approved Investors, to be included in such Demand Registration pursuant to this Section 2, shall have an estimated market value at the time of such request (based upon the then market price of a share additional shares of Common Stock as may become issuable upon conversion of the CompanyNotes and exercise of the Warrants to prevent dilution resulting from stock splits, stock dividends or similar transactions. The Registration Statement (and each amendment or supplement thereto, and each request for acceleration of effectiveness thereof) of at least $250,000shall be provided to (and subject to the approval of) the Investors participating in such demand registration and their respective counsel prior to its filing or other submission. Notwithstanding the foregoing, the Company shall not be required to file any effect a demand registration statement on behalf of the Holder within twelve months after the effective date of any earlier registration statement so long as the Holder was given a notice offering it the opportunity to sell Registrable Securities under the earlier registration statement and the Holder did not request that its Registrable Securities be included; provided, however, that if Holder requested that its Registrable Securities be included in the earlier registration statement but not all were so included through no fault of the Investor, the Investor may, but shall not be obligated to, require the Company to file another registration statement pursuant to a Demand Registration. Within fifteen (15) days after receipt of a request for a Demand Registration, the Company shall give written notice (the "Notice") of such request to all other Approved Investors and shall include in such registration all Registrable Securities that the Company has received written requests for inclusion therein within 15 days after the Notice is given (the "Requested Securities"). Thereafter, the Company may elect to include in such registration additional shares of Common Stock to be issued by the Company. All requests made pursuant to this Section 2 shall specify 2(a): (1) prior to the aggregate number of Registrable Securities to be registered.
180th day following the date hereof, or (b2) A registration shall not constitute a Demand Registration under this Section 2 until it has become effective.
(c) The Holder making the Demand Registration may elect whether the offering of such Registrable Securities pursuant to such Demand Registration shall be in the form of a firm commitment underwritten offering or otherwise; provided, however, that such Holder may not elect that such offering be made on a delayed or continuous basis pursuant to rule 415 under the Securities Act. In any case in which an offering is in the form of a firm commitment underwritten offering, if the managing underwriter or underwriters of such offering advise after the Company in writing that in its or their opinion the number of Registrable Securities proposed to be sold in such offering exceeds the number of Registrable Securities that can be sold in such offering without aversely affecting the market for the Company's Common Stock, the Company will include in such has effected one registration the number of Registrable Securities that in the opinion of such managing underwriter or underwriters can be sold without adversely affecting the market for the Company's Common Stock. In such event, the number of Registrable Securities, if any, to be offered for the accounts of Approved Investors (including the Holder making the Demand Registration) shall be reduced pro rata on the basis of the relative number of any Registrable Securities requested by each Approved Investor to be included in such registration to the extent necessary to reduce the total number of Registrable Securities to be included in such offering to the number recommended by such managing underwriter or underwriters. In the event the Holder making the Demand shall receive notice pursuant to this Section 2(c) that the amount of Registrable Securities to be offered for 2(a), and such Holder shall be reduced, such Holder shall be entitled to withdraw the Demand by written notice to the Company within seven (7) days after receipt of such notice, registration has been declared or ordered effective and remained continuously effective without interruption in accordance with the effect that such Demand shall be deemed not to have been made.
(d) If any provisions of Section 3 hereof for the duration of the Registrable Securities covered by a Demand Registration are to be sold Period (as defined in an underwritten offering, the Approved Investors, in the aggregate, that own or will own a majority of the Registrable Securities that the Company has been requested to register (including the Requested Securities but excluding any securities to be issued by the CompanySection 3(a) below), shall have the right to select the investment banker or investment bankers and manager or managers that will underwrite the offering; provided, however, that such investment bankers and managers must be reasonably satisfactory to the Company.
Appears in 2 contracts
Samples: Registration Rights Agreement (P Com Inc), Registration Rights Agreement (P Com Inc)
Demand Registration. (a) At If at any time beginning six months from any Holder shall request the date of this Agreement and for a period of three years thereafter, the Holder may make one written request for registration Company in writing to register under the Securities Act, Act all or a part of the Registrable Securities held by such Holder (a "Demand Registration") of all or part of Holder's Registrable Securities (but such part, together with the number of securities requested by other Approved Investors, to be included in such Demand Registration pursuant to this Section 2, shall have an estimated market value at the time of such request (based upon the then market price of a share of Common Stock of the Company) of at least $250,000. Notwithstanding the foregoing), the Company shall not use all reasonable efforts to cause to be required to file any filed and declared effective as soon as reasonably practicable (but in no event later than the 45th day after such Holder's request is made) a registration statement on behalf providing for the sale of all such Registrable Securities to be registered by such Holder, including, but not limited to, a sale of such Registrable Securities in connection with the Holder within twelve months after the effective date issuance of any earlier securities convertible into or exchangeable or exercisable for Registrable Securities or the sale of Registrable Securities upon conversion, exercise or exchange thereof. The Company agrees to use its reasonable efforts to keep any such registration statement continuously effective and usable for resale of Registrable Securities for so long as the Holder was given a notice offering it the opportunity to sell whose Registrable Securities under the earlier are included therein shall request. The Company shall be obligated to file registration statements pursuant to this Section 2(a) until all Registrable Securities have ceased to be Registrable Securities. Each registration statement filed pursuant to this Section 2(a) is hereinafter referred to as a "Demand Registration Statement." The Company may, if permitted by law, effect any registration pursuant to this Section 2(a) by the filing of a registration statement on Form S-3. However, if such registration involves an underwritten public offering and the Holder did not request that its Registrable Securities be included; providedmanaging underwriter(s) at any time shall notify the Company in writing that, however, that if Holder requested that its Registrable Securities be included in the earlier registration statement but not sole judgment of such managing underwriter(s), inclusion of some or all were so included through no fault of the Investor, information required in a more detailed form specified in such notice is of material importance to the Investor may, but shall not be obligated to, require success of the Company to file another registration statement pursuant to a Demand Registration. Within fifteen (15) days after receipt public offering of a request for a Demand Registrationsuch Registrable Securities, the Company shall give written notice (use all reasonable efforts to supplement or amend the "Notice") of such request to all other Approved Investors and shall include in such registration all Registrable Securities that the Company has received written requests for inclusion therein within 15 days after the Notice is given (the "Requested Securities"). Thereafter, the Company may elect statement to include in such registration additional shares of Common Stock to be issued by the Company. All requests made pursuant to this Section 2 shall specify the aggregate number of Registrable Securities to be registeredinformation.
(b) A registration shall The Company agrees (i) not constitute to effect any public or private sale, distribution or purchase of any of its securities which are the same as or similar to the Registrable Securities, including a sale pursuant to Regulation D under the Securities Act, during the 15-day period prior to, and during the 45-day period beginning on, the closing date of each underwritten offering under any Demand Registration Statement, and (ii) to use reasonable efforts to cause each holder of its securities purchased from the Company, at any time on or after the date of this Agreement (other than in a registered public offering), to agree not to effect any public sale or distribution of any such securities during such period, including a sale pursuant to Rule 144 under this Section 2 until it has become effectivethe Securities Act.
(c) The Holder making Company may postpone for a reasonable period of time, not to exceed 30 days, the filing or the effectiveness of any Demand Registration may elect whether Statement if (i) the offering Board of such Registrable Securities pursuant to such Demand Registration shall be in the form Directors of a firm commitment underwritten offering or otherwise; provided, however, that such Holder may not elect that such offering be made on a delayed or continuous basis pursuant to rule 415 under the Securities Act. In any case in which an offering is in the form of a firm commitment underwritten offering, if the managing underwriter or underwriters of such offering advise the Company in writing good faith determines that (A) such registration would have a material adverse effect on any plan or proposal by the Company with respect to any financing, acquisition, recapitalization, reorganization or other material transaction, or (B) the Company is in its possession of material non-public information that, if publicly disclosed, would result in a material disruption of a major corporate development or their opinion the number of Registrable Securities proposed transaction then pending or in progress or in other material adverse consequences to be sold in such offering exceeds the number of Registrable Securities that can be sold in such offering without aversely affecting the market for the Company's Common Stock, and (ii) the Company will include in so notifies the Holder(s) within five days after the Holder(s) requests such registration the number of Registrable Securities that in the opinion of such managing underwriter or underwriters can be sold without adversely affecting the market for the registration. The Company's Common Stock. In such event, right to defer the number filing of Registrable Securities, if any, a registration statement pursuant to be offered for the accounts of Approved Investors (including the Holder making the Demand Registration) shall be reduced pro rata on the basis provisions of the relative number of preceding sentence may not be exercised more than once during any Registrable Securities requested by each Approved Investor to be included in such registration to the extent necessary to reduce the total number of Registrable Securities to be included in such offering to the number recommended by such managing underwriter or underwriters. In the event the Holder making the Demand shall receive notice pursuant to this Section 2(c) that the amount of Registrable Securities to be offered for such Holder shall be reduced, such Holder shall be entitled to withdraw the Demand by written notice to the Company within seven (7) days after receipt of such notice, with the effect that such Demand shall be deemed not to have been made12 month period.
(d) If at any time any Holder notifies the Company in writing of the Holder's desire that the Registrable Securities to be covered by a Demand Registration are to Statement be sold in an underwritten offering, the Approved Investors, in the aggregate, that own or will own a majority of the Registrable Securities that the Company has been requested to register (including the Requested Securities but excluding any securities to be issued by the Company), such Holder shall have the right to select the any nationally recognized investment banker or investment bankers and manager or managers that will underwrite banking firm(s) to administer the offering; provided, however, that such investment bankers and managers must be reasonably satisfactory subject to the approval of the Company, which approval shall not be unreasonably withheld, and the Company shall enter into underwriting agreements with the underwriter(s) of such offering, which agreements shall contain such representations and warranties by the Company, and such other terms, conditions and indemnities as are at the time customarily contained in underwriting agreements for similar offerings and the Company shall take or cause to be taken all such other actions, in addition to the registration procedures set forth in Section 4 hereof, as are reasonably requested by the managing underwriter(s) in order to expedite or facilitate the registration and disposition of the Registrable Securities, including, without limitation, causing management to participate in "road show" presentations.
Appears in 2 contracts
Samples: Registration Rights Agreement (M & F Worldwide Corp), Registration Rights Agreement (Mafco Holdings Inc)
Demand Registration. (aSubject to Sections 3.1(d) At and 3.2 hereof, at any time beginning six months from after the date that is 180 days after the IPO Closing Date, if one or more Designated Holders (the “Initiating Holders”) desire to exercise their Registration Rights with respect to the Registrable Securities, such Initiating Holders may deliver to the Company a written notice (a “Registration Notice”) informing the Company of their desire to have the Registrable Securities registered for sale and specifying the number of Registrable Securities to be registered by the Company (a “Demand Registration”). Upon receipt of the Registration Notice, if the Company is not able to cause the Registrable Securities to be included as part of an existing shelf registration statement and related prospectus that the Company then has on file with, and which has been declared effective by, the Commission and which remains in effect and not subject to any stop order, injunction or other order or requirement of the Commission (the “Shelf Registration Statement”) (in which event the Company shall be deemed to have satisfied its registration obligation under this Section 3.1(a) with respect to the Registrable Securities, and, for the avoidance of doubt, such registration shall not be deemed a Demand Registration), then the Company shall cause to be filed with the Commission as soon as reasonably practicable after receiving the Registration Notice, but in no event more than thirty (30) days following receipt of such notice, a new registration statement and related prospectus (the “New Registration Statement”) that complies as to form in all material respects with applicable Commission rules providing for the sale by the Designated Holders of the Registrable Securities, and agrees (subject to Section 3.2 hereof) to use reasonable best efforts to cause the New Registration Statement and related Prospectus to be declared and remain effective by the Commission as soon as practicable. (As used herein, “Registration Statement” and “Prospectus” refer to a registration statement and related prospectus (including any preliminary prospectus) filed pursuant to the Securities Act utilized by the Company to satisfy a Designated Holder’s Registration Rights pursuant to this Agreement, including, but not limited to, an Issuer Registration Statement and related prospectus (including any preliminary prospectus), a Shelf Registration Statement and related prospectus (including any preliminary prospectus) or a New Registration Statement and related prospectus (including any preliminary prospectus), including, in each case, any documents incorporated therein by reference). Subject to Section 3.2 hereof, the Company agrees to use commercially reasonable efforts to keep the Registration Statement continuously effective (including the preparation and filing of any amendments and supplements necessary for that purpose) until the earlier of (i) the date that is two (2) years after the date of this Agreement and effectiveness of the Registration Statement, (ii) the date on which all of the Registrable Securities registered in the Demand Registration are eligible for a period of three years thereafter, the Holder may make one written request for sale without registration pursuant to Rule 144 (or any successor provision) under the Securities ActAct without volume limitations or other restrictions on transfer thereunder, or (a "Demand Registration"iii) the date on which all of all or part of Holder's the Registrable Securities (but such part, together with registered in the number of securities requested by other Approved Investors, to be included in such Demand Registration pursuant to this Section 2, shall have an estimated market value at the time of such request (based upon the then market price of a share of Common Stock of the Company) of at least $250,000are sold. Notwithstanding the foregoing, the Company shall not be required may at any time prior to file any registration statement on behalf receiving a Registration Notice from a Designated Holder, but subject to the prior consent of the Holder within twelve months after Designated Holders, include all of the effective date Designated Holders’ Registrable Securities or any portion thereof in any Registration Statement (other than a Registration Statement on Form S-4 or S-8 or any successor thereto), including by virtue of any earlier adding such Registrable Securities as additional securities to an existing Shelf Registration Statement pursuant to Rule 462(b) under the Securities Act (in which event the Company shall be deemed to have satisfied its registration statement obligation under this Section 3.1(a) with respect to the Registrable Securities so included, so long as the Holder was given a notice offering it the opportunity to sell Registrable Securities under the earlier such registration statement remains effective and not the Holder did not request that its Registrable Securities be includedsubject of any stop order, injunction or other order of the Commission); provided, however, that if Holder requested that its Registrable Securities be included in the earlier registration statement but not all were so included through no fault of the Investor, the Investor may, but shall not be obligated to, require the Company to file another registration statement pursuant to a Demand Registration. Within fifteen (15) days after receipt of a request for a Demand Registration, the Company shall give written notice (the "Notice") of such request to all other Approved Investors and shall include in such registration all Registrable Securities that the Company has received written requests for inclusion therein within 15 days after the Notice is given (the "Requested Securities"). Thereafter, the Company may elect to include in such registration additional shares of Common Stock to be issued by the Company. All requests made pursuant to this Section 2 shall specify the aggregate number of Registrable Securities to be registered.
(b) A registration shall not constitute a Demand Registration under this Section 2 until it has become effectiveRegistration.
(c) The Holder making the Demand Registration may elect whether the offering of such Registrable Securities pursuant to such Demand Registration shall be in the form of a firm commitment underwritten offering or otherwise; provided, however, that such Holder may not elect that such offering be made on a delayed or continuous basis pursuant to rule 415 under the Securities Act. In any case in which an offering is in the form of a firm commitment underwritten offering, if the managing underwriter or underwriters of such offering advise the Company in writing that in its or their opinion the number of Registrable Securities proposed to be sold in such offering exceeds the number of Registrable Securities that can be sold in such offering without aversely affecting the market for the Company's Common Stock, the Company will include in such registration the number of Registrable Securities that in the opinion of such managing underwriter or underwriters can be sold without adversely affecting the market for the Company's Common Stock. In such event, the number of Registrable Securities, if any, to be offered for the accounts of Approved Investors (including the Holder making the Demand Registration) shall be reduced pro rata on the basis of the relative number of any Registrable Securities requested by each Approved Investor to be included in such registration to the extent necessary to reduce the total number of Registrable Securities to be included in such offering to the number recommended by such managing underwriter or underwriters. In the event the Holder making the Demand shall receive notice pursuant to this Section 2(c) that the amount of Registrable Securities to be offered for such Holder shall be reduced, such Holder shall be entitled to withdraw the Demand by written notice to the Company within seven (7) days after receipt of such notice, with the effect that such Demand shall be deemed not to have been made.
(d) If any of the Registrable Securities covered by a Demand Registration are to be sold in an underwritten offering, the Approved Investors, in the aggregate, that own or will own a majority of the Registrable Securities that the Company has been requested to register (including the Requested Securities but excluding any securities to be issued by the Company), shall have the right to select the investment banker or investment bankers and manager or managers that will underwrite the offering; provided, however, that such investment bankers and managers must be reasonably satisfactory to the Company.
Appears in 2 contracts
Samples: Registration Rights Agreement (QTS Realty Trust, Inc.), Registration Rights Agreement (QTS Realty Trust, Inc.)
Demand Registration. (a) At any time beginning six months from after the earlier of (x) the third anniversary of the date of this Agreement and for a period (y) the first day on which the members of three years thereafter, the Holder may make one written request for registration Board that are independent under the Securities Actlisting standards of the New York Stock Exchange, plus (without duplication) the members of the Board that are Series A Designees constitute less than a majority of the members of the Board, subject to the right of the Company under Section 2.1(f) and Section 2.3(j), upon written notice (a "“Demand Registration"Notice”) by Holders owning a majority of all or part of Holder's Registrable Securities (but such part, together with the number of securities requested by other Approved Investors, to be included in such Demand Registration pursuant to this Section 2, shall have an estimated market value at the time of such request (based upon the then market price of a share of Common Stock of the Company) of at least $250,000. Notwithstanding the foregoingoutstanding Registrable Securities, the Company shall not be required use its commercially reasonable efforts to prepare and file with the SEC a Registration Statement covering the sale or distribution by the Holders by way of underwritten offering, block sale or any registration statement other distribution plan (other than pursuant to a merger, exchange offer or similar transaction) designated in such Demand Notice, but excluding any plan of distribution for offers and sales on behalf a delayed or continuous basis that would require a “shelf” registration, of all of the Holder within twelve months Registrable Securities requested to be registered in such Demand Notice 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 and shall provide for the registration of such Registrable Securities for resale by such Holders) in accordance with the foregoing (a “Demand Registration”) on or prior to the date that is thirty (30) days from the date of such Demand Notice (such date of actual filing, the “Filing Date”), and shall use its commercially reasonable efforts to cause such Demand Registration to be declared effective by the SEC as promptly as practical after the filing thereof.
(b) Once a Demand Registration is declared effective, the Company shall, subject to Section 2.1(f) and Section 2.3(j), use its commercially reasonable efforts to cause such Demand Registration to be continuously effective until the earlier of (A) the time that the Registrable Securities covered by such Demand Registration have been disposed of pursuant thereto and (B) the date that is 180 days after the effective date of such Demand Registration (with respect to any earlier registration statement so long as the Holder was given a notice offering it the opportunity to sell Registrable Securities under Demand Registration, such period from initial effectiveness thereof until the earlier registration statement and of the Holder did not request that its Registrable Securities be included; provided, however, that if Holder requested that its Registrable Securities be included times specified in the earlier registration statement but not all were so included through no fault of the Investorimmediately preceding clauses (A) and (B), the Investor may, but shall not be obligated to, require the Company to file another registration statement pursuant to a Demand Registration“Effectiveness Period”). Within fifteen (15) days after receipt of a request for a In connection with each Demand Registration, the Company shall give written notice request effectiveness of the applicable Registration Statement (and any post-effective amendments thereto) at 5:00 p.m., Eastern time (or such other time as may reasonably be requested by or on behalf of a majority in interest of the "Notice") of such request to all other Approved Investors and shall include Holders participating in such registration all Registrable Securities that registration), on the effective date and use its commercially reasonable efforts to deliver the Prospectus (or any supplements thereto), which delivery may be made electronically, by 8:00 a.m. Eastern time on the first Business Day after such effective date. The Company has received written requests for inclusion therein within 15 days shall use commercially reasonable efforts to file the Prospectus with the SEC by 8:00 a.m. Eastern time on the first Business Day after the Notice is given (the "Requested Securities"). Thereafter, the Company may elect to include in such registration additional shares of Common Stock to be issued by the Company. All requests made pursuant to this Section 2 shall specify the aggregate number of Registrable Securities to be registered.
(b) A registration shall not constitute a Demand Registration under this Section 2 until it has become effectiveeffective date.
(c) The Holder making the If any Demand Registration may elect whether ceases to be effective under the offering of such Registrable Securities pursuant Act for any reason at any time during the applicable Effectiveness Period, the Company shall use its commercially reasonable efforts to promptly cause such Demand Registration to again become effective under the Securities Act (including obtaining the prompt withdrawal of any order suspending the effectiveness of such Demand Registration), and in any event shall use its commercially reasonable efforts to, within thirty (30) days of such cessation of effectiveness, amend such Demand Registration in a manner reasonably expected to obtain the withdrawal of any order suspending the effectiveness of such Demand Registration or (ii) at the option of the Company, file an additional Registration Statement (a “Subsequent Registration”) for the purpose of effecting the offering and sale by Holders thereof by way of underwritten offering, block sale or any other distribution plan (other than pursuant to a merger, exchange offer or similar transaction) designated in the applicable Demand Notice of all securities that are Registrable Securities as of the time of such filing and included in the applicable Demand Notice. If a Subsequent Registration is filed, the Company shall use its commercially reasonable efforts to (x) cause such Subsequent Registration to become effective under the Securities Act as promptly as is reasonably practicable after such filing and (y) keep such Subsequent Registration (or another Subsequent Registration meeting the same criteria) continuously effective until the end of the applicable Effectiveness Period. Any such Subsequent Registration shall be in the form of a firm commitment underwritten offering or otherwise; provided, however, that such Holder may not elect that such offering be made Registration Statement (other than a “shelf” registration statement for sales on a delayed or continuous basis pursuant basis) on Form S-3 to rule 415 under the extent that the Company is eligible to use such form. Otherwise, such Subsequent Registration shall be on another appropriate form and shall provide for the registration of such Registrable Securities Act. In any case in which an offering is in the form for resale by such Holders by way of a firm commitment underwritten offering, if the managing underwriter block sale or underwriters of such offering advise the Company in writing that in its any other distribution plan (other than pursuant to a merger, exchange offer or their opinion the number of Registrable Securities proposed to be sold in such offering exceeds the number of Registrable Securities that can be sold in such offering without aversely affecting the market for the Company's Common Stock, the Company will include in such registration the number of Registrable Securities that similar transaction) designated in the opinion of such managing underwriter or underwriters can be sold without adversely affecting the market for the Company's Common Stock. In such event, the number of Registrable Securities, if any, to be offered for the accounts of Approved Investors (including the Holder making the applicable Demand Registration) shall be reduced pro rata on the basis of the relative number of any Registrable Securities requested by each Approved Investor to be included in such registration to the extent necessary to reduce the total number of Registrable Securities to be included in such offering to the number recommended by such managing underwriter or underwriters. In the event the Holder making the Demand shall receive notice pursuant to this Section 2(c) that the amount of Registrable Securities to be offered for such Holder shall be reduced, such Holder shall be entitled to withdraw the Demand by written notice to the Company within seven (7) days after receipt of such notice, with the effect that such Demand shall be deemed not to have been madeNotice.
(d) The Company shall supplement and amend any Demand Registration or any Subsequent Registration if required by the rules, regulations or instructions applicable to the registration form used by the Company for such registration if required by the Securities Act or as reasonably requested by the Holders covered by such registration.
(e) If any a Demand Notice delivered in accordance with Section 2.1(a) specifies that the sale of the Registrable Securities covered by a Demand Registration are is intended to be sold in conducted through an underwritten offering, the Approved Investors, in the aggregate, that own or will own Holders of a majority of the Registrable Securities that the Company has been requested to register (including the Requested Securities but excluding any securities to be issued by the Company), included in such Demand Notice shall have the right to select the investment banker managing underwriter or investment bankers and manager or managers that will underwrite underwriters to administer the offering; provided, however, that such investment bankers and managers must managing underwriter or underwriters shall be reasonably satisfactory acceptable to the Company. The Holders of Registrable Securities included in such Demand Notice and the Company shall enter into an underwriting agreement in such customary form as shall have been negotiated and agreed to by the Company with the underwriter or underwriters selected for such underwriting. Notwithstanding any other provision of this Section 2.1, if the managing underwriter or underwriters of a proposed underwritten offering of the Registrable Securities advise the Board that in its or their good faith opinion the number of Registrable Securities requested to be included in such Registration Statement and all other securities proposed to be sold in the offering contemplated thereby exceeds the number which can be sold in such underwritten offering without adversely affecting the success of such offering, in light of market conditions, the Registrable Securities and such other securities to be included in such underwritten Registration Statement shall be allocated, (i) first, up to the total number of securities the Holders have requested in the Demand Notice to be included in such Registration Statement (pro rata based upon the number of securities that each of them shall have so requested to be included in such offering), and (ii) only if all the securities referred to in clause (i) have been included, the number of securities that other holders with registration rights have proposed to include in such Demand Registration (pro rata based upon the number of securities that each of them shall have so requested to be included in such offering) that, in the opinion of the managing underwriter or underwriters can be so sold. If any Holder disapproves of the terms of any such underwriting, such Holder may elect to withdraw therefrom by written notice to the Company and the managing underwriter or underwriters (provided that, if the managing underwriter or underwriters have provided such Holder with written notice of the date on which the applicable Registration Statement will become effective no later than five Business Days prior to such effectiveness date, such Holder’s written notice of such election must be given at least two Business Days prior to effectiveness of the applicable Registration Statement). Any securities excluded or withdrawn from such underwriting shall be withdrawn from such registration.
(f) The Company shall not be required to effect a registration pursuant to this Section 2.1:
(i) after the Company has effected three (3) registrations pursuant to this Section 2.1, and such registrations have been declared or ordered effective or withdrawn (the “Maximum Demand Registrations”), provided that a registration will count for this purpose only if (A) all Registrable Securities requested to be registered are registered and (B) such Registration Statement becomes effective or is withdrawn at the request of a majority in interest of the Holders initiating such registration (other than a withdrawal because, at the time of such withdrawal, the Holders have learned of material adverse information concerning the Company not known to the Holders at the time of their request for such registration and have withdrawn their request for registration with reasonable promptness after learning of such material adverse information);
(ii) if the Company has effected a registration pursuant to this Section 2.1 within the preceding six (6) months, and such registration has been declared or ordered effective or withdrawn at the request of a majority in interest of the Holders initiating such registration (other than a withdrawal because, at the time of such withdrawal, the Holders have learned of material adverse information concerning the Company not known to the Holders at the time of their request for such registration and have withdrawn their request for registration with reasonable promptness after learning of such material adverse information and other than a withdrawal in light of market conditions that Holders have reasonably determined are likely to adversely affect the success of the offering to which such registration relates); or
(iii) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be required under the Securities Act.
Appears in 2 contracts
Samples: Investor Rights Agreement (Martha Stewart Living Omnimedia Inc), Securities Purchase Agreement (Martha Stewart Living Omnimedia Inc)
Demand Registration. (a) At any time beginning six months from Upon the date of this Agreement and for a period of three years thereafter, the Holder may make one written request for of the Majority Holders, requesting that the Company effect the registration under the Securities Act, (a "Demand Registration") Act of all or part of Holder's such Holders’ Registrable Securities and specifying the intended method of disposition thereof (the “Demand Notice”), the Company will promptly give written notice of such requested registration to all Holders, and thereupon the Company will use its reasonable best efforts to file with the SEC as soon as reasonably practicable following the Demand Notice (but in no event later than the date that is 90 days after the Demand Notice) a Registration Statement. The Company shall use its reasonable best efforts to cause such part, together Registration Statement to be declared effective by the SEC within 90 days after the initial filing of the Registration Statement. The Company shall include in such Registration Statement:
(i) the Registrable Securities which the Company has been so requested to be registered by such Holders for disposition in accordance with the number intended method of securities requested by other Approved Investors, to be included disposition stated in such Demand Registration request;
(ii) all other Registrable Securities the holders of which shall have made a written request to the Company for registration thereof within 30 days after the giving of such written notice by the Company (which request shall specify the intended method of disposition of such Registrable Securities); and
(iii) all shares of Common Stock which the Company or Persons entitled to exercise “piggy-back” registration rights pursuant to contractual commitments of the Company may elect to register in connection with the offering of Registrable Securities pursuant to this Section 2, shall have an estimated market value at 2.2; all to the time extent requisite to permit the disposition (in accordance with the intended methods thereof as aforesaid) of such request (based upon the then market price of a share Registrable Securities and the additional shares of Common Stock Stock, if any, so to be registered; provided, that, the provisions of this Section 2.2 shall not require the CompanyCompany to effect more than two registrations of Registrable Securities.
(b) of at least $250,000. Notwithstanding anything to the foregoingcontrary contained in this Agreement, the Company shall not be required to file any effect a registration statement on behalf of the Holder pursuant to this Section 2.2 within twelve months after 180 days following the effective date of any earlier registration statement so long as a Registration Statement filed by the Company in accordance with this Section 2.2 or for the account of another Holder was given a notice offering it of Registrable Securities if the Holders were afforded the opportunity to sell include the Registrable Securities under the earlier registration statement and the Holder did not request that its Registrable Securities be included; provided, however, that if Holder requested that its Registrable Securities be included in the earlier registration statement but not all were so included through no fault of the Investor, the Investor may, but shall not be obligated to, require the Company to file another registration statement pursuant to a Demand Registration. Within fifteen (15) days after receipt of a request for a Demand Registration, the Company shall give written notice (the "Notice") of such request to all other Approved Investors and shall include in such registration all Registrable Securities that the Company has received written requests for inclusion therein within 15 days after the Notice is given (the "Requested Securities"). Thereafter, the Company may elect to include in such registration additional shares of Common Stock to be issued by the Company. All requests made pursuant to this Section 2 shall specify the aggregate number of Registrable Securities to be registered.
(b) A registration shall not constitute a Demand Registration under this Section 2 until it has become effectiveregistration.
(c) The Holder making registrations under this Section 2.2 shall be on an appropriate Registration Statement that permits the Demand Registration may elect whether the offering disposition of such Registrable Securities in accordance with the intended methods of distribution specified by the Majority Holders in their request for registration. The Company agrees to include in any such Registration Statement all information which Holders of Registrable Securities being registered shall reasonably request to effect the registration.
(d) A registration requested pursuant to this Section 2.2 shall not be deemed to have been effected (i) unless a Registration Statement with respect thereto has become effective; provided, that a Registration Statement which does not become effective after the Company has filed a Registration Statement with respect thereto solely by reason of the refusal to proceed of the Majority Holders (other than a refusal to proceed based upon the advice of counsel relating to a matter with respect to the Company) or because of a breach of this Agreement by any Holder shall be deemed to have been effected by the Company at the request of the Majority Holders unless the Holders electing to have Registrable Securities registered pursuant to such Demand Registration Statement shall be have elected to pay all fees and expenses otherwise payable by the Company in connection with such registration pursuant to Section 2.7, (ii) if, after it has become effective, such registration is withdrawn by the form Company (other than at the request of the Majority Holders) or interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court for any reason prior to the expiration of a firm commitment underwritten offering 180- day period following such Registration Statement’s effectiveness, or otherwise; provided(iii) if the conditions to closing specified in any purchase agreement or underwriting agreement entered into in connection with such registration are not satisfied, however, that such Holder may not elect that such offering be made on a delayed other than due solely to some act or continuous basis omission by the Holders electing to have Registrable Securities registered pursuant to rule 415 under the Securities Act. In any case in which such Registration Statement.
(e) If a requested registration pursuant to this Section 2.2 involves an offering is in the form of a firm commitment underwritten offering, if and the managing underwriter or underwriters of such offering shall advise the Company in writing that (with a copy to each Holder of Registrable Securities requesting registration) that, in its or their opinion opinion, the number of Registrable Securities proposed securities requested to be sold included in such offering registration (including securities of the Company which are not Registrable Securities) exceeds the number of Registrable Securities that which can be sold in such offering without aversely affecting within a price range reasonably acceptable to the market for Company and to the Company's Common Stockholders of a majority (by number of shares) of the Registrable Securities requested to be included in such Registration Statement, the Company will include in such registration registration, to the extent of the number of Registrable Securities that in which the opinion of such managing underwriter or underwriters Company is so advised can be sold without adversely affecting the market for the Company's Common Stock. In in such eventoffering, (i) first, the number of Registrable Securities, if any, to be offered for the accounts of Approved Investors (including the Holder making the Demand Registration) shall be reduced pro rata on the basis of the relative number of any Registrable Securities which have been requested by each Approved Investor to be included in such registration by the Holders pursuant to this Agreement (pro rata based on the extent necessary to reduce the total number amount of Registrable Securities sought to be registered by such Persons), (ii) second, provided that no securities sought to be included in by the Holders have been excluded from such offering registration, the securities of other Persons entitled to exercise “piggy-back” registration rights pursuant to contractual commitments of the Company (pro rata based on the amount of securities sought to be registered by such Persons) and (iii) third, securities the Company proposes to register.
(f) The Company shall use its reasonable best efforts to keep any Registration Statement filed pursuant to this Section 2.2 continuously effective (i) for a period of one year after the Registration Statement first becomes effective, plus the number recommended of days during which such Registration Statement was not effective or usable pursuant to Sections 2.2(g), 2.5(e) or 2.5(i); or (ii) if such Registration Statement related to an underwritten offering, for such period as in the opinion of counsel for the underwriters a prospectus is required by such managing law to be delivered in connection with sales of Registrable Securities by an underwriter or underwritersdealer. In the event the Holder making the Demand Company shall receive give any notice pursuant to Sections 2.5(e) or (i), the additional time period mentioned in this Section 2(c2.2(f)(i) that during which the amount of Registrable Securities Registration Statement is to be offered for such Holder remain effective shall be reduced, such Holder shall be entitled to withdraw extended by the Demand by written notice to number of days during the Company within seven (7) days after receipt period from and including the date of the giving of such notice, with notice pursuant to Sections 2.5(e) or (i) to and including the effect that such Demand date when each seller of a Registrable Security covered by the Registration Statement shall be deemed not to have been madereceived the copies of the supplemented or amended prospectus contemplated by Sections 2.5(e) or (i).
(dg) If any of the Registrable Securities covered by a Demand Registration are to be sold in an underwritten offering, the Approved Investors, in the aggregate, that own or will own a majority of the Registrable Securities that the The Company has been requested to register (including the Requested Securities but excluding any securities to be issued by the Company), shall have the right at any time, to select suspend the investment banker filing of a Registration Statement under this Section 2.2 or investment bankers require that the Holders of Registrable Securities suspend further open market offers and manager sales of Registrable Securities pursuant to a Registration Statement filed hereunder for a period not to exceed an aggregate of 30 days in any six-month period or managers an aggregate of 60 days in any twelve-month period for valid business reasons (not including avoidance of their obligations hereunder) (i) to avoid premature public disclosure of a pending corporate transaction, including pending acquisitions or divestitures of assets, mergers and combinations and similar events; (ii) upon the occurrence of any of the events specified in Section 2.5(e), until the time that will underwrite the offeringHolders receive copies of a supplement or amendment to the prospectus included in the applicable Registration Statement as contemplated in Section 2.5(e); providedand (iii) upon the occurrence of any of the events specified in Section 2.5(i), however, until the time the Company notifies the Holders in writing that such investment bankers and managers must be reasonably satisfactory to the Companysuspension is no longer effective.
Appears in 2 contracts
Samples: Registration Rights Agreement (Elio Motors, Inc.), Registration Rights Agreement (Elio Motors, Inc.)
Demand Registration. Upon the written request (aa “Notice”) At by a Principal Holder, Legacy Holder or any time beginning six months from other Holder owning or controlling at least five percent (5%) of the date of this Agreement and for a period of three years thereafterthen outstanding Registrable Securities (subject to adjustment pursuant to Section 3.04), the Holder may make one written request for Company shall file with the Commission, as soon as reasonably practicable, but in no event more than 30 days following the receipt of the Notice, a registration statement (each, a “Registration Statement”) under the Securities Act, (a "Demand Registration") Act providing for the resale of all or part of Holder's the Registrable Securities (but which may, at the option of the Holders giving such partNotice, together with be a registration statement under the number Securities Act that provides for the resale of securities requested the Registrable Securities pursuant to Rule 415 from time to time by other Approved Investors, the Holders (a “Shelf Registration Statement”)); provided that in no event shall the Company be required to file a Registration Statement prior to the date that is 90 days after the consummation of the Transactions. The Company shall use its commercially reasonable efforts to cause each Registration Statement to be included in declared effective by the Commission as soon as reasonably practicable after the initial filing of the Registration Statement. Any Registration Statement shall provide for the resale pursuant to any method or combination of methods legally available to, and requested by, the Holders of any and all Registrable Securities covered by such Demand Registration Statement. To the extent the initial Registration Statement is not made on Form S-3, the Company shall, upon becoming eligible to file a registration statement on Form S-3, prepare and file a new Registration Statement on Form S-3 to replace the initial Registration Statement and use its best efforts to cause such subsequent Registration Statement to be declared effective by the Commission as soon as reasonably practicable thereafter. The Company shall use its commercially reasonable efforts to cause each Registration Statement filed pursuant to this Section 22.01 to be continuously effective, supplemented and amended to the extent necessary to ensure that it is available for the resale of all Registrable Securities by the Holders until all Registrable Securities covered by such Registration Statement have ceased to be Registrable Securities (the “Effectiveness Period”). Each Registration Statement when effective (and the documents incorporated therein by reference) shall have comply as to form in all material respects with all applicable requirements of the Securities Act and shall not contain an estimated market value at the time of such request (based upon the then market price untrue statement of a share material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. Each Holder shall be limited to two demand registrations under this Section 2.01 in any twelve-month period (provided, however, that there shall be no limit on the number of Common Stock of Shelf Registration Statements that may be required by the Company) of at least $250,000. Notwithstanding the foregoingHolders hereunder), and the Company shall not be required obligated to file any registration statement on behalf of the Holder more than one Registration Statement within twelve months 120 days after the effective date of any earlier registration statement so long as the Holder was given a notice offering it the opportunity to sell Registrable Securities under the earlier registration statement and the Holder did not request that its Registrable Securities be included; provided, however, that if Holder requested that its Registrable Securities be included in the earlier registration statement but not all were so included through no fault of the Investor, the Investor may, but shall not be obligated to, require the Company to file another registration statement pursuant to a Demand Registration. Within fifteen (15) days after receipt of a request for a Demand Registration, the Company shall give written notice (the "Notice") of such request to all other Approved Investors and shall include in such registration all Registrable Securities that the Company has received written requests for inclusion therein within 15 days after the Notice is given (the "Requested Securities"). Thereafter, the Company may elect to include in such registration additional shares of Common Stock to be issued Registration Statement filed by the Company. All requests made pursuant to this Section 2 shall specify the aggregate number of Registrable Securities to be registered.
(b) A registration shall not constitute a Demand Registration under this Section 2 until it has become effective.
(c) The Holder making the Demand Registration may elect whether the offering of such Registrable Securities pursuant to such Demand Registration shall be in the form of a firm commitment underwritten offering or otherwise; provided, however, that such Holder may not elect that such offering be made on a delayed or continuous basis pursuant to rule 415 under the Securities Act. In any case in which an offering is in the form of a firm commitment underwritten offering, if the managing underwriter or underwriters of such offering advise the Company in writing that in its or their opinion the number of Registrable Securities proposed to be sold in such offering exceeds the number of Registrable Securities that can be sold in such offering without aversely affecting the market for the Company's Common Stock, the Company will include in such registration the number of Registrable Securities that in the opinion of such managing underwriter or underwriters can be sold without adversely affecting the market for the Company's Common Stock. In such event, the number of Registrable Securities, if any, to be offered for the accounts of Approved Investors (including the Holder making the Demand Registration) shall be reduced pro rata on the basis of the relative number of any Registrable Securities requested by each Approved Investor to be included in such registration to the extent necessary to reduce the total number of Registrable Securities to be included in such offering to the number recommended by such managing underwriter or underwriters. In the event the Holder making the Demand shall receive notice pursuant to this Section 2(c) that the amount of Registrable Securities to be offered for such Holder shall be reduced, such Holder shall be entitled to withdraw the Demand by written notice to the Company within seven (7) days after receipt of such notice, with the effect that such Demand shall be deemed not to have been made.
(d) If any of the Registrable Securities covered by a Demand Registration are to be sold in an underwritten offering, the Approved Investors, in the aggregate, that own or will own a majority of the Registrable Securities that the Company has been requested to register (including the Requested Securities but excluding any securities to be issued by the Company), shall have the right to select the investment banker or investment bankers and manager or managers that will underwrite the offering; provided, however, that such investment bankers and managers must be reasonably satisfactory to the Company.
Appears in 2 contracts
Samples: Registration Rights Agreement (Talos Energy Inc.), Registration Rights Agreement (SAILFISH ENERGY HOLDINGS Corp)
Demand Registration. (ai) At Subject to the terms and conditions of this Agreement, including Section 2(a)(ii) below, at any time beginning six months and from time to time after the date expiration of this Agreement and for a the lock-up period of three years thereafterapplicable to the IPO, each Holder (any such requesting Holder, the Holder may make one written request for registration under the Securities Act, (a "Demand Registration"“Initiating Holder”) of all or part of Holder's Registrable Securities (but such part, together with the number of securities requested by other Approved Investors, to be included in such Demand Registration pursuant to this Section 2, shall have an estimated market value at the time of such request (based upon the then market price of a share of Common Stock of the Company) of at least $250,000. Notwithstanding the foregoing, the Company shall not be required right to file any registration statement on behalf of the Holder within twelve months after the effective date of any earlier registration statement so long as the Holder was given a notice offering it the opportunity to sell Registrable Securities under the earlier registration statement and the Holder did not request that its Registrable Securities be included; provided, however, that if Holder requested that its Registrable Securities be included in the earlier registration statement but not all were so included through no fault of the Investor, the Investor may, but shall not be obligated to, require the Company to file another one or more registration statement pursuant to a Demand Registration. Within fifteen (15) days after receipt of a request for a Demand Registration, the Company shall give written notice (the "Notice") of such request to all other Approved Investors and shall include in such registration all Registrable Securities that the Company has received written requests for inclusion therein within 15 days after the Notice is given (the "Requested Securities"). Thereafter, the Company may elect to include in such registration additional shares of Common Stock to be issued by the Company. All requests made pursuant to this Section 2 shall specify the aggregate number of Registrable Securities to be registered.
(b) A registration shall not constitute a Demand Registration under this Section 2 until it has become effective.
(c) The Holder making the Demand Registration may elect whether the offering of such Registrable Securities pursuant to such Demand Registration shall be in the form of a firm commitment underwritten offering or otherwise; provided, however, that such Holder may not elect that such offering be made on a delayed or continuous basis pursuant to rule 415 statements under the Securities Act. In Act covering all or any case in which an offering is in the form part of a firm commitment underwritten offering, if the managing underwriter or underwriters of such offering advise the Company in writing that in its or their opinion the number of Registrable Securities proposed to be sold in such offering exceeds the number of Registrable Securities that can be sold in such offering without aversely affecting the market for the Company's Common Stock, the Company will include in such registration the number of Registrable Securities that in the opinion of such managing underwriter or underwriters can be sold without adversely affecting the market for the Company's Common Stock. In such event, the number of Registrable Securities, if any, to be offered for the accounts of Approved Investors (including the Holder making the Demand Registration) shall be reduced pro rata on the basis of the relative number of any Registrable Securities requested by each Approved Investor to be included in such registration to the extent necessary to reduce the total number of Registrable Securities to be included in such offering to the number recommended by such managing underwriter or underwriters. In the event the Holder making the Demand shall receive notice pursuant to this Section 2(c) that the amount of Registrable Securities to be offered for such Holder shall be reduced, such Holder shall be entitled to withdraw the Demand by upon written notice to the Company within seven (7a “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 ten Business Days following the Company’s receipt of a Demand Notice) days after give written notice (“Demand Eligible Holder Notice”) of the receipt of such noticeDemand Notice to all Holders (other than the Initiating Holder) that, with to its knowledge, hold Registrable Securities (each a “Demand Eligible Holder”). The Company shall promptly (but in any event, not later than 60 days following the effect that such Company’s receipt of a Demand shall be deemed not Notice) file the appropriate Registration Statement (the “Demand Registration Statement”) and use its commercially reasonable efforts to have been made.
effect, at the earliest practicable date, the registration under the Securities Act and under applicable state securities laws of (dA) If any of the Registrable Securities covered which the Company has been so requested to register by a the Initiating Holder in the Demand Registration are Notice, (B) all other Registrable Securities of the same class or series as those requested to be sold in an underwritten offering, the Approved Investors, registered in the aggregate, that own or will own a majority of the Registrable Securities that Demand Notice which the Company has been requested to register by the Demand Eligible Holders by written request (including the Requested “Demand Eligible Holder Request”) given to the Company within ten Business Days after the giving of the Demand Eligible Holder Notice, and (C) any Registrable Securities but excluding any securities to be issued offered and sold by the Company, in each case subject to Section 2(a)(ii), shall have the right to select the investment banker or investment bankers and manager or managers that will underwrite the offering; provided, however, that such investment bankers and managers must be reasonably satisfactory all to the Companyextent required to permit the disposition (in accordance with the intended methods of disposition) of the Registrable Securities to be so registered. The Company shall effect any requested Demand Registration using a registration statement on Form S-3 whenever the Company is a Seasoned Issuer or a WKSI, and shall use an Automatic Shelf Registration Statement if it is a WKSI.
Appears in 2 contracts
Samples: Registration Rights Agreement (FTS International, Inc.), Registration Rights Agreement (FTS International, Inc.)
Demand Registration. (ai) At any time beginning six months from Quantum shall have the date of this Agreement option and for right, exercisable by delivering a period of three years thereafter, written notice to the Holder may make one written request for registration under the Securities Act, Company (a "“Demand Registration") of all or part of Holder's Registrable Securities (but such part, together with the number of securities requested by other Approved InvestorsNotice”), to be included in such Demand Registration pursuant to this Section 2, shall have an estimated market value at the time of such request (based upon the then market price of a share of Common Stock of the Company) of at least $250,000. Notwithstanding the foregoing, the Company shall not be required to file any registration statement on behalf of the Holder within twelve months after the effective date of any earlier registration statement so long as the Holder was given a notice offering it the opportunity to sell Registrable Securities under the earlier registration statement and the Holder did not request that its Registrable Securities be included; provided, however, that if Holder requested that its Registrable Securities be included in the earlier registration statement but not all were so included through no fault of the Investor, the Investor may, but shall not be obligated to, require the Company to file another registration statement to, pursuant to the terms of and subject to the limitations contained in this Agreement, prepare and file with the Commission a Demand Registration. Within fifteen (15) days after receipt Registration Statement registering the offering and sale of a request for a Demand Registration, the Company shall give written notice (the "Notice") of such request to all other Approved Investors number and shall include in such registration all Registrable Securities that the Company has received written requests for inclusion therein within 15 days after the Notice is given (the "Requested Securities"). Thereafter, the Company may elect to include in such registration additional shares of Common Stock to be issued by the Company. All requests made pursuant to this Section 2 shall specify the aggregate number type of Registrable Securities to be registered.
(b) A registration shall not constitute a Demand Registration under this Section 2 until it has become effective.
(c) The Holder making on the terms and conditions specified in the Demand Registration may elect whether Notice in accordance with the offering intended timing and method or methods of such Registrable Securities pursuant to such Demand Registration shall be distribution thereof specified in the form of a firm commitment underwritten offering or otherwise; providedDemand Notice, however, that such Holder which may not elect that such offering be made include sales on a delayed or continuous basis pursuant to rule Rule 415 under (the Securities Act. In any case in which an offering is in the form “Demand Registration”).
(ii) Following receipt of a firm commitment underwritten offeringDemand Notice, if the managing underwriter or underwriters of such offering advise the Company in writing that in its or their opinion shall file a Registration Statement as promptly as practicable covering all of the number of Registrable Securities proposed to be sold in such offering exceeds the number of Registrable Securities that can be sold in Quantum requests on such offering without aversely affecting the market for the Company's Common Stock, the Company will include in such registration the number of Registrable Securities that in the opinion of such managing underwriter or underwriters can be sold without adversely affecting the market for the Company's Common Stock. In such event, the number of Registrable Securities, if any, to be offered for the accounts of Approved Investors (including the Holder making the Demand Registration) shall be reduced pro rata on the basis of the relative number of any Registrable Securities requested by each Approved Investor Notice to be included in such Demand Registration in accordance with the terms and conditions of this Agreement and shall use its reasonable best efforts to cause such Registration Statement to become effective under the Securities Act and remain effective under the Securities Act for not less than twenty four (24) months following the Effective Date or such shorter period when all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”); provided, however, (i) that the Company shall not be required to effect the registration to the extent necessary to reduce the total number of Registrable Securities pursuant to this Section 2(a) unless the Registrable Securities are offered at an aggregate proposed offering price of not less than $50 million and (ii) the Effectiveness Period shall be extended by one (1) day for each additional day during any Suspension Period in effect following the Effective Date applicable thereto pursuant to Section 2(a)(iv). Subject to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect more than three (3) Demand Registrations in any twelve (12) month period.
(iii) Notwithstanding any other provision of this Section 2(a), the Company shall not be required to: (A) file a Registration Statement pursuant to this Section 2(a) during the period starting with the date thirty (30) days prior to a good faith estimate by the majority of the members of the board of directors of the Company (excluding any members of the board of directors that are employees or Affiliates of Quantum)(the “Unaffiliated Board Members”), of the date of filing of, and ending on a date ninety (90) days after the effective date of, a Company initiated registration; provided that the Company is actively employing its reasonable best efforts to cause such registration statement to become effective; (B) effect a registration or file a Registration Statement for a period of up to one hundred twenty (120) days after the date of a Demand Notice for registration pursuant to this Section 2(a) if at the time of such request (1) the Company is engaged, or has plans to engage, within thirty (30) days of the time of such Demand Notice, in a firm commitment underwritten public offering of Common Shares), or (2) the Company is currently engaged in a self-tender or exchange offer and the filing of a Registration Statement would cause a violation of the Exchange Act; (C) effect a registration or file a Registration Statement for a period of up to ninety (90) days, if (1) the Unaffiliated Board Members determine such registration would render the Company unable to comply with applicable securities laws or (2) the Unaffiliated Board Members determine such registration would require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (D) if the Company has filed a “shelf” registration statement pursuant to a Demand Notice under this Section 2(a) and has included Registrable Securities therein (each such Registration Statement, a “Shelf Registration Statement”), the Company shall be entitled to suspend, for a reasonable period of time not in excess of 45 consecutive days and not more than 90 days in any 12 month period (except as a result of a review of any post-effective amendment by the Commission before declaring any post-effective amendment to the Registration Statement effective; provided, that the Company has used its reasonable best efforts to cause such post-effective amendment to be declared effective), the offer or sale of Registrable Securities pursuant to such registration statement by any holder of Registrable Securities if (1) a “road show” is not then in progress with respect to a proposed offering of Registrable Securities by such holder and (2) either (A) the Unaffiliated Board Members, in good faith, determine that (i) the offer or sale of any shares of Common Stock would materially impede, delay or interfere with a significant transaction under negotiation by the Company, including any proposed financing, offer or sale of securities, acquisition, merger, tender offer, business combination, corporate reorganization, or consolidation , (ii) after the advice of counsel, the sale of Common Shares covered by the shelf Registration Statement would require disclosure of non-public material information not otherwise required to be disclosed under applicable law, and (iii) either (x) the Company has a bona fide business purpose for preserving the confidentiality of the proposed transaction, (y) disclosure would have a material adverse effect on the Company or the Company’s ability to consummate the proposed transaction, or (z) the proposed transaction renders the Company unable to comply with requirements of the Commission; or (B) the Unaffiliated Board Members, in good faith, determines that the Company is required by law, rule or regulation to supplement the Shelf Registration Statement or file a post-effective amendment to the Shelf Registration Statement in order to incorporate information into the Shelf Registration Statement for the purpose of (i) including in the Shelf Registration Statement any Prospectus required under Section 10(a)(3) of the Securities Act or (ii) reflecting in the Prospectus included in the Shelf Registration Statement any facts or events arising after the effective date of the Shelf Registration Statement (or the most recent post-effective amendment) that, individually or in the aggregate, represents a fundamental change in the information set forth in the Prospectus (any such period referred to in this Section 2(a)(iii), a “Suspension Period”); provided, however, that (i) in no event shall the Company postpone, defer or suspend any Demand Registration pursuant to this Section 2(a)(iii) and/or Section 7(g) for more than an aggregate of one hundred twenty (120) days in any twelve (12) month period, (ii) in the event the Company postpones, defers or suspends any Demand Registration pursuant to Section 2(a)(iii)(C)(1) or (2) or Section 2(a)(iii)(D), then during such Suspension Period, the Company shall not engage in any transaction involving the offer, issuance, sale, or purchase of Common Shares (whether for the benefit of the Company or a third Person), except transactions involving the issuance or purchase of Common Shares as contemplated by Company employee benefit plans or employee or director arrangements. In order to suspend the use of the registration statement pursuant to this Section 2(a)(iii)(D), the Company shall promptly upon determining to seek such suspension, deliver to the holders of Registrable Securities included in such registration statement, a certificate signed by the Chief Executive Officer of the Company stating that the Company is suspending use of such registration statement pursuant to Section 2(a)(iii)(D), the basis therefor in reasonable detail and a good faith estimate as to the anticipated duration of such suspension.
(iv) The Company may include in any such Demand Registration other Common Shares for sale for its own account or for the account of any other Person; provided that if the managing underwriter for the offering determines that the number of Common Shares proposed to be offered in such offering would likely have an adverse effect in any material respect on the price, timing or distribution of the Company Securities proposed to be included in such offering to or the number recommended by such managing underwriter or underwriters. In market for the event Common Shares, then the Holder making the Demand shall receive notice pursuant to this Section 2(c) that the amount of Registrable Securities to be offered for such Holder sold by Quantum shall be reduced, included in such Holder shall registration before any Common Shares proposed to be entitled to withdraw sold for the Demand by written notice to account of the Company within seven (7) days after receipt of such notice, with the effect that such Demand shall be deemed not to have been madeor any other Person.
(dv) If Subject to the limitations contained in this Agreement, the Company shall effect any of Demand Registration on Form F-3 (except if the Company is not then eligible to register for resale the Registrable Securities covered by on Form F-3, in which case such Demand Registration shall be effected on another appropriate form for such purpose pursuant to the Securities Act) and if the Company becomes, and is at the time of its receipt of a Demand Registration are to be sold in an underwritten offeringNotice, a WKSI, the Approved Investors, in the aggregate, that own or will own a majority Demand Registration for any offering and selling of the Registrable Securities that through a firm commitment underwriting shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form F-3 or any equivalent or successor form under the Company has been requested Securities Act (if available to register (including the Requested Securities but excluding any securities to be issued by the Company), shall have the right to select the investment banker or investment bankers and manager or managers that will underwrite the offering; provided, however, that such investment bankers if at any time a Registration Statement on Form F-3 is effective and managers must be reasonably satisfactory Quantum provides written notice to the CompanyCompany that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, the Company will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(vi) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), the Company shall, (A) promptly prepare and file or cause to be prepared and filed (1) such additional forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents, as may be necessary or advisable to register or qualify the securities subject to such Demand Registration, including under the securities laws of such states as Quantum shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, the Company would become subject to general service of process or to taxation or qualification to do business in such jurisdiction solely as a result of registration and (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 necessary or appropriate or reasonably requested by Quantum to enable Quantum to consummate a public sale of such Registrable Securities in accordance with the intended timing and method or methods of distribution thereof.
Appears in 2 contracts
Samples: Registration Rights Agreement (Pacific Drilling S.A.), Registration Rights Agreement (Pacific Drilling S.A.)
Demand Registration. (aSubject to Sections 2.2(d) At and 2.3 hereof, at any time beginning six months after the date that is 365 days after the IPO Closing Date, each Holder may deliver to the Company a written notice (a “Demand Registration Notice”) informing the Company of such Holder’s desire to have some or all of its Registrable Securities registered for resale and specifying the number of Registrable Securities to be registered by the Company (“Demand Registration”). Upon receipt of a Demand Registration Notice from a Holder requesting registration of the lesser of (i) two hundred thousand (200,000) Registrable Securities or (ii) all of such Holder’s Registrable Securities, if the Company has not already caused such Registrable Securities to be included as part of an existing shelf registration statement and related prospectus that the Company then has on file with, and which has been declared effective by, the Commission and which remains in effect and not subject to any stop order, injunction or other order or requirement of the Commission (in which event the Company shall be deemed to have satisfied its registration obligation under this Section 2.2 with respect to such Registrable Securities), then the Company shall cause to be filed with the Commission as soon as reasonably practicable after receiving the Demand Registration Notice, but in no event more than sixty (60) days following receipt of such notice, a new registration statement and related prospectus covering the resale of the Registrable Securities on a delayed or continuous basis (any such registration statement used to satisfy the Company’s obligations under this Section 2.2, the “Demand Registration Statement”), which complies as to form in all material respects with applicable Commission rules providing for the sale by such Holder or group of Holders of such Registrable Securities. The Company agrees (subject to Section 2.3 hereof) to use commercially reasonable efforts to cause the Demand Registration Statement to be declared effective by the Commission as soon as practicable. Subject to Section 2.3 hereof, the Company agrees to use commercially reasonable efforts to keep any Demand Registration Statement continuously effective (including the preparation and filing of any amendments and supplements necessary for that purpose) until the earlier of (i) the date that is two (2) years after the date of this Agreement and effectiveness of such Demand Registration Statement, (ii) the date on which all of the Registrable Securities covered by such Demand Registration Statement are eligible for a period of three years thereafter, the Holder may make one written request for sale without registration pursuant to Rule 144 (or any successor provision) under the Securities ActAct without volume limitations or other restrictions on transfer thereunder, or (a "Demand Registration"iii) the date on which the Holder or Holders consummate the sale of all or part of Holder's the Registrable Securities (but such part, together with the number of securities requested by other Approved Investors, to be included in registered under such Demand Registration pursuant to this Section 2, shall have an estimated market value at the time of such request (based upon the then market price of a share of Common Stock of the Company) of at least $250,000Statement. Notwithstanding the foregoing, the Company shall not be required may at any time (including, without limitation, prior to file or after receiving a Demand Registration Notice from a Holder), in its sole discretion, include all additional Registrable Securities then outstanding or any portion thereof in any registration statement on behalf statement, including by virtue of the Holder within twelve months after the effective date of any earlier registration statement so long as the Holder was given a notice offering it the opportunity to sell adding such Registrable Securities under the earlier registration statement and the Holder did not request that its Registrable Securities be included; providedas additional securities to an Issuer Registration Statement, however, that if Holder requested that its Registrable Securities be included in the earlier registration statement but not all were so included through no fault of the Investor, the Investor may, but shall not be obligated to, require the Company to file another a Demand Registration Statement or an existing shelf registration statement pursuant to a Demand Registration. Within fifteen Rule 462(b) under the Securities Act (15) days after receipt of a request for a Demand Registration, in which event the Company shall give written notice (the "Notice") of such request be deemed to all other Approved Investors and shall include in such have satisfied its registration all Registrable Securities that the Company has received written requests for inclusion therein within 15 days after the Notice is given (the "Requested Securities"). Thereafter, the Company may elect to include in such registration additional shares of Common Stock to be issued by the Company. All requests made pursuant to this Section 2 shall specify the aggregate number of Registrable Securities to be registered.
(b) A registration shall not constitute a Demand Registration obligation under this Section 2 until it has become effective.
(c2.2(a) The Holder making the Demand Registration may elect whether the offering of such Registrable Securities pursuant with respect to such Demand Registration shall be in the form of a firm commitment underwritten offering or otherwise; provided, however, that such Holder may not elect that such offering be made on a delayed or continuous basis pursuant to rule 415 under the Securities Act. In any case in which an offering is in the form of a firm commitment underwritten offering, if the managing underwriter or underwriters of such offering advise the Company in writing that in its or their opinion the number of Registrable Securities proposed to be sold in such offering exceeds the number of Registrable Securities that can be sold in such offering without aversely affecting the market for the Company's Common Stock, the Company will include in such registration the number of Registrable Securities that in the opinion of such managing underwriter or underwriters can be sold without adversely affecting the market for the Company's Common Stock. In such event, the number of Registrable Securities, if any, to be offered for the accounts of Approved Investors (including the Holder making the Demand Registration) shall be reduced pro rata on the basis of the relative number of any Registrable Securities requested by each Approved Investor to be included in such registration to the extent necessary to reduce the total number of Registrable Securities to be included in such offering to the number recommended by such managing underwriter or underwriters. In the event the Holder making the Demand shall receive notice pursuant to this Section 2(c) that the amount of Registrable Securities to be offered for such Holder shall be reduced, such Holder shall be entitled to withdraw the Demand by written notice to the Company within seven (7) days after receipt of such notice, with the effect that such Demand shall be deemed not to have been made.
(d) If any of the Registrable Securities covered by a Demand Registration are to be sold in an underwritten offeringso included, so long as such registration statement remains effective and not the Approved Investorssubject of any stop order, in the aggregate, that own injunction or will own a majority other order of the Registrable Securities that the Company has been requested to register (including the Requested Securities but excluding any securities to be issued by the CompanyCommission), shall have the right to select the investment banker or investment bankers and manager or managers that will underwrite the offering; provided, however, that such investment bankers and managers must be reasonably satisfactory to the Company.
Appears in 2 contracts
Samples: Registration Rights Agreement (RLJ Lodging Trust), Registration Rights Agreement (RLJ Lodging Trust)
Demand Registration. Upon the written request (aa “Notice”) At any time beginning six months from by Holders owning at least 1 million of the date of this Agreement and for a period of three years thereafterthen-outstanding Registrable Securities, subject to adjustment pursuant to Section 3.04, the Holder may make one written request for Company shall file with the Commission, as soon as reasonably practicable, but in no event more than 90 days following the receipt of the Notice, a registration statement (each, a “Registration Statement”) under the Securities Act, (a "Demand Registration") Act providing for the resale of all or part of Holder's the Registrable Securities (but which may, at the option of the Holders giving such partNotice, together with be a registration statement under the number Securities Act that provides for the resale of securities requested the Registrable Securities pursuant to Rule 415 from time to time by other Approved Investors, the Holders (a “Shelf Registration Statement”)). The Company shall use its commercially reasonable efforts to cause each Registration Statement to be included in declared effective by the Commission as soon as reasonably practicable after the initial filing of the Registration Statement. Any Registration Statement shall provide for the resale pursuant to any method or combination of methods legally available to, and requested by, the Holders of any and all Registrable Securities covered by such Demand Registration Statement. The Company shall use its commercially reasonable efforts to cause each Registration Statement filed pursuant to this Section 2, shall have an estimated market value at the time of such request (based upon the then market price of a share of Common Stock of the Company) of at least $250,000. Notwithstanding the foregoing, the Company shall not be required to file any registration statement on behalf of the Holder within twelve months after the effective date of any earlier registration statement so long as the Holder was given a notice offering it the opportunity to sell Registrable Securities under the earlier registration statement and the Holder did not request that its Registrable Securities be included; provided, however, that if Holder requested that its Registrable Securities be included in the earlier registration statement but not all were so included through no fault of the Investor, the Investor may, but shall not be obligated to, require the Company to file another registration statement pursuant to a Demand Registration. Within fifteen (15) days after receipt of a request for a Demand Registration, the Company shall give written notice (the "Notice") of such request to all other Approved Investors and shall include in such registration all Registrable Securities that the Company has received written requests for inclusion therein within 15 days after the Notice is given (the "Requested Securities"). Thereafter, the Company may elect to include in such registration additional shares of Common Stock 2.01 to be issued by the Company. All requests made pursuant to this Section 2 shall specify the aggregate number of Registrable Securities to be registered.
(b) A registration shall not constitute a Demand Registration under this Section 2 until it has become continuously effective.
(c) The Holder making the Demand Registration may elect whether the offering of such Registrable Securities pursuant to such Demand Registration shall be in the form of a firm commitment underwritten offering or otherwise; provided, however, that such Holder may not elect that such offering be made on a delayed or continuous basis pursuant to rule 415 under the Securities Act. In any case in which an offering is in the form of a firm commitment underwritten offering, if the managing underwriter or underwriters of such offering advise the Company in writing that in its or their opinion the number of Registrable Securities proposed to be sold in such offering exceeds the number of Registrable Securities that can be sold in such offering without aversely affecting the market for the Company's Common Stock, the Company will include in such registration the number of Registrable Securities that in the opinion of such managing underwriter or underwriters can be sold without adversely affecting the market for the Company's Common Stock. In such event, the number of Registrable Securities, if any, to be offered for the accounts of Approved Investors (including the Holder making the Demand Registration) shall be reduced pro rata on the basis of the relative number of any Registrable Securities requested by each Approved Investor to be included in such registration supplemented and amended to the extent necessary to reduce ensure that it is available for the total number resale of all Registrable Securities to be included in such offering to by the number recommended by such managing underwriter or underwriters. In the event the Holder making the Demand shall receive notice pursuant to this Section 2(c) that the amount of Registrable Securities to be offered for such Holder shall be reduced, such Holder shall be entitled to withdraw the Demand by written notice to the Company within seven (7) days after receipt of such notice, with the effect that such Demand shall be deemed not to have been made.
(d) If any of the Holders until all Registrable Securities covered by a Demand such Registration are Statement have ceased to be sold in an underwritten offering, Registrable Securities (the Approved Investors, in “Effectiveness Period”). Each Registration Statement when effective (and the aggregate, that own or will own a majority documents incorporated therein by reference) shall comply as to form with all applicable requirements of the Registrable Securities that the Company has been requested Act and shall not contain an untrue statement of a material fact or omit to register (including the Requested Securities but excluding any securities state a material fact required to be issued stated therein or necessary to make the statements therein not misleading. There shall be no limit on the number of Registration Statements that may be required by the Company), shall have the right to select the investment banker or investment bankers and manager or managers that will underwrite the offering; provided, however, that such investment bankers and managers must be reasonably satisfactory to the CompanyHolders hereunder.
Appears in 2 contracts
Samples: Registration Rights Agreement (Niska Gas Storage Partners LLC), Registration Rights Agreement (Niska Gas Storage Partners LLC)
Demand Registration. (ai) At any time beginning six months from after the date expiration of this Agreement the Lock-Up Period, any Sponsoring Holder shall have the option and for right, exercisable by delivering a period of three years thereafter, written notice to the Holder may make one written request for registration under the Securities Act, Company (a "“Demand Registration") of all or part of Holder's Registrable Securities (but such part, together with the number of securities requested by other Approved InvestorsNotice”), to be included in such Demand Registration pursuant to this Section 2, shall have an estimated market value at the time of such request (based upon the then market price of a share of Common Stock of the Company) of at least $250,000. Notwithstanding the foregoing, the Company shall not be required to file any registration statement on behalf of the Holder within twelve months after the effective date of any earlier registration statement so long as the Holder was given a notice offering it the opportunity to sell Registrable Securities under the earlier registration statement and the Holder did not request that its Registrable Securities be included; provided, however, that if Holder requested that its Registrable Securities be included in the earlier registration statement but not all were so included through no fault of the Investor, the Investor may, but shall not be obligated to, require the Company to file another registration statement to, pursuant to the terms of and subject to the limitations contained in this Agreement, prepare and file with the Commission a Demand Registration. Within fifteen (15) days after receipt Registration Statement registering the offering and sale of a request for a Demand Registration, the Company shall give written notice (the "Notice") of such request to all other Approved Investors number and shall include in such registration all Registrable Securities that the Company has received written requests for inclusion therein within 15 days after the Notice is given (the "Requested Securities"). Thereafter, the Company may elect to include in such registration additional shares of Common Stock to be issued by the Company. All requests made pursuant to this Section 2 shall specify the aggregate number type of Registrable Securities to be registered.
(b) A registration shall not constitute a Demand Registration under this Section 2 until it has become effective.
(c) The Holder making on the terms and conditions specified in the Demand Registration Notice, which may elect whether the offering of such Registrable Securities pursuant to such Demand Registration shall be in the form of a firm commitment underwritten offering or otherwise; provided, however, that such Holder may not elect that such offering be made include sales on a delayed or continuous basis pursuant to rule Rule 415 under the Securities Actpursuant to a Shelf Registration Statement (a “Demand Registration”). In any case in which an offering is in the form of a firm commitment underwritten offering, if the managing underwriter or underwriters of such offering advise the Company in writing that in its or their opinion the number of Registrable Securities proposed to be sold in such offering exceeds The Demand Notice must set forth the number of Registrable Securities that can be sold the Initiating Holder intends to include in such offering without aversely affecting Demand Registration and the market for intended methods of disposition thereof. Notwithstanding anything to the Company's Common Stockcontrary herein, in no event shall the Company be required to effectuate a Demand Registration unless the Registrable Securities of the Holders to be included therein after compliance with Section 2(a)(ii) have an aggregate value of at least $30 million based on the VWAP (the “Minimum Amount”) as of the date of the Demand Notice.
(ii) 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, the Company will include in such registration the number of Registrable Securities that in the opinion shall give written notice of such managing underwriter or underwriters can be sold without adversely affecting the market for the Company's Common Stock. In such eventDemand Notice to all Holders and, the number of Registrable Securities, if any, to be offered for the accounts of Approved Investors (including the Holder making the Demand Registration) shall be reduced pro rata on the basis of the relative number of any Registrable Securities requested by each Approved Investor to be included in such registration to the extent necessary to reduce the total number of Registrable Securities to be included in such offering to the number recommended by such managing underwriter or underwriters. In the event the Holder making the Demand shall receive notice pursuant to this Section 2(c) that the amount of Registrable Securities to be offered for such Holder shall be reduced, such Holder shall be entitled to withdraw the Demand by written notice to the Company within seven (7) 30 days after receipt of such notice, with the effect that such Demand shall be deemed Notice (except if the Company is not then eligible to have been made.
(d) If any of register for resale the Registrable Securities covered by a Demand Registration are to be sold in an underwritten offering, the Approved Investorson Form S-3, in which case, within 90 days thereof), shall, subject to the aggregatelimitations of this Section 2(a), that own or will own file a majority Registration Statement in accordance with the terms and conditions of the Demand Notice, which Registration Statement shall cover all of the Registrable Securities that the Company has been requested to register (including the Requested Securities but excluding any securities Holders shall in writing request to be issued included in the Demand Registration (such request to be given to the Company within three Business Days (or if the Registration Statement will be a Shelf Registration Statement, within one Business Day) after receipt of notice of the Demand Notice given by the CompanyCompany pursuant to this Section 2(a)(ii), ). The Company shall use reasonable best efforts to cause such Registration Statement to become and remain effective under the Securities Act until the earlier of (A) 180 days (or two years if a Shelf Registration Statement is requested) after the Effective Date or (B) the date on which all Registrable Securities covered by such Registration Statement have been sold (the right to select the investment banker or investment bankers and manager or managers that will underwrite the offering“Effectiveness Period”); provided, however, that such investment bankers period shall be extended for a period of time equal to the period the Holders refrain from selling any securities included in such Registration Statement at the request of an underwriter of the Company or the Company pursuant to this Agreement.
(iii) Subject to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect (A) a Demand Registration within 90 days after the closing of any Underwritten Offering, (B) more than a total of four Demand Registrations for which WildHorse Holdings (or any transferee thereof in accordance with Section 8(e)) is the Initiating Holder, (C) more than a total of four Demand Registrations for which Esquisto Holdings (or any transferee thereof in accordance with Section 8(e)) is the Initiating Holder, (D) more than a total of four Demand Registrations for which Acquisition Co. Holdings (or any transferee thereof in accordance with Section 8(e)) is the Initiating Holder, and managers must (E) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of the Registrable Securities held by the Initiating Holder shall have become and remains effective under the Securities Act and is sufficient to permit offers and sales of the number and type of Registrable Securities on the terms and 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 reasonably satisfactory deemed to have occurred for purposes of this Section 2(a)(iii) if the Registration Statement relating thereto does not become effective or is not maintained effective for its entire Effectiveness Period, in which case the Initiating Holder shall be entitled to an additional Demand Registration in lieu thereof. Further, a Demand Registration shall not constitute a Demand Registration of the Initiating Holder for purposes of this Section 2(a)(iii) if, as a result of Section 2(a)(vi), 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 $30 million and (y) two-thirds of the number of Registrable Securities the Initiating Holder set forth in the applicable Demand Notice.
(iv) A Holder may withdraw all or any portion of its Registrable Securities included in a Demand Registration from such Demand Registration at any time prior to the effectiveness of the applicable Registration Statement. 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 to the effect that the Holder is withdrawing an amount of its Registrable Shares such that the remaining amount of Registrable Shares to be included in the Demand Registration is below the Minimum Amount, the Company shall cease all efforts to secure effectiveness of the applicable Registration Statement. Such registration nonetheless shall be deemed a Demand Registration with respect to the Initiating Holder for purposes of Section 2(a)(iii) unless (A) the Initiating Holder shall have paid or reimbursed the Company for its pro rata share of all reasonable and documented out-of-pocket fees and expenses incurred by the Company in connection with the withdrawn registration of such Registrable Securities (based on the number of securities the Initiating Holder sought to register, as compared to the total number of securities included in such Demand Registration) or (B) the withdrawal is made following the occurrence of a Material Adverse Change or pursuant to the Company’s request for suspension pursuant to Section 3(o).
(v) The Company may include in any such Demand Registration other Company Securities for sale for its own account or for the account of any other Person, subject to Section 2(a)(vi) and Section 2(c)(iii).
(vi) In the case of a Demand Registration not being underwritten, if the Initiating Holder advises the Company that in its reasonable opinion the aggregate number of securities requested to be included exceeds the number that can be included without being likely to have a significant adverse effect on the price, timing or distribution of the securities offered or the market for the securities offered, the Company shall include in such Demand Registration only that number of securities that in the reasonable opinion of the Initiating Holder will not have such adverse effect, with such number to be allocated as follows: (A) first, pro-rata among all Holders (including the Initiating Holder) that have requested to participate in such Demand Registration based on the relative number of Registrable Securities then held by each such Holder, (B) second, if there remains availability for additional securities to be included in such Demand Registration, the Company, and (C) third, if there remains availability for additional securities to be included in such Demand Registration, any other holders entitled to participate in such Demand Registration, if applicable, based on the relative number of securities such holder is entitled to include in such Demand Registration.
(vii) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration on such appropriate registration form of the Commission (A) as shall be selected by the Company and (B) as shall permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the Demand Notice; provided that if the Company becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to the Company). If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Company that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, the Company will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(viii) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), the Company 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, the Company would become subject to general service of process or to taxation or qualification to do business in such jurisdiction solely as a result of registration and (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.
(ix) In the event a Holder transfers Registrable Securities included on a Registration Statement and such Registrable Securities remain Registrable Securities following such transfer, at the request of such Holder, the Company 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 the Company be required to file a post-effective amendment to the Registration Statement unless (A) such Registration Statement includes only Registrable Securities held by the Holder, Affiliates of the Holder or transferees of the Holder or (B) the Company has received written consent therefor from a Person for whom Registrable Securities have been registered on (but not yet sold under) such Registration Statement, other than the Holder, Affiliates of the Holder or transferees of the Holder.
Appears in 2 contracts
Samples: Registration Rights Agreement (WildHorse Resource Development Corp), Registration Rights Agreement (WildHorse Resource Development Corp)
Demand Registration. (a) At any time beginning six months after the expiration of any applicable lock-up period agreed to by any Holder with the Managing Underwriter in connection with the IPO (or if such lock-up period is waived by such Managing Underwriter, from and after such earlier date), upon the date written request (a “Notice”) by a Holder or Holders collectively owning at least 250,000 of this Agreement and for a period of three years thereafterthe then outstanding Registrable Securities, subject to adjustment pursuant to Section 3.04, the Holder may make one written request Partnership shall file with the Commission, as soon as reasonably practicable, but in no event more than 60 days following the receipt of the Notice, a registration statement under the Securities Act (each, a “Registration Statement”) providing for registration the resale of the Registrable Securities. Each Registration Statement shall be on (i) Form S-3 providing for an offering to be made on a continuous basis pursuant to Rule 415 under the Securities Act relating to the offer and sale of securities from time to time (a “Shelf Registration Statement”), or (ii) if the Partnership is not then eligible to file on Form X-0, Xxxx X-0 or another form pursuant to any other rule or regulation promulgated under the Securities Act, (a "Demand Registration") or any successor rule that may be adopted by the Commission. The Partnership shall use its commercially reasonable efforts to cause each Registration Statement to be declared effective by the Commission as soon as reasonably practicable after the initial filing of the Registration Statement. Any Registration Statement shall provide for the resale pursuant to any method or combination of methods legally available and requested by the Holders of any and all or part of Holder's Registrable Securities (but covered by such part, together with the number of securities requested by other Approved Investors, Registration Statement. The Partnership shall use its commercially reasonable efforts to be included in such Demand cause each Registration Statement filed pursuant to this Section 2, shall have an estimated market value at the time of such request (based upon the then market price of a share of Common Stock of the Company) of at least $250,000. Notwithstanding the foregoing, the Company shall not be required to file any registration statement on behalf of the Holder within twelve months after the effective date of any earlier registration statement so long as the Holder was given a notice offering it the opportunity to sell Registrable Securities under the earlier registration statement and the Holder did not request that its Registrable Securities be included; provided, however, that if Holder requested that its Registrable Securities be included in the earlier registration statement but not all were so included through no fault of the Investor, the Investor may, but shall not be obligated to, require the Company to file another registration statement pursuant to a Demand Registration. Within fifteen (15) days after receipt of a request for a Demand Registration, the Company shall give written notice (the "Notice") of such request to all other Approved Investors and shall include in such registration all Registrable Securities that the Company has received written requests for inclusion therein within 15 days after the Notice is given (the "Requested Securities"). Thereafter, the Company may elect to include in such registration additional shares of Common Stock 2.01 to be issued by the Company. All requests made pursuant to this Section 2 shall specify the aggregate number of Registrable Securities to be registered.
(b) A registration shall not constitute a Demand Registration under this Section 2 until it has become continuously effective.
(c) The Holder making the Demand Registration may elect whether the offering of such Registrable Securities pursuant to such Demand Registration shall be in the form of a firm commitment underwritten offering or otherwise; provided, however, that such Holder may not elect that such offering be made on a delayed or continuous basis pursuant to rule 415 under the Securities Act. In any case in which an offering is in the form of a firm commitment underwritten offering, if the managing underwriter or underwriters of such offering advise the Company in writing that in its or their opinion the number of Registrable Securities proposed to be sold in such offering exceeds the number of Registrable Securities that can be sold in such offering without aversely affecting the market for the Company's Common Stock, the Company will include in such registration the number of Registrable Securities that in the opinion of such managing underwriter or underwriters can be sold without adversely affecting the market for the Company's Common Stock. In such event, the number of Registrable Securities, if any, to be offered for the accounts of Approved Investors (including the Holder making the Demand Registration) shall be reduced pro rata on the basis of the relative number of any Registrable Securities requested by each Approved Investor to be included in such registration supplemented and amended to the extent necessary to reduce ensure that it is available for the total number resale of all Registrable Securities to be included in such offering to by the number recommended by such managing underwriter or underwriters. In the event the Holder making the Demand shall receive notice pursuant to this Section 2(c) that the amount of Registrable Securities to be offered for such Holder shall be reduced, such Holder shall be entitled to withdraw the Demand by written notice to the Company within seven (7) days after receipt of such notice, with the effect that such Demand shall be deemed not to have been made.
(d) If any of the Holders until all Registrable Securities covered by a Demand such Registration are Statement have ceased to be sold Registrable Securities (the “Effectiveness Period”). Each Registration Statement when effective (and the documents incorporated therein by reference) shall comply as to form in an underwritten offering, the Approved Investors, in the aggregate, that own or will own a majority all material respects with all applicable requirements of the Registrable Securities that the Company has been requested Act and shall not contain an untrue statement of a material fact or omit to register (including the Requested Securities but excluding any securities state a material fact required to be issued stated therein or necessary to make the statements therein not misleading. There shall be no limit on the number of Registration Statements that may be required by the Company), shall have the right to select the investment banker or investment bankers and manager or managers that will underwrite the offering; provided, however, that such investment bankers and managers must be reasonably satisfactory to the CompanyHolders hereunder.
Appears in 2 contracts
Samples: Registration Rights Agreement (Lehigh Gas Partners LP), Registration Rights Agreement (Lehigh Gas Partners LP)
Demand Registration. (a) At After receipt of a written request from the Investor (or any time beginning six months other Holder) requesting that the Company effect a registration (a “Demand Registration”) under the Securities Act covering all or part of the Registrable Securities held by the Investor (or such other 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 Section 3 hereof may elect (by written notice sent to the Company within ten (10) Business Days from the date of this Agreement and for a period such Holder’s receipt of three years thereafter, the Holder may make one written request for registration under aforementioned notice from the Securities Act, (a "Demand Registration"Company) of to have all or part of such Holder's ’s Registrable Securities (but such part, together with the number of securities requested by other Approved Investors, to be included in such Demand Registration 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, but in any event no later than (i) forty-five (45) days (excluding any days which occur during a permitted Blackout Period under Section 4 below) after receipt of a written request for a Demand Registration or (ii) if, as of such forty-fifth (45th) day the Company does not have audited financial statements required to be included in a registration statement, thirty (30) days after receipt by the Company from its independent public accountants of such audited financial statements but in no event later than ninety (90) days after receipt of a written request for a Demand Registration Statement, file with the SEC and use its reasonable efforts to cause to be declared effective, a registration statement (a “Demand Registration Statement”) relating to all shares of Registrable Securities which the Company has been so requested to 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 value of the Registrable Securities requested to be registered (i) be at least US$25 million, based on the closing trading price of the Equity Shares on the date the demand to file such Demand Registration Statement is made or (ii) include all Registrable Securities of the Investor (or other Holder) requesting the Demand Registration which remain outstanding at such time.
(1) If the Investor (or other Holder) requesting the Demand Registration or the Participating Demand Holders holding a majority of the shares being so registered in a Demand Registration relating to a public offering so request that the offering be underwritten with a managing underwriter selected in the manner set forth in Section 12 below and such managing underwriter of such Demand Registration advises the Company in writing that, in its opinion, the number of securities to be included in such offering is greater than the total number of securities which can be sold therein without having a material adverse effect on the distribution of such securities or otherwise having a material adverse effect on the marketability thereof (the “Maximum Number of Securities”), then the Company shall include in such Demand Registration the Registrable Securities that the Participating Demand Holders have requested to be registered thereunder only to the extent the number of such Registrable Securities does not exceed the Maximum Number of Securities. If such amount exceeds the Maximum Number of Securities, the number of Registrable Securities included in such Demand Registration shall be allocated among all the Participating Demand Holders on a pro rata basis (based on the number of Registrable Securities held by each Participating Demand Holder). If the amount of such Registrable Securities does not exceed the Maximum Number of Securities, the Company may include in such Registration any Equity Shares of the Company and other Equity Shares held by other security holders of the Company, as the Company may in its discretion determine or be obligated to allow, in an amount which together with the Registrable Securities included in such Demand Registration shall not exceed the Maximum Number of Securities.
(2) If any Early Investor (or any Holder as defined in the First Registration Rights Agreement) requests pursuant to its piggy-back registration rights under the First Registration Rights Agreement to participate in a Demand Registration (the “Piggy-Back Holders”) and the managing underwriter of such Demand Registration advises the Company in writing that, in its opinion, the number of Registrable Securities (including, for this section only, the registrable securities held by the Piggy-Back Holders) to be included in such offering is greater than the Maximum Number of Securities, then the Company shall include in such Demand Registration the Registrable Securities that the Piggy-Back Holders have requested to be registered thereunder only to the extent the number of such Registrable Securities does not exceed the Maximum Number of Securities. If such amount exceeds the Maximum Number of Securities, the number of Registrable Securities included in such Demand Registration shall be allocated among all the Participating Demand Holders and the Piggy-Back Holders on a pro rata basis (based on the number of Registrable Securities held by each Participating Demand Holder or Piggy-Back Holder, as the case may be); provided that (x) the Piggy-Back Holders of Registrable Securities constituting Equity Shares issuable upon conversion of the Series H CCPSs (as defined in the First Registration Rights Agreement) shall have the right upon not more than one occasion to have their Registrable Securities included in such Demand Registration prior to any other Participating Demand Holders or Piggy-Back Holders and (y) if any of International Finance Corporation, DEG-Deutsche Investitions – und Entwicklungsgesellschaft mbH, IFC GIF Investment Company I or Société de Promotion et de Participation pour la Coopération Économique have notified the Company of a Policy Breach (as defined in the First Registration Rights Agreement), and such Policy Breach is not rectified within 120 days after such notice, such Piggy-Back Holders shall have the right to include their Registrable Securities in such Demand Registration prior to any other Participating Demand Holders or Piggy-Back Holders. If the amount of such Registrable Securities does not exceed the Maximum Number of Securities, the Company may include in such Demand Registration any Equity Shares of the Company and other Equity Shares held by other security holders of the Company, as the Company may in its discretion determine or be obligated to allow, in an estimated market value at amount which together with the Registrable Securities included in such Demand Registration shall not exceed the Maximum Number of Securities.
(c) At any time when the Company meets the requirements for the use of Form F-3 (or successor form) or Form S-3 (or successor form) under the Securities Act for registration of a secondary offering of equity securities (a “shelf registration statement”), any Demand Registration Statement may be required by the Investor (or other Holder) requesting the demand therefor, to be in an appropriate form under the Securities Act (a “Shelf Registration Statement”) relating to any or all of the Registrable Securities in accordance with the methods and distribution set forth in the Shelf Registration Statement and Rule 415 under the Securities Act (the “Shelf Registration”). In the event an Investor (or other Holder) so requests a Shelf Registration, the Company shall (x) notify all Holders in writing of the receipt of such request and each such Holder may elect (based upon by written notice sent to the then market price Company within fifteen (15) Business Days from the date of a share such Holder’s receipt of Common Stock of the aforementioned notice from the Company) to have all or part of such Holder’s Registrable Securities included in such registration thereof pursuant to this Section 2(c), and such Holder shall specify in such notice the number of Registrable Securities that such Holder elects to include in such registration and (y) use its reasonable efforts to (a) file the Shelf Registration Statement with the SEC and have the Shelf Registration Statement declared effective, (b) subject to Section 4, prepare and file with the SEC such amendments and supplements to the Shelf Registration Statement and the prospectus used in connection therewith (including filing such additional registration statements as necessary and using reasonable efforts to have such registration statements be declared effective so that a Shelf Registration Statement remains continuously effective as set forth below) as may be necessary to comply with the provisions of the Securities Act, and the rules thereunder with respect to the disposition of all securities covered by such Shelf Registration Statement and to keep a shelf registration statement continuously effective with respect to such Registrable Securities, until the earlier of (i) the date on which all Registrable Securities covered by the Shelf Registration Statement have been sold by the Holders, or (ii) the date on which either all such Registrable Securities are distributed to the public pursuant to Rule 144 (or any successor provision then in effect), and (c) comply with the provisions of the Securities Act with respect to the disposition of all securities covered by the Shelf Registration Statement during such period in accordance with the intended methods of disposition by the Holders as set forth in the Shelf Registration Statement. Any offering under a Shelf Registration Statement shall be underwritten at the request of Holders of Registrable Securities under such Registration Statement that hold an aggregate value of the Registrable Securities at least $250,000equal to US$10 million, based on the closing trading price of the Equity Shares on a date no earlier than three (3) days prior to such request; provided that the Company shall not be obligated to effect, or take any action to effect, an underwritten offering within six months following the last date on which an underwritten offering was effected pursuant to this Section 2(c) or Section 2(b). Any request for an underwritten offering hereunder shall be made to the Company in accordance with the notice provisions of this Agreement and the managing underwriter for such offering shall be selected in the manner set forth in Section 12 below. If the managing underwriter of an offering described in this Section 2(c) advises the Company and the Selling Holders of the Registrable Securities included in such offering that the size of the intended offering is such that the success of the offering or price per share of the securities sold would be adversely affected by inclusion of all the Registrable Securities requested to be included, then the amount of securities to be offered for the accounts of Holders shall be reduced pro rata (according to the Registrable Securities requested for inclusion) to the extent necessary to reduce the total amount of securities to be included in such offering to the amount recommended by such managing underwriter.
(d) Each Holder shall be entitled to request up to five (5) registrations of Registrable Securities pursuant to this Section 2 (each, a “Demand for Registration”); provided that no more than one (1) Demand for Registration may be made by the Holders per six-month period; and provided further, that a registration requested pursuant to this Section 2 shall not be deemed to have been effected for purposes of this Section 2(d) unless (i) it has been declared effective by the SEC, (ii) it has remained effective for the period set forth in Section 5(a), (iii) Holders of Registrable Securities included in such registration have not withdrawn sufficient shares from such registration such that the remaining holders requesting registration would not have been able to request registration under the provisions of Section 2 and (iv) the offering of Registrable Securities pursuant to such registration is not subject to any stop order, injunction or other order or requirement of the SEC (other than any such stop order, injunction, or other requirement of the SEC prompted by act or omission of Holders of Registrable Securities); and provided further that, in the event a Holder revokes a Demand for Registration (which revocation may only be made prior to the Company requesting acceleration of effectiveness of the applicable Registration Statement), then such Demand for Registration shall count as having been effected unless such Holder pays all the Registration Expenses in connection with such revoked Demand for Registration within thirty (30) days of written request therefor by the Company. Notwithstanding the foregoing, a Holder may revoke a Demand for Registration without being required to reimburse the Company for any of the Registration Expenses and without such demand counting toward the number of Demand for Registrations permitted under this Section 2, if such revocation occurs during a Blackout Period or if there has been a material adverse change in the business of the Company.
(e) Notwithstanding anything to the contrary contained herein, the Company shall not be required to prepare and file any registration statement on behalf of the Holder Demand Registration Statement within twelve months after the effective date of any earlier registration statement so long as the Holder was given a notice 90 days following an underwritten offering it the opportunity to sell Registrable Securities under the earlier registration statement and the Holder did not request that its Registrable Securities be included; provided, however, that if Holder requested that its Registrable Securities be included in the earlier registration statement but not all were so included through no fault of the Investor, the Investor may, but shall not be obligated to, require the Company to file another registration statement pursuant to a Demand Registration. Within fifteen Registration Statement.
(15f) days after receipt of a request for a Demand RegistrationEach Holder agrees that, the Company shall give written notice (the "Notice") of such request to all other Approved Investors and shall include in such registration all Registrable Securities that the Company has received written requests for inclusion therein within 15 days after the Notice is given (the "Requested Securities"). Thereafter, the Company may elect to include in such registration additional shares of Common Stock to be issued by the Company. All requests made connection with any offering pursuant to this Section 2 shall specify Agreement, it will not prepare or use or refer to, any “free writing prospectus” (as defined in Rule 405 of the aggregate number Securities Act) without the prior written authorization of Registrable Securities to be registered.
the Company (b) A registration which authorization shall not constitute a Demand Registration under this Section 2 until it has become effective.
(c) The Holder making be unreasonably withheld), and will not distribute any written materials in connection with the Demand Registration may elect whether offer or sale of the offering of such Registrable Securities pursuant to such Demand Registration shall be in any registration statement hereunder other than the form of a firm commitment underwritten offering or otherwise; provided, however, that such Holder may not elect that such offering be made on a delayed or continuous basis pursuant to rule 415 under the Securities Act. In any case in which an offering is in the form of a firm commitment underwritten offering, if the managing underwriter or underwriters of such offering advise the Company in writing that in its or their opinion the number of Registrable Securities proposed to be sold in such offering exceeds the number of Registrable Securities that can be sold in such offering without aversely affecting the market for the Company's Common Stock, the Company will include in such registration the number of Registrable Securities that in the opinion of such managing underwriter or underwriters can be sold without adversely affecting the market for the Company's Common Stock. In such event, the number of Registrable Securities, if any, to be offered for the accounts of Approved Investors (including the Holder making the Demand Registration) shall be reduced pro rata on the basis of the relative number of any Registrable Securities requested by each Approved Investor to be prospectus included in a Registration Statement and any such registration to the extent necessary to reduce the total number of Registrable Securities to be included in such offering to the number recommended by such managing underwriter or underwriters. In the event the Holder making the Demand shall receive notice pursuant to this Section 2(c) that the amount of Registrable Securities to be offered for such Holder shall be reduced, such Holder shall be entitled to withdraw the Demand by written notice to the Company within seven (7) days after receipt of such notice, with the effect that such Demand shall be deemed not to have been madefree writing prospectus so authorized.
(d) If any of the Registrable Securities covered by a Demand Registration are to be sold in an underwritten offering, the Approved Investors, in the aggregate, that own or will own a majority of the Registrable Securities that the Company has been requested to register (including the Requested Securities but excluding any securities to be issued by the Company), shall have the right to select the investment banker or investment bankers and manager or managers that will underwrite the offering; provided, however, that such investment bankers and managers must be reasonably satisfactory to the Company.
Appears in 2 contracts
Samples: Subscription Agreement (Azure Power Global LTD), Subscription Agreement (Azure Power Global LTD)
Demand Registration. (a) At any time beginning six months from following the date expiration of this Agreement and for the Disposition Restriction Period, if the Company is unable to file, cause to be effective or maintain the effectiveness of a period of three years thereafterShelf Registration Statement as required under Section 5.1 hereof, the Holder may make one Investors’ Representative shall have the right, by delivering a written request for registration notice to the Company (a “Demand Notice”), to require the Company to register under and in accordance with the provisions of the Securities Act, (a "Demand Registration") of all or part of Holder's Registrable Securities (but such part, together with Act the number of securities Registrable Securities Beneficially Owned by any Investors and requested by other Approved Investors, such Demand Notice to be included in such so registered (a “Demand Registration pursuant to this Section 2Registration”); provided, shall have an estimated market value at the time of such request (based upon the then market price of a share of Common Stock of the Company) of at least $250,000. Notwithstanding the foregoinghowever, that the Company shall not be required to file any registration statement on behalf of the Holder within twelve months after the effective date of any earlier registration statement so long as the Holder was given a notice offering it the opportunity effect more than two (2) Demand Registrations for underwritten offerings pursuant to sell Registrable Securities under the earlier registration statement and the Holder did not request that its Registrable Securities be includedthis Section 5.2(a); and, provided, howeverfurther, that if Holder requested that its Registrable Securities be included in the earlier registration statement but not all were so included through no fault of the Investor, the Investor may, but Investors shall not be obligated to, require entitled to deliver to the Company to file another registration statement pursuant to more than one (1) Demand Registration in any twelve (12) month period and, in any event, a Demand RegistrationNotice may only be made if the sale of the Registrable Securities requested to be registered by the Investors’ Representative is reasonably expected to result in aggregate gross cash proceeds in excess of $100,000,000 (without regard to any underwriting discount or commission); and provided, further that the Investors shall not be entitled to request more than two (2) Company Supported Distributions in the aggregate (including underwritten Demand Registrations). Within fifteen (15) days after A Demand Notice shall also specify the expected method or methods of disposition of the applicable Registrable Securities. Following receipt of a request for a Demand RegistrationNotice, the Company shall give written notice (use commercially reasonable efforts to file, as promptly as reasonably practicable, but not later than 30 days after receipt by the "Notice") Company of such request Demand Notice, a Registration Statement relating to all other Approved the offer and sale of the Registrable Securities requested to be included therein by the Investors thereof in accordance with the methods of distribution elected by such Investors (a “Demand Registration Statement”) and shall include in use commercially reasonable efforts to cause such registration all Registration Statement to be declared effective under the Securities Act as promptly as practicable after the filing thereof, it being agreed that if any Investor intends to distribute any Registrable Securities that by means of an underwritten offering it shall promptly so advise the Company has received written requests for inclusion therein within 15 days after the Notice is given (the "Requested Securities"). Thereafter, and the Company may elect shall cooperate with such Investor to include in facilitate such registration additional shares of Common Stock distribution, including but not limited to be issued by the Company. All requests made actions required pursuant to this Section 2 shall specify the aggregate number of Registrable Securities to be registered5.5(a)(viii) and, if a Company Supported Distribution is requested, Section 5.5(a)(xiv).
(b) A registration shall not constitute If any of the Registrable Securities registered pursuant to a Demand Registration under this Section 2 until it has become effective.
(c) The Holder making the Demand Registration may elect whether the offering of such Registrable Securities pursuant are to such Demand Registration shall be sold in the form of a firm commitment underwritten offering or otherwise; provided, however, that such Holder may not elect that such offering be made on a delayed or continuous basis pursuant to rule 415 under the Securities Act. In any case in which an offering is in the form of a firm commitment underwritten offering, if and the managing underwriter or underwriters underwriter(s) of such underwritten offering advise the Company Investors in writing that in its it is their good faith opinion that the total number or their opinion the number dollar amount of Registrable Securities proposed to be sold in such offering offering, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of Registrable Securities such securities that can be sold without having an adverse effect on the price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such firm commitment underwritten offering without aversely affecting the market for the Company's Common Stock, the Company will include in such registration the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter or underwriters underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
(i) first, the market Registrable Securities for which inclusion in such underwritten offering was requested by the Company's Common Stock. In such eventInvestors, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Investor; and
(ii) second, among any holders of Other Securities, if anypro rata, based on the number of Other Securities Beneficially Owned by each such holder of Other Securities; provided that, in the event that, due to a cutback in accordance with this clause (c), Investors are unable to sell at least 90% of the Registrable Securities initially proposed to be offered for sold in a Company Supported Distribution, such offering shall not constitute a Company Supported Distribution and count against the accounts limit thereof.
(c) In the event of Approved Investors (including the Holder making the a Demand Registration) , the Company shall be reduced pro rata on required to maintain the basis continuous effectiveness of the relative number applicable Registration Statement for a period of any at least 180 days after the effective date thereof or such shorter period in which all Registrable Securities requested by each Approved Investor to be included in such registration to the extent necessary to reduce the total number of Registrable Securities to be included in such offering to the number recommended by such managing underwriter or underwriters. In the event the Holder making the Demand shall receive notice pursuant to this Section 2(c) that the amount of Registrable Securities to be offered for such Holder shall be reduced, such Holder shall be entitled to withdraw the Demand by written notice to the Company within seven (7) days after receipt of such notice, with the effect that such Demand shall be deemed not to Registration Statement have actually been madesold.
(d) If any of the Registrable Securities covered by a Demand Registration are to be sold in an underwritten offering, the Approved The Investors, in the aggregate, that own or will own a majority of the Registrable Securities that the Company has been requested to register (including the Requested Securities but excluding any securities to be issued by the Company), ’ Representative shall have the right to select notify the investment banker Company that it has determined that the Registration Statement relating to a Demand Registration be abandoned or investment bankers withdrawn, in which event the Company shall promptly abandon or withdraw such Registration Statement and manager such withdrawn registration shall not count against the limit of Demand Registrations or managers that will underwrite the offeringCompany Supported Distributions, as applicable; provided, however, that such investment bankers the Company shall not be required to pay for expenses of any registration proceeding begun pursuant to Section 5.2(a) hereof, which has been subsequently withdrawn pursuant to this Section 5.2(d) at the request of the Investors’ Representative, and managers must shall be reasonably satisfactory reimbursed by the Investors whose Registrable Securities were intended to be included in the Demand Registration Statement for reasonable and documented out-of-pocket expenses (including legal fees and printing expenses) so incurred, unless the withdrawal is based upon material adverse information concerning the Company that the Company has not publicly disclosed at least five (5) Business Days prior to the Company’s receipt of such withdrawal request.
(e) Notwithstanding anything contained herein to the contrary, with the prior written consent of the Investors’ Representative (which consent shall not be unreasonably withheld, conditioned or delayed), the Company shall be entitled to coordinate any offerings under this Section 5.2 with any offerings to be effected pursuant to similar agreements with the holders of Other Securities, including, if practicable, by filing one Registration Statement for all Other Securities.
Appears in 2 contracts
Samples: Stockholders Agreement (Phillips Van Heusen Corp /De/), Shareholder Agreement (Tommy Hilfiger Holding Sarl)
Demand Registration. Upon the written request (aa “Notice”) At by GPM or by any time beginning six months from other Holder(s) owning at least ten percent (10%) of the date of this Agreement and for a period of three years thereafterthen-outstanding Registrable Securities (subject to adjustment pursuant to Section 3.04), the Holder may make one written request for Partnership shall file with the Commission, as soon as reasonably practicable, but in no event more than 90 days following the receipt of the Notice, a registration statement (each, a “Registration Statement”) under the Securities Act, (a "Demand Registration") Act providing for the resale of all or part of Holder's the Registrable Securities (but which may, at the option of the Holders giving such partNotice, together with be a registration statement under the number Securities Act that provides for the resale of securities requested the Registrable Securities pursuant to Rule 415 from time to time by other Approved Investors, the Holders (a “Shelf Registration Statement”)). The Partnership shall use its commercially reasonable efforts to cause each Registration Statement to be included in declared effective by the Commission as soon as reasonably practicable after the initial filing of the Registration Statement. Any Registration Statement shall provide for the resale pursuant to any method or combination of methods legally available to, and requested by, the Holders of any and all Registrable Securities covered by such Demand Registration Statement. The Partnership shall use its commercially reasonable efforts to cause each Registration Statement filed pursuant to this Section 2, shall have an estimated market value at the time of such request (based upon the then market price of a share of Common Stock of the Company) of at least $250,000. Notwithstanding the foregoing, the Company shall not be required to file any registration statement on behalf of the Holder within twelve months after the effective date of any earlier registration statement so long as the Holder was given a notice offering it the opportunity to sell Registrable Securities under the earlier registration statement and the Holder did not request that its Registrable Securities be included; provided, however, that if Holder requested that its Registrable Securities be included in the earlier registration statement but not all were so included through no fault of the Investor, the Investor may, but shall not be obligated to, require the Company to file another registration statement pursuant to a Demand Registration. Within fifteen (15) days after receipt of a request for a Demand Registration, the Company shall give written notice (the "Notice") of such request to all other Approved Investors and shall include in such registration all Registrable Securities that the Company has received written requests for inclusion therein within 15 days after the Notice is given (the "Requested Securities"). Thereafter, the Company may elect to include in such registration additional shares of Common Stock 2.01 to be issued by the Company. All requests made pursuant to this Section 2 shall specify the aggregate number of Registrable Securities to be registered.
(b) A registration shall not constitute a Demand Registration under this Section 2 until it has become continuously effective.
(c) The Holder making the Demand Registration may elect whether the offering of such Registrable Securities pursuant to such Demand Registration shall be in the form of a firm commitment underwritten offering or otherwise; provided, however, that such Holder may not elect that such offering be made on a delayed or continuous basis pursuant to rule 415 under the Securities Act. In any case in which an offering is in the form of a firm commitment underwritten offering, if the managing underwriter or underwriters of such offering advise the Company in writing that in its or their opinion the number of Registrable Securities proposed to be sold in such offering exceeds the number of Registrable Securities that can be sold in such offering without aversely affecting the market for the Company's Common Stock, the Company will include in such registration the number of Registrable Securities that in the opinion of such managing underwriter or underwriters can be sold without adversely affecting the market for the Company's Common Stock. In such event, the number of Registrable Securities, if any, to be offered for the accounts of Approved Investors (including the Holder making the Demand Registration) shall be reduced pro rata on the basis of the relative number of any Registrable Securities requested by each Approved Investor to be included in such registration supplemented and amended to the extent necessary to reduce ensure that it is available for the total number resale of all Registrable Securities to be included in such offering to by the number recommended by such managing underwriter or underwriters. In the event the Holder making the Demand shall receive notice pursuant to this Section 2(c) that the amount of Registrable Securities to be offered for such Holder shall be reduced, such Holder shall be entitled to withdraw the Demand by written notice to the Company within seven (7) days after receipt of such notice, with the effect that such Demand shall be deemed not to have been made.
(d) If any of the Holders until all Registrable Securities covered by a Demand such Registration are Statement have ceased to be sold Registrable Securities (the “Effectiveness Period”). Each Registration Statement when effective (and the documents incorporated therein by reference) shall comply as to form in an underwritten offering, the Approved Investors, in the aggregate, that own or will own a majority all material respects with all applicable requirements of the Registrable Securities that the Company has been requested Act and shall not contain an untrue statement of a material fact or omit to register (including the Requested Securities but excluding any securities state a material fact required to be issued stated therein or necessary to make the statements therein not misleading. There shall be no limit on the number of Registration Statements that may be required by the Company), shall have the right to select the investment banker or investment bankers and manager or managers that will underwrite the offering; provided, however, that such investment bankers and managers must be reasonably satisfactory to the CompanyHolders hereunder.
Appears in 2 contracts
Samples: Registration Rights Agreement (GPM Petroleum LP), Registration Rights Agreement (GPM Petroleum LP)
Demand Registration. Upon the written request (aa “Notice”) At any time beginning six months from by Holders collectively owning at least 10% the date of this Agreement and for a period of three years thereafterthen-outstanding Registrable Securities, the Holder may make one written request for Partnership shall file with the Commission, as soon as reasonably practicable, but in no event more than 90 days following the receipt of the Notice, a registration statement (each a “Registration Statement”) under the Securities ActAct providing for the resale of such Registrable Securities, as the case may be, (a "Demand Registration") of all or part of Holder's Registrable Securities (but such partwhich may, together with the number of securities requested by other Approved Investors, to be included in such Demand Registration pursuant to this Section 2, shall have an estimated market value at the time of such request (based upon the then market price of a share of Common Stock option of the Company) of at least $250,000. Notwithstanding the foregoingHolders giving such Notice, the Company shall not be required to file any a registration statement on behalf of the Holder within twelve months after the effective date of any earlier registration statement so long as the Holder was given a notice offering it the opportunity to sell Registrable Securities under the earlier registration statement and Securities Act that provides for the Holder did not request that its Registrable Securities be included; provided, however, that if Holder requested that its Registrable Securities be included in the earlier registration statement but not all were so included through no fault of the Investor, the Investor may, but shall not be obligated to, require the Company to file another registration statement pursuant to a Demand Registration. Within fifteen (15) days after receipt of a request for a Demand Registration, the Company shall give written notice (the "Notice") of such request to all other Approved Investors and shall include in such registration all Registrable Securities that the Company has received written requests for inclusion therein within 15 days after the Notice is given (the "Requested Securities"). Thereafter, the Company may elect to include in such registration additional shares of Common Stock to be issued by the Company. All requests made pursuant to this Section 2 shall specify the aggregate number of Registrable Securities to be registered.
(b) A registration shall not constitute a Demand Registration under this Section 2 until it has become effective.
(c) The Holder making the Demand Registration may elect whether the offering resale of such Registrable Securities pursuant to such Demand Registration Rule 415 from time to time by the Holders). There shall be in the form of a firm commitment underwritten offering or otherwise; provided, however, that such Holder may not elect that such offering be made no limit on a delayed or continuous basis pursuant to rule 415 under the Securities Act. In any case in which an offering is in the form of a firm commitment underwritten offering, if the managing underwriter or underwriters of such offering advise the Company in writing that in its or their opinion the number of Registration Statements that may be required by the Holders pursuant to this Section 2.01. The Partnership shall use its commercially reasonable efforts to cause each Registration Statement to be declared effective by the Commission as soon as reasonably practicable after the initial filing of the Registration Statement. Any Registration Statement shall provide for the resale pursuant to any method or combination of methods legally available to, and requested by, the Holders of any and all such Registrable Securities proposed covered by such Registration Statement. The Partnership shall use its commercially reasonable efforts to cause each Registration Statement filed pursuant to this Section 2.01 to be sold in such offering exceeds the number of Registrable Securities that can be sold in such offering without aversely affecting the market for the Company's Common Stockcontinuously effective, the Company will include in such registration the number of Registrable Securities that in the opinion of such managing underwriter or underwriters can be sold without adversely affecting the market for the Company's Common Stock. In such event, the number of Registrable Securities, if any, to be offered for the accounts of Approved Investors (including the Holder making the Demand Registration) shall be reduced pro rata on the basis of the relative number of any Registrable Securities requested by each Approved Investor to be included in such registration supplemented and amended to the extent necessary to reduce ensure that it is available for the total number resale of all such Registrable Securities to be included in by the Holders until all such offering to the number recommended by such managing underwriter or underwriters. In the event the Holder making the Demand shall receive notice pursuant to this Section 2(c) that the amount of Registrable Securities to be offered for such Holder shall be reduced, such Holder shall be entitled to withdraw the Demand by written notice to the Company within seven (7) days after receipt of such notice, with the effect that such Demand shall be deemed not to have been made.
(d) If any of the Registrable Securities covered by a Demand such Registration are Statement have ceased to be sold Registrable Securities (the “Effectiveness Period”). Each Registration Statement when effective (and the documents incorporated therein by reference) shall comply as to form in all material respects with all applicable requirements of the Securities Act and the Exchange Act and shall not contain an underwritten offering, untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the Approved Investorsstatements therein not misleading (in the case of any prospectus contained in such Registration Statement, in the aggregate, that own or will own a majority light of the Registrable Securities that the Company has been requested to register (including the Requested Securities but excluding any securities to be issued by the Companycircumstances under which a statement is made), shall have the right to select the investment banker or investment bankers and manager or managers that will underwrite the offering; provided, however, that such investment bankers and managers must be reasonably satisfactory to the Company.
Appears in 2 contracts
Samples: Registration Rights Agreement (Arc Logistics Partners LP), Registration Rights Agreement (Arc Logistics Partners LP)
Demand Registration. Notwithstanding anything herein to the contrary, and in addition to its obligations under Section 3(a) hereinabove, the Company shall:
(ai) At any time beginning six months after receipt of a written request from the date of this Agreement and for Holder requesting that the Company effect a period of three years thereafter, the Holder may make one written request for registration under the Securities Act, (a "Demand Registration") of under the Securities Act covering all or part of Holder's the Registrable Securities (held by such Holder which specifies the intended method or methods of disposition thereof, as expeditiously as is possible, but such partin any event no later than 90 days after receipt of a written request for a Demand Registration, together file with the number SEC and use its reasonable best efforts to cause to be declared effective as soon as reasonably practicable, a registration statement (a "Demand Registration Statement") relating to all shares of securities Registrable Securities which the Company has been so requested to register by other Approved Investorsthe Holder for sale, to be included the extent required to permit the disposition (in such accordance with the intended method or methods thereof, as aforesaid) of the Registrable Securities so registered.
(ii) If the Company is eligible to use Form S-3, any Demand Registration pursuant Statement may be required by the Holder to this Section 2, shall have be in an estimated market value at appropriate form under the time of such request (based upon the then market price of a share of Common Stock Securities Act relating to any or all of the CompanyRegistrable Securities in accordance with the methods and distribution set forth in the Form S-3 and Rule 415 under the Securities Act (the "Shelf Registration"). Any such demand to file a Form S-3 shall require the use of one Demand Registration. The Holder shall be entitled to an aggregate of two registrations of Registrable Securities.
(iii) of at least $250,000. Notwithstanding the foregoing, the The Company shall not be required to file any effect a registration statement on behalf of the Holder within twelve months after the effective date of any earlier registration statement so long as the Holder was given a notice offering it the opportunity to sell Registrable Securities under the earlier registration statement and the Holder did not request that its Registrable Securities be included; provided, however, that if Holder requested that its Registrable Securities be included in the earlier registration statement but not all were so included through no fault of the Investor, the Investor may, but shall not be obligated to, require the Company to file another registration statement pursuant to a Demand Registration. Within fifteen (15) days after receipt of a request for a Demand Registration, the Company shall give written notice (the "Notice") of such request to all other Approved Investors and shall include in such registration all Registrable Securities that the Company has received written requests for inclusion therein within 15 days after the Notice is given (the "Requested Securities"). Thereafter, the Company may elect to include in such registration additional shares of Common Stock to be issued by the Company. All requests made pursuant to this Section 2 shall specify 3:
(1) pursuant to a written opinion of counsel for the aggregate number of Company, all the Registrable Securities can be sold pursuant to be registered.Rule 144 in any three month period (such date being the "144 Sale Date"); or
(b2) A during the period starting with the date 45 days prior to the Company's estimated date of filing of, and ending on the date 90 days immediately following the effective date of, any registration shall not constitute a Demand Registration under this Section 2 until it has become effective.
(c) The Holder making the Demand Registration may elect whether the statement pertaining to an underwritten public offering of such newly issued securities of the Company with respect to which the Holder has the right to request inclusion of Registrable Securities pursuant to such Demand Registration shall be in the form of a firm commitment underwritten offering or otherwise; providedSection 3, however, provided that such Holder may not elect that such offering be made on a delayed or continuous basis pursuant to rule 415 under the Securities Act. In any case in which an offering is in the form of a firm commitment underwritten offering, if the managing underwriter or underwriters of such offering advise the Company is actively employing in writing that in its or their opinion the number of Registrable Securities proposed good faith commercially reasonable efforts to be sold in such offering exceeds the number of Registrable Securities that can be sold in such offering without aversely affecting the market for the Company's Common Stock, the Company will include in such registration the number of Registrable Securities that in the opinion of such managing underwriter or underwriters can be sold without adversely affecting the market for the Company's Common Stock. In such event, the number of Registrable Securities, if any, to be offered for the accounts of Approved Investors (including the Holder making the Demand Registration) shall be reduced pro rata on the basis of the relative number of any Registrable Securities requested by each Approved Investor to be included in cause such registration to the extent necessary to reduce the total number of Registrable Securities to be included in such offering to the number recommended by such managing underwriter or underwriters. In the event the Holder making the Demand shall receive notice pursuant to this Section 2(c) that the amount of Registrable Securities to be offered for such Holder shall be reduced, such Holder shall be entitled to withdraw the Demand by written notice to the Company within seven (7) days after receipt of such notice, with the effect that such Demand shall be deemed not to have been madebecome effective.
(d) If any of the Registrable Securities covered by a Demand Registration are to be sold in an underwritten offering, the Approved Investors, in the aggregate, that own or will own a majority of the Registrable Securities that the Company has been requested to register (including the Requested Securities but excluding any securities to be issued by the Company), shall have the right to select the investment banker or investment bankers and manager or managers that will underwrite the offering; provided, however, that such investment bankers and managers must be reasonably satisfactory to the Company.
Appears in 2 contracts
Samples: Registration Rights Agreement (Digital Lifestyles Group Inc), Registration Rights Agreement (Digital Lifestyles Group Inc)
Demand Registration. (a) At any time during the period beginning six months from on the date of this Agreement Demand Rights Commencement Date and for a period of three years thereafterending at the Registration Rights Termination Time, the Holder may make one deliver a written request to the Company (the “Demand Registration Notice”) to file a Registration Statement (the “Demand Registration Statement”) for the registration under of Registrable Securities to be offered and sold pursuant to an Underwritten Offering (the Securities Act, (a "“Demand Registration") ”). The Demand Registration Notice shall specify the aggregate number of all or part of Holder's Registrable Securities (but such partrequested to the registered pursuant to the Demand Registration. Subject to the limitations set forth in Section 2.6(a), together the Company shall use commercially reasonable efforts to file as soon as reasonably practicable with the number SEC (and, unless otherwise agreed to by the Holder, on or before 20 Business Days after its receipt of securities requested by other Approved Investorsthe Demand Registration Notice or, if financial statements required to be included in such a filing are not reasonably available on or before the expiration of such period of 20 Business Days, as soon as reasonably practicable thereafter), and cause to become or be declared effective under the Securities Act as soon as reasonably practicable, a Demand Registration Statement as will permit the sale and distribution of all or such portion of the Holder’s Registrable Securities as are specified in the Demand Registration Notice. The Company shall promptly notify the Holder of the date on which the Demand Registration Statement becomes or is declared effective.
(b) The Holder shall have the right to cause the Company to effect one Demand Registration pursuant to Section 2.2(a). A Demand Registration requested pursuant to Section 2.2(a) shall not be deemed to be effected for purposes of this Section 2, shall 2.2 if (i) the Demand Registration Statement for such registration has not been declared effective by the SEC or has not become effective in accordance with the Securities Act and the rules and regulations thereunder or (ii) no Registrable Securities have an estimated market value at the time of been sold under such request Demand Registration Statement.
(based upon the then market price of a share of Common Stock of the Companyc) of at least $250,000. Notwithstanding the foregoingprovisions of Section 2.2(a), the Company shall not be required to file take any registration statement on behalf of the Holder within twelve months after the effective date of any earlier registration statement so long as the Holder was given a notice offering it the opportunity to sell Registrable Securities under the earlier registration statement and the Holder did not request that its Registrable Securities be included; provided, however, that if Holder requested that its Registrable Securities be included in the earlier registration statement but not all were so included through no fault of the Investor, the Investor may, but shall not be obligated to, require the Company to file another registration statement pursuant to a Demand Registration. Within fifteen (15) days after receipt of a request for a Demand Registration, the Company shall give written notice (the "Notice") of such request to all other Approved Investors and shall include in such registration all Registrable Securities that the Company has received written requests for inclusion therein within 15 days after the Notice is given (the "Requested Securities"). Thereafter, the Company may elect to include in such registration additional shares of Common Stock to be issued by the Company. All requests made action pursuant to this Section 2 shall specify 2.2 if (i) the aggregate number of Registrable Securities which the Company shall have been requested to be registered.
register shall have a reasonably anticipated net aggregate offering price (bafter deduction of underwriting discounts and fees and offering expenses) A of less than $35,000,000, as determined in good faith by the Company at the time of its receipt of the Demand Registration Notice, or (ii) the Company shall have consummated a registration shall not constitute of Common Stock under the Securities Act (other than an Excluded Registration) within the 120-day period immediately preceding delivery of a Demand Registration under this Section 2 until it has become effective.
(c) The Holder making the Demand Registration may elect whether the offering of such Registrable Securities pursuant to such Demand Registration shall be in the form of a firm commitment underwritten offering or otherwise; provided, however, that such Holder may not elect that such offering be made on a delayed or continuous basis pursuant to rule 415 under the Securities Act. In any case in which an offering is in the form of a firm commitment underwritten offering, if the managing underwriter or underwriters of such offering advise the Company in writing that in its or their opinion the number of Registrable Securities proposed to be sold in such offering exceeds the number of Registrable Securities that can be sold in such offering without aversely affecting the market for the Company's Common Stock, the Company will include in such registration the number of Registrable Securities that in the opinion of such managing underwriter or underwriters can be sold without adversely affecting the market for the Company's Common Stock. In such event, the number of Registrable Securities, if any, to be offered for the accounts of Approved Investors (including the Holder making the Demand Registration) shall be reduced pro rata on the basis of the relative number of any Registrable Securities requested by each Approved Investor to be included in such registration to the extent necessary to reduce the total number of Registrable Securities to be included in such offering to the number recommended by such managing underwriter or underwriters. In the event the Holder making the Demand shall receive notice pursuant to this Section 2(c) that the amount of Registrable Securities to be offered for such Holder shall be reduced, such Holder shall be entitled to withdraw the Demand by written notice to the Company within seven (7) days after receipt of such notice, with the effect that such Demand shall be deemed not to have been madeNotice.
(d) If any of Subject to the Registrable Securities covered by a Demand Registration are to be sold limitations set forth in an underwritten offeringSection 2.4(a), the Approved Investors, in the aggregate, that own or will own a majority of the Registrable Securities that the Company has been requested to register (including the Requested Securities but excluding any securities to be issued by the Company), shall have the right to select the investment banker or investment bankers and manager or managers that will underwrite the offering; provided, however, that include in any Demand Registration Statement such investment bankers and managers must be reasonably satisfactory to the Companynumber of shares of Common Stock as it may specify.
Appears in 2 contracts
Samples: Registration Rights and Governance Agreement (Advisory Board Co), Stock Purchase Agreement (Advisory Board Co)
Demand Registration. (a) At any time beginning six months In the event that the SB-2 Registration Statement is not filed by the Company within 125 days from the date hereof pursuant to Section 1.2 hereof, a Holder or Holders shall be entitled to initiate registration request hereunder (“Initiating Holders) The Initiating Holders shall so advise the Company in writing that the Company file a registration statement under the Act registering the Registrable Securities. The Company shall file a Form SB-2 Registration Statement no later than 45 days from the date of this Agreement such registration request and for a period of three years thereafter, be declared effective not later than 90 days from the date thereof. The Company and the Holder may make one written request for shall further agree that such filing will satisfy the piggyback registration under the Securities Act, (a "Demand Registration") of all or part of Holder's Registrable Securities (but such part, together with the number of securities requested by other Approved Investors, rights given to be included in such Demand Registration Holder pursuant to this Section 2, shall have an estimated market value at the time of such request (based upon the then market price of a share of Common Stock of the Company) of at least $250,000. Notwithstanding the foregoing, the Company shall not be required to file any registration statement on behalf of the Holder within twelve months after the effective date of any earlier registration statement so long as the Holder was given a notice offering it the opportunity to sell Registrable Securities under the earlier registration statement and the Holder did not request that its Registrable Securities be included; provided, however, that if Holder requested that its Registrable Securities be included in the earlier registration statement but not all were so included through no fault of the Investor, the Investor may, but shall not be obligated to, require the Company to file another registration statement pursuant to a Demand Registration. Within fifteen (15) days after receipt of a request for a Demand Registration, the Company shall give written notice (the "Notice") of such request to all other Approved Investors and shall include in such registration all Registrable Securities that the Company has received written requests for inclusion therein within 15 days after the Notice is given (the "Requested Securities"). Thereafter, the Company may elect to include in such registration additional shares of Common Stock to be issued by the Company. All requests made pursuant to this Section 2 shall specify the aggregate number of Registrable Securities to be registered.
(b) A registration shall not constitute a Demand Registration under this Section 2 until it has become effective.
(c) The Holder making the Demand Registration may elect whether the offering of such Registrable Securities pursuant to such Demand Registration shall be in the form of a firm commitment underwritten offering or otherwiseAgreement; provided, however, that such Holder may inclusion satisfies such obligation only if the registration statement is declared effective not elect that such offering be made on a delayed or continuous basis pursuant to rule 415 under later than 90 days from the Securities Act. In any case in which an offering is in date of the form of a firm commitment underwritten offeringrequest from the Initiating Holders.
(b) Notwithstanding the foregoing, if the managing underwriter or underwriters of such offering advise the Company in writing that in its or their opinion the number of Registrable Securities proposed shall furnish to be sold in such offering exceeds the number of Registrable Securities that can be sold in such offering without aversely affecting the market for the Company's Common Stock, the Company will include in such Holders requesting a registration the number of Registrable Securities that in the opinion of such managing underwriter or underwriters can be sold without adversely affecting the market for the Company's Common Stock. In such event, the number of Registrable Securities, if any, to be offered for the accounts of Approved Investors (including the Holder making the Demand Registration) shall be reduced pro rata on the basis of the relative number of any Registrable Securities requested by each Approved Investor to be included in such registration to the extent necessary to reduce the total number of Registrable Securities to be included in such offering to the number recommended by such managing underwriter or underwriters. In the event the Holder making the Demand shall receive notice statement pursuant to this Section 2(c) 1.3, a certificate signed by the Chief Executive Officer of the Company stating that in the amount good faith judgment of Registrable Securities to the Board of Directors of the Company, it would be offered for such Holder shall be reduced, such Holder shall be entitled to withdraw the Demand by written notice seriously detrimental to the Company within seven (7) days after receipt and its stockholders for such registration statement to be filed owing to a material pending transaction and it is therefore essential to defer the filing of such notice, with the effect that such Demand shall be deemed not to have been made.
(d) If any of the Registrable Securities covered by a Demand Registration are to be sold in an underwritten offeringregistration statement, the Approved Investors, in the aggregate, that own or will own a majority of the Registrable Securities that the Company has been requested to register (including the Requested Securities but excluding any securities to be issued by the Company), shall have the right to select defer taking action with respect to such filing for a period of not more than 120 days after receipt of the investment banker request of the Initiating Holders.
(c) In addition, the Company shall not be obligated to effect, or investment bankers to take any action to effect, any registration pursuant to this Section 1.3 in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, qualification or compliance, unless the Company is already subject to service in such jurisdiction and manager or managers that will underwrite except as may be required by the offering; provided, however, that such investment bankers and managers must be reasonably satisfactory to the CompanyAct.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Miscor Group, Ltd.), Registration Rights Agreement (Miscor Group, Ltd.)
Demand Registration. (a) At If at any time beginning six months after the filing of the Initial Registration Statement, the Company receives a request from Holder of Registrable Securities then outstanding (an “Initiating Holder”) that the Company file a Registration Statement with respect to outstanding Registrable Securities of such Initiating Holder not already covered by an existing Registration Statement, then the Company shall, (i) within ten (10) days after the date of this Agreement such request is given, give notice to all Holders other than the Initiating Holder, and for (ii) as soon as practicable, and in any event within sixty (60) days after the date such request is given, file a period of three years thereafter, the Holder may make one written request for Form S-3 registration statement under the Securities Act, Act (a "Demand Registration") except if the Company is then ineligible to register for resale of all or part of Holder's the Registrable Securities (but on Form S-3, in which case such part, together with registration shall be on such other form available to the number Company to register for resale of securities the Registrable Securities as a secondary offering) subject to the provisions of Section 3(d) covering all Registrable Securities requested by other Approved Investors, to be included in such Demand registration by the Initiating Holder and any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the notice pursuant to clause (i) above is given, and in each case, subject to the limitations of Sections 3(b) and (c). The Company shall use its commercially reasonable best efforts to cause such Registration to be declared effective under the Securities Act as promptly as practicable after the filing thereof. Upon the request of any Holder that Registrable Securities be registered pursuant to this Section 23(a), all such Registrable Securities shall have thereafter be Registrable Securities for all purposes under this Agreement.
(b) If Tricadia Capital Management, LLC (“Tricadia”) intends to distribute the Registrable Securities registered pursuant to Section 3(a) by means of an estimated market value at underwriting, it shall so advise the time Company as a part of its request made pursuant to this Section 3 and the Company shall include such information in the written notice referred to in subsection 1.2(a). The underwriter will be selected by Tricadia and shall be reasonably acceptable to the Company. In such event, the right of any other Holder to include its, his or her Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such request Holder’s Registrable Securities in the underwriting (based upon unless otherwise mutually agreed by the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Company) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding any other provision of this Section 3, if the managing underwriter(s) advises Tricadia and the Company in writing that marketing factors require a limitation of the number of shares to be underwritten, then market price the Company shall so advise all Holders of Registrable Securities which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities of Holders other than the Initiating Holder that may be included in the underwriting shall be allocated among all such Holders, in proportion (as nearly as practicable) to the amount of Registrable Securities of the Company owned by each such Holder.
(c) Notwithstanding the foregoing obligations, if the Company furnishes to Holders requesting a share of Common Stock registration pursuant to this Section 3 a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Company’s Board of Directors it would be materially detrimental to the Company and its stockholders for such Registration Statement to either become effective or remain effective for as long as such Registration Statement otherwise would be required to remain effective, because such action would (i) materially interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company; (ii) require premature disclosure of at least $250,000. Notwithstanding material information that the foregoingCompany has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act, then the Company shall have the right to defer taking action with respect to such filing, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for a period of not be required to file any registration statement on behalf more than ninety (90) days after the request of the Initiating Holder within twelve months after the effective date of any earlier registration statement so long as the Holder was given a notice offering it the opportunity to sell Registrable Securities under the earlier registration statement and the Holder did not request that its Registrable Securities be includedis given; provided, however, that if Holder requested the Company may not invoke this right more than once in any twelve (12) month period; and provided further that its Registrable Securities be included in (x) the earlier registration statement but not all were so included through no fault of the Investor, the Investor may, but Company shall not be obligated to, require the Company to file another registration statement register any securities for its own account or that of any other stockholder during such ninety (90) day period other than pursuant to a Demand Registration. Within fifteen (15) days after receipt registration relating to the sale of a request for a Demand Registration, securities to employees of the Company shall give written notice (the "Notice") of such request to all other Approved Investors and shall include in such registration all Registrable Securities that the Company has received written requests for inclusion therein within 15 days after the Notice is given (the "Requested Securities"). Thereafter, the Company may elect to include in such registration additional shares of Common Stock to be issued by the Company. All requests made or a subsidiary pursuant to this Section 2 shall specify a stock option, stock purchase, or similar plan; (y) a registration on any form that does not include substantially the aggregate number of Registrable Securities to same information as would be registered.
(b) A registration shall not constitute a Demand Registration under this Section 2 until it has become effective.
(c) The Holder making the Demand Registration may elect whether the offering of such Registrable Securities pursuant to such Demand Registration shall be in the form of a firm commitment underwritten offering or otherwise; provided, however, that such Holder may not elect that such offering be made on a delayed or continuous basis pursuant to rule 415 under the Securities Act. In any case in which an offering is in the form of a firm commitment underwritten offering, if the managing underwriter or underwriters of such offering advise the Company in writing that in its or their opinion the number of Registrable Securities proposed to be sold in such offering exceeds the number of Registrable Securities that can be sold in such offering without aversely affecting the market for the Company's Common Stock, the Company will include in such registration the number of Registrable Securities that in the opinion of such managing underwriter or underwriters can be sold without adversely affecting the market for the Company's Common Stock. In such event, the number of Registrable Securities, if any, to be offered for the accounts of Approved Investors (including the Holder making the Demand Registration) shall be reduced pro rata on the basis of the relative number of any Registrable Securities requested by each Approved Investor required to be included in such a registration to statement covering the extent necessary to reduce sale of the total number Registrable Securities; or (z) a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of Registrable Securities to be included in such offering to the number recommended by such managing underwriter or underwriters. In the event the Holder making the Demand shall receive notice pursuant to this Section 2(c) debt securities that the amount of Registrable Securities to be offered for such Holder shall be reduced, such Holder shall be entitled to withdraw the Demand by written notice to the Company within seven (7) days after receipt of such notice, with the effect that such Demand shall be deemed not to have been madeare also being registered.
(d) If The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 3(a) (i) during the period that is thirty (30) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration, provided, that the Company is actively employing in good faith commercially reasonable best efforts to cause such registration statement to become effective or (ii) prior to January 1, 2015 with respect to a distribution of Registrable Securities by means of an underwriting .
(e) In the event that Form S-3 is not available for the registration of the resale of Registrable Securities hereunder, the Company shall (i) register the resale of the Registrable Securities covered by a Demand Registration are on another appropriate form and (ii) undertake to be sold in an underwritten offering, the Approved Investors, in the aggregate, that own or will own a majority of register the Registrable Securities on Form S-3 promptly after such form is available, provided that the Company 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 requested to register (including the Requested Securities but excluding any securities to be issued declared effective by the Company), shall have the right to select the investment banker or investment bankers and manager or managers that will underwrite the offering; provided, however, that such investment bankers and managers must be reasonably satisfactory to the CompanyCommission.
Appears in 2 contracts
Samples: Registration Rights Agreement (Cordia Bancorp Inc), Securities Purchase Agreement (Cordia Bancorp Inc)
Demand Registration. Upon the written request (aa “Notice”) At by CEG or by any time beginning six months from other Holder(s) owning at least ten percent (10%) of the date of this Agreement and for a period of three years thereafterthen-outstanding Registrable Securities (subject to adjustment pursuant to Section 3.04), the Holder may make one written request for Partnership shall file with the Commission, as soon as reasonably practicable, but in no event more than 90 days following the receipt of the Notice, a registration statement (each, a “Registration Statement”) under the Securities Act, (a "Demand Registration") Act providing for the resale of all or part of Holder's the Registrable Securities (but which may, at the option of the Holders giving such partNotice, together with be a registration statement under the number Securities Act that provides for the resale of securities requested the Registrable Securities pursuant to Rule 415 from time to time by other Approved Investors, the Holders (a “Shelf Registration Statement”)). The Partnership shall use its commercially reasonable efforts to cause each Registration Statement to be included in declared effective by the Commission as soon as reasonably practicable after the initial filing of the Registration Statement. Any Registration Statement shall provide for the resale pursuant to any method or combination of methods legally available to, and requested by, the Holders of any and all Registrable Securities covered by such Demand Registration Statement. The Partnership shall use its commercially reasonable efforts to cause each Registration Statement filed pursuant to this Section 2, shall have an estimated market value at the time of such request (based upon the then market price of a share of Common Stock of the Company) of at least $250,000. Notwithstanding the foregoing, the Company shall not be required to file any registration statement on behalf of the Holder within twelve months after the effective date of any earlier registration statement so long as the Holder was given a notice offering it the opportunity to sell Registrable Securities under the earlier registration statement and the Holder did not request that its Registrable Securities be included; provided, however, that if Holder requested that its Registrable Securities be included in the earlier registration statement but not all were so included through no fault of the Investor, the Investor may, but shall not be obligated to, require the Company to file another registration statement pursuant to a Demand Registration. Within fifteen (15) days after receipt of a request for a Demand Registration, the Company shall give written notice (the "Notice") of such request to all other Approved Investors and shall include in such registration all Registrable Securities that the Company has received written requests for inclusion therein within 15 days after the Notice is given (the "Requested Securities"). Thereafter, the Company may elect to include in such registration additional shares of Common Stock 2.01 to be issued by the Company. All requests made pursuant to this Section 2 shall specify the aggregate number of Registrable Securities to be registered.
(b) A registration shall not constitute a Demand Registration under this Section 2 until it has become continuously effective.
(c) The Holder making the Demand Registration may elect whether the offering of such Registrable Securities pursuant to such Demand Registration shall be in the form of a firm commitment underwritten offering or otherwise; provided, however, that such Holder may not elect that such offering be made on a delayed or continuous basis pursuant to rule 415 under the Securities Act. In any case in which an offering is in the form of a firm commitment underwritten offering, if the managing underwriter or underwriters of such offering advise the Company in writing that in its or their opinion the number of Registrable Securities proposed to be sold in such offering exceeds the number of Registrable Securities that can be sold in such offering without aversely affecting the market for the Company's Common Stock, the Company will include in such registration the number of Registrable Securities that in the opinion of such managing underwriter or underwriters can be sold without adversely affecting the market for the Company's Common Stock. In such event, the number of Registrable Securities, if any, to be offered for the accounts of Approved Investors (including the Holder making the Demand Registration) shall be reduced pro rata on the basis of the relative number of any Registrable Securities requested by each Approved Investor to be included in such registration supplemented and amended to the extent necessary to reduce ensure that it is available for the total number resale of all Registrable Securities to be included in such offering to by the number recommended by such managing underwriter or underwriters. In the event the Holder making the Demand shall receive notice pursuant to this Section 2(c) that the amount of Registrable Securities to be offered for such Holder shall be reduced, such Holder shall be entitled to withdraw the Demand by written notice to the Company within seven (7) days after receipt of such notice, with the effect that such Demand shall be deemed not to have been made.
(d) If any of the Holders until all Registrable Securities covered by a Demand such Registration are Statement have ceased to be sold Registrable Securities (the “Effectiveness Period”). Each Registration Statement when effective (and the documents incorporated therein by reference) shall comply as to form in an underwritten offering, the Approved Investors, in the aggregate, that own or will own a majority all material respects with all applicable requirements of the Registrable Securities that the Company has been requested Act and shall not contain an untrue statement of a material fact or omit to register (including the Requested Securities but excluding any securities state a material fact required to be issued stated therein or necessary to make the statements therein not misleading. There shall be no limit on the number of Registration Statements that may be required by the Company), shall have the right to select the investment banker or investment bankers and manager or managers that will underwrite the offering; provided, however, that such investment bankers and managers must be reasonably satisfactory to the CompanyHolders hereunder.
Appears in 2 contracts
Samples: Registration Rights Agreement (Columbia Pipeline Partners LP), Registration Rights Agreement (Columbia Pipeline Partners LP)
Demand Registration. Commencing on or after the six (a) At any time beginning six months from 6)-month anniversary of the date of this Agreement and for from time to time so long as there are any Registrable Securities outstanding, if the Company is not eligible to file a period of three years thereafterShelf Registration Statement under SEC Guidance, if the Company has not caused a Shelf Registration Statement to be declared effective by the Commission in accordance with Section 2.4(a) or if the Shelf Registration Statement shall cease to be effective, subject to the minimum size limitations in Section 2.5(a), the Holder Holder(s) holding a majority of Registrable Securities then outstanding may collectively make one or more written request requests to the Company for registration under the Securities Act, (a "Demand Registration") Act of all or part of Holder's its or their Common Stock constituting Registrable Securities (but such partSecurities, together with including for the number avoidance of securities requested by other Approved Investors, to be included in such Demand Registration pursuant to this Section 2, shall have an estimated market value at the time of such request (based upon the then market price of a share doubt shares of Common Stock issued or issuable upon exercise of the CompanyWarrants and shares of Common Stock issued or issuable upon exchange of Common Partnership Units (a “Demand Registration”). The Holder(s) submitting the request for a Demand Registration shall concurrently provide written notice of at least $250,000the proposed registration to all other Holders. Notwithstanding the foregoing, the The Company shall not be required to prepare and file any registration statement on behalf of with the Holder within twelve months after the effective date of any earlier registration statement so long Commission as the Holder was given a notice offering it the opportunity to sell Registrable Securities under the earlier registration statement and the Holder did not request that its Registrable Securities be included; provided, however, that if Holder requested that its Registrable Securities be included soon as practicable thereafter (but in the earlier registration statement but not all were so included through no fault of the Investor, the Investor may, but shall not be obligated to, require the Company to file another registration statement pursuant to a Demand Registration. Within fifteen event later than sixty (1560) days after receipt of a such request for a Demand Registration), a registration statement on an appropriate form which the Company shall give written notice is then eligible to use under SEC Guidance with respect to any Demand Registration (the "Notice") of such request to all other Approved Investors a “Demand Registration Statement”), and shall include in use its reasonable best efforts to cause any such registration all Registrable Securities that Demand Registration Statement to be declared effective by the Company has received written requests for inclusion therein within 15 days Commission as promptly as reasonably practicable after the Notice is given (the "Requested Securities")filing thereof. Thereafter, the Company may elect to include in such registration additional shares of Common Stock to be issued by the Company. All requests made pursuant to this Section 2 shall Any request for a Demand Registration will specify the aggregate number of shares of Registrable Securities proposed to be registered.
(b) A registration shall not constitute a Demand Registration under this Section 2 until it has become effective.
(c) The Holder making the Demand Registration may elect whether sold in the offering of such Registrable Securities pursuant to such Demand Registration shall be in thereof; provided that the form of a firm commitment underwritten offering or otherwise; provided, however, that such Holder requesting Holder(s) may not elect that such offering be made on a delayed or continuous basis pursuant to rule 415 under the Securities Act. In any case in which an offering is in the form of a firm commitment underwritten offering, if the managing underwriter or underwriters of such offering advise the Company in writing that in its or their opinion change the number of Registrable Securities proposed to be sold offered pursuant to any Demand Registration at any time prior to the Demand Registration Statement being declared effective by the Commission, in such offering exceeds each case subject to the number of Registrable Securities that can be sold minimum size limitations in such offering without aversely affecting the market for the Company's Common Stock, Section 2.5(a). Under no circumstances shall the Company will include be obligated to effect more than two (2) Demand Registrations in any twelve (12)-month period. Any Demand Registration shall be on Form S-3ASR (or any successor form thereto) to the extent available for such registration Demand Registration pursuant to SEC Guidance. The “Plan of Distribution” section of the number Demand Registration Statement shall permit all lawful means of Registrable Securities that in the opinion of such managing underwriter or underwriters can be sold without adversely affecting the market for the Company's Common Stock. In such event, the number disposition of Registrable Securities, if anyincluding firm-commitment underwritten public offerings, to be offered for the accounts of Approved Investors (including the Holder making the Demand Registration) shall be reduced pro rata on the basis of the relative number of any Registrable Securities requested by each Approved Investor to be included in such registration to the extent necessary to reduce the total number of Registrable Securities to be included in such offering to the number recommended by such managing underwriter or underwriters. In the event the Holder making the Demand shall receive notice pursuant to this Section 2(c) that the amount of Registrable Securities to be offered for such Holder shall be reduced, such Holder shall be entitled to withdraw the Demand by written notice to the Company within seven (7) days after receipt of such notice, with the effect that such Demand shall be deemed Alternative Transactions and sales not to have been madeinvolving a public offering.
(d) If any of the Registrable Securities covered by a Demand Registration are to be sold in an underwritten offering, the Approved Investors, in the aggregate, that own or will own a majority of the Registrable Securities that the Company has been requested to register (including the Requested Securities but excluding any securities to be issued by the Company), shall have the right to select the investment banker or investment bankers and manager or managers that will underwrite the offering; provided, however, that such investment bankers and managers must be reasonably satisfactory to the Company.
Appears in 2 contracts
Samples: Credit Agreement (Ashford Hospitality Trust Inc), Credit Agreement (Ashford Hospitality Trust Inc)
Demand Registration. (aSubject to Sections 2.1(f) At and 2.2 hereof, at any time beginning six months after the date that is 180 days after the IPO Closing Date, each Holder may deliver to the Company a written notice (a “Demand Registration Notice”) informing the Company of such Holder’s desire to have some or all of its Registrable Securities registered for resale and specifying the number of Registrable Securities to be registered by the Company (“Demand Registration”). Upon receipt of a Demand Registration Notice from a Holder requesting registration of the lesser of (i) two hundred thousand (200,000) Registrable Securities or (ii) all of such Holder’s Registrable Securities, if the Company has not already caused such Registrable Securities to be included as part of an existing shelf registration statement and related prospectus that the Company then has on file with, and which has been declared effective by, the Commission and which remains in effect and not subject to any stop order, injunction or other order or requirement of the Commission (in which event the Company shall be deemed to have satisfied its registration obligation under this Section 2.1 with respect to such Registrable Securities), then the Company shall cause to be filed with the Commission as soon as reasonably practicable after receiving the Demand Registration Notice, but in no event more than sixty (60) days following receipt of such notice, a new registration statement and related prospectus covering the resale of the Registrable Securities on a delayed or continuous basis (the “Demand Registration Statement”), which complies as to form in all material respects with applicable Commission rules providing for the sale by such Holder or group of Holders of such Registrable Securities. The Company agrees (subject to Section 2.2 hereof) to use commercially reasonable efforts to cause the Demand Registration Statement to be declared effective by the Commission as soon as practicable. Subject to Section 2.2 hereof, the Company agrees to use commercially reasonable efforts to keep any Demand Registration Statement continuously effective (including the preparation and filing of any amendments and supplements necessary for that purpose) until the earlier of (i) the date that is two (2) years after the date of this Agreement and effectiveness of such Demand Registration Statement, (ii) the date on which all of the Registrable Securities covered by such Demand Registration Statement are eligible for a period of three years thereafter, the Holder may make one written request for sale without registration pursuant to Rule 144 (or any successor provision) under the Securities ActAct without volume limitations or other restrictions on transfer thereunder, or (a "Demand Registration"iii) the date on which the Holder or Holders consummate the sale of all or part of Holder's the Registrable Securities (but such part, together with the number of securities requested by other Approved Investors, to be included in registered under such Demand Registration pursuant to this Section 2, shall have an estimated market value at the time of such request (based upon the then market price of a share of Common Stock of the Company) of at least $250,000Statement. Notwithstanding the foregoing, the Company shall not be required may at any time (including, without limitation, prior to file or after receiving a Demand Registration Notice from a Holder), in its sole discretion, include all additional Registrable Securities then outstanding or any portion thereof in any registration statement on behalf statement, including by virtue of the Holder within twelve months after the effective date of any earlier registration statement so long as the Holder was given a notice offering it the opportunity to sell adding such Registrable Securities under the earlier registration statement and the Holder did not request that its Registrable Securities be included; provided, however, that if Holder requested that its Registrable Securities be included in the earlier registration statement but not all were so included through no fault of the Investor, the Investor may, but shall not be obligated to, require the Company as additional securities to file another a Demand Registration Statement or an existing shelf registration statement pursuant to a Demand Registration. Within fifteen Rule 462(b) under the Securities Act (15) days after receipt of a request for a Demand Registration, in which event the Company shall give written notice (the "Notice") of such request be deemed to all other Approved Investors and shall include in such have satisfied its registration all Registrable Securities that the Company has received written requests for inclusion therein within 15 days after the Notice is given (the "Requested Securities"). Thereafter, the Company may elect to include in such registration additional shares of Common Stock to be issued by the Company. All requests made pursuant to this Section 2 shall specify the aggregate number of Registrable Securities to be registered.
(b) A registration shall not constitute a Demand Registration obligation under this Section 2 until it has become effective.
(c2.1(a) The Holder making the Demand Registration may elect whether the offering of such Registrable Securities pursuant with respect to such Demand Registration shall be in the form of a firm commitment underwritten offering or otherwise; provided, however, that such Holder may not elect that such offering be made on a delayed or continuous basis pursuant to rule 415 under the Securities Act. In any case in which an offering is in the form of a firm commitment underwritten offering, if the managing underwriter or underwriters of such offering advise the Company in writing that in its or their opinion the number of Registrable Securities proposed to be sold in such offering exceeds the number of Registrable Securities that can be sold in such offering without aversely affecting the market for the Company's Common Stock, the Company will include in such registration the number of Registrable Securities that in the opinion of such managing underwriter or underwriters can be sold without adversely affecting the market for the Company's Common Stock. In such event, the number of Registrable Securities, if any, to be offered for the accounts of Approved Investors (including the Holder making the Demand Registration) shall be reduced pro rata on the basis of the relative number of any Registrable Securities requested by each Approved Investor to be included in such registration to the extent necessary to reduce the total number of Registrable Securities to be included in such offering to the number recommended by such managing underwriter or underwriters. In the event the Holder making the Demand shall receive notice pursuant to this Section 2(c) that the amount of Registrable Securities to be offered for such Holder shall be reduced, such Holder shall be entitled to withdraw the Demand by written notice to the Company within seven (7) days after receipt of such notice, with the effect that such Demand shall be deemed not to have been made.
(d) If any of the Registrable Securities covered by a Demand Registration are to be sold in an underwritten offeringso included, so long as such registration statement remains effective and not the Approved Investorssubject of any stop order, in the aggregate, that own injunction or will own a majority other order of the Registrable Securities that the Company has been requested to register (including the Requested Securities but excluding any securities to be issued by the CompanyCommission), shall have the right to select the investment banker or investment bankers and manager or managers that will underwrite the offering; provided, however, that such investment bankers and managers must be reasonably satisfactory to the Company.
Appears in 2 contracts
Samples: Registration Rights Agreement (RLJ Lodging Trust), Registration Rights Agreement (RLJ Lodging Trust)
Demand Registration. (a1) At any time beginning six months from after the date hereof, and subject to the other provisions of this Agreement and for a period of three years thereafterSection 12, the Holder may make one Executive shall have the right, exercisable by making a written request for registration under to the Securities ActCompany, (a "Demand Registration") to demand that the Company effect the Registration of all or part of Holder's any Registrable Securities (but such part, together in accordance with the number provisions of securities requested by other Approved Investorsthe Act. The Company shall then comply with Section 12(a)(2) hereof. Any provision herein to the contrary notwithstanding, the right to be included in such Demand demand Registration pursuant to this Section 2, 12 shall be limited to one Registration demand per calendar year. A right to demand Registration hereunder shall be deemed to have an estimated market value at the time of such request (based upon the then market price of a share of Common Stock been exercised and all of the Company) 's demand Registration obligations hereunder for such calendar year shall be deemed to be fully satisfied when the registration statement filed on account of at least $250,000such exercise has been declared effective by the Commission. Notwithstanding the foregoing, If any other executive of the Company shall not be required to file any registration statement on behalf of the Holder within twelve months after the effective date of any earlier registration statement so long as the Holder was given a notice offering it the opportunity to sell Registrable Securities under the earlier registration statement and the Holder did not request that its Registrable Securities be included; provided, however, that if Holder requested that its Registrable Securities be included in the earlier registration statement but not all were so included through no fault of the Investor, the Investor may, but shall not be obligated to, require the Company to file another registration statement pursuant to a Demand Registration. Within fifteen (15) days after receipt of a request for a Demand Registration, the Company shall give written notice (the "Notice") of such request to all other Approved Investors and shall include in such registration all Registrable Securities that the Company has received written requests for inclusion therein within 15 days after the Notice is given (the "Requested Securities"). Thereafter, the Company may elect to include in such registration additional shares of Common Stock to be issued by the Company. All requests made pursuant to this Section 2 shall specify the aggregate number of Registrable Securities to be registered.
(b) A registration shall not constitute a Demand Registration under this Section 2 until it has become effective.
(c) The Holder making the Demand Registration may elect whether the offering of such Registrable Securities pursuant to such Demand Registration shall be in the form of a firm commitment underwritten offering exercises his or otherwise; provided, however, that such Holder may not elect that such offering be made on a delayed or continuous basis pursuant to rule 415 under the Securities Act. In any case in which an offering is in the form of a firm commitment underwritten offering, if the managing underwriter or underwriters of such offering advise the Company in writing that in its or their opinion the number of Registrable Securities proposed to be sold in such offering exceeds the number of Registrable Securities that can be sold in such offering without aversely affecting the market for the Company's Common Stock, the Company will include in such registration the number of Registrable Securities that in the opinion of such managing underwriter or underwriters can be sold without adversely affecting the market for the Company's Common Stock. In such event, the number of Registrable Securitiesher right, if any, to be offered for demand that the accounts of Approved Investors (including Company effect the Holder making the Demand Registration) shall be reduced pro rata on the basis of the relative number Registration of any Registrable Securities requested by each Approved Investor Securities, then the Executive shall have the right to be included in such registration to the extent necessary to reduce the total Register an equivalent number of Registrable Securities to be included in such offering to without reducing the number recommended by such managing underwriter or underwriters. In demand Registrations the event the Holder making the Demand Executive shall receive notice pursuant to this Section 2(c) that the amount of Registrable Securities to be offered for such Holder shall be reduced, such Holder shall be entitled to withdraw the Demand by written notice to the Company within seven (7) days after receipt of such notice, with the effect that such Demand shall be deemed not to have been madein any calendar year.
(d2) If any Following receipt of the Registrable Securities covered by a Demand Registration are request pursuant to be sold in an underwritten offeringSection 12(a)(1) hereof, the Approved Investors, in Company shall (i) file within ninety (90) days thereafter a registration statement on the aggregate, that own or will own a majority appropriate form under the Act for the shares of the Registrable Securities Common Stock that the Company has been requested to register Register; (including ii) if the Requested Securities but excluding any applicable Offering is pursuant to an underwriting agreement, enter into an underwriting agreement in such form as said managing or sole underwriter shall require (which must only contain terms and conditions customary for offerings of equity securities to be issued by the Company), shall have the right to select the investment banker or investment bankers and manager or managers of entities with market capitalizations that will underwrite the offering; provided, however, that such investment bankers and managers must be reasonably satisfactory are approximately equal to the Company's then current market capitalization and may contain customary provisions requiring the Company and the Executive to indemnify and provide contribution to the underwriter or underwriters of such Offering); and (iii) use its reasonable best efforts to have such registration statement declared effective as promptly as practicable and to remain effective for at least one hundred eighty (180) days. Notwithstanding any other provision hereof, the Executive acknowledges and agrees that there can be no guarantee or warranty from or by the Company that any such registration statement will ever be declared effective by the Commission, and that the Company makes no such guarantee or warranty in this Agreement.
Appears in 2 contracts
Samples: Executive Employment Agreement (European Micro Holdings Inc), Executive Employment Agreement (European Micro Holdings Inc)
Demand Registration. (a) At any time beginning six months In the event that the S-1 Registration Statement is not filed by the Company by April 30, 2005 pursuant to Section 1.2 hereof, a Holder or Holders shall be entitled to initiate registration request hereunder (“Initiating Holders) The Initiating Holders shall so advise the Company in writing that the Company file a registration statement under the Act registering the Registrable Securities. The Company shall file a Form S-1 Registration Statement no later than 45 days from the date of this Agreement such registration request and for a period of three years thereafter, be declared effective not later than 90 days from the date thereof. The Company and the Holder may make one written request for shall further agree that such filing will satisfy the piggyback registration under the Securities Act, (a "Demand Registration") of all or part of Holder's Registrable Securities (but such part, together with the number of securities requested by other Approved Investors, rights given to be included in such Demand Registration Holder pursuant to this Section 2, shall have an estimated market value at the time of such request (based upon the then market price of a share of Common Stock of the Company) of at least $250,000. Notwithstanding the foregoing, the Company shall not be required to file any registration statement on behalf of the Holder within twelve months after the effective date of any earlier registration statement so long as the Holder was given a notice offering it the opportunity to sell Registrable Securities under the earlier registration statement and the Holder did not request that its Registrable Securities be included; provided, however, that if Holder requested that its Registrable Securities be included in the earlier registration statement but not all were so included through no fault of the Investor, the Investor may, but shall not be obligated to, require the Company to file another registration statement pursuant to a Demand Registration. Within fifteen (15) days after receipt of a request for a Demand Registration, the Company shall give written notice (the "Notice") of such request to all other Approved Investors and shall include in such registration all Registrable Securities that the Company has received written requests for inclusion therein within 15 days after the Notice is given (the "Requested Securities"). Thereafter, the Company may elect to include in such registration additional shares of Common Stock to be issued by the Company. All requests made pursuant to this Section 2 shall specify the aggregate number of Registrable Securities to be registered.
(b) A registration shall not constitute a Demand Registration under this Section 2 until it has become effective.
(c) The Holder making the Demand Registration may elect whether the offering of such Registrable Securities pursuant to such Demand Registration shall be in the form of a firm commitment underwritten offering or otherwiseAgreement; provided, however, that such Holder may inclusion satisfies such obligation only if the registration statement is declared effective not elect that such offering be made on a delayed or continuous basis pursuant to rule 415 under later than 90 days from the Securities Act. In any case in which an offering is in date of the form of a firm commitment underwritten offeringrequest from the Initiating Holders.
(b) Notwithstanding the foregoing, if the managing underwriter or underwriters of such offering advise the Company in writing that in its or their opinion the number of Registrable Securities proposed shall furnish to be sold in such offering exceeds the number of Registrable Securities that can be sold in such offering without aversely affecting the market for the Company's Common Stock, the Company will include in such Holders requesting a registration the number of Registrable Securities that in the opinion of such managing underwriter or underwriters can be sold without adversely affecting the market for the Company's Common Stock. In such event, the number of Registrable Securities, if any, to be offered for the accounts of Approved Investors (including the Holder making the Demand Registration) shall be reduced pro rata on the basis of the relative number of any Registrable Securities requested by each Approved Investor to be included in such registration to the extent necessary to reduce the total number of Registrable Securities to be included in such offering to the number recommended by such managing underwriter or underwriters. In the event the Holder making the Demand shall receive notice statement pursuant to this Section 2(c) 1.3, a certificate signed by the Chief Executive Officer of the Company stating that in the amount good faith judgment of Registrable Securities to the Board of Directors of the Company, it would be offered for such Holder shall be reduced, such Holder shall be entitled to withdraw the Demand by written notice seriously detrimental to the Company within seven (7) days after receipt and its stockholders for such registration statement to be filed owing to a material pending transaction and it is therefore essential to defer the filing of such notice, with the effect that such Demand shall be deemed not to have been made.
(d) If any of the Registrable Securities covered by a Demand Registration are to be sold in an underwritten offeringregistration statement, the Approved Investors, in the aggregate, that own or will own a majority of the Registrable Securities that the Company has been requested to register (including the Requested Securities but excluding any securities to be issued by the Company), shall have the right to select defer taking action with respect to such filing for a period of not more than 120 days after receipt of the investment banker request of the Initiating Holders.
(c) In addition, the Company shall not be obligated to effect, or investment bankers to take any action to effect, any registration pursuant to this Section 1.3 in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, qualification or compliance, unless the Company is already subject to service in such jurisdiction and manager or managers that will underwrite except as may be required by the offering; provided, however, that such investment bankers and managers must be reasonably satisfactory to the CompanyAct.
Appears in 2 contracts
Samples: Subordinated Convertible Debenture Purchase Agreement (Miscor Group, Ltd.), Registration Rights Agreement (Miscor Group, Ltd.)
Demand Registration. (ai) At Following the expiration of the Lock-Up Period, any time beginning six months from Holder that holds any Registrable Securities shall have the date of this Agreement option and for right, exercisable by delivering a period of three years thereafter, written notice to the Holder may make one written request for registration under the Securities Act, Company (a "“Demand Registration") of all or part of Holder's Registrable Securities (but such part, together with the number of securities requested by other Approved InvestorsNotice”), to be included in such Demand Registration pursuant to this Section 2, shall have an estimated market value at the time of such request (based upon the then market price of a share of Common Stock of the Company) of at least $250,000. Notwithstanding the foregoing, the Company shall not be required to file any registration statement on behalf of the Holder within twelve months after the effective date of any earlier registration statement so long as the Holder was given a notice offering it the opportunity to sell Registrable Securities under the earlier registration statement and the Holder did not request that its Registrable Securities be included; provided, however, that if Holder requested that its Registrable Securities be included in the earlier registration statement but not all were so included through no fault of the Investor, the Investor may, but shall not be obligated to, require the Company to file another registration statement to, pursuant to the terms of and subject to the limitations contained in this Agreement, prepare and file with the Commission a Demand Registration. Within fifteen (15) days after receipt Registration Statement registering the offering and sale of a request for a Demand Registration, the Company shall give written notice (the "Notice") of such request to all other Approved Investors number and shall include in such registration all Registrable Securities that the Company has received written requests for inclusion therein within 15 days after the Notice is given (the "Requested Securities"). Thereafter, the Company may elect to include in such registration additional shares of Common Stock to be issued by the Company. All requests made pursuant to this Section 2 shall specify the aggregate number type of Registrable Securities to be registered.
(b) A registration shall not constitute a Demand Registration under this Section 2 until it has become effective.
(c) The Holder making on the terms and conditions specified in the Demand Registration Notice, which may elect whether the offering of such Registrable Securities pursuant to such Demand Registration shall be in the form of a firm commitment underwritten offering or otherwise; provided, however, that such Holder may not elect that such offering be made include sales on a delayed or continuous basis pursuant to rule Rule 415 under the Securities Actpursuant to a Shelf Registration Statement (a “Demand Registration”). In any case in which an offering is in the form of a firm commitment underwritten offering, if the managing underwriter or underwriters of such offering advise the Company in writing that in its or their opinion the number of Registrable Securities proposed to be sold in such offering exceeds The Demand Notice must set forth the number of Registrable Securities that can be sold the Initiating Holder intends to include in such offering without aversely affecting Demand Registration and the market intended methods of disposition thereof. Notwithstanding anything to the contrary herein, in no event shall the Company be required to effectuate a Demand Registration for Registrable Securities having an aggregate value of less than $50 million based on the Company's Common StockVWAP of such Registrable Securities as of the date of the Demand Notice (the “Minimum Amount”).
(ii) Within five Business Days of the receipt of the Demand Notice, the Company will include shall give written notice of such Demand Notice to all Holders and, within thirty days thereof (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in such registration which case, within ninety days thereof), shall, subject to the number limitations of this Section 2(a), file a Registration Statement in accordance with the terms and conditions of the Demand Notice, which Registration Statement shall cover all of the Registrable Securities that the Holders shall in the opinion of writing request (such managing underwriter or underwriters can be sold without adversely affecting the market for the Company's Common Stock. In such event, the number of Registrable Securities, if any, request to be offered for given to the accounts Company within ten days of Approved Investors (including the Holder making receipt of notice of the Demand RegistrationNotice given by the Company pursuant to this Section 2(a)(ii)) shall be reduced pro rata on the basis of the relative number of any Registrable Securities requested by each Approved Investor to be included in the Demand Registration. The Company shall use reasonable best efforts to cause such registration Registration Statement to become and remain effective under the Securities Act until the earlier of (A) 180 days (or two years if a Shelf Registration Statement is requested) after the Effective Date or (B) the date on which all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”).
(iii) Subject to the extent necessary other limitations contained in this Agreement, the Company is not obligated hereunder to reduce effect (A) a Demand Registration within 90 days of the closing of any Underwritten Offering, (B) more than a total number of three Demand Registrations pursuant to this Agreement, and (C) more than one Demand Registration for any Holder in any 365-day period. No Demand Registration shall be deemed to have occurred for purposes of this Section 2(a)(iii) if the Registration Statement relating thereto does not become effective or is not maintained effective for the period required pursuant to Section 2(a)(ii), in which case the Initiating Holder shall be entitled to an additional Demand Registration in lieu thereof.
(iv) An Initiating Holder and any other Holder that has requested its Registrable Securities be included in a Demand Registration may withdraw all or any portion of its Registrable Securities included in a Demand Registration from such Demand Registration at any time prior to the effectiveness of the applicable Registration Statement. Upon delivery of a notice by the Initiating Holder to the effect that the Initiating Holder is withdrawing all or an amount such that the remaining amount is below the Minimum Amount of its Registrable Securities to be included in a Demand Registration, the Company shall cease all efforts to secure effectiveness of the applicable Registration Statement. Such registration shall be deemed a Demand Registration unless (i) the Initiating Holder shall have paid or reimbursed the Company for its pro rata share of all reasonable and documented out-of-pocket fees and expenses incurred by the Company in connection with the withdrawn registration of such offering Registrable Securities (based on the number of securities the Initiating Holder sought to register, as compared to the total number recommended by of securities included in such managing underwriter Demand Registration) or underwriters. In (ii) the event withdrawal is made (A) following the Holder making occurrence of a Material Adverse Change or (B) because the Demand shall receive notice pursuant to this Section 2(c) Registration would require disclosure of material information that the amount Company has a bona fide business purpose for preserving as confidential.
(v) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration on such appropriate registration form of the Commission (x) as shall be selected by the Company and (y) as shall permit the disposition of the Registrable Securities to be offered in accordance with the intended method or methods of disposition specified in the applicable Holders’ requests for such registration. If at any time a Registration Statement on Form S-3 is effective and a Holder shall be reduced, such Holder shall be entitled to withdraw the Demand by provides written notice to the Company within seven (7) days after receipt that it intends to effect an offering of such notice, with the effect that such Demand shall be deemed not to have been made.
(d) If any all or part of the Registrable Securities covered by a included on such Registration Statement, the Company will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(vi) Without limiting Section 3, in connection with any Demand Registration are pursuant to and in accordance with this Section 2(a), the Company shall (A) promptly prepare and file or cause to be sold in an underwritten offeringprepared and filed (1) such additional forms, the Approved Investorsamendments, in the aggregatesupplements, that own prospectuses, certificates, letters, opinions and other documents, as may be necessary or will own a majority of the Registrable Securities that the Company has been requested advisable to register (or qualify the securities subject to such Demand Registration, including under the Requested Securities but excluding any securities to be issued by laws of such states as the Company), Holders shall have the right to select the investment banker or investment bankers and manager or managers that will underwrite the offeringreasonably request; provided, however, that no such investment bankers qualification shall be required in any jurisdiction where, as a result thereof, the Company would become subject to general service of process or to taxation or qualification to do business in such jurisdiction solely as a result of registration and managers must (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 satisfactory necessary or appropriate or reasonably requested by the Holders to enable the CompanyHolders to consummate a public sale of such Registrable Securities in accordance with the intended timing and method or methods of distribution thereof.
Appears in 2 contracts
Samples: Agreement of Limited Partnership (Rice Energy Inc.), Limited Liability Company Agreement (Rice Energy Inc.)
Demand Registration. (a) At To the extent that a Registration Statement filed pursuant to Section 2(b) or a Shelf Registration Statement is not available to effect the proposed transaction, following the applicable Lock-up Period, either (a) General Motors, (b) the Majority Sellers (other than General Motors) of at least a majority in interest of the then issued and outstanding number of Registrable Securities held by such Majority Sellers (other than General Motors) or (c) the Existing Holders of at least a majority in interest of the then issued and outstanding number of Registrable Securities held by the Existing Holders (the “Demanding Holders”), in each case, may request that the Company register under the Securities Act all or any time beginning six months portion of its Registrable Securities pursuant to a Registration Statement on Form S-1 or any successor form thereto with respect to a underwritten public offering of Registrable Securities (each, a “Long-Form Registration”). Each request for a Long-Form Registration shall specify the number of Registrable Securities requested to be included in the Long-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than 10 days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have 10 days from the date such notice is given to notify the Company in writing of this Agreement and for a period of three years thereafter, the Holder may make one written request for registration under the Securities Act, (a "Demand Registration") of all or part of Holder's Registrable Securities (but such part, together with the number of securities requested by other Approved Investors, their desire to be included in such registration (each such Holder that includes all or a portion of such Holder’s Registrable Securities in such Registration, a “Requesting Holder”). The Company shall prepare and file with the Commission a Registration Statement on Form S-1 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Long-Form Registration within 60 days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter. Under no circumstances shall the Company be obligated to effect (x) more than an aggregate of three (3) Registrations pursuant to a Demand Registration by the Majority Sellers under this subsection 2(a) with respect to any or all Registrable Securities held by such Majority Sellers and (y) more than three (3) Registration pursuant to a Demand Registration by the Existing Holders under this Section 2, shall have an estimated market value at the time of such request (based upon the then market price of a share of Common Stock of the Companysubsection 2(a) of at least $250,000. Notwithstanding the foregoing, the Company shall not be required with respect to file any registration statement on behalf of the Holder within twelve months after the effective date of any earlier registration statement so long as the Holder was given a notice offering it the opportunity to sell or all Registrable Securities under the earlier registration statement and the Holder did not request that its Registrable Securities be includedheld by such Existing Holders; provided, however, that if Holder requested that its Registrable Securities be included in the earlier registration statement but not all were so included through no fault of the Investor, the Investor may, but shall not be obligated to, require the Company to file another registration statement a Registration pursuant to a Demand Registration. Within fifteen (15) days after receipt Registration shall not be counted for such purposes unless a Registration Statement that may be available at such time has become effective and all of a request for a Demand Registration, the Company shall give written notice (Registrable Securities requested by the "Notice") Requesting Holders and the Demanding Holders to be registered on behalf of such request to all other Approved Investors the Requesting Holders and shall include the Demanding Holders in such registration all Registrable Securities that the Company has received written requests for inclusion therein within 15 days after the Notice is given (the "Requested Securities"). ThereafterRegistration Statement have been sold, the Company may elect to include in such registration additional shares accordance with Section 5 of Common Stock to be issued by the Company. All requests made pursuant to this Section 2 shall specify the aggregate number of Registrable Securities to be registeredAgreement.
(b) A registration shall not constitute The Company shall, as soon as practicable, but in any event within fifteen (15) business days after the Closing Date, file a Demand Registration Statement to permit the public resale of all the Registrable Securities held by the Holders from time to time as permitted by Rule 415 under the Securities Act (or any successor or similar provision adopted by the Commission then in effect) on the terms and conditions specified in this Section 2 2(b) and shall use its reasonable best efforts to cause the Registration Statement to be declared effective as soon as practicable after the filing thereof, but in no event later than the earlier of (i) the 60th day following the Closing Date and (ii) the 10th business day after the date the Company is notified (orally or in writing, whichever is earlier) by the Commission that the Registration Statement will not be “reviewed” or will not be subject to further review (such earlier date, the “Effectiveness Deadline”). The Registration Statement filed with the Commission pursuant to this Section 2(b) shall be on Form S-1 or such other form of registration statement as is then available to effect a registration for the sale or resale of such Registrable Securities on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule or provision similar thereto adopted by the Commission, covering such Registrable Securities, and shall contain a Prospectus in such form as to permit any Holder to sell such Registrable Securities pursuant to Rule 415 under the Securities Act (or any successor rule or similar provision adopted by the Commission then in effect) at any time beginning on the effective date for such Registration Statement. A Registration Statement filed pursuant to this Section 2(b) shall provide for the sale or resale pursuant to any method or combination of methods legally available to, and requested by, the Holders. The Company shall use its reasonable best efforts to cause a Registration Statement filed pursuant to Section 2(b) to remain effective, and to be supplemented and amended to the extent necessary to ensure that such Registration Statement is available or, if not available, that another Registration Statement or Shelf Registration Statement is continuously available, for the resale of all the Registrable Securities held by the Holders until it has become effectiveall such Registrable Securities have ceased to be Registrable Securities. As soon as practicable following the effective date of a Registration Statement filed pursuant to this Section 2(b), but in any event within one (1) business day of such date, the Company shall notify the Holders of the effectiveness of such Registration Statement. If, after the filing such Registration Statement, a holder of Registrable Securities requests registration under the Securities Act of additional Registrable Securities pursuant to such Registration Statement, the Company shall amend such Registration Statement to cover such additional Registrable Securities.
(c) The Holder making Company shall use its reasonable best efforts to qualify and remain qualified to register the Demand Registration may elect whether offer and sale of securities under the offering of such Registrable Securities Act pursuant to such Demand a Registration Statement on Form S-3 or any successor form thereto. As soon as practicable after the date hereof, but not later than the Target Filing Date, the Company shall be in (i) prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-3 or the then appropriate form of a firm commitment underwritten for an offering or otherwise; provided, however, that such Holder may not elect that such offering to be made on a delayed or continuous basis pursuant to rule Rule 415 under the Securities ActAct or any successor rule thereto (a “Shelf Registration Statement”) that covers all Registrable Securities then outstanding for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”) and (ii) use its reasonable best efforts to cause such Shelf Registration Statement to be declared effective by the Commission as soon as practicable thereafter. In any case in addition, the Company shall use its reasonable best efforts to cause a Shelf Registration Statement filed pursuant to Section 2(c) to remain effective, and to be supplemented and amended to the extent necessary to ensure that such Shelf Registration Statement is available or, if not available, that another Shelf Registration Statement (if the Company is eligible to file a Shelf Registration Statement) or other Registration Statement (if the Company is not so eligible) is continuously available, for the resale of all the Registrable Securities held by the Holders until all such Registrable Securities have ceased to be Registrable Securities. For purposes hereof, “Target Filing Date” shall mean the date which an offering is in 30 days after the form Company becomes qualified to register the offer and sale of securities under the Securities Act pursuant to a Shelf Registration Statement. If, after the filing of a firm commitment underwritten offeringShelf Registration Statement, if a holder of Registrable Securities requests registration under the managing underwriter or underwriters Securities Act of additional Registrable Securities pursuant to such offering advise Shelf Registration, the Company in writing that in its shall amend such Shelf Registration Statement to cover such additional Registrable Securities. At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or any successor form thereto, the holders of Registrable Securities shall have the right to request an unlimited number of registrations under the Securities Act of all or any portion of their opinion Registrable Securities pursuant to a Registration Statement on Form S-3 or any similar short-form Registration Statement (each, a “Short-Form Registration” and, collectively with each Long-Form Registration and Shelf Registration (as defined below), a “Demand Registration”). Each request for a Short-Form Registration shall specify the number of Registrable Securities proposed requested to be sold included in the Short-Form Registration. Upon receipt of any such offering exceeds request, the number Company shall promptly (but in no event later than 10 days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities that can be sold in who shall then have 10 days from the date such offering without aversely affecting the market for the Company's Common Stock, notice is given to notify the Company will include in such registration the number writing of Registrable Securities that in the opinion of such managing underwriter or underwriters can be sold without adversely affecting the market for the Company's Common Stock. In such event, the number of Registrable Securities, if any, to be offered for the accounts of Approved Investors (including the Holder making the Demand Registration) shall be reduced pro rata on the basis of the relative number of any Registrable Securities requested by each Approved Investor their desire to be included in such registration to registration. The Company shall prepare and file with (or confidentially submit to) the extent necessary to reduce the total number of Registrable Securities to be included in such offering to the number recommended by such managing underwriter Commission a Registration Statement on Form S-3 or underwriters. In the event the Holder making the Demand shall receive notice pursuant to this Section 2(c) that the amount of Registrable Securities to be offered for such Holder shall be reduced, such Holder shall be entitled to withdraw the Demand by written notice to the Company within seven (7) days after receipt of such notice, with the effect that such Demand shall be deemed not to have been made.
(d) If any of the Registrable Securities covered by a Demand Registration are to be sold in an underwritten offering, the Approved Investors, in the aggregate, that own or will own a majority successor form thereto covering all of the Registrable Securities that the Company has been holders thereof have requested to register (including be included in such Short-Form Registration within 30 days after the Requested Securities but excluding any securities date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be issued declared effective by the Company), shall have the right to select the investment banker or investment bankers and manager or managers that will underwrite the offering; provided, however, that such investment bankers and managers must be reasonably satisfactory to the CompanyCommission as soon as practicable thereafter.
Appears in 2 contracts
Samples: Registration Rights Agreement (Wejo Group LTD), Merger Agreement (Virtuoso Acquisition Corp.)
Demand Registration. (a) At any time beginning six months From and after January 1, 2001, the Holders of at least 66 2/3% of the then outstanding Registerable Securities may notify the Company in writing that such Holders desire for the Company to cause all or a portion of such notifying Holders' Registerable Securities to be registered for sale to the public under the Act. Upon receipt of such written request, the Company will promptly notify in writing all other Holders of Registerable Securities of such request, which Holders shall within twenty days following such notice from the date of this Agreement and for a period of three years thereafterCompany, notify the Holder may make one written request for registration under the Company in writing whether such persons desire to have Registerable Securities Act, (a "Demand Registration") of all or part of Holder's Registrable Securities (but such part, together with the number of securities requested held by other Approved Investors, to be them included in such Demand Registration offering. The Company will, promptly following the expiration of such twenty day period, prepare and file subject to the provisions of this Section 1, and use its best efforts to prosecute to effectiveness, an appropriate filing with the SEC of a registration statement covering such Registerable Securities and the proposed sale or distribution thereof under the Act.
(b) Notwithstanding anything in this Section 1.2 to the contrary, the Company shall not be obligated to prepare or file any registration statement pursuant to this Section 21.2 or to prepare or file any amendment or supplement thereto, shall have an estimated market value at any time when the Company, in the good faith judgment of its Board of Directors, reasonably believes that the filing thereof at the time requested, or the offering of such request securities pursuant thereto, (based upon the then market price of i) would materially adversely affect a share of Common Stock pending or proposed public offering of the Company's securities, or an acquisition, merger, recapitalization, consolidation, reorganization or similar transaction, negotiations, discussions or pending proposals with respect thereto or (ii) would materially adversely affect the business or prospects of at least $250,000. the Company in view of the disclosures that may be required thereby of information about the business, assets, liabilities or operations of the Company not theretofore disclosed; provided, however, that the filing of a registration statement, or any supplement or amendment thereto, by the Company may be deferred pursuant to this Section 1.2 for no longer than 180 days (but only once in every twelve month period) after the delivery of such demand notice.
(c) Notwithstanding anything in this Section 1.2 to the foregoing, contrary: (i) the Company shall not be required to file any effect the registration statement on behalf of the Holder within twelve months after the effective date of any earlier registration statement so long as the Holder was given a notice offering it the opportunity to sell Registrable Registerable Securities under the earlier registration statement and the Holder did not request that its Registrable Securities be included; provided, however, that if Holder requested that its Registrable Securities be included in the earlier registration statement but not all were so included through no fault of the Investor, the Investor may, but shall not be obligated to, require the Company to file another registration statement pursuant to a Demand Registration. Within fifteen (15) days after receipt of a request for a Demand Registration, the Company shall give written notice (the "Notice") of such request to all other Approved Investors and shall include in such registration all Registrable Securities that the Company has received written requests for inclusion therein within 15 days after the Notice is given (the "Requested Securities"). Thereafter, the Company may elect to include in such registration additional shares of Common Stock to be issued by the Company. All requests made pursuant to this Section 2 1.2 more than one time; and (ii) the Company shall specify the aggregate number not be required to effect any such registration unless at least $5 million of Registrable Registerable Securities are to be registered.
sold in such registration (bwith such amount being determined based on the market price of the Common Stock on the date of the initiating Holder(s) A request). If any registration shall not constitute a Demand Registration under pursuant to this Section 2 until it has become effective.
(c) The Holder making the Demand Registration may elect whether the offering of such Registrable Securities pursuant to such Demand Registration shall be in the form of a firm commitment underwritten offering or otherwise; provided, however, that such Holder may not elect that such offering be made on a delayed or continuous basis pursuant to rule 415 under the Securities Act. In any case in which an offering 1.2 is in the form of a firm commitment underwritten offering, if the managing underwriter or underwriters of such offering advise the Company in writing that in its or their opinion the number of Registrable Securities proposed to be sold in such offering exceeds the number of Registrable Securities that can be sold in such offering without aversely affecting the market for the Company's Common Stock, the Company will include in such registration the number of Registrable Securities that in the opinion of such managing underwriter or underwriters can be sold without adversely affecting the market for the Company's Common Stock. In such event, the number of Registrable Securities, if any, to be offered for the accounts of Approved Investors (including the Holder making the Demand Registration) shall be reduced pro rata on the basis of the relative number of any Registrable Securities requested by each Approved Investor to be included in such registration to the extent necessary to reduce the total number of Registrable Securities to be included in such offering to the number recommended by such managing underwriter or underwriters. In the event the Holder making the Demand shall receive notice pursuant to this Section 2(c) that the amount of Registrable Securities to be offered for such Holder shall be reduced, such Holder shall be entitled to withdraw the Demand by written notice to the Company within seven (7) days after receipt of such notice, with the effect that such Demand shall be deemed not to have been made.
(d) If any of the Registrable Securities covered by a Demand Registration are to be sold in an underwritten offering, the Approved Investors, in the aggregate, that own or Company will own a majority of the Registrable Securities that the Company has been requested to register (including the Requested Securities but excluding any securities to be issued by the Company), shall have the right to select and obtain the investment banker or investment bankers and manager or managers that will underwrite administer the offering; provided, however, that such which investment bankers must offer terms which are reasonably competitive in the marketplace for similar size companies and managers must be reasonably satisfactory similar offerings. The Company shall (together with all Holders proposing to distribute Registerable Securities through such underwriting) enter into an underwriting agreement, containing usual and customary terms, with the managing underwriter selected for such underwriting. If any holder of Registerable Securities disapproves of the terms of the underwriting, such person may elect to withdraw therefrom by written notice to the CompanyCompany and the managing underwriter. The Registerable Securities so withdrawn shall also be withdrawn from registration.
(d) If any registration statement under this Section 1.2 is not declared effective (except for the reasons specified in Section 1.9 below and except as a result of Holders withdrawing Registerable Securities), then the holders of Registerable Securities may request an additional registration under this Section 1.2.
(e) No registrations effected under this Section 1.2 shall relieve the Company of its obligations to effect any registrations under, and pursuant to the terms of, Sections 1.3 and 1.4 hereof.
Appears in 2 contracts
Samples: Series C Preferred Stock and Warrant Purchase Agreement (Mobility Electronics Inc), Series C Preferred Stock and Warrant Purchase Agreement (Mobility Electronics Inc)
Demand Registration. (a) At (i) SAP and its Affiliated Companies shall have the right, after the 180 day period following the IPO Date (or such other period as may be requested by the Company or an underwriter to facilitate compliance with applicable FINRA rules, or any time beginning six months from successor provisions or amendments thereto), and (ii) Silver Lake and its Affiliated Companies shall have the date right, after the two year period following the IPO Date, to request in writing (a “Request”) (which request shall specify the Registrable Securities intended to be disposed of this Agreement by such requesting Holder, and the intended method of distribution thereof, including in a Rule 415 Offering, if the Company is then eligible to register such Registrable Securities on Form S-3 (or a successor form) for such offering) that the Company register such portion of the requesting Holder’s Registrable Securities as shall be specified in the Request (a “Demand Registration”) by filing with the SEC, as soon as practicable (the “Filing Date”) after the receipt of such a Request by the Company, a registration statement (a “Demand Registration Statement”) covering such Registrable Securities, and the Company shall use its reasonable best efforts to have such Demand Registration Statement become effective with the SEC concurrently with filing or as soon as practicable thereafter, and, subject to Section 3.4, to keep such Demand Registration Statement Continuously Effective for a period of three years thereafterat least 24 months, in the case of a Rule 415 Offering, or, in all other cases, for a period of at least 180 days following the date on which such Demand Registration Statement is declared effective (or for such shorter period which will terminate when all of the Registrable Securities covered by such Demand Registration Statement shall have been sold pursuant thereto) (provided that such period shall be extended for a period of time equal to the period the Holder may make one written of Registrable Securities refrains from selling any securities included in such registration statement at the request of the Company or the Underwriters’ Representative pursuant to the provisions of this Agreement), including, if necessary, by filing with the SEC a post-effective amendment or a supplement to the Demand Registration Statement or the related prospectus or any document incorporated therein by reference or by filing any other required document or otherwise supplementing or amending the Demand Registration Statement, if required by the rules, regulations or instructions applicable to the registration form used by the Company for registration under such Demand Registration Statement or by the Securities Act, the Exchange Act, any state securities or blue sky laws, or any rules and regulations thereunder; provided, that such period during which the Demand Registration Statement shall remain Continuously Effective shall, in the case of an Underwritten Offering, and subject to Section 3.4, be extended for such period (if any) as the underwriters shall reasonably require, including to satisfy, in the judgment of counsel to the underwriters, any prospectus delivery requirements imposed by applicable law.
(b) The Company shall not be obligated to effect more than two Demand Registrations in any calendar year for Silver Lake or more than one Demand Registration for SAP in any calendar quarter. For purposes of the preceding sentence, a "Demand Registration"Registration shall not be deemed to have been effected for SAP and its Affiliated Companies or Silver Lake and its Affiliated Companies (and, therefore, not requested for purposes of paragraph (a) above), (i) unless a Demand Registration Statement with respect thereto has become effective, (ii) if after such Demand Registration Statement has become effective, the offer, sale or distribution of all Registrable Securities thereunder is prevented by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court for any reason not attributable to SAP or its Affiliated Companies, or to Silver Lake or its Affiliated Companies, as the case may be, and such effect is not thereafter eliminated or (iii) if the conditions to closing specified in the purchase agreement or underwriting agreement entered into in connection with any offering pursuant to such registration are not satisfied or waived other than by reason of a failure on the part of Holder's Registrable Securities (but such partSAP or its Affiliated Companies, together or Silver Lake and its Affiliated Companies, as the case may be. If the Company shall have complied with the number of securities requested by other Approved Investorsits obligations under ARTICLE III, a right to be included in such a Demand Registration pursuant to this Section 2, 3.1 shall be deemed to have been satisfied upon the earlier of (i) the date as of which all of the Registrable Securities included therein shall have been sold to the underwriters or distributed pursuant to the Demand Registration Statement and (ii) the date as of which such Demand Registration Statement shall have been effective for an estimated market value at the time of such request (based upon the then market price of a share of Common Stock of the Company) aggregate period of at least $250,000. Notwithstanding 24 months, in the foregoingcase of a Rule 415 Offering, or, in all other cases, for a period of at least 180 days following the Company effectiveness of such Demand Registration Statement; provided that such period shall not be required extended for a period of time equal to file any registration statement on behalf of the period the Holder within twelve months after the effective date of any earlier registration statement so long as the Holder was given a notice offering it the opportunity to sell Registrable Securities under the earlier registration statement and the Holder did not request that its Registrable Securities be included; provided, however, that if Holder requested that its Registrable Securities be refrains from selling any securities included in the earlier registration statement but not all were so included through no fault of the Investor, the Investor may, but shall not be obligated to, require the Company to file another registration statement pursuant to a Demand Registration. Within fifteen (15) days after receipt of a request for a Demand Registration, the Company shall give written notice (the "Notice") of such request to all other Approved Investors and shall include in such registration all Registrable Securities that statement at the request of the Company has received written requests for inclusion therein within 15 days after or the Notice is given Underwriters’ Representative pursuant to the provisions of this Agreement.
(the "Requested Securities"). Thereafter, the Company may elect to include in such registration additional shares of Common Stock to be issued by the Company. All requests c) Any request made pursuant to this Section 2 3.1 shall be addressed to the attention of the General Counsel of the Company and shall specify the aggregate number of Registrable Securities to be registeredregistered (which shall be not less than 0.5% of the outstanding shares of Company Common Stock).
(bd) A registration shall Without the prior written consent of SAP, the Company may not constitute include in a Demand Registration under pursuant to this Section 2 until it has become effective.
3.1 shares of Company Capital Stock for the account of the Company or any Subsidiary of the Company, but, if and to the extent required by a contractual obligation (c) The including Section 3.2), may, subject to compliance with Section 3.1(e), include shares of Company Capital Stock for the account of any other Person who holds shares of Company Capital Stock entitled to be included therein (including any other Holder entitled to be included therein pursuant to Section 3.2); provided, that if the Underwriters’ Representative of any offering described in this Section 3.1 shall have informed the Company and/or the Holder making the Demand Registration may elect whether the offering of such Registrable Securities pursuant to such Demand Registration shall be in the form of a firm commitment underwritten offering or otherwise; provided, however, that such Holder may not elect that such offering be made on a delayed or continuous basis pursuant to rule 415 under the Securities Act. In any case in which an offering is in the form of a firm commitment underwritten offering, if the managing underwriter or underwriters of such offering advise the Company Request in writing that in its or their opinion judgment there is a Maximum Number of shares of Company Capital Stock that SAP and its Affiliated Companies, Silver Lake and its Affiliated Companies, all other Holders and any other Persons entitled to participate in such Demand Registration may include in such offering, then the Company shall include in such Demand Registration: (i) first, (A) the number of Registrable Securities proposed held by SAP and its Affiliated Companies (“SAP Securities”), if any, up to 1% of the aggregate outstanding Company Capital Stock, that are requested to be sold included in such offering exceeds registration, (B) the number of Registrable Securities that can be sold in such offering without aversely affecting held by Silver Lake and its Affiliated Companies (“Silver Lake Securities”), if any, up to 1% of the market for the Company's Common aggregate outstanding Company Capital Stock, the Company will include that are requested to be included in such registration and (C) the number of Registrable Securities that in the opinion of such managing underwriter or underwriters can be sold without adversely affecting the market for the Company's Common Stock. In such event, the number of Registrable held by Q II and its Affiliated Companies (“Q II Securities”), if any, up to 0.25% of the aggregate outstanding Company Capital Stock, that are requested to be offered for included in such registration pursuant to Section 3.2 (clauses (A)-(C) collectively, the accounts “Cap Amount”), except that if the number of Approved Investors (including shares of Company Capital Stock that may be included in such registration is less than the Holder making Cap Amount, the Demand Registration) reduction shall be reduced applied pro rata among the SAP Securities, Silver Lake Securities and Q II Securities based on each of their pro rata share of the Cap Amount (i.e., 44.44% SAP Securities/44.44% Silver Lake Securities/11.12% Q II Securities); (ii) second, up to the full number of SAP Securities in excess of the Cap Amount, if any, that are requested to be included in such registration; (iii) third, up to the full number of Silver Lake Securities and Q II Securities in excess of the Cap Amount, if any, that are requested to be included in such registration on a pro rata basis based on the number of shares of Company Capital Stock held by such Holders; (iv) fourth, such number of shares of Company Capital Stock duly requested to be included in such registration by other Persons, pro rata on the basis of the relative amount of such other shares of Company Capital Stock requested to be included or such other allocation method determined by the Company; and (v) fifth, securities the Company proposes to sell.
(e) No Holder may participate in any Underwritten Offering under this Section 3.1 and no other Person shall be permitted to participate in any such offering pursuant to this Section 3.1 unless it completes and executes all customary questionnaires, powers of attorney, custody agreements, underwriting agreements and other customary documents required under the customary terms of such underwriting arrangements. In connection with any Underwritten Offering under Section 3.1 hereof, each participating Holder and the Company and, except in the case of a Rule 415 Offering hereof, each other Selling Holder shall be a party to the underwriting agreement with the underwriters and may be required to make certain customary representations and warranties and provide certain customary indemnifications for the benefit of the underwriters.
(f) Any Holder having requested the Company to include any or all of its Registrable Securities in a registration statement under the Securities Act pursuant to Section 3.1 or Section 3.2 shall have the right to withdraw any such notice or direction with respect to any or all of the Registrable Securities designated by it for registration by giving written notice to such effect to the Company prior to the effective date of such registration statement. In the event of any such withdrawal, the Company shall not include such Registrable Securities in the applicable registration and such Registrable Securities shall continue to be Registrable Securities for all purposes of this Agreement (subject to the other terms and conditions of this Agreement). No such withdrawal shall affect the obligations of the Company with respect to the Registrable Securities not so withdrawn if any other Holder has requested pursuant to Section 3.1 or Section 3.2 that Registrable Securities be included in such registration; provided, however, that in the case of a Demand Registration, if such withdrawal shall reduce the number of any Registrable Securities requested by each Approved Investor sought to be included in such registration below 0.5% of the outstanding shares of Company Common Stock, then the Company shall as promptly as practicable give each Holder seeking to the extent necessary to reduce the total number of register Registrable Securities notice to be included in such offering to effect and, within ten days following the number recommended by mailing of such managing underwriter or underwriters. In the event the Holder making the Demand shall receive notice pursuant to this Section 2(c) that the amount of Registrable Securities to be offered for such Holder shall be reducednotice, such Holder shall be entitled to withdraw the Demand Holders still seeking registration shall, by written notice to the Company within seven (7) days after receipt of such noticeCompany, with elect to register additional Registrable Securities to satisfy the effect foregoing minimum offering size or elect that such Demand shall registration statement not be deemed not to have been made.
(d) If any of the Registrable Securities covered by a Demand Registration are to filed or, if theretofore filed, be sold in an underwritten offeringwithdrawn. During such ten day period, the Approved InvestorsCompany shall not file such registration statement if not theretofore filed or, in the aggregateif such registration statement has been theretofore filed, that own or will own a majority of the Registrable Securities that the Company has been requested shall not seek, and shall use reasonable best efforts to register (including prevent, the Requested Securities but excluding any securities to be issued by the Company), shall have the right to select the investment banker or investment bankers and manager or managers that will underwrite the offering; provided, however, that such investment bankers and managers must be reasonably satisfactory to the Companyeffectiveness thereof.
Appears in 2 contracts
Samples: Stockholders’ Agreement (Silver Lake Group, L.L.C.), Stockholders’ Agreement (Qualtrics International Inc.)
Demand Registration. (a) At any time beginning six months from and after the date that is [*] from the date of this Agreement and for a period of three years thereafterAgreement, the Holder Majority Holders may make one written request for in writing that the Company effect the registration under the Securities Act, (a "Demand Registration") 1933 Act of any or all or part of Holder's the Registrable Securities held by such requesting Holders, which notice shall specify the intended method or methods of disposition of such Registrable Securities. Except as otherwise provided herein, the Company shall prepare and (but within 90 days after such part, together request has been given) file with the number of securities requested by other Approved Investors, Securities and Exchange Commission (the “SEC”) a registration statement with respect to be (x) all Registrable Securities included in such Demand Registration request and (y) all Registrable Securities included in any request delivered by the Requesting Holders pursuant to this Section 22.1(f) (together, shall have an estimated market value at the time “Covered Registrable Securities”), and thereafter use its reasonable efforts to effect the registration under the 1933 Act and applicable state securities laws of such Registrable Securities for disposition in accordance with the intended method or methods of disposition stated in such request (based upon the then market price which requested method of disposition may be a share of Common Stock of the Company) of at least $250,000. Notwithstanding the foregoingRule 415 Offering, provided that the Company shall not be required to file any maintain the effectiveness of a registration statement on behalf of relating to a Rule 415 Offering to the Holder within twelve months after extent the effective date of any earlier registration statement so long as the Holder was given a notice offering it the opportunity to sell Registrable Securities under the earlier registration statement and the Holder did not request that its Registrable Securities be included; provided, however, that if Holder requested that its Registrable Securities be securities included in such registration cease to be Registrable Securities); provided further that the earlier registration statement but not all were so included through no fault of the Investor, the Investor may, but Company shall not be obligated to, require the Company to file another registration statement pursuant to a Demand Registration. Within fifteen (15) days after receipt of a request for a Demand Registration, the Company shall give written notice (the "Notice") of such request to all other Approved Investors and shall include in effect any such registration all Registrable Securities that the Company has received written requests for inclusion therein within 15 days after the Notice is given (the "Requested Securities"). Thereafter, the Company may elect to include in such registration additional shares of Common Stock to be issued by the Company. All requests made pursuant to this Section 2 2.1(a) (i) during the period starting with the date of filing of, and ending on the date 90 days following the effective date of, a registration statement pertaining to a public offering initiated or requested by the Company or any stockholder other than a Holder, (ii) if within 30 days of receipt of a written request from the Requesting Holders, the Company gives notice to the Requesting Holders of the Company’s intention to make a public offering within 90 days for the Company’s account or (iii) if the Company furnishes to the Requesting Holders a certified resolution of the Board of Directors stating that in the Board of Directors’ good faith judgment it would be materially prejudicial (a “Materially Prejudicial Condition”) to the Company for such a registration statement to be filed and become effective, and, if requested by the Requesting Holders (and subject to their entering into a customary confidentiality obligation as to such information), setting forth in reasonable detail the general reasons for such judgment. The Company shall specify also be able to suspend the aggregate number use of, or withdraw and terminate the effectiveness of, any effective registration statement by furnishing the Holders with a certified copy of such resolution of the Board of Directors as to a Materially Prejudicial Condition. Upon receipt of such certified copy, the Holders shall immediately discontinue use of the prospectus contained in such registration statement and, if so directed by the Company, the Holders shall deliver to the Company all copies, other than permanent file copies, of the prospectus covering such Registrable Securities that is current at the time of receipt of such notice. The Company shall promptly deliver to each Requesting Holder or Holders, as applicable, written notice of the non-existence of any Materially Prejudicial Condition with respect to which the Company previously furnished notice. Neither the filing nor the effectiveness of any such registration statement may be registereddelayed, or the use of the prospectus contained in any such registration statement suspended, for a period in excess of 90 days due to the occurrence of any particular Materially Prejudicial Condition and the Company may exercise its delay or suspension rights on only one occasion in connection with any registration request under Section 2.1 in any twelve-month period. If requested by the Initial Requesting Holders, the Company shall, if any registration statement shall have failed to have been filed or shall have been suspended, withdrawn or terminated because of a Materially Prejudicial Condition, promptly after such time as the Materially Prejudicial Condition no longer exists or, if earlier, at the end of the 90-day period following the occurrence of such Materially Prejudicial Condition, file the unfiled registration statement, a post-effective amendment to the suspended registration statement and/or an amended or supplemented prospectus thereto, or a new registration statement covering the Registrable Securities that were covered by such unfiled, suspended or withdrawn or terminated registration and maintain the effectiveness thereof for such time as is required under this Agreement.
(b) A The Majority Holders may collectively exercise their rights to require a registration shall not constitute under Section 2.1(a) once, provided that the Majority Holders may collectively exercise their rights to require a Demand Registration registration under this Section 2 until it has become effective2.1(a) on an [*] for each time that less than all of the Covered Registrable Securities are included in the registration statement filed by the Company with the SEC pursuant to a request under Section 2.1(a) because of the operation of Section 2.1(g).
(c) The Without limiting the last sentence of Section 2.1(a), the Holders shall not have the right to require the filing of a registration statement pursuant to this Section 2.1 while any registration statement that has been filed pursuant to this Section 2.1 has yet to become effective or within [*] following the effectiveness of any registration statement that was filed pursuant to this Section 2.1.
(d) A registration pursuant to this Section 2.1 shall not be deemed to have been effected (and, therefore, rights of a Requesting Holder making shall be deemed not to have been exercised for purposes of paragraph (a) above) (i) unless it has become effective, (ii) if after it has become effective such registration (or the Demand Registration may elect whether use of the offering prospectus contained in such registration statement) is (A) interfered with by any stop order, injunction or other order or requirement of such the SEC or other governmental agency or court for any reason other than a misrepresentation or an omission by any Holder or (B) delayed, withdrawn, suspended or terminated and, in each case, as a result thereof, the Registrable Securities requested to be registered cannot be completely distributed in accordance with the plan of distribution set forth in the related registration statement (until such time as the Registrable Securities requested to be registered may be completely distributed in accordance with the plan of distribution set forth in the related registration statement) or (iii) if the conditions to closing specified in any purchase agreement or underwriting agreement entered into in connection with such registration are not satisfied or waived other than because of some act or omission by any Holder.
(e) In the event that any registration pursuant to such Demand Registration Section 2.1(a) shall be involve, in the form of a firm commitment underwritten offering whole or otherwise; providedin part, however, that such Holder may not elect that such offering be made on a delayed or continuous basis pursuant to rule 415 under the Securities Act. In any case in which an offering is in the form of a firm commitment underwritten offering, if the managing Holders of a majority of the Registrable Securities to be registered shall select the lead underwriter or underwriters (which selection or selections shall be subject to the approval of the Company, which approval shall not be unreasonably withheld), as well as counsel for the Holders, with respect to such registration.
(f) Upon receipt of a written request from the Initial Requesting Holders pursuant to the first sentence of Section 2.1(a), the Company shall promptly give written notice of such offering advise requested registration to all other Holders of Registrable Securities and the intended method or methods of disposition stated in such request. Each other Holder may, by written notice to the Company to be delivered within [*] of the delivery of the Company’s notice, request the inclusion in writing that in its or their opinion such registration of any Registrable Securities held by such other Holder. The Company shall promptly after the expiration of such [*] period notify each Requesting Holder of (i) the identity of the other Requesting Holders and (ii) the number of Registrable Securities proposed requested to be included therein by each Requesting Holder. In the event that the Initial Requesting Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, the right of any Holder to include all or any portion of its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute all of any portion of their Registrable Securities through such underwriting shall enter into an underwriting agreement in customary form (for secondary sales by selling stockholders) with the underwriter or underwriters selected pursuant to Section 2.1(e).
(g) The Company shall have the right to cause the registration of additional equity securities for sale for the account of any person or entity that is not a Holder (including the Company and any directors, officers or employees of the Company (such additional equity securities, the “Additional Equity Securities”)) in any registration of Registrable Securities requested by the Requesting Holders; provided that if such registration is to be an underwritten registration and such Requesting Holders are advised in writing (with a copy to the Company) by a nationally recognized investment banking firm selected pursuant to paragraph (e) above that, in such firm’s good faith view, all or a part of the equity securities to be included in such registration (including any Additional Equity Securities) cannot be sold and the inclusion of all or part of the equity securities that would otherwise be included in such registration would be likely to have an adverse effect on the price, timing or distribution of the offering and sale of the equity securities to be included in such registration, then the Company shall exclude from such registration such Additional Equity Securities or part thereof (other than Company Securities that the Company proposes to include in such registration), to the nearest extent possible on a pro rata basis, except to the extent doing so would be inconsistent with the provisions of any agreement under which any of the Additional Equity Securities are entitled to registration rights, in which case the Company shall include in such registration:
(i) first, up to the full number of any Third Party Priority Securities that are requested to be included in such registration which, in the good faith view of such investment banking firm, can be so sold without so adversely affecting such offering in the manner described above, to the nearest extent possible on a pro rata basis;
(ii) second, up to the full number of (A) Registrable Securities held by Holders and (B) any Third Party Parity Securities that are requested to be included in such registration, in excess of the number of any Third Party Priority Securities to be sold in such offering exceeds which, in the good faith view of such investment banking firm, can be so sold without so adversely affecting such offering in the manner described above, to the nearest extent possible on a pro rata basis (with the number of Registrable Securities and Third Party Parity Securities that will be so included in such registration being determined on the basis of the number of Registrable Securities that can the Holders request be included in such registration and the number of Third Party Parity Securities that are requested to be included in such registration);
(iii) third, up to the full number of Company Securities that the Company proposes to include in such registration, in excess of the number of Third Party Priority Securities, Registrable Securities and Third Party Parity Securities to be sold in such offering which, in the good faith view of such investment banking firm, can be sold without aversely so adversely affecting such offering in the market for manner described above; and
(iv) fourth, up to the full number of any Other Securities (that are not Third Party Priority Securities, Registrable Securities, Third Party Parity Securities or Company Securities) held by other holders of the Company's Common Stock, the Company will include ’s securities entitled to registration rights that are requested to be included in such registration registration, in excess of the number of Third Party Priority Securities, Registrable Securities, Third Party Parity Securities and Company Securities to be sold in such offering which, in the good faith view of such investment banking firm, can be so sold without so adversely affecting such offering in the manner described above. In the event that the number of Registrable Securities requested to be included in a registration statement that will not include any Additional Equity Securities by the Requesting Holders exceeds the number which, in the opinion good faith view of such managing underwriter or underwriters investment banking firm, can be sold without adversely affecting the market for price, timing, distribution or sale of securities in the Company's Common Stock. In such eventoffering, the number of Registrable Securities, if any, to be offered for the accounts of Approved Investors (including the Holder making the Demand Registration) shall be reduced allocated pro rata among all of the Requesting Holders on the basis of the relative number of any Registrable Securities requested then held by each Approved Investor to be included such Requesting Holder (with any number in such registration to excess of a Requesting Holder’s request reallocated among the extent necessary to reduce the total number of Registrable Securities to be included remaining Requesting Holders in such offering to the number recommended by such managing underwriter or underwriters. In the event the Holder making the Demand shall receive notice pursuant to this Section 2(c) that the amount of Registrable Securities to be offered for such Holder shall be reduced, such Holder shall be entitled to withdraw the Demand by written notice to the Company within seven (7) days after receipt of such notice, with the effect that such Demand shall be deemed not to have been madea like manner).
(d) If any of the Registrable Securities covered by a Demand Registration are to be sold in an underwritten offering, the Approved Investors, in the aggregate, that own or will own a majority of the Registrable Securities that the Company has been requested to register (including the Requested Securities but excluding any securities to be issued by the Company), shall have the right to select the investment banker or investment bankers and manager or managers that will underwrite the offering; provided, however, that such investment bankers and managers must be reasonably satisfactory to the Company.
Appears in 2 contracts
Samples: Registration Rights Agreement (Diversa Corp), Asset Sale Agreement (Diversa Corp)
Demand Registration. (a) At any time beginning six months from 2.1.1 As soon as practicable upon the first date after the date of this Registration Rights Agreement that the Company is eligible pursuant to General Instructions I.A. and for a period I.B.3. to Form S-3 of three years thereafter, the Holder may make one written request for registration under the Securities ActAct to register and sell on a Form S-3 securities held by selling shareholders, (a "Demand Registration") of all or part of Holder's Registrable Securities (but in any event no later than ten days after such part, together with the number of securities requested by other Approved Investors, to be included in such Demand Registration pursuant to this Section 2, shall have an estimated market value at the time of such request (based upon the then market price of a share of Common Stock of the Company) of at least $250,000. Notwithstanding the foregoingdate, the Company shall not be required to file any with the Commission a shelf registration statement on behalf Form S-3 covering the resale of the Registrable Securities on a continuous basis in accordance with Rule 415 under the Securities Act (the "REGISTRATION STATEMENT"). The Company shall use its reasonable best efforts to cause such Registration Statement to become effective as soon as practicable, but in no event later than ninety (90) days after the date the Registration Statement was filed, and to cause the sale of the Registrable Securities to be qualified in such state jurisdictions as the Holder within twelve months after may request.
2.1.2 Except as set forth herein, the Company shall take all reasonable steps necessary to keep the Registration Statement current and effective until the lesser of: (i) two years and (ii) until the Registrable Securities are transferable pursuant to Rule 144 under the Securities Act without the volume limitations set forth in such rule.
2.1.3 If at any time the Company is requested to file the Registration Statement pursuant hereto, the Company (i) has previously initiated bona fide discussions with underwriters in preparation for a public offering of its securities and its underwriters reasonably believe (as evidenced by a letter to the Company) that such public offering would be materially adversely affected by the registration so requested, or (ii) is in possession of material information it reasonably deems advisable not to disclose in a registration statement, the Company may, by prompt notice, postpone the filing of the Registration Statement for so long as (x) its underwriters state in writing is necessary or (y) such information continues to be material and non-public, but in no event shall the Company delay filing of the Registration Statement if as a result thereof, the effective date of any earlier the Registration Statement would be delayed for longer than three (3) months after the registration statement so long as the Holder was given a notice offering it the opportunity to sell Registrable Securities under the earlier registration statement and the Holder did not request that its Registrable Securities be includedrequest; provided, however, that if Holder requested that its Registrable Securities be included in the earlier registration statement but not all were so included through no fault of the Investor, the Investor may, but shall not be obligated to, require the Company to file another registration statement pursuant to a Demand Registration. Within fifteen (15) days after receipt of a request for a Demand Registration, the Company shall give written notice (the "Notice") of such request to all other Approved Investors and shall include in such registration all Registrable Securities that the Company has received written requests for inclusion therein within 15 days after the Notice is given (the "Requested Securities"). Thereafter, the Company may elect to include in such registration additional shares of Common Stock to be issued by the Company. All requests made pursuant to this Section 2 shall specify the aggregate number of Registrable Securities to be registered.
(b) A registration shall not constitute a Demand Registration under this Section 2 until it has become effective.
(c) The Holder making the Demand Registration may elect whether the offering of such Registrable Securities pursuant to such Demand Registration shall be in the form of a firm commitment underwritten offering or otherwise; provided, however, that such Holder may not elect that such offering be made on a delayed or continuous basis pursuant to rule 415 under the Securities Act. In any case in which an offering is in the form of a firm commitment underwritten offering, if the managing underwriter or underwriters of such offering advise the Company in writing that in its or their opinion the number of Registrable Securities proposed to be sold in such offering exceeds the number of Registrable Securities that can be sold in such offering without aversely affecting the market for the Company's Common Stock, the Company will include in such registration the number of Registrable Securities that in the opinion of such managing underwriter or underwriters can be sold without adversely affecting the market for the Company's Common Stock. In such event, the number of Registrable Securities, if any, to be offered for the accounts of Approved Investors (including the Holder making the Demand Registration) shall be reduced pro rata on the basis of the relative number of any Registrable Securities requested by each Approved Investor to be included in such registration to the extent necessary to reduce the total number of Registrable Securities to be included in such offering to the number recommended by such managing underwriter or underwriters. In the event the Holder making the Demand shall receive notice pursuant to this Section 2(c) that the amount of Registrable Securities to be offered for such Holder shall be reduced, such Holder shall be entitled to withdraw the Demand by written notice to the Company within seven (7) days after receipt of such notice, with the effect that such Demand shall be deemed not to have been made.
(d) If any of the Registrable Securities covered by a Demand Registration are to be sold in an underwritten offering, the Approved Investors, in the aggregate, that own or will own a majority of the Registrable Securities that the Company has been requested to register (including the Requested Securities but excluding any securities to be issued by the Company), shall have the right to select postpone any filing pursuant to this Section 2.1.3 no more than one time.
2.1.4 The Company shall be entitled to require that a holder or holders of Registrable Securities refrain from effecting any public sales or distributions of the investment banker Registrable Securities pursuant to a Registration Statement that has been declared effective by the Commission or investment bankers and manager or managers that will underwrite otherwise, if the offering; provided, however, board of directors of the Company reasonably determines that such investment bankers and managers must public sales or distributions would interfere in any material respect with any transaction involving the Company that the board of directors reasonably determines to be reasonably satisfactory material to the Company. The board of directors shall, as promptly as practicable, give the holders of the Registrable Securities written notice of any such development. In the event of a request by the board of directors of the Company that the holders of Registrable Securities refrain from effecting any public sales or distributions of the Registrable Securities, the Company shall be required to lift such restrictions regarding effecting public sales or distributions of the Registrable Securities as soon as reasonably practicable after the board of directors shall reasonably determine public sales or distributions by the holders of the Registrable Securities shall not interfere with such transaction, PROVIDED, that in no event shall any requirement that the holders of the Registrable Securities refrain from effecting public sales or distributions in the Registrable Securities extend for more than 90 days.
Appears in 2 contracts
Samples: Reimbursement Agreement (Industrial Holdings Inc), Reimbursement Agreement (Industrial Holdings Inc)
Demand Registration. (a) At any time beginning six months from the date Following receipt of this Agreement and for a period of three years thereafterDemand Notice, the Holder may make one Company shall:
(i) give written notice of such request for registration to all Holders of Registrable Securities within fifteen (15) days after receipt of such Demand Notice;
(ii) cause to be filed, as soon as practicable, a Registration Statement covering such Registrable Securities that the Company has been so requested to register by the Requesting Holders and other Holders of Registrable Securities who make a request to the Company, within ten (10) days of the mailing of the Company’s notice referred to in Section 1.2(b)(i) hereof, that their Registrable Securities also be registered, providing for the registration under the Securities ActAct of such Registrable Securities to the extent necessary to permit the disposition of such Registrable Securities in accordance with the intended method of distribution specified in such Demand Notice; provided, that, such Registrable Securities are not already covered by an existing and effective Registration Statement that may be utilized for the offering and sale of the Registrable Securities requested to be registered in the manner so requested;
(iii) use its commercially reasonable efforts to have such Registration Statement declared effective by the SEC as soon as practicable thereafter;
(iv) refrain from filing any other Registration Statements, other than pursuant to a "Registration Statement on Form S-4 or Form S-8 (or similar or successor forms), with respect to any equity securities of the Company until such date which is at least ninety (90) days (or, in the case of an IPO, one hundred eighty (180) days) following effectiveness of the Registration Statement relating to such Demand Registration"; and
(v) of all or part of Holder's Registrable Securities (but such part, together with if the number of securities requested by other Approved Investors, to be included in such Company shall have previously effected a Demand Registration pursuant to this Section 2, shall have an estimated market value at the time of such request (based upon the then market price of a share of Common Stock of the Company) of at least $250,000. Notwithstanding the foregoing1.2, the Company shall not be required to file effect any registration statement on behalf pursuant to Section 1.2 until a period of the Holder within twelve months after one hundred eighty (180) days shall have elapsed from the effective date of any earlier such previous registration statement so long as statement.
(vi) if a Registration Statement filed pursuant to this Section 1.2 is a Shelf Registration Statement, then upon the Holder was given a notice offering it demand of one or more Holders, the opportunity Company shall facilitate up to sell two (2) “takedowns” of Registrable Securities under in the earlier registration statement form of an underwritten offering utilizing the Shelf Registration Statement, in the manner and subject to the Holder did not request that its Registrable Securities be included; conditions described in Sections 1.2(b)(iv), 1.2(c), 1.2(e) and 1.2(f) of this Agreement, provided, howeverthat, the Company will not be required to effect a “takedown” made pursuant to this Section 1.2(b)(vi) if the Company reasonably believes, based on the advice of an underwriter that is a reputable nationally recognized investment bank, that if Holder requested that its Registrable Securities such an offering would not reasonably be included in the earlier registration statement but not all were so included through no fault expected to generate gross proceeds (before deducting underwriters’ commissions and fees and other expenses) of the Investor, the Investor may, but shall not be obligated to, require the Company to file another registration statement pursuant to a Demand Registrationat least $100,000,000. Within fifteen (15) days after receipt of receiving a request for an underwritten offering constituting a Demand Registration“takedown” from a Shelf Registration Statement, the Company shall give written notice (the "Notice") of such request to all other Approved Investors Holders, and shall include in such registration underwritten offering all such Registrable Securities that with respect to which the Company has received written requests for inclusion therein within 15 ten (10) days after the Notice is given (the "Requested Securities"). ThereafterCompany’s giving of such notice, the Company may elect to include in provided, that, such registration additional shares of Common Stock to be issued by the Company. All requests made pursuant to this Section 2 shall specify the aggregate number of Registrable Securities are covered by an existing and effective Shelf Registration Statement that may be utilized for the offering and sale of the Registrable Securities requested to be registered.
(b) A registration shall not constitute a Demand Registration under this Section 2 until it has become effective.
(c) The Holder making the Demand Registration may elect whether the offering of such Registrable Securities pursuant to such Demand Registration shall be in the form of a firm commitment underwritten offering or otherwise; provided, however, that such Holder may not elect that such offering be made on a delayed or continuous basis pursuant to rule 415 under the Securities Act. In any case in which an offering is in the form of a firm commitment underwritten offering, if the managing underwriter or underwriters of such offering advise the Company in writing that in its or their opinion the number of Registrable Securities proposed to be sold in such offering exceeds the number of Registrable Securities that can be sold in such offering without aversely affecting the market for the Company's Common Stock, the Company will include in such registration the number of Registrable Securities that in the opinion of such managing underwriter or underwriters can be sold without adversely affecting the market for the Company's Common Stock. In such event, the number of Registrable Securities, if any, to be offered for the accounts of Approved Investors (including the Holder making the Demand Registration) shall be reduced pro rata on the basis of the relative number of any Registrable Securities requested by each Approved Investor to be included in such registration to the extent necessary to reduce the total number of Registrable Securities to be included in such offering to the number recommended by such managing underwriter or underwriters. In the event the Holder making the Demand shall receive notice pursuant to this Section 2(c) that the amount of Registrable Securities to be offered for such Holder shall be reduced, such Holder shall be entitled to withdraw the Demand by written notice to the Company within seven (7) days after receipt of such notice, with the effect that such Demand shall be deemed not to have been made.
(d) If any of the Registrable Securities covered by a Demand Registration are to be sold in an underwritten offering, the Approved Investors, in the aggregate, that own or will own a majority of the Registrable Securities that the Company has been requested to register (including the Requested Securities but excluding any securities to be issued by the Company), shall have the right to select the investment banker or investment bankers and manager or managers that will underwrite the offering; provided, however, that such investment bankers and managers must be reasonably satisfactory to the Company.
Appears in 2 contracts
Samples: Registration Rights Agreement (Chicago Atlantic Real Estate Finance, Inc.), Registration Rights Agreement (AFC Gamma, Inc.)
Demand Registration. (ai) At any time beginning six months from after the date expiration of this Agreement the Lock-Up Period, any Sponsoring Holder shall have the option and for right, exercisable by delivering a period of three years thereafter, written notice to the Holder may make one written request for registration under the Securities Act, Company (a "“Demand Registration") of all or part of Holder's Registrable Securities (but such part, together with the number of securities requested by other Approved InvestorsNotice”), to be included in such Demand Registration pursuant to this Section 2, shall have an estimated market value at the time of such request (based upon the then market price of a share of Common Stock of the Company) of at least $250,000. Notwithstanding the foregoing, the Company shall not be required to file any registration statement on behalf of the Holder within twelve months after the effective date of any earlier registration statement so long as the Holder was given a notice offering it the opportunity to sell Registrable Securities under the earlier registration statement and the Holder did not request that its Registrable Securities be included; provided, however, that if Holder requested that its Registrable Securities be included in the earlier registration statement but not all were so included through no fault of the Investor, the Investor may, but shall not be obligated to, require the Company to file another registration statement to, pursuant to the terms of and subject to the limitations contained in this Agreement, prepare and file with the Commission a Demand Registration. Within fifteen (15) days after receipt Registration Statement registering the offering and sale of a request for a Demand Registration, the Company shall give written notice (the "Notice") of such request to all other Approved Investors number and shall include in such registration all Registrable Securities that the Company has received written requests for inclusion therein within 15 days after the Notice is given (the "Requested Securities"). Thereafter, the Company may elect to include in such registration additional shares of Common Stock to be issued by the Company. All requests made pursuant to this Section 2 shall specify the aggregate number type of Registrable Securities to be registered.
(b) A registration shall not constitute a Demand Registration under this Section 2 until it has become effective.
(c) The Holder making on the terms and conditions specified in the Demand Registration Notice, which may elect whether the offering of such Registrable Securities pursuant to such Demand Registration shall be in the form of a firm commitment underwritten offering or otherwise; provided, however, that such Holder may not elect that such offering be made include sales on a delayed or continuous basis pursuant to rule Rule 415 under the Securities Actpursuant to a Shelf Registration Statement (a “Demand Registration”). In any case in which an offering is in the form of a firm commitment underwritten offering, if the managing underwriter or underwriters of such offering advise the Company in writing that in its or their opinion the number of Registrable Securities proposed to be sold in such offering exceeds The Demand Notice must set forth the number of Registrable Securities that can be sold the Initiating Holder intends to include in such offering without aversely affecting Demand Registration and the market for intended methods of disposition thereof. Notwithstanding anything to the Company's Common Stockcontrary herein, in no event shall the Company be required to effectuate a Demand Registration unless the Registrable Securities of the Holders to be included therein after compliance with Section 2(a)(ii) have an aggregate VWAP of at least $50 million (the “Minimum Amount”) as of the date of the Demand Notice.
(ii) Within five Business Days after the receipt of the Demand Notice, the Company will include in such registration the number of Registrable Securities that in the opinion shall give written notice of such managing underwriter or underwriters can be sold without adversely affecting the market for the Company's Common Stock. In such eventDemand Notice to all Holders and, the number of Registrable Securities, within thirty days thereof (except if any, to be offered for the accounts of Approved Investors (including the Holder making the Demand Registration) shall be reduced pro rata on the basis of the relative number of any Registrable Securities requested by each Approved Investor to be included in such registration to the extent necessary to reduce the total number of Registrable Securities to be included in such offering to the number recommended by such managing underwriter or underwriters. In the event the Holder making the Demand shall receive notice pursuant to this Section 2(c) that the amount of Registrable Securities to be offered for such Holder shall be reduced, such Holder shall be entitled to withdraw the Demand by written notice to the Company within seven (7) days after receipt of such notice, with the effect that such Demand shall be deemed is not then eligible to have been made.
(d) If any of register for resale the Registrable Securities covered by on Form S-3, within ninety days thereof), shall, subject to the limitations of this Section 2(a), file a Registration Statement in accordance with the terms and conditions of the Demand Notice, which Registration are to be sold in an underwritten offering, the Approved Investors, in the aggregate, that own or will own a majority Statement shall cover all of the Registrable Securities that the Holders shall in writing request to be included in the Demand Registration (such request to be given to the Company has within ten days after receipt of notice of the Demand Notice given by the Company pursuant to this Section 2(a)(ii)). The Company shall use all commercially reasonable efforts to cause such Registration Statement to become and remain effective under the Securities Act until all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect (A) a Demand Registration within 90 days after the closing of any Underwritten Offering, (B) (i) through December 31, 2016, more than a total of three Demand Registrations for which RSP Permian Holdco, L.L.C. (or any transferee thereof in accordance with Section 8(e)) is the Initiating Holder and (ii) on or after January 1, 2017, more than one Demand Registration per calendar year for which RSP Permian Holdco, L.L.C. (or any transferee thereof in accordance with Section 8(e)) is the Initiating Holder, (C) more than a total of two Demand Registrations for which Xxx Xxxxxxx, Jr. (or any transferee thereof in accordance with Section 8(e)) is the Initiating Holder, (D) more than a total of two Demand Registrations for which Xxxxxxx Family Partnership, LP (or any transferee thereof in accordance with Section 8(e)) is the Initiating Holder, (E) more than a total of two Demand Registrations for which ACTOIL, LLC (or any transferee thereof in accordance with Section 8(e)) is the Initiating Holder, and (F) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of the Registrable Securities held by the 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 deemed to have occurred for purposes of this Section 2(a)(iii) if the Registration Statement relating thereto does not become effective or is not maintained effective for its entire Effectiveness Period, in which case the Initiating Holder shall be entitled to an additional Demand Registration in lieu thereof. Further, a Demand Registration shall not constitute a Demand Registration of the Initiating Holder for purposes of this Section 2(a)(iii) if, as a result of Section 2(a)(vi), there is included in the Demand Registration less than the lesser of (i) Registrable Securities of the Initiating Holder having a VWAP measured on the effective date of the related Registration Statement of $30 million and (ii) two-thirds of the number of Registrable Securities the Initiating Holder set forth in the applicable Demand Notice.
(iv) A Holder may withdraw all or any portion of its Registrable Securities included in a Demand Registration from such Demand Registration at any time prior to the effectiveness of the applicable Registration Statement. 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 to the effect that the Holder is withdrawing an amount of its Registrable Shares such that the remaining amount of Registrable Shares to be included in the Demand Registration is below the Minimum Amount, the Company shall cease all efforts to secure effectiveness of the applicable Registration Statement. Such registration nonetheless shall be deemed a Demand Registration with respect to the Initiating Holder for purposes of Section 2(a)(iii) unless (A) the Initiating Holder shall have paid or reimbursed the Company for its pro rata share of all reasonable and documented out-of-pocket fees and expenses incurred by the Company in connection with the withdrawn registration of such Registrable Securities (based on the number of securities the Initiating Holder sought to register, as compared to the total number of securities included in such Demand Registration) or (B) the withdrawal is made following the occurrence of a Material Adverse Change or pursuant to the Company’s request for suspension pursuant to Section 3(o).
(v) The Company may include in any such Demand Registration other Company Securities for sale for its own account or for the account of any other Person, subject to Section 2(a)(vi) and Section 3(c)(iii).
(vi) In the case of a Demand Registration not being underwritten, if the Initiating Holder advises the Company that in its reasonable opinion the aggregate number of securities requested to register be included exceeds the number that can be included without being likely to have a significant adverse effect on the price, timing or distribution of the securities offered or the market for the securities offered, the Company shall include in such Demand Registration only that number of securities that in the reasonable opinion of the Initiating Holder will not have such adverse effect, with such number to be allocated as follows: (A) first, pro-rata among all Holders (including the Requested Initiating Holder) that have requested to participate in such Demand Registration based on the relative number of Registrable Securities but excluding any then held by each such Holder, (B) second, if there remains availability for additional securities to be issued included in such Demand Registration, the Company, and (C) third, if there remains availability for additional securities to be included in such Demand Registration, any other holders entitled to participate in such Demand Registration, if applicable, based on the relative number of securities such holder is entitled to include in such Demand Registration.
(vii) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration on such appropriate registration form of the Commission (A) as shall be selected by the Company and (B) as shall permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the Demand Notice; provided that if the Company becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to the Company). If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Company that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, the Company will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(viii) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), the Company shall have (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 right securities subject to select such Demand Registration, including under the investment banker or investment bankers and manager or managers that will underwrite securities laws of such jurisdictions as the offeringHolders shall reasonably request; provided, however, that no such investment bankers qualification shall be required in any jurisdiction where, as a result thereof, the Company would become subject to general service of process or to taxation or qualification to do business in such jurisdiction solely as a result of registration and managers must (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 satisfactory 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.
(ix) In the event a Holder transfers Registrable Securities included on a Registration Statement and such Registrable Securities remain Registrable Securities following such transfer, at the request of such Holder, the Company 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 the Company be required to file a post-effective amendment to the CompanyRegistration 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) the Company 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 (RSP Permian, Inc.), Registration Rights Agreement (RSP Permian, Inc.)
Demand Registration. (a) At 2.1.1 If at any time beginning six months and from time to time on or after the date of this Agreement and for a period of three years thereafterhereof, the Holder may make Company shall receive a request from one written request for or more Holders (such Holders, the “Requesting Shareholders”) that the Company, effect a registration under the Securities Act, (a "Demand Registration") Act of all or part any portion of Holder's the Requesting Shareholder’s Registrable Securities, specifying the intended method of disposition thereof, including whether to be conducted via an underwritten offering (each such request shall be referred to herein as a “Demand Registration”), the Company shall use its reasonable best efforts to effect, as expeditiously as possible, and in no event later than 45 Business Days after the receipt of such request, the filing of a Registration Statement and the effectiveness of the Demand Registration, subject to the restrictions set forth in this ARTICLE II. The Company shall give reasonably prompt notice of a Demand Registration (and in no event later than 15 Business Days or 5 Business Days in the case of a Bought Deal prior to the anticipated filing date of the Registration Statement relating to such Demand Registration) to the other Holders with respect to all other Registrable Securities of the same class as those requested to be registered by the Requesting Shareholders (but all such partHolders, together with the number of securities requested by Requesting Shareholders, and any other Approved Investors, to be included Holders participating in such a Demand Registration pursuant or Piggyback Registration, the “Registering Shareholders”) that such Holders have the right to this Section 2request the Company to register by request received by the Company within 10 Business Days, shall have an estimated market value at or 2 Business Days in the time of such request (based upon the then market price case of a share of Common Stock Bought Deal, after the date of the Company) ’s notice of at least $250,000the Demand Registration, and the Company shall use reasonable best efforts to include all Registrable Securities requested to be registered by the Registering Shareholders in such Registration Statement. Notwithstanding the foregoing, the Company shall not be required obligated to file any registration statement on behalf effect a Demand Registration (i) unless the aggregate proceeds expected to be received from the sale of the Holder within twelve months after Registrable Securities requested to be included in such Demand Registration equals or exceeds $30,000,000 and (ii) if the effective date of any earlier registration statement so long as the Holder was given Company shall have effected a notice offering it Demand Registration in which Holders had the opportunity to sell Registrable Securities under within the earlier registration statement and the Holder did not request that its Registrable Securities be included; provided, however, that if Holder requested that its Registrable Securities be included in the earlier registration statement but not all were so included through no fault three-month period prior to receipt of the Investor, the Investor may, but shall not be obligated to, require the Company to file another registration statement pursuant to a Demand Registration. Within fifteen (15) days after receipt .
2.1.2 At any time prior to the Public Offering Launch of a request for a Demand Registration, the Requesting Shareholders may revoke such request, without liability to any of the other Registering Shareholders, by providing a notice to the Company revoking such request.
2.1.3 The Company shall give written notice be liable for and pay all Registration Expenses in connection with any Demand Registration, regardless of whether (the "Notice"i) of such request to all other Approved Investors and shall include in such registration all Registrable Securities that the Company has received written requests for inclusion therein within 15 days after the Notice is given (the "Requested Securities"). Thereafter, the Company may elect to include in such registration additional shares of Common Stock to be issued by the Company. All requests made pursuant to this Section 2 shall specify the aggregate number of Registrable Securities to be registered.
(b) A registration shall not constitute a Demand Registration under this Section 2 until it has become effective.
is completed or (cii) The Holder making the Demand Registration may elect whether the offering of such a Requesting Shareholder sells Registrable Securities pursuant to such Demand Registration.
2.1.4 A Demand Registration shall be deemed not to have occurred:
(a) unless the Public Offering Pricing has been completed and a final Prospectus or Shelf Prospectus Supplement relating to the applicable Registration Statement containing pricing information has been filed with the Commission; provided that a Demand Registration shall be deemed not to have occurred if either (1) such Registration Statement is interfered with by any cease trade or stop order, injunction or other order or requirement of the Commission or any other governmental agency or court or (2) less than 75% of the Registrable Securities included in the form of a firm commitment underwritten offering or otherwisesuch Registration Statement have been sold thereunder; provided, however, that such Holder may not elect that such offering be made on a delayed or continuous basis pursuant to rule 415 under the Securities Act. In any case in which an offering is in the form of a firm commitment underwritten offering, or
(b) if the Maximum Offering Size is reduced in accordance with subsection 2.1.5 such that less than 75% of the Registrable Securities of the Requesting Shareholders sought to be included in such registration are included.
2.1.5 If a Demand Registration involves an underwritten Public Offering and the managing underwriter or underwriters of such offering advise the Company and the Registering Shareholders that, in writing that in its or their opinion view, the number amount of Registrable Securities proposed requested to be sold included in such offering Demand Registration (including any securities that the Company proposes to include) exceeds the number largest amount of Registrable Securities that can be sold in without having an adverse effect on such offering without aversely affecting offering, including the market for price at which such Registrable Securities can be sold (the Company's Common Stock“Maximum Offering Size”), the Company will shall include in such registration registration, in the number of priority listed below, up to the Maximum Offering Size:
(a) first, all Registrable Securities that in requested to be registered by the opinion of such managing underwriter or underwriters can be sold without adversely affecting the market Registering Shareholders (allocated, if necessary for the Company's Common Stock. In such eventoffering not to exceed the Maximum Offering Size, the number of Registrable Securities, if any, to be offered for the accounts of Approved Investors (including the Holder making the Demand Registration) shall be reduced pro rata among such Persons on the basis of the relative number of any Registrable Securities requested beneficially owned by each Approved Investor such Registering Shareholders); and
(b) second, any securities proposed to be included in such registration to the extent necessary to reduce the total number of Registrable Securities to be included in such offering to the number recommended registered by such managing underwriter or underwriters. In the event the Holder making the Demand shall receive notice pursuant to this Section 2(c) that the amount of Registrable Securities to be offered for such Holder shall be reduced, such Holder shall be entitled to withdraw the Demand by written notice to the Company within seven (7) days after receipt of such notice, with the effect that such Demand shall be deemed not to have been made.
(d) If any of the Registrable Securities covered by a Demand Registration are to be sold in an underwritten offering, the Approved Investors, in the aggregate, that own or will own a majority of the Registrable Securities that the Company has been requested to register other Persons (including the Requested Securities but excluding any securities to be issued by the Company), with such priorities among them as the Company shall have determine.
2.1.6 The Company may postpone effecting a Demand Registration on one occasion during any period of twelve consecutive months for a reasonable time specified in the right notice but not exceeding 60 days (which period may not be extended or renewed), if the Company provides a certificate signed by the principal executive officer of the Company stating that in the good faith judgement of the Board that it would be seriously detrimental to select the investment banker Company and its shareholders for such Demand Registration to be effected at such time. It is agreed that the existence or investment bankers anticipation of a material acquisition or financing activity will be sufficient reason for the Company to postpone a Demand Registration.
2.1.7 At any time that Holders may request a Demand Registration, upon the request of one or more Holders that satisfy the Registration Requirements, the Company shall use its reasonable best efforts to file a Registration Statement for a Shelf Registration with respect to the Registrable Securities and manager or managers that will underwrite to cause such Shelf Registration to become effective as soon as practicable thereafter. Any request for the offeringCompany to prepare and file a Shelf Prospectus Supplement pursuant to a Shelf Registration in any underwritten Public Offering shall be deemed to be a Demand Registration subject to the provisions of subsection 2.1.1; provided, howeverthat for purposes of such Shelf Prospectus Supplement, the reference to 45 business days in subsection 2.1.1 shall be deemed to be 25 business days; provided, further that none of (x) the filing of a Shelf Prospectus or (y) the filing of Shelf Prospectus Supplement that does not relate to an underwritten Public Offering and is only for the purpose of updating a Shelf Prospectus with the identities of any selling shareholders, the amounts of securities to be sold and any related information required by the applicable Registration Statement, shall constitute a Demand Registration subject to the provisions of subsection 2.1.1; provided, further, that no Holder may request a Shelf Registration pursuant to this subsection 2.1.7 if such investment bankers Holder’s Registrable Securities may, at the time of such request, be resold pursuant to a Registration Statement previously filed by the Company and managers must be reasonably satisfactory declared effective by the Commission. The Company shall give notice of any Shelf Registration pursuant to the Companyprocedures in subsection 2.1.1.
Appears in 2 contracts
Samples: Registration Rights and Lock Up Agreement (D-Wave Quantum Inc.), Registration Rights and Lock Up Agreement (DPCM Capital, Inc.)
Demand Registration. Notwithstanding any other provisions of this Section 3, in no event shall more than one (a1) At Demand Registration occur during any time beginning six months six-month period (measured from the effective date of the Registration Statement to the date of this Agreement and for a period of three years thereafter, the Holder may make one written request for registration under the Securities Act, (a "next Demand Registration"Notice) of all or part of Holder's Registrable Securities (but such part, together with the number of securities requested by other Approved Investors, to be included in such Demand Registration pursuant to this Section 2, shall have an estimated market value at the time of such request (based upon the then market price of a share of Common Stock of the Company) of at least $250,000. Notwithstanding the foregoing, the Company shall not be required to file any registration statement on behalf of the Holder within twelve months 180 days after the effective date of any earlier registration statement so long as a Registration Statement filed by the Holder was given a notice offering it Company. No Demand Registration shall be deemed to have occurred for purposes of this Section 3(a) if the opportunity to sell Registrable Securities under Registration Statement relating thereto does not become effective or is not maintained effective for the earlier registration statement and the Holder did not request that its Registrable Securities be included; provided, however, that if Holder requested that its Registrable Securities be included in the earlier registration statement but not all were so included through no fault of the Investor, the Investor may, but shall not be obligated to, require the Company to file another registration statement period required pursuant to a this Section 3(a), in which case the Demanding Qualified Holder Group shall be entitled to an additional Demand RegistrationRegistration in lieu thereof. Within fifteen ten (1510) days after receipt by the Company of a request for a Demand RegistrationNotice, the Company shall give written notice (the "“Notice"”) of such request Demand Notice to all other Approved Investors holders of Registrable Securities and shall shall, subject to the provisions of Section 3(b) hereof, include in such registration all Registrable Securities that with respect to which the Company has received written requests for inclusion therein within 15 ten (10) days after the such Notice is given (the "Requested Securities"). Thereafter, by the Company may elect to include in such registration additional shares of Common Stock to be issued by the Companyholders. All requests made pursuant to this Section 2 shall 3 will specify the aggregate number amount of Registrable Securities to be registered.
registered and the intended methods of disposition thereof. The Company shall use its commercially reasonable efforts to maintain the effectiveness of the Registration Statement (bexcept in the case of a Shelf Registration Statement) A registration shall not constitute a with respect to any Demand Registration under this Section 2 until it has become effective.
for a period of at least one hundred eighty (c180) The Holder making days after the Demand Registration may elect whether the offering of effective date thereof or such shorter period in which all Registrable Securities pursuant to included in such Demand Registration shall be in the form of a firm commitment underwritten offering or otherwiseStatement have actually been sold; provided, however, that such Holder may not elect that such offering period shall be made on a delayed or continuous basis pursuant to rule 415 under the Securities Act. In any case in which an offering is in the form of a firm commitment underwritten offeringextended, if reasonably practicable, for a period of time equal to the managing underwriter or underwriters of such offering advise period the Company in writing that in its or their opinion the number holders of Registrable Securities proposed to be sold in such offering exceeds the number of Registrable Securities that can be sold in such offering without aversely affecting the market for the Company's Common Stock, the Company will include in such registration the number of Registrable Securities that in the opinion of such managing underwriter or underwriters can be sold without adversely affecting the market for the Company's Common Stock. In such event, the number of Registrable Securities, if any, to be offered for the accounts of Approved Investors (including the Holder making the Demand Registration) shall be reduced pro rata on the basis of the relative number of refrain from selling any Registrable Securities requested by each Approved Investor to be securities included in such registration Registration Statement at the request of (x) an underwriter or (y) the Company pursuant to the extent necessary provisions herein. The Company shall use its commercially reasonable efforts to reduce maintain the total number effectiveness of Registrable Securities to be included in such offering to a Registration Statement that constitutes a Shelf Registration Statement at all times during the number recommended by such managing underwriter or underwriters. In the event the Holder making the Demand shall receive notice pursuant to this Section 2(c) that the amount of Registrable Securities to be offered for such Holder shall be reduced, such Holder shall be entitled to withdraw the Demand by written notice to the Company within seven (7) days after receipt of such notice, with the effect that such Demand shall be deemed not to have been made.
(d) If any of the Registrable Securities covered by a Demand Registration are to be sold in an underwritten offering, the Approved Investors, in the aggregate, that own or will own a majority of the Registrable Securities that the Company has been requested to register (including the Requested Securities but excluding any securities to be issued by the Company), shall have the right to select the investment banker or investment bankers and manager or managers that will underwrite the offeringEffectiveness Period; provided, however, that any Holder of Registrable Securities that has been included in a Shelf Registration Statement may request that such investment bankers Registrable Securities be removed from such Shelf Registration Statement, in which event the Company shall promptly either withdraw such Shelf Registration Statement or file a post-effective amendment to such Shelf Registration Statement removing such Registrable Securities. Notwithstanding anything contained herein to the contrary, the Company hereby agrees that (i) each Shelf Registration Statement filed by the Company pursuant to this Section 3 shall contain all language (including, without limitation, on the Prospectus cover page, the principal stockholders’ table and managers must the plan of distribution) as may be reasonably satisfactory requested by an Investor Qualified Holder to allow for distribution to, and resale by, the Companydirect and indirect partners, investors or affiliated entities of an Investor Qualified Holder (a “Partner Distribution”) and (ii) the Company shall, at the reasonable request of any Investor Qualified Holder seeking to effect a Partner Distribution, file any Prospectus supplement or post-effective amendments and otherwise take any action reasonably necessary to include such language, if such language was not included in the initial Shelf Registration Statement, or revise such language if deemed necessary by such Investor Qualified Holder to effect such Partner Distribution.
Appears in 2 contracts
Samples: Registration Rights Agreement (Extraction Oil & Gas, Inc.), Registration Rights Agreement (Extraction Oil & Gas, LLC)
Demand Registration. (a) At Subject to the limitations contained in this Section 3, at any time beginning six months following the second (2nd) anniversary of the Closing Date (as defined in the Merger Agreement), the Investor may, at any time and from time to time, request that the Company register for sale all or any of its Registrable Securities under the Securities Act in connection with an Underwritten Offering by sending the Company a written request setting forth such request and specifying the number of Registrable Securities required to be registered and the intended method of disposition (any such registration being referred to herein as a “Demand Registration”); provided that the minimum number of Registrable Securities to be registered on behalf of the Investor in any Demand Registration must be equal to at least thirty-three and one-third percent (33.33%) of the Registrable Securities held by Investor (on an as-converted basis) on the date hereof. For the avoidance of this Agreement and for a period of three years thereafterdoubt, the Holder may make one Investor’s right to Demand Registration includes, without limitation, the right to require registration of an underwritten public offering of Registrable Securities (an “Underwritten Offering”) or the right to require the filing of a preliminary and final prospectus supplement to the extent that a Shelf Registration Statement is then effective. However, the registration of shares of Common Stock pursuant to any continuous offering of Registrable Securities pursuant to Rule 415 promulgated under the Securities Act (a “Shelf Offering”) shall be governed by Section 2 hereof.
(b) Subject to the limitations contained in this Section 3, upon the receipt by the Company of a written request for registration under the Securities Act, (a "Demand Registration") of all or part of Holder's Registrable Securities (but such part, together with the number of securities requested by other Approved Investors, to be included in such Demand Registration pursuant to this Section 23(a), the Company shall have an estimated market value at cause a Registration Statement on Form S-3 or any successor form thereto (or, if the time Company is not then eligible to register the resale of such shares on Form S-3, on another appropriate form in accordance with the Securities Act) to be filed within sixty (60) days after the date on which the initial request is given (based upon the then market price provided, however, that no filing of a share of Common Stock Demand Registration shall be made earlier than the 24 month anniversary of the Companydate of the closing of the Merger Agreement) and shall use its reasonable best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter covering all of at least $250,000the Registrable Securities requested to be registered in the Demand Registration. Notwithstanding the foregoing, the The Company shall not be required to file any registration statement on behalf of the Holder within twelve months after the effective date of any earlier registration statement so long as the Holder was given a notice offering it the opportunity to sell Registrable Securities under the earlier registration statement and the Holder did not request that its Registrable Securities be included; provided, however, that if Holder requested that its Registrable Securities be included in the earlier registration statement but not all were so included through no fault of the Investor, the Investor may, but shall not be obligated to, require the Company to file another registration statement pursuant to a effect more than three (3) Demand Registration. Within fifteen (15) days after receipt of a request for a Demand Registration, the Company shall give written notice (the "Notice") of such request to all other Approved Investors and shall include in such registration all Registrable Securities that the Company has received written requests for inclusion therein within 15 days after the Notice is given (the "Requested Securities"). Thereafter, the Company may elect to include in such registration additional shares of Common Stock to be issued by the Company. All requests made Registrations pursuant to this Section 2 shall specify the aggregate number of Registrable Securities to be registered.
(b) A 3. Any registration shall not constitute initiated as a Demand Registration under this pursuant to Section 2 3(a) shall not count as a Demand Registration unless and until it has the Registration Statement with respect to such registration shall have become effective.
(c) The Holder making the Company shall not be obligated to effect any Demand Registration within one-hundred eighty (180) days after the effective date of a previous Demand Registration or a previous registration in which the Investor was given Piggyback Registration rights. The Company may elect whether postpone the filing or effectiveness of a Registration Statement for a Demand Registration (i) for up to ninety (90) days if the Company, in good faith, determines that such Demand Registration would reasonably be expected to result in an Adverse Disclosure or (ii) for up to ninety (90) days, if the Company, in good faith, intends to conduct a primary offering of Common Stock within ninety (90) days of the proposed Demand Registration; provided that in such Registrable Securities pursuant event the Investor shall be entitled to withdraw such request and, if such request is withdrawn, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder and the Company shall pay all registration expenses in connection with such registration.
(d) The Investor may withdraw its Registrable Securities from a Demand Registration at any time prior to the effectiveness of the applicable Registration Statement. Upon receipt of notice from the Investor to such effect, the Company shall cease all efforts to secure effectiveness of the applicable Registration Statement and such registration shall nonetheless be in deemed a Demand Registration hereunder unless the form withdrawal is made after a material adverse change to the Company or after notice of a firm commitment underwritten offering or otherwise; provided, however, that such Holder may not elect that such offering be made on a delayed or continuous basis postponement pursuant to rule 415 under Section 3(c).
(e) In the Securities Act. In case of any case in which Demand Registration that relates to an offering is in Underwritten Offering, the form of a firm commitment underwritten offering, if Investor shall select the investment banking firms to act as the managing underwriter or underwriters of in connection with such offering advise Underwritten Offering, provided that such investment banking firms shall be reasonably acceptable to the Company.
(f) If a Demand Registration is initiated by the Investor as an Underwritten Offering, and the managing underwriter advises the Investor and the Company in writing that that, in its or their opinion opinion, the number of Registrable Securities shares of Common Stock proposed to be sold included in such offering registration, including all Registrable Securities and all other shares of Common Stock proposed to be included in such Underwritten Offering, exceeds the number of Registrable Securities that shares of Common Stock which can be sold in such offering without aversely affecting or that the market for number of shares of Common Stock proposed to be included in any such registration would adversely affect the Company's Common Stockmarketability of such offering, the Company will shall include in such registration the number of Registrable Securities that in the opinion of such managing underwriter or underwriters can be sold without adversely affecting the market for the Company's Common Stock. In such event(i) first, the number of Registrable Securities, if any, to be offered for the accounts shares of Approved Investors (including the Holder making the Demand Registration) shall be reduced pro rata on the basis of the relative number of any Registrable Securities Common Stock requested by each Approved Investor to be included in such registration to therein by the extent necessary to reduce Investor and the total BKC Investors; and (ii) second, the number of Registrable Securities shares of Common Stock requested to be included therein by the holders of Common Stock (other than the Investor and the BKC Investors), allocated among such holders in such offering to the number recommended by such managing underwriter or underwriters. In the event the Holder making the Demand shall receive notice pursuant to this Section 2(c) that the amount of Registrable Securities to be offered for such Holder shall be reduced, such Holder shall be entitled to withdraw the Demand by written notice to the Company within seven (7) days after receipt of such notice, with the effect that such Demand shall be deemed not to have been mademanner as they may agree.
(d) If any of the Registrable Securities covered by a Demand Registration are to be sold in an underwritten offering, the Approved Investors, in the aggregate, that own or will own a majority of the Registrable Securities that the Company has been requested to register (including the Requested Securities but excluding any securities to be issued by the Company), shall have the right to select the investment banker or investment bankers and manager or managers that will underwrite the offering; provided, however, that such investment bankers and managers must be reasonably satisfactory to the Company.
Appears in 2 contracts
Samples: Registration Rights and Stockholders’ Agreement (Carrols Restaurant Group, Inc.), Registration Rights and Stockholders’ Agreement (Carrols Restaurant Group, Inc.)
Demand Registration. (a) At 2.1 Registration Other Than on Form F-3 or Form S-3. Subject to the terms of this Agreement, at any time beginning six months or from time to time after the date that is six (6) months after the closing of this Agreement the IPO, Holders holding twenty-five percent (25%) or more of the voting power of the then issued and for a period of three years thereafter, the Holder may make one written request for registration under the Securities Act, (a "Demand Registration") of all or part of Holder's outstanding Registrable Securities (but held by all Holders may request in writing that the Company effect a Registration on any internationally recognized exchange that is reasonably acceptable to such part, together with the number of securities requested by other Approved Investors, to be included in such Demand Registration pursuant to this Section 2, shall have an estimated market value at the time requesting Holders. Upon receipt of such request (based upon the then market price of a share of Common Stock of the Company) of at least $250,000. Notwithstanding the foregoingrequest, the Company shall not be required to file any registration statement on behalf (x) promptly give written notice of the Holder within twelve months after proposed Registration to all other Holders and (y) as soon as practicable, use its commercially reasonable efforts to cause the effective date Registrable Securities specified in the request, together with any Registrable Securities of any earlier registration statement so long as the Holder was given a notice offering it the opportunity who requests in writing to sell Registrable Securities under the earlier registration statement and the Holder did not request that its Registrable Securities be included; provided, however, that if Holder requested that its Registrable Securities be included in the earlier registration statement but not all were so included through no fault of the Investor, the Investor may, but shall not be obligated to, require the Company to file another registration statement pursuant to a Demand Registration. Within join such Registration within fifteen (15) days after the Company’s delivery of written notice, to be Registered and/or qualified for sale and distribution in such jurisdiction as the Initiating Holders may request. The Company shall be obligated to consummate no more than three (3) Registrations pursuant to this Section 2.1 that have been declared and ordered effective; provided that if the Registrable Securities sought to be included in the Registration pursuant to this Section 2.1 are not fully included in the Registration for any reason other than solely due to the action or inaction of the Holders including Registrable Securities in such Registration, such Registration shall not be deemed to constitute one of the Registration rights granted pursuant to this Section 2.1. The Company shall not be obligated to take any action to effect any Registration pursuant to this Section 2.1 unless the aggregate proceeds from the offering that is the subject of the Registration exceeds US$50,000,000 and at least 10% of the Registrable Securities then issued and outstanding shall participate in such Registration.
2.2 Registration on Form F-3 or Form S-3. The Company shall use its commercially reasonable efforts to qualify for registration on Form F-3 or Form S-3. Subject to the terms of this Agreement, if the Company qualifies for registration on Form F-3 or Form S-3 (or any comparable form for Registration in a jurisdiction other than the United States), Holders holding 10% or more of the voting power of the then issued and outstanding Registrable Securities held by all Holders may request the Company in writing to file, in any jurisdiction in which the Company has had a registered underwritten public offering, a Registration Statement on Form F-3 or Form S-3 (or any comparable form for Registration in a jurisdiction other than the United States), including without limitation any registration statement filed under the Securities Act providing for the registration of, and the sale on a continuous or a delayed basis by the Holders of, all of the Registrable Securities pursuant to Rule 415 under the Securities Act and/or any similar rule that may be adopted by the Commission. Upon receipt of such a request for a Demand Registrationrequest, the Company shall (i) promptly give written notice (of the "Notice") of such request proposed Registration to all other Approved Investors Holders and shall include in such registration all (ii) as soon as practicable, use its commercially reasonable efforts to cause the Registrable Securities that specified in the Company has received written request, together with any Registrable Securities of any Holder who requests for inclusion therein in writing to join such Registration within 15 fifteen (15) days after the Notice is given (the "Requested Securities"). ThereafterCompany’s delivery of written notice, the Company may elect to include be Registered and qualified for sale and distribution in such registration additional shares of Common Stock jurisdiction. The Company shall be obligated to be issued by the Company. All requests made consummate no more than two (2) Registrations that have been declared and ordered effective within any twelve (12)-month period pursuant to this Section 2 shall specify 2.2; provided that if the aggregate number of Registrable Securities to be registered.
(b) A registration shall not constitute a Demand Registration under this Section 2 until it has become effective.
(c) The Holder making the Demand Registration may elect whether the offering of such Registrable Securities pursuant to such Demand Registration shall be in the form of a firm commitment underwritten offering or otherwise; provided, however, that such Holder may not elect that such offering be made on a delayed or continuous basis pursuant to rule 415 under the Securities Act. In any case in which an offering is in the form of a firm commitment underwritten offering, if the managing underwriter or underwriters of such offering advise the Company in writing that in its or their opinion the number of Registrable Securities proposed to be sold in such offering exceeds the number of Registrable Securities that can be sold in such offering without aversely affecting the market for the Company's Common Stock, the Company will include in such registration the number of Registrable Securities that in the opinion of such managing underwriter or underwriters can be sold without adversely affecting the market for the Company's Common Stock. In such event, the number of Registrable Securities, if any, to be offered for the accounts of Approved Investors (including the Holder making the Demand Registration) shall be reduced pro rata on the basis of the relative number of any Registrable Securities requested by each Approved Investor sought to be included in such registration to the extent necessary to reduce the total number of Registrable Securities to be included in such offering to the number recommended by such managing underwriter or underwriters. In the event the Holder making the Demand shall receive notice Registration pursuant to this Section 2(c) that 2.2 are not fully included in such Registration for any reason other than solely due to the amount action or inaction of the Holders including Registrable Securities to be offered for in such Holder shall be reducedRegistration, such Holder Registration shall be entitled to withdraw the Demand by written notice to the Company within seven (7) days after receipt of such notice, with the effect that such Demand shall not be deemed not to have been made.
(d) If any constitute one of the Registrable Securities covered by a Demand Registration are rights granted pursuant to this Section 2.2. The Company shall not be sold in an underwritten offering, obligated to take any action to effect any Registration pursuant to this Section 2.2 unless the Approved Investors, in aggregate proceeds from the aggregate, offering that own or will own a majority is the subject of the Registrable Securities that the Company has been requested to register (including the Requested Securities but excluding any securities to be issued by the Company), shall have the right to select the investment banker or investment bankers and manager or managers that will underwrite the offering; provided, however, that such investment bankers and managers must be reasonably satisfactory to the CompanyRegistration exceeds US$50,000,000.
Appears in 2 contracts
Samples: Shareholder Agreements (Belite Bio, Inc), Shareholder Agreements (Belite Bio, Inc)
Demand Registration. (a) At any time beginning six months from Following the first anniversary of the date hereof and upon the receipt of this Agreement and for a period of three years thereafter, the Holder may make one written request from any Northern Right Capital Party that GEC file a Registration Statement under the Securities Act covering the registration for the offer and sale of all or part of the Registrable Securities (a “Demand Registration”), as soon as practicable, GEC shall file with the SEC and use its reasonable best efforts to cause to be declared effective, a registration statement relating to all Registrable Securities that Northern Right Capital Party has requested be registered to be registered under the Securities Act, subject to and in accordance with the terms, conditions, procedures and limitations contained in this Agreement. The Northern Right Capital Parties are collectively entitled to effect two (2) such Demand Registrations pursuant to this Section 1.2(a); provided, that, a "Demand Registration"registration requested pursuant to this Section 1.2(a) shall not be deemed to have been effected unless a Registration Statement with respect thereto has become effective (other than due to the fault of all or part a Northern Right Capital Party) and at least 75% of Holder's the Registrable Securities (but such part, together with the number of securities requested by other Approved Investors, to be included in such Demand Registration (and not withdrawn) shall have been disposed of in accordance with the plan of distribution set forth therein. The Northern Right Capital Party may terminate a Demand Registration prior to the filing of a Registration Statement relating thereto, or require GEC to withdraw promptly any Registration Statement which has been filed pursuant to this Section 2, shall have an estimated market value at the time of such request (based upon the then market price of a share of Common Stock of the Company) of at least $250,000. Notwithstanding the foregoing, the Company shall 1 but which has not be required to file any registration statement on behalf of the Holder within twelve months after the become effective date of any earlier registration statement so long as the Holder was given a notice offering it the opportunity to sell Registrable Securities under the earlier registration statement and the Holder did not request that its Registrable Securities be included; provided, however, that if Holder requested that its Registrable Securities be included in the earlier registration statement but not all were so included through no fault of the Investor, the Investor may, but shall not be obligated to, require the Company to file another registration statement pursuant to a Demand Registration. Within fifteen (15) days after receipt of a request for a Demand Registration, the Company shall give written notice (the "Notice") of such request to all other Approved Investors and shall include in such registration all Registrable Securities that the Company has received written requests for inclusion therein within 15 days after the Notice is given (the "Requested Securities"). Thereafter, the Company may elect to include in such registration additional shares of Common Stock to be issued by the Company. All requests made pursuant to this Section 2 shall specify the aggregate number of Registrable Securities to be registered.
(b) A registration shall not constitute a Demand Registration under this Section 2 until it has become effective.
(c) The Holder making the Demand Registration may elect whether the offering of such Registrable Securities pursuant to such Demand Registration shall be in the form of a firm commitment underwritten offering or otherwise; provided, however, that such Holder may not elect that such offering be made on a delayed or continuous basis pursuant to rule 415 under the Securities Act. In any case in which an offering is in the form of a firm commitment underwritten offering, if the managing underwriter or underwriters of and such offering advise the Company in writing that in its or their opinion the number of Registrable Securities proposed registration shall not be deemed to be sold in such offering exceeds the number of Registrable Securities that can be sold in such offering without aversely affecting the market for the Company's Common Stock, the Company will include in such registration the number of Registrable Securities that in the opinion of such managing underwriter or underwriters can be sold without adversely affecting the market for the Company's Common Stock. In such event, the number of Registrable Securities, if any, to be offered for the accounts of Approved Investors (including the Holder making the Demand Registration) shall be reduced pro rata on the basis of the relative number of any Registrable Securities requested by each Approved Investor to be included in such registration to the extent necessary to reduce the total number of Registrable Securities to be included in such offering to the number recommended by such managing underwriter or underwriters. In the event the Holder making the Demand shall receive notice pursuant to this Section 2(c) that the amount of Registrable Securities to be offered for such Holder shall be reduced, such Holder shall be entitled to withdraw the Demand by written notice to the Company within seven (7) days after receipt of such notice, with the effect that such Demand shall be deemed not to have been made.
(d) If any of the Registrable Securities covered by a Demand Registration are if either (i) it agrees to be sold pay the costs and expenses of such registration as set forth in an underwritten offeringSection 1.6 hereof, or (ii) such withdrawal is accompanied by notice from the Approved InvestorsNorthern Right Capital Party that, in the aggregategood faith exercise of its reasonable judgment, that own (A) such withdrawal is warranted based on a change in the business or will own prospects of GEC or a majority change in the condition of the Registrable Securities that United States financial markets, or (B) there has occurred a misstatement or omission in any prospectus which makes it inadvisable to proceed with the Company has been requested to register (including the Requested Securities but excluding any securities to be issued by the Company), shall have the right to select the investment banker or investment bankers and manager or managers that will underwrite the offering; provided, however, that such investment bankers and managers must be reasonably satisfactory to the Companyregistration.
Appears in 2 contracts
Samples: Share Registration Agreement (Northern Right Capital Management, L.P.), Share Registration Agreement (Great Elm Capital Group, Inc.)
Demand Registration. (a) At any time beginning six months from the date After receipt of this Agreement and for a period of three years thereafter, the Holder may make one written request for from a Holder requesting that the Company effect a registration under the Securities Act, (a "Demand Registration") of under the Securities Act covering all or part of the 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 written notice sent to the Company within ten (10) Business Days from the date of such Holder's receipt of the aforementioned notice from the Company) to have all or part of such Holder's Registrable Securities included in such registration thereof pursuant to this Section 3, 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 possible, but in any event no later than thirty (but 30) days (excluding any days which occur during a permitted Blackout Period under Section 5 below) after receipt of a written request for a Demand Registration, file with the SEC and use its reasonable best efforts to cause to be declared effective as soon as practical after the filing thereof a registration statement (a "Demand Registration Statement") relating to all shares of Registrable Securities which the Company has been so requested to register by such partHolders ("Participating Demand Holders"), together 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 the Registrable Securities requested to be registered constitute at least 10% of the initial amount of the Registrable Securities or include all Registrable Securities which remain outstanding at such time; provided further that, the Company may, if permitted by applicable Laws and Regulations, utilize the Shelf Registration Statement to satisfy its obligations hereunder.
(b) If the majority of the Participating Demand Holders in a Demand Registration relating to a public offering so request that the offering be underwritten with a managing underwriter selected in the manner set forth in Section 14 below and such managing underwriter of such Demand Registration advises the Company in writing that, in its opinion, the number of securities requested by other Approved Investors, 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. If such amount exceeds the Maximum Number of Securities, the number of Registrable Securities included in such Demand Registration shall be allocated among all the Participating Demand Holders on a pro rata basis (based on the number of Registrable Securities held by each Participating Demand Holder).
(c) Holders shall be entitled to an aggregate of two (2) registrations of Registrable Securities pursuant to this Section 23(a) in respect of an underwritten secondary offering (each, a "Demand for Registration"); provided that a registration requested pursuant to Section 3(a) shall not be deemed to have an estimated market value at been effected for purposes of Section 3(d) unless (i) it has been declared effective by the time SEC, (ii) it has remained effective for the period set forth in Section 6(a) and (iii) the offering of Registrable Securities pursuant to such request (based upon the then market price of a share of Common Stock registration is not subject to any stop order, injunction or other order or requirement of the CompanySEC (other than any such stop order, injunction or other requirement of the SEC prompted by act or omission of Holders of Registrable Securities).
(d) of at least $250,000. Notwithstanding anything to the foregoingcontrary contained herein, the Company shall not be required to prepare and file (i) more than two Demand Registration Statements in any registration statement on behalf of 12 month period or (ii) any Demand Registration Statement within 90 days following the Holder within twelve months after the effective date of any earlier registration statement so long as the Holder was given a notice offering it the opportunity to sell Registrable Securities under the earlier registration statement and the Holder did not request that its Registrable Securities be included; provided, however, that if Holder requested that its Registrable Securities be included in the earlier registration statement but not all were so included through no fault of the Investor, the Investor may, but shall not be obligated to, require the Company to file another registration statement pursuant to a Demand Registration. Within fifteen (15) days after receipt of a request for a Demand Registration, the Company shall give written notice (the "Notice") of such request to all other Approved Investors and shall include in such registration all Registrable Securities that the Company has received written requests for inclusion therein within 15 days after the Notice is given (the "Requested Securities"). Thereafter, the Company may elect to include in such registration additional shares of Common Stock to be issued by the Company. All requests made pursuant to this Section 2 shall specify the aggregate number of Registrable Securities to be registered.
(b) A registration shall not constitute a Demand Registration under this Section 2 until it has become effective.
(c) The Holder making the Demand Registration may elect whether the offering of such Registrable Securities pursuant to such Demand Registration shall be in the form of a firm commitment underwritten offering or otherwise; provided, however, that such Holder may not elect that such offering be made on a delayed or continuous basis pursuant to rule 415 under the Securities Act. In any case in which an offering is in the form of a firm commitment underwritten offering, if the managing underwriter or underwriters of such offering advise the Company in writing that in its or their opinion the number of Registrable Securities proposed to be sold in such offering exceeds the number of Registrable Securities that can be sold in such offering without aversely affecting the market for the Company's Common Stock, the Company will include in such registration the number of Registrable Securities that in the opinion of such managing underwriter or underwriters can be sold without adversely affecting the market for the Company's Common Stock. In such event, the number of Registrable Securities, if any, to be offered for the accounts of Approved Investors (including the Holder making the Demand Registration) shall be reduced pro rata on the basis of the relative number effectiveness of any Registrable Securities requested by each Approved Investor to be included in such registration to the extent necessary to reduce the total number of Registrable Securities to be included in such offering to the number recommended by such managing underwriter or underwriters. In the event the Holder making the Demand shall receive notice pursuant to this Section 2(c) that the amount of Registrable Securities to be offered for such Holder shall be reduced, such Holder shall be entitled to withdraw the Demand by written notice to the Company within seven (7) days after receipt of such notice, with the effect that such Demand shall be deemed not to have been madeother Registration Statement.
(d) If any of the Registrable Securities covered by a Demand Registration are to be sold in an underwritten offering, the Approved Investors, in the aggregate, that own or will own a majority of the Registrable Securities that the Company has been requested to register (including the Requested Securities but excluding any securities to be issued by the Company), shall have the right to select the investment banker or investment bankers and manager or managers that will underwrite the offering; provided, however, that such investment bankers and managers must be reasonably satisfactory to the Company.
Appears in 2 contracts
Samples: Registration Rights Agreement (Txu Corp /Tx/), Registration Rights Agreement (Txu Us Holdings Co)
Demand Registration. (a) At any time beginning six months from following the date exercise of the Warrant and prior to the Registration of all of the Warrant Shares, and subject to the other provisions of this Agreement and for Agreement, Orbiter shall have the right, exercisable by making a period of three years thereafter, the Holder may make one written request for registration under (the Securities Act, (a "Demand RegistrationRegistration Request") to the Company, to demand that the Company effect the Registration of all or part of Holder's any Registrable Securities (but such part, together in accordance with the number of securities requested by other Approved Investors, to be included in such Demand Registration pursuant to this Section 2, shall have an estimated market value at the time of such request (based upon the then market price of a share of Common Stock provisions of the Company) Act. Upon receipt of at least $250,000. Notwithstanding the foregoingRegistration Request, the Company shall not be required obligated to file any registration statement on behalf register each of the Holder within twelve months after the effective date of any earlier registration statement so long as the Holder was given a notice offering it the opportunity to sell Registrable Securities under the earlier registration statement and the Holder did not request that its Registrable Securities be included; provided, however, that if Holder requested that its Registrable Securities be included beneficially owned by Orbiter in the earlier registration statement but not all were so included through no fault of manner set forth in Section 2(b) hereof. Any provision herein to the Investorcontrary notwithstanding, the Investor may, but shall not be obligated to, require the Company right to file another registration statement pursuant to a Demand Registration. Within fifteen (15) days after receipt of a request for a Demand Registration, the Company shall give written notice (the "Notice") of such request to all other Approved Investors and shall include in such registration all Registrable Securities that the Company has received written requests for inclusion therein within 15 days after the Notice is given (the "Requested Securities"). Thereafter, the Company may elect to include in such registration additional shares of Common Stock to be issued by the Company. All requests made demand Registration pursuant to this Section 2 shall specify be limited to one (1) Registration demand. A right to demand Registration hereunder shall be deemed to have been exercised and all of the aggregate number of Registrable Securities Company's demand Registration obligations hereunder shall be deemed to be registeredfully satisfied when the registration statement filed on account of such exercise has been declared effective by the Commission.
(b) A registration shall not constitute a Demand Following receipt of the Registration under this Section 2 until it has become effective.
(c) The Holder making the Demand Registration may elect whether the offering of such Registrable Securities Request pursuant to such Demand Registration shall be in the form of a firm commitment underwritten offering or otherwise; provided, however, that such Holder may not elect that such offering be made on a delayed or continuous basis pursuant to rule 415 under the Securities Act. In any case in which an offering is in the form of a firm commitment underwritten offering, if the managing underwriter or underwriters of such offering advise the Company in writing that in its or their opinion the number of Registrable Securities proposed to be sold in such offering exceeds the number of Registrable Securities that can be sold in such offering without aversely affecting the market for the Company's Common StockSection 2(a) hereof, the Company will include in such shall (i) file within ninety (90) days thereafter a registration statement on the number of Registrable Securities that in appropriate form under the opinion of such managing underwriter or underwriters can be sold without adversely affecting the market Act for the Company's shares of Common Stock. In such event, the number of Registrable Securities, if any, to be offered for the accounts of Approved Investors (including the Holder making the Demand Registration) shall be reduced pro rata on the basis of the relative number of any Registrable Securities requested by each Approved Investor to be included in such registration to the extent necessary to reduce the total number of Registrable Securities to be included in such offering to the number recommended by such managing underwriter or underwriters. In the event the Holder making the Demand shall receive notice pursuant to this Section 2(c) that the amount of Registrable Securities to be offered for such Holder shall be reduced, such Holder shall be entitled to withdraw the Demand by written notice to the Company within seven (7) days after receipt of such notice, with the effect that such Demand shall be deemed not to have been made.
(d) If any of the Registrable Securities covered by a Demand Registration are to be sold in an underwritten offering, the Approved Investors, in the aggregate, that own or will own a majority of the Registrable Securities Stock that the Company has been requested to register Register; (including ii) if the Requested Securities but excluding any applicable Offering is pursuant to an underwriting agreement, enter into an underwriting agreement in such form as said managing or sole underwriter shall require (which must only contain terms and conditions customary for offerings of equity securities to be issued by the Company), shall have the right to select the investment banker or investment bankers and manager or managers of entities with market capitalizations that will underwrite the offering; provided, however, that such investment bankers and managers must be reasonably satisfactory are approximately equal to the Company's then current market capitalization and may contain customary provisions requiring the Company and Orbiter to indemnify and provide contribution to the underwriter or underwriters of such Offering); and (iii) use its reasonable best efforts to have such registration statement declared effective as promptly as practicable and to remain effective for at least one hundred and twenty (120) days. Notwithstanding any other provision hereof, Orbiter acknowledges and agrees that there can be no guarantee or warranty from or by the Company that any such registration statement will ever be declared effective by the Commission, and that the Company makes no such guarantee or warranty in this Agreement or otherwise.
Appears in 2 contracts
Samples: Registration Rights Agreement (Genetic Vectors Inc), Registration Rights Agreement (Genetic Vectors Inc)
Demand Registration. (a) At any time beginning six months from Request by Holders. From and after the date that is thirty (30) days following the date on which the Company is current with respect to the filings with the Commission required to be made by it pursuant to the Exchange Act of this Agreement and for 1934, as amended (the "Exchange Act"), if the Company receives a period of three years thereafter, the Holder may make one written request for registration under from Holders that hold at least ten percent (10%) of the Notes or Warrant Shares, as applicable, originally issued (the "Requesting Holders") that the Company register Registrable Securities Act, held by Requesting Holders (a "Demand RegistrationRequest") of all or part of Holder's Registrable Securities (but such part), together with the number of securities requested by other Approved Investors, to be included in such Demand Registration pursuant to this Section 2, shall have an estimated market value at the time of such request (based upon the then market price of a share of Common Stock of the Company) of at least $250,000. Notwithstanding the foregoing, the Company shall not be required to file any registration statement on behalf of the Holder shall, within twelve months after the effective date of any earlier registration statement so long as the Holder was given a notice offering it the opportunity to sell Registrable Securities under the earlier registration statement and the Holder did not request that its Registrable Securities be included; provided, however, that if Holder requested that its Registrable Securities be included in the earlier registration statement but not all were so included through no fault of the Investor, the Investor may, but shall not be obligated to, require the Company to file another registration statement pursuant to a Demand Registration. Within fifteen ten (15) days after receipt of a request for a Demand Registration, the Company shall give written notice (the "Notice") of such request to all other Approved Investors and shall include in such registration all Registrable Securities that the Company has received written requests for inclusion therein within 15 days after the Notice is given (the "Requested Securities"). Thereafter, the Company may elect to include in such registration additional shares of Common Stock to be issued by the Company. All requests made pursuant to this Section 2 shall specify the aggregate number of Registrable Securities to be registered.
(b) A registration shall not constitute a Demand Registration under this Section 2 until it has become effective.
(c) The Holder making the Demand Registration may elect whether the offering of such Registrable Securities pursuant to such Demand Registration shall be in the form of a firm commitment underwritten offering or otherwise; provided, however, that such Holder may not elect that such offering be made on a delayed or continuous basis pursuant to rule 415 under the Securities Act. In any case in which an offering is in the form of a firm commitment underwritten offering, if the managing underwriter or underwriters of such offering advise the Company in writing that in its or their opinion the number of Registrable Securities proposed to be sold in such offering exceeds the number of Registrable Securities that can be sold in such offering without aversely affecting the market for the Company's Common Stock, the Company will include in such registration the number of Registrable Securities that in the opinion of such managing underwriter or underwriters can be sold without adversely affecting the market for the Company's Common Stock. In such event, the number of Registrable Securities, if any, to be offered for the accounts of Approved Investors (including the Holder making the Demand Registration) shall be reduced pro rata on the basis of the relative number of any Registrable Securities requested by each Approved Investor to be included in such registration to the extent necessary to reduce the total number of Registrable Securities to be included in such offering to the number recommended by such managing underwriter or underwriters. In the event the Holder making the Demand shall receive notice pursuant to this Section 2(c) that the amount of Registrable Securities to be offered for such Holder shall be reduced, such Holder shall be entitled to withdraw the Demand by written notice to the Company within seven (710) days after receipt of such noticeDemand Request, with give written notice of such request ("Request Notice") to all Holders. Each Demand Request shall (x) specify the effect type and number of Registrable Securities that the Requesting Holders intend to sell or dispose of, (y) state the intended method or methods of sale or disposition of such Registrable Securities and (z) specify the expected price range (net of underwriting discounts and commissions) acceptable to the Requesting Holders to be received for such Registrable Securities. Following receipt of a Demand shall Request, the Company shall: (i) cause to be deemed not to have been made.
filed, as soon as practicable, but within ninety (d90) If any days of the Registrable Securities covered by a Demand Registration are date of delivery to be sold in an underwritten offering, the Approved Investors, in the aggregate, that own or will own a majority Company of the Demand Request, a Registration Statement covering such Registrable Securities that the Company has been so requested to register (including the Requested Securities but excluding any securities to be issued by the Company), shall have the right to select the investment banker or investment bankers Requesting Holders and manager or managers that will underwrite the offering; provided, however, that such investment bankers and managers must be reasonably satisfactory other Holders who request to the CompanyCompany that their Registrable Securities be registered within fifteen (15) days of the mailing of the Request Notice, providing for the registration under the Securities Act of such Registrable Securities to the extent necessary to permit the disposition of such Registrable Securities in accordance with the intended method of distribution specified in such Demand Request; and (ii) use its commercially reasonable efforts to have such Registration Statement declared effective by the SEC as soon as practicable thereafter.
Appears in 1 contract
Demand Registration. (ai) At any time beginning six months from after the date expiration of this Agreement the Lock-Up Period, any Holder(s) shall have the option and for right, exercisable by delivering a period of three years thereafter, written notice to the Holder may make one written request for registration under the Securities Act, Company (a "“Demand Registration") of all or part of Holder's Registrable Securities (but such part, together with the number of securities requested by other Approved InvestorsNotice”), to be included in such Demand Registration pursuant to this Section 2, shall have an estimated market value at the time of such request (based upon the then market price of a share of Common Stock of the Company) of at least $250,000. Notwithstanding the foregoing, the Company shall not be required to file any registration statement on behalf of the Holder within twelve months after the effective date of any earlier registration statement so long as the Holder was given a notice offering it the opportunity to sell Registrable Securities under the earlier registration statement and the Holder did not request that its Registrable Securities be included; provided, however, that if Holder requested that its Registrable Securities be included in the earlier registration statement but not all were so included through no fault of the Investor, the Investor may, but shall not be obligated to, require the Company to file another registration statement to, pursuant to the terms of and subject to the limitations contained in this Agreement, prepare and file with the Commission a Demand Registration. Within fifteen (15) days after receipt Registration Statement registering the offering and sale of a request for a Demand Registration, the Company shall give written notice (the "Notice") of such request to all other Approved Investors number and shall include in such registration all Registrable Securities that the Company has received written requests for inclusion therein within 15 days after the Notice is given (the "Requested Securities"). Thereafter, the Company may elect to include in such registration additional shares of Common Stock to be issued by the Company. All requests made pursuant to this Section 2 shall specify the aggregate number type of Registrable Securities to be registered.
(b) A registration shall not constitute a Demand Registration under this Section 2 until it has become effective.
(c) The Holder making on the terms and conditions specified in the Demand Registration Notice, which may elect whether the offering of such Registrable Securities pursuant to such Demand Registration shall be in the form of a firm commitment underwritten offering or otherwise; provided, however, that such Holder may not elect that such offering be made include sales on a delayed or continuous basis pursuant to rule Rule 415 under the Securities Actpursuant to a Shelf Registration Statement (a “Demand Registration”). In any case in which an offering is in the form of a firm commitment underwritten offering, if the managing underwriter or underwriters of such offering advise the Company in writing that in its or their opinion the number of Registrable Securities proposed to be sold in such offering exceeds The Demand Notice must set forth the number of Registrable Securities that can be sold the Initiating Holder(s) intend to include in such offering without aversely affecting Demand Registration and the market intended methods of disposition thereof. Notwithstanding anything to the contrary herein, in no event shall the Company be required to effectuate a Demand Registration unless the Registrable Securities of the Initiating Holder(s) and their respective Affiliates to be included therein have an aggregate value, based on the VWAP as of the date of the Demand Notice, of at least $50 million (the “Minimum Amount”).
(ii) Within thirty Business Days after the receipt of the Demand Notice (except if the Company is not then eligible to register for resale the Company's Common StockRegistrable Securities on Form S-3, within 45 days thereof), the Company will include shall, subject to the limitations of this Section 2(a), file a Registration Statement in accordance with the terms and conditions of the Demand Notice. The Company shall use all commercially reasonable efforts to cause such registration Registration Statement to become and remain effective as soon as reasonably practicable after the filing thereof under the Securities Act until all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, the Company is not obligated hereunder to (A) file any Registration Statement pursuant to a Demand Registration within 90 days after the closing of any Requested Underwritten Offering, unless as a result of Section 2(d), the Requested Underwritten Offering includes less than (the “Requested Underwritten Offering Minimum Condition”) the lesser of (i) Registrable Securities of the Initiating Holder(s) having an aggregate value, based on the VWAP as of the effective date of the related Registration Statement, of $50 million, and (ii) two-thirds of the number of Registrable Securities that the Initiating Holder(s) set forth in the opinion applicable Underwritten Offering Notice, or (B) effect a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of such managing underwriter or underwriters can be sold without adversely affecting the market for Registrable Securities held by the Company's Common Stock. In such event, Initiating Holder(s) 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, if any, to be offered for Securities on the accounts of Approved Investors (including the Holder making terms and conditions specified in the Demand RegistrationNotice in accordance with the intended timing and method or methods of distribution thereof specified in the Demand Notice. No Demand Registration shall be deemed to have occurred for purposes of this Section 2(a)(iii) if the Registration Statement relating thereto does not become effective or is not maintained effective for its entire Effectiveness Period, in which case the Initiating Holder(s) shall be reduced pro rata on entitled to an additional Demand Registration in lieu thereof.
(iv) A Holder may withdraw all or any portion of its Registrable Securities included in a Demand Registration from such Demand Registration at any time prior to the basis effectiveness of the relative number applicable Registration Statement. Upon receipt of any a notice from an Initiating Holder that such Initiating Holder is withdrawing an amount of its Registrable Securities requested by each Approved Investor Shares such that the remaining amount of Registrable Shares to be included in the Demand Registration is below the Minimum Amount, the Company shall cease all efforts to secure effectiveness of the applicable Registration Statement.
(v) The Company may include in any such registration Demand Registration other Company Securities for sale for its own account or for the account of any other Person, subject to Section 2(d).
(vi) Subject to the extent necessary to reduce limitations contained in this Agreement, the total number Company shall effect any Demand Registration on such appropriate registration form of the Commission (A) as shall be selected by the Company and (B) as shall permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the Demand Notice; provided that if the Company becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be included in such offering on Form S-3 or any equivalent or successor form under the Securities Act (if available to the number recommended by such managing underwriter or underwritersCompany). In the event the If at any time a Registration Statement on Form S-3 is effective and a Holder making the Demand shall receive notice pursuant to this Section 2(c) that the amount of Registrable Securities to be offered for such Holder shall be reduced, such Holder shall be entitled to withdraw the Demand by provides written notice to the Company within seven (7) days after receipt that it intends to effect an offering of such notice, with the effect that such Demand shall be deemed not to have been made.
(d) If any all or part of the Registrable Securities covered by a included on such Registration Statement, the Company will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(vii) Without limiting Section 3, in connection with any Demand Registration are pursuant to and in accordance with this Section 2(a), the Company shall (A) promptly prepare and file or cause to be sold in an underwritten offeringprepared and filed (1) such additional forms, the Approved Investorsamendments, in the aggregatesupplements, that own prospectuses, certificates, letters, opinions and other documents, as may be necessary or will own a majority of the Registrable Securities that the Company has been requested advisable to register (or qualify the securities subject to such Demand Registration, including under the Requested Securities but excluding any securities to be issued by laws of such jurisdictions as the Company), Holders shall have the right to select the investment banker or investment bankers and manager or managers that will underwrite the offeringreasonably request; provided, however, that no such investment bankers qualification shall be required in any jurisdiction where, as a result thereof, the Company would become subject to general service of process or to taxation or qualification to do business in such jurisdiction solely as a result of registration and managers must (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 satisfactory 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.
(viii) In the event a Holder transfers Registrable Securities included on a Registration Statement and such Registrable Securities remain Registrable Securities following such transfer, at the request of such Holder, the Company 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 the Company be required to file a post-effective amendment to the CompanyRegistration 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) the Company 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 1 contract
Samples: Registration Rights Agreement (Brigham Minerals, Inc.)
Demand Registration. Upon the written request (aa “Notice”) At any time beginning six months from by Holders collectively owning at least 5% of the date of this Agreement and for a period of three years thereafterthen‑outstanding Registrable Securities, the Holder may make one written request for Partnership shall file with the Commission, as soon as reasonably practicable, but in no event more than 90 days following the receipt of the Notice, a registration statement (each a “Registration Statement”) under the Securities Act, (a "Demand Registration") Act providing for the resale of all or part of Holder's such Registrable Securities (but such partwhich may, together with the number of securities requested by other Approved Investors, to be included in such Demand Registration pursuant to this Section 2, shall have an estimated market value at the time of such request (based upon the then market price of a share of Common Stock option of the Company) of at least $250,000. Notwithstanding the foregoingHolders giving such Notice, the Company shall not be required to file any a registration statement on behalf of the Holder within twelve months after the effective date of any earlier registration statement so long as the Holder was given a notice offering it the opportunity to sell Registrable Securities under the earlier registration statement and Securities Act that provides for the Holder did not request that its Registrable Securities be included; provided, however, that if Holder requested that its Registrable Securities be included in the earlier registration statement but not all were so included through no fault of the Investor, the Investor may, but shall not be obligated to, require the Company to file another registration statement pursuant to a Demand Registration. Within fifteen (15) days after receipt of a request for a Demand Registration, the Company shall give written notice (the "Notice") of such request to all other Approved Investors and shall include in such registration all Registrable Securities that the Company has received written requests for inclusion therein within 15 days after the Notice is given (the "Requested Securities"). Thereafter, the Company may elect to include in such registration additional shares of Common Stock to be issued by the Company. All requests made pursuant to this Section 2 shall specify the aggregate number of Registrable Securities to be registered.
(b) A registration shall not constitute a Demand Registration under this Section 2 until it has become effective.
(c) The Holder making the Demand Registration may elect whether the offering resale of such Registrable Securities pursuant to such Demand Registration Rule 415 from time to time by the Holders). There shall be in the form of a firm commitment underwritten offering or otherwise; provided, however, that such Holder may not elect that such offering be made no limit on a delayed or continuous basis pursuant to rule 415 under the Securities Act. In any case in which an offering is in the form of a firm commitment underwritten offering, if the managing underwriter or underwriters of such offering advise the Company in writing that in its or their opinion the number of Registration Statements that may be required by the Holders pursuant to this Section 2.01. The Partnership shall use its commercially reasonable efforts to cause each Registration Statement to be declared effective by the Commission as soon as reasonably practicable after the initial filing of the Registration Statement. Any Registration Statement shall provide for the resale pursuant to any method or combination of methods legally available to, and requested by, the Holders of any and all such Registrable Securities proposed covered by such Registration Statement. The Partnership shall use its commercially reasonable efforts to cause each Registration Statement filed pursuant to this Section 2.01 to be sold in such offering exceeds the number of Registrable Securities that can be sold in such offering without aversely affecting the market for the Company's Common Stockcontinuously effective, the Company will include in such registration the number of Registrable Securities that in the opinion of such managing underwriter or underwriters can be sold without adversely affecting the market for the Company's Common Stock. In such event, the number of Registrable Securities, if any, to be offered for the accounts of Approved Investors (including the Holder making the Demand Registration) shall be reduced pro rata on the basis of the relative number of any Registrable Securities requested by each Approved Investor to be included in such registration supplemented and amended to the extent necessary to reduce ensure that it is available for the total number resale of all such Registrable Securities to be included in by the Holders until all such offering to the number recommended by such managing underwriter or underwriters. In the event the Holder making the Demand shall receive notice pursuant to this Section 2(c) that the amount of Registrable Securities to be offered for such Holder shall be reduced, such Holder shall be entitled to withdraw the Demand by written notice to the Company within seven (7) days after receipt of such notice, with the effect that such Demand shall be deemed not to have been made.
(d) If any of the Registrable Securities covered by a Demand such Registration are Statement have ceased to be sold Registrable Securities (the “Effectiveness Period”). Each Registration Statement when effective (and the documents incorporated therein by reference) shall comply as to form in all material respects with all applicable requirements of the Securities Act and the Exchange Act and shall not contain an underwritten offering, untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the Approved Investorsstatements therein not misleading (in the case of any prospectus contained in such Registration Statement, in the aggregate, that own or will own a majority light of the Registrable Securities that the Company has been requested to register (including the Requested Securities but excluding any securities to be issued by the Companycircumstances under which a statement is made), shall have the right to select the investment banker or investment bankers and manager or managers that will underwrite the offering; provided, however, that such investment bankers and managers must be reasonably satisfactory to the Company.
Appears in 1 contract
Samples: Registration Rights Agreement (Viper Energy Partners LP)
Demand Registration. (ai) At If the Company (i) is in violation of its obligation to file a Shelf Registration Statement pursuant to Section 2(a) or (ii) following the effectiveness of the Shelf Registration Statement contemplated by Section 2(a), thereafter ceases to have an effective Shelf Registration Statement during the Shelf Period (other than during any time beginning six months from Suspension Period), subject to the date terms and conditions of this Agreement and for a period of three years thereafter(including Section 2(b)(iii)), upon written notice to the Holder may make one written request for registration under the Securities Act, Company (a "“Demand Registration"Request”) delivered by a Qualified Holder that holds at least 5% of all or part of Holder's Registrable Securities (but such partthe outstanding Equity Securities, together with the number of securities requested by other Approved Investors, to be included in such Demand Registration pursuant to this Section 2, shall have an estimated market value calculated at the time of such request demand, requesting that the Company effect the registration (based upon a “Demand Registration”) under the then market price Securities Act of a share of Common Stock any or all of the Company) of at least $250,000. Notwithstanding the foregoing, the Company shall not be required to file any registration statement on behalf of the Holder within twelve months after the effective date of any earlier registration statement so long as the Holder was given a notice offering it the opportunity to sell Registrable Securities under the earlier registration statement and the Holder did not request that its Registrable Securities be included; provided, however, that if Holder requested that its Registrable Securities be included in the earlier registration statement but not all were so included through no fault of the Investor, the Investor may, but shall not be obligated to, require the Company to file another registration statement pursuant to a Demand Registration. Within fifteen (15) days after receipt of a request for a Demand Registrationbeneficially owned by such Qualified Holder(s), the Company shall give written a notice (of the "Notice") receipt of such request Demand Request (a “Demand Notice”) to all other Approved Investors Holders of Registrable Securities (which notice shall state the material terms of such proposed Demand Registration, to the extent known). Such Demand Notice shall be given not more than ten (10) Business Days and not less than five (5) Business Days, in each case prior to the expected date of the public filing of the registration statement (the “Demand Registration Statement”) for such Demand Registration. Subject to the provisions of Section 2(a)(iii) and Section 2(e) below, the Company shall file the Demand Registration Statement and use its commercially reasonable efforts to effect, as soon as reasonably practicable, the registration under the Securities Act and under the applicable state securities laws and include in such registration Demand Registration Statement all Registrable Securities that are New Common Shares with respect to which the Company has received written requests for inclusion therein within 15 days five (5) Business Days after the Notice is given later of (the "Requested Securities"). Thereafter, i) the Company may elect delivering the Demand Notice to include in such registration additional shares of Common Stock to be issued by the Company. All requests made pursuant to this Section 2 shall specify the aggregate number Holders of Registrable Securities and (ii) five (5) Business Days prior to be registered.
(b) A registration shall not constitute a Demand Registration under this Section 2 until it has become effective.
(c) The Holder making the actual public filing of the Demand Registration may elect whether the offering of such Registrable Securities pursuant to such Demand Registration Statement. Nothing in this Section 2(b) shall be in the form of a firm commitment underwritten offering or otherwise; provided, however, that such Holder may not elect that such offering be made on a delayed or continuous basis pursuant to rule 415 under the Securities Act. In any case in which an offering is in the form of a firm commitment underwritten offering, if the managing underwriter or underwriters of such offering advise relieve the Company in writing that in of its or their opinion the number of Registrable Securities proposed to be sold in such offering exceeds the number of Registrable Securities that can be sold in such offering without aversely affecting the market for the Company's Common Stock, the Company will include in such registration the number of Registrable Securities that in the opinion of such managing underwriter or underwriters can be sold without adversely affecting the market for the Company's Common Stock. In such event, the number of Registrable Securities, if any, to be offered for the accounts of Approved Investors (including the Holder making the Demand Registration) shall be reduced pro rata on the basis of the relative number of any Registrable Securities requested by each Approved Investor to be included in such registration to the extent necessary to reduce the total number of Registrable Securities to be included in such offering to the number recommended by such managing underwriter or underwriters. In the event the Holder making the Demand shall receive notice pursuant to this obligations under Section 2(c) that the amount of Registrable Securities to be offered for such Holder shall be reduced, such Holder shall be entitled to withdraw the Demand by written notice to the Company within seven (7) days after receipt of such notice, with the effect that such Demand shall be deemed not to have been made2(a).
(d) If any of the Registrable Securities covered by a Demand Registration are to be sold in an underwritten offering, the Approved Investors, in the aggregate, that own or will own a majority of the Registrable Securities that the Company has been requested to register (including the Requested Securities but excluding any securities to be issued by the Company), shall have the right to select the investment banker or investment bankers and manager or managers that will underwrite the offering; provided, however, that such investment bankers and managers must be reasonably satisfactory to the Company.
Appears in 1 contract
Demand Registration. (ai) At any time beginning six months from after the date expiration of this Agreement the Lock-Up Period, any Holder(s) shall have the option and for right, exercisable by delivering a period of three years thereafter, written notice to the Holder may make one written request for registration under the Securities Act, Company (a "“Demand Registration") of all or part of Holder's Registrable Securities (but such part, together with the number of securities requested by other Approved InvestorsNotice”), to be included in such Demand Registration pursuant to this Section 2, shall have an estimated market value at the time of such request (based upon the then market price of a share of Common Stock of the Company) of at least $250,000. Notwithstanding the foregoing, the Company shall not be required to file any registration statement on behalf of the Holder within twelve months after the effective date of any earlier registration statement so long as the Holder was given a notice offering it the opportunity to sell Registrable Securities under the earlier registration statement and the Holder did not request that its Registrable Securities be included; provided, however, that if Holder requested that its Registrable Securities be included in the earlier registration statement but not all were so included through no fault of the Investor, the Investor may, but shall not be obligated to, require the Company to file another registration statement to, pursuant to the terms of and subject to the limitations contained in this Agreement, prepare and file with the Commission a Demand Registration. Within fifteen (15) days after receipt Registration Statement registering the offering and sale of a request for a Demand Registration, the Company shall give written notice (the "Notice") of such request to all other Approved Investors number and shall include in such registration all Registrable Securities that the Company has received written requests for inclusion therein within 15 days after the Notice is given (the "Requested Securities"). Thereafter, the Company may elect to include in such registration additional shares of Common Stock to be issued by the Company. All requests made pursuant to this Section 2 shall specify the aggregate number type of Registrable Securities to be registered.
(b) A registration shall not constitute a Demand Registration under this Section 2 until it has become effective.
(c) The Holder making on the terms and conditions specified in the Demand Registration Notice, which may elect whether the offering of such Registrable Securities pursuant to such Demand Registration shall be in the form of a firm commitment underwritten offering or otherwise; provided, however, that such Holder may not elect that such offering be made include sales on a delayed or continuous basis pursuant to rule Rule 415 under the Securities Actpursuant to a Shelf Registration Statement (a “Demand Registration”). In any case in which an offering is in the form of a firm commitment underwritten offering, if the managing underwriter or underwriters of such offering advise the Company in writing that in its or their opinion the number of Registrable Securities proposed to be sold in such offering exceeds The Demand Notice must set forth the number of Registrable Securities that can be sold the Initiating Holder(s) intend to include in such offering without aversely affecting Demand Registration and the market intended methods of disposition thereof. Notwithstanding anything to the contrary herein, in no event shall the Company be required to effectuate a Demand Registration unless the Registrable Securities of the Initiating Holder(s) and their respective Affiliates to be included therein have an aggregate value, based on the VWAP as of the date of the Demand Notice, of at least $50 million (the “Minimum Amount”).
(ii) Within 30 Business Days after the receipt of the Demand Notice (except if the Company is not then eligible to register for resale the Company's Common StockRegistrable Securities on Form S-3, within 45 days thereof), the Company will include shall, subject to the limitations of this Section 2(a), file a Registration Statement in accordance with the terms and conditions of the Demand Notice. The Company shall use all commercially reasonable efforts to cause such registration Registration Statement to become and remain effective as soon as reasonably practicable after the filing thereof under the Securities Act until all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, the Company is not obligated hereunder to (A) file any Registration Statement pursuant to a Demand Registration within 90 days after the closing of any Requested Underwritten Offering, unless as a result of Section 2(d), the Requested Underwritten Offering includes less than (the “Requested Underwritten Offering Minimum Condition”) the lesser of (i) Registrable Securities of the Initiating Holder(s) having an aggregate value, based on the VWAP as of the effective date of the related Registration Statement, of $50 million, and (ii) two-thirds of the number of Registrable Securities that the Initiating Holder(s) set forth in the opinion applicable Underwritten Offering Notice, or (B) effect a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of such managing underwriter or underwriters can be sold without adversely affecting the market for Registrable Securities held by the Company's Common Stock. In such event, Initiating Holder(s) 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, if any, to be offered for Securities on the accounts of Approved Investors (including the Holder making terms and conditions specified in the Demand RegistrationNotice in accordance with the intended timing and method or methods of distribution thereof specified in the Demand Notice. No Demand Registration shall be deemed to have occurred for purposes of this Section 2(a)(iii) if the Registration Statement relating thereto does not become effective or is not maintained effective for its entire Effectiveness Period, in which case the Initiating Holder(s) shall be reduced pro rata on entitled to an additional Demand Registration in lieu thereof.
(iv) A Holder may withdraw all or any portion of its Registrable Securities included in a Demand Registration from such Demand Registration at any time prior to the basis effectiveness of the relative number applicable Registration Statement. Upon receipt of any a notice from an Initiating Holder that such Initiating Holder is withdrawing an amount of its Registrable Securities requested by each Approved Investor Shares such that the remaining amount of Registrable Shares to be included in the Demand Registration is below the Minimum Amount, the Company shall cease all efforts to secure effectiveness of the applicable Registration Statement.
(v) The Company may include in any such registration Demand Registration other Company Securities for sale for its own account or for the account of any other Person, subject to Section 2(d).
(vi) Subject to the extent necessary to reduce limitations contained in this Agreement, the total number Company shall effect any Demand Registration on such appropriate registration form of the Commission (A) as shall be selected by the Company and (B) as shall permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the Demand Notice; provided that if the Company becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be included in such offering on Form S-3 or any equivalent or successor form under the Securities Act (if available to the number recommended by such managing underwriter or underwritersCompany). In the event the If at any time a Registration Statement on Form S-3 is effective and a Holder making the Demand shall receive notice pursuant to this Section 2(c) that the amount of Registrable Securities to be offered for such Holder shall be reduced, such Holder shall be entitled to withdraw the Demand by provides written notice to the Company within seven (7) days after receipt that it intends to effect an offering of such notice, with the effect that such Demand shall be deemed not to have been made.
(d) If any all or part of the Registrable Securities covered by a included on such Registration Statement, the Company will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(vii) Without limiting Section 3, in connection with any Demand Registration are pursuant to and in accordance with this Section 2(a), the Company shall (A) promptly prepare and file or cause to be sold in an underwritten offeringprepared and filed (1) such additional forms, the Approved Investorsamendments, in the aggregatesupplements, that own prospectuses, certificates, letters, opinions and other documents, as may be necessary or will own a majority of the Registrable Securities that the Company has been requested advisable to register (or qualify the securities subject to such Demand Registration, including under the Requested Securities but excluding any securities to be issued by laws of such jurisdictions as the Company), Holders shall have the right to select the investment banker or investment bankers and manager or managers that will underwrite the offeringreasonably request; provided, however, that no such investment bankers qualification shall be required in any jurisdiction where, as a result thereof, the Company would become subject to general service of process or to taxation or qualification to do business in such jurisdiction solely as a result of registration and managers must (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 satisfactory 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.
(viii) In the event a Holder transfers Registrable Securities included on a Registration Statement and such Registrable Securities remain Registrable Securities following such transfer, at the request of such Holder, the Company 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 the Company be required to file a post-effective amendment to the CompanyRegistration 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) the Company 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 1 contract
Samples: Registration Rights Agreement (Brigham Minerals, Inc.)
Demand Registration. (a) At any time beginning six months from Subject to the date conditions of this Agreement Section 2.3, if NPDC receives a request from Holders who own, or on exercise of all NPDC Warrants would own, 25% of the Registrable Securities then outstanding (the "Initiating Holders") that NPDC file a registration statement under the Securities Act covering the registration of all or a part of such Initiating Holders' Registrable Securities, then NPDC shall, within 15 days of the receipt thereof, give notice of such request to all Holders, and for a period of three years thereafteruse its best efforts to effect, as soon as practicable, the Holder may make one written request for registration under the Securities Act, (a "Demand Registration") Act of all or part of Holder's Registrable Securities that the Initiating Holders request to be registered and all Registrable Securities owned by any other Holder which notifies NPDC in writing, within 30 days after receipt of NPDC's notice contemplated in this Section 2.3, that it intends to participate in the demand registration (but such part, together with notification to include the number of securities requested by other Approved Investors, Registrable Securities sought to be included and the intended method or methods of distribution of such Registrable Securities), subject to and in such Demand Registration pursuant accordance with the terms, conditions, procedures, and limitations contained in this Agreement. The Initiating Holders may at any time prior to the effective date of the registration statement relating to a requested registration under this Section 22.3 revoke their request by providing written notice to NPDC, shall have an estimated market value at in which case the time of such request Registration Expenses will be borne in accordance with Section 2.6.
(based upon the then market price of a share of Common Stock of the Companyb) of at least $250,000. Notwithstanding the foregoing, the Company NPDC shall not be required to file any effect a registration statement pursuant to this Section 2.3:
(i) during the period of 120 days commencing on behalf of the Holder within twelve months after the effective date of any earlier registration statement on which NPDC becomes eligible to use Form S-3 as contemplated by Section 2.2, so long as the Holder was given NPDC is in compliance with its obligations under Section 2.2, or at any time when a notice offering it the opportunity registration statement filed pursuant to sell Registrable Securities Section 2.2 is effective under the earlier registration statement and the Holder did not request that its Registrable Securities be included; Act;
(ii) after NPDC has effected two registrations pursuant to this Section 2.3, provided, however, that if Holder requested that its Registrable Securities be included in the earlier a registration statement but not all were so included through no fault of the Investor, the Investor may, but shall not be obligated tocount as having been effected unless and until it has become effective, require and unless and until the Company to file another registration statement pursuant to a Demand Registration. Within fifteen (15) days after receipt of a request for a Demand Registration, the Company shall give written notice (the "Notice") of such request to all other Approved Investors and shall include Holders participating in such registration all shall have had the opportunity to register and sell 100% of the Registrable Securities that the Company has received written requests for inclusion therein within 15 days after the Notice is given (the "Requested Securities"). Thereafter, the Company may elect to include in such registration additional shares of Common Stock initially requested to be issued by registered pursuant thereto, except that a registration the Company. All requests request for which has been revoked shall count as having been effected unless the revocation is based upon material adverse information concerning NPDC of which the Initiating Holders were not aware at the time of their request;
(iii) during the period starting with the date of filing of, and ending on the date 90 days following the effective date of, a registration statement pertaining to any underwritten public offering made pursuant to this Section 2 shall specify the aggregate number of Registrable Securities 2.3; provided that NPDC makes reasonable and diligent good faith efforts to be registered.cause such registration statement to become effective; or
(biv) A during the period starting with the date of filing of, and ending on the date 90 days following the effective date of, a registration shall statement pertaining to any underwritten public offering in which the Holders were given the opportunity to participate pursuant to Section 2.4 for not constitute a Demand Registration under this Section 2 until it has less than 20% of the amount of the offering; provided that NPDC uses best efforts to cause such registration statement to become effective.
(c) The Holder making If the Demand Registration may elect whether Initiating Holders intend to distribute the offering of such Registrable Securities covered by their request by means of an underwriting, they shall so advise NPDC as a part of their request made pursuant to Section 2.3 and NPDC shall include such Demand Registration shall be in the form of a firm commitment underwritten offering or otherwise; provided, however, that such Holder may not elect that such offering be made on a delayed or continuous basis pursuant to rule 415 under the Securities Act. In any case in which an offering is in the form of a firm commitment underwritten offering, if the managing underwriter or underwriters of such offering advise the Company in writing that information in its or their opinion written notice to the number of Registrable Securities proposed Holders referred to be sold in such offering exceeds the number of Registrable Securities that can be sold in such offering without aversely affecting the market for the Company's Common Stock, the Company will include in such registration the number of Registrable Securities that in the opinion of such managing underwriter or underwriters can be sold without adversely affecting the market for the Company's Common StockSection 2.3(a). In such event, the number of Registrable Securities, if any, to be offered for the accounts of Approved Investors (including the Holder making the Demand Registration) shall be reduced pro rata on the basis of the relative number right of any Holder to include its Registrable Securities requested by each Approved Investor to be included in such registration shall be conditioned upon such Holder's participation in such underwriting and the inclusion of such Holder's Registrable Securities in the underwriting to the extent necessary provided herein. All Holders proposing to reduce distribute their securities through such underwriting shall enter into an underwriting agreement in customary form with the total number underwriter or underwriters selected for such underwriting by NPDC and approved by Holders of a majority of the Registrable Securities to be included in such offering underwriting. Notwithstanding any other provision of this Section 2.3 to the contrary, if the underwriter advises NPDC that marketing factors require a limitation of the number recommended by such managing underwriter or underwriters. In the event the Holder making the Demand of securities to be underwritten (including Registrable Securities) then NPDC shall receive notice pursuant to this Section 2(c) that the amount so advise all Holders of Registrable Securities electing to participate in the registration under this Section 2.3, and the number of shares that may be offered for such Holder included in the underwriting shall be reducedallocated to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such electing Holders (including the Initiating Holders). If any Holder disapproves of the terms of any such underwriting, such Holder shall be entitled may elect to withdraw the Demand therefrom by written notice to NPDC and the Company within seven (7) underwriter, delivered at least 10 business days after receipt prior to the effective date of the registration statement. Any Registrable Securities excluded or withdrawn from such notice, with the effect that such Demand underwriting shall be deemed not to have been madeexcluded and withdrawn from the registration.
(d) If any of the Registrable Securities covered by a Demand Registration are to be sold in an underwritten offering, the Approved Investors, in the aggregate, that own or will own a majority of the Registrable Securities that the Company has been requested to register (including the Requested Securities but excluding any securities to be issued by the Company), shall have the right to select the investment banker or investment bankers and manager or managers that will underwrite the offering; provided, however, that such investment bankers and managers must be reasonably satisfactory to the Company.
Appears in 1 contract
Demand Registration. (a) At any time beginning six months from following the date Closing Date and so many times as may be required for the disposition of this Agreement all Registrable Securities, each of TDR, Algeco and for the Initiating Holders may give a period of three years thereafter, the Holder may make one written request for to the Company to effect the registration under the Securities Act, (a "Demand Registration") Act of all or part any portion of such Holder's ’s Registrable Securities (but such partSecurities, together with which written request shall specify the number of securities requested by other Approved Investors, Registrable Securities to be included in registered and the intended method of disposition thereof (each such registration shall be referred to herein as a “Demand Registration pursuant Registration”); provided that, subject to this Section 2, shall have an estimated market value at the time of such request (based upon the then market price of a share of Common Stock of the Company) of at least $250,000. Notwithstanding the foregoing2.1(d), the Company shall not be required obligated to file effect any registration statement on behalf of Demand Registration (w) with respect to Registrable Securities that are subject to transfer restrictions pursuant to the Holder Subscription Agreement, (x) with respect to Registrable Securities that are held in escrow under the Escrow Agreement, (y) within twelve months 90 days after the effective date of any earlier registration statement so long a previous Registration Statement (or such shorter period as the Holder was given a notice offering it Company may determine in its sole discretion) pursuant to which the opportunity Holders were permitted to sell register the offer and sale under the Securities Act, and actually sold at least 75% of the Registrable Securities under the earlier registration statement and the Holder did not request that its Registrable Securities be included; provided, however, that if Holder requested that its Registrable Securities to be included therein or (z) as provided in the earlier registration statement but not all were so included through no fault of the Investor, the Investor may, but shall not be obligated to, require the Company to file another registration statement pursuant to a Demand Registration. Within fifteen (15) days after receipt of a request for a Demand Registration, the Company shall give written notice (the "Notice") of such request to all other Approved Investors and shall include in such registration all Registrable Securities that the Company has received written requests for inclusion therein within 15 days after the Notice is given (the "Requested Securities"Section 2.1(f). Thereafter, the Company may elect shall promptly, and in any event, within five (5) days after receiving such request, give written notice of the proposed registration to include 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 Company within five (5) days after written notice regarding such registration additional shares of from the Company is delivered; and
(iii) any Common Stock to be issued 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. All requests made pursuant 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 this 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 Registration Statement.
(c) The Company shall be liable for and pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Demand Registration becomes effective.
(d) A Demand Registration shall not be deemed to have occurred:
(i) unless the Registration Statement relating thereto (A) has become effective under the Securities Act and (B) has remained continuously effective for a period of at least (x) 180 days (or such shorter period in which all Registrable Securities of the Holders included in such registration have actually been sold thereunder) or (y) with respect to a Shelf Registration, until the date set forth in Section 2 2.5(a)(ii); provided that such Registration Statement shall specify not be considered a Demand Registration if, after such Registration Statement becomes effective, (1) such Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court and (2) less than 75% of the Registrable Securities included in such Registration Statement have been sold thereunder; or
(ii) if the Maximum Offering Size is reduced in accordance with Section 2.1(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. If a Demand Registration involves a Public Offering and the lead managing underwriter advises the Company and the selling Holders that, in its view, the number of shares of Registrable Securities requested to be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having a material and adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, up to the Maximum Offering Size, first, all Registrable Securities 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 registeredregistered by the Company.
(bf) A registration shall not constitute The Company may postpone for up to 60 days (i) the filing or effectiveness of a Registration Statement for a Demand Registration under this Section 2 until it has become effective.
or Shelf Registration or (cii) The Holder making the Demand Registration may elect whether commencement of a Shelf Public Offering if the offering Board of such Registrable Securities pursuant to Directors of the Company determines in its reasonable good faith judgment that such Demand Registration, Shelf Registration shall be in the form of or Shelf Public Offering, as applicable, (i) materially interferes with a firm commitment underwritten significant acquisition, corporate organization, financing, securities offering or otherwiseother 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, however, that such Holder may not elect that such offering be made on a delayed or continuous basis pursuant to rule 415 under the Securities Act. In any case in which an offering is in the form of a firm commitment underwritten offering, if the managing underwriter or underwriters of such offering advise the Company in writing that in its such event TDR or their opinion the number of Registrable Securities proposed to be sold in such offering exceeds the number of Registrable Securities that can be sold in such offering without aversely affecting the market for the Company's Common StockInitiating Holders, the Company will include in such registration the number of Registrable Securities that in the opinion of such managing underwriter or underwriters can be sold without adversely affecting the market for the Company's Common Stock. In such eventas applicable, the number of Registrable Securities, if any, to be offered for the accounts of Approved Investors (including the Holder making the Demand Registration) shall be reduced pro rata on the basis of the relative number of any Registrable Securities requested by each Approved Investor to be included in such registration to the extent necessary to reduce the total number of Registrable Securities to be included in such offering to the number recommended by such managing underwriter or underwriters. In the event the Holder making the Demand shall receive notice pursuant to this Section 2(c) that the amount of Registrable Securities to be offered for such Holder shall be reduced, such Holder shall be entitled to withdraw the Demand by written notice to the Company within seven (7) days after receipt of such noticerequest and, with the effect that if such Demand shall be deemed not to have been made.
(d) If any of the Registrable Securities covered by request for a Demand Registration are to be sold in an underwritten offeringis withdrawn, the Approved Investors, in the aggregate, that own or will own a majority such Demand Registration shall not count as one of the Registrable Securities that permitted Demand Registrations hereunder and the Company has been requested to register 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 (including the Requested Securities but excluding any securities to be issued by the Company), shall have the right to select the investment banker or investment bankers and manager or managers that will underwrite the offering; provided, however, that such investment bankers and managers must be reasonably satisfactory to the Company12) consecutive months.
Appears in 1 contract
Samples: Stock Purchase Agreement (Double Eagle Acquisition Corp.)
Demand Registration. Subject to Sections 3.1(c) and (ad) At any time beginning six months from and 3.2 hereof, each Designated Holder (in such capacity, an “Initiating Holder”) may deliver to the date of this Agreement and for Company a period of three years thereafter, the Holder may make one written request for registration under the Securities Act, notice (a "Demand Registration"“Registration Notice”) of all or part of Holder's Registrable Securities (but such part, together with the number of securities requested by other Approved Investors, to be included in such Demand Registration pursuant to this Section 2, shall have an estimated market value at the time of such request (based upon the then market price of a share of Common Stock of the Company) of at least $250,000. Notwithstanding the foregoing, informing the Company shall not be required of his/her or its desire to file any registration statement on behalf of the Holder within twelve months after the effective date of any earlier registration statement so long as the Holder was given a notice offering it the opportunity to sell Registrable Securities under the earlier registration statement and the Holder did not request that have his/her or its Registrable Securities be included; provided, however, that if Holder requested that its Registrable Securities be included in registered for sale and specifying the earlier registration statement but not all were so included through no fault of the Investor, the Investor may, but shall not be obligated to, require the Company to file another registration statement pursuant to a Demand Registration. Within fifteen (15) days after receipt of a request for a Demand Registration, the Company shall give written notice (the "Notice") of such request to all other Approved Investors and shall include in such registration all Registrable Securities that the Company has received written requests for inclusion therein within 15 days after the Notice is given (the "Requested Securities"). Thereafter, the Company may elect to include in such registration additional shares of Common Stock to be issued by the Company. All requests made pursuant to this Section 2 shall specify the aggregate number of Registrable Securities to be registered.
registered by the Company and the intended method of disposition thereof and that such request is being made pursuant to this Section 3.1(a) (b) A registration shall not constitute a “Demand Registration”). The Company may cause the Registrable Securities that are the subject of a Demand Registration made in accordance with the immediately preceding paragraph to be included as part of an existing shelf registration statement and related prospectus that the Company then has on file with, and which has been declared effective by, the Commission under this Section 2 until it has the Securities Act, or otherwise become effective.
effective thereunder, and which remains effective and not subject to any stop order of the Commission (c) The Holder making the Demand an “Existing Shelf Registration may elect whether the offering Statement”). Absent inclusion of such Registrable Securities in an Existing Shelf Registration Statement and subject to Sections 3.1(c) and (d) and 3.2 hereof, the Company shall file with the Commission as soon as reasonably practicable after receiving a Registration Notice, but in any event prior to the later of (i) the first Business Day following the expiration of the periods referred to in the lock-up letters delivered pursuant to the Stock Purchase Agreement (collectively, the “Lock-Up Agreement”) and (ii) the sixtieth (60th) day following the Company’s receipt of such Demand Registration shall be in Notice, a new registration statement and related prospectus (which may take the form of a firm commitment underwritten offering or otherwise; provided, however, that Shelf Registration Statement in the sole discretion of the Company) (a “New Registration Statement”) providing for the offer and sale by the applicable Designated Holder of such Holder may not elect that Registrable Securities and agrees to use its commercially reasonable efforts to cause such offering New Registration Statement be made on a delayed or continuous basis pursuant to rule 415 declared effective by the Commission under the Securities ActAct as soon as practicable thereafter (unless such New Registration Statement is automatically effective upon filing), in each case giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions necessary to effect a registered public offering of securities. In any case in which an offering is in the As used herein, “Registration Statement” and “Prospectus” refer to a registration statement on a form of a firm commitment underwritten offering, if the managing underwriter or underwriters of such offering advise the Company in writing that in its or their opinion is then eligible to use and related prospectus (including any preliminary prospectus and prospectus supplement) filed with the number of Registrable Commission pursuant to the Securities proposed to be sold in such offering exceeds the number of Registrable Securities that can be sold in such offering without aversely affecting the market for the Company's Common Stock, Act and utilized by the Company will include in such registration the number of Registrable Securities that in the opinion of such managing underwriter or underwriters can be sold without adversely affecting the market for the Company's Common Stock. In such event, the number of Registrable Securities, if any, to be offered for the accounts of Approved Investors (including the Holder making the Demand Registration) shall be reduced pro rata on the basis of the relative number of any Registrable Securities requested by each Approved Investor to be included in such registration to the extent necessary to reduce the total number of Registrable Securities to be included in such offering to the number recommended by such managing underwriter or underwriters. In the event the Holder making the Demand shall receive notice satisfy a Designated Holder’s Registration Rights pursuant to this Section 2(cAgreement, including an Existing Shelf Registration Statement and related prospectus (including any preliminary prospectus and prospectus supplement) that the amount of Registrable Securities or a New Registration Statement and related prospectus (including any preliminary prospectus and prospectus supplement), including, in each case, any documents incorporated or deemed to be offered for such Holder shall be reduced, such Holder shall be entitled to withdraw the Demand incorporated therein by written notice to the Company within seven (7) days after receipt of such notice, with the effect that such Demand shall be deemed not to have been madereference.
(d) If any of the Registrable Securities covered by a Demand Registration are to be sold in an underwritten offering, the Approved Investors, in the aggregate, that own or will own a majority of the Registrable Securities that the Company has been requested to register (including the Requested Securities but excluding any securities to be issued by the Company), shall have the right to select the investment banker or investment bankers and manager or managers that will underwrite the offering; provided, however, that such investment bankers and managers must be reasonably satisfactory to the Company.
Appears in 1 contract
Samples: Registration Rights Agreement (LoanCore Realty Trust, Inc.)
Demand Registration. In addition to the registration obligations of the Company set forth in Section 2.2 herein, the following provisions shall apply:
(a) At any time beginning six months from Subject to Section 2.3(i), upon the date of this Agreement and for a period of three years thereafter, the Holder may make one written request for of the Majority Holders, requesting that the Company effect the registration under the Securities Act, (a "Demand Registration") Act of all or part of Holder's such Designated Holders’ Registrable Securities and specifying the intended method of disposition thereof (the “Demand Notice”), the Company will promptly give written notice of such requested registration to all Designated Holders, and thereupon the Company will use its reasonable best efforts to file with the SEC as soon as reasonably practicable following the Demand Notice (but in no event later than the date that is 90 days after the Demand Notice) a Registration Statement. The Company shall use its reasonable best efforts to cause such part, together Registration Statement to be declared effective by the SEC within 90 days after the initial filing of the Registration Statement. The Company shall include in such Registration Statement:
(i) the Registrable Securities which the Company has been so requested to be registered by such Designated Holders for disposition in accordance with the number intended method of securities requested by other Approved Investors, to be included disposition stated in such Demand Registration request;
(ii) all other Registrable Securities the holders of which shall have made a written request to the Company for registration thereof within 30 days after the giving of such written notice by the Company (which request shall specify the intended method of disposition of such Registrable Securities); and
(iii) all shares of Common Stock which the Company or Persons entitled to exercise “piggy-back” registration rights pursuant to contractual commitments of the Company may elect to register in connection with the offering of Registrable Securities pursuant to this Section 2, shall have an estimated market value at 2.3; all to the time extent requisite to permit the disposition (in accordance with the intended methods thereof as aforesaid) of such request (based upon the then market price of a share Registrable Securities and the additional shares of Common Stock Stock, if any, so to be registered; provided, that, the provisions of this Section 2.3 shall not require the CompanyCompany to effect more than two registrations of Registrable Securities.
(b) of at least $250,000. Notwithstanding anything to the foregoingcontrary contained in this Agreement, the Company shall not be required to file any effect a registration statement on behalf of the Holder pursuant to this Section 2.3 within twelve months after 180 days following the effective date of any earlier a registration statement so long as filed by the Company in accordance with Sections 2.2, 2.3 or 2.4 for the account of another Designated Holder was given a notice offering it of Registrable Securities if the Designated Holders were afforded the opportunity to sell include the Registrable Securities under the earlier registration statement and the Holder did not request that its Registrable Securities be included; provided, however, that if Holder requested that its Registrable Securities be included in the earlier registration statement but not all were so included through no fault of the Investor, the Investor may, but shall not be obligated to, require the Company to file another registration statement pursuant to a Demand Registration. Within fifteen (15) days after receipt of a request for a Demand Registration, the Company shall give written notice (the "Notice") of such request to all other Approved Investors and shall include in such registration all Registrable Securities that the Company has received written requests for inclusion therein within 15 days after the Notice is given (the "Requested Securities"). Thereafter, the Company may elect to include in such registration additional shares of Common Stock to be issued by the Company. All requests made pursuant to this Section 2 shall specify the aggregate number of Registrable Securities to be registered.
(b) A registration shall not constitute a Demand Registration under this Section 2 until it has become effectiveregistration.
(c) The Holder making registrations under this Section 2.3 shall be on an appropriate Registration Statement that permits the Demand Registration may elect whether the offering disposition of such Registrable Securities in accordance with the intended methods of distribution specified by the Majority Holders in their request for registration. The Company agrees to include in any such Registration Statement all information which Designated Holders of Registrable Securities being registered shall reasonably request to effect the registration.
(d) A registration requested pursuant to this Section 2.3 shall not be deemed to have been effected (i) unless a Registration Statement with respect thereto has become effective; provided, that a Registration Statement which does not become effective after the Company has filed a Registration Statement with respect thereto solely by reason of the refusal to proceed of the Majority Holders (other than a refusal to proceed based upon the advice of counsel relating to a matter with respect to the Company) or because of a breach of this Agreement by any Designated Holder shall be deemed to have been effected by the Company at the request of the Majority Holders unless the Designated Holders electing to have Registrable Securities registered pursuant to such Demand Registration Statement shall be have elected to pay all fees and expenses otherwise payable by the Company in connection with such registration pursuant to Section 2.8, (ii) if, after it has become effective, such registration is withdrawn by the form Company (other than at the request of the Majority Holders) or interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court for any reason prior to the expiration of a firm commitment underwritten offering 180 day period following such Registration Statement’s effectiveness, or otherwise; provided(iii) if the conditions to closing specified in any purchase agreement or underwriting agreement entered into in connection with such registration are not satisfied, however, that such Holder may not elect that such offering be made on a delayed other than due solely to some act or continuous basis omission by the Designated Holders electing to have Registrable Securities registered pursuant to rule 415 under the Securities Act. In any case in which such Registration Statement.
(e) Intentionally Omitted.
(f) If a requested registration pursuant to this Section 2.3 involves an offering is in the form of a firm commitment underwritten offering, if and the managing underwriter or underwriters of such offering shall advise the Company in writing that (with a copy to each Designated Holder of Registrable Securities requesting registration) that, in its or their opinion opinion, the number of Registrable Securities proposed securities requested to be sold included in such offering registration (including securities of the Company which are not Registrable Securities) exceeds the number of Registrable Securities that which can be sold in such offering without aversely affecting within a price range reasonably acceptable to the market for Company and to the Company's Common Stockholders of a majority (by number of shares) of the Registrable Securities requested to be included in such Registration Statement, the Company will include in such registration registration, to the extent of the number of Registrable Securities that in which the opinion of such managing underwriter or underwriters Company is so advised can be sold without adversely affecting the market for the Company's Common Stock. In in such eventoffering, (i) first, the number of Registrable Securities, if any, to be offered for the accounts of Approved Investors (including the Holder making the Demand Registration) shall be reduced pro rata on the basis of the relative number of any Registrable Securities which have been requested by each Approved Investor to be included in such registration by the Designated Holders pursuant to this Agreement (pro rata based on the extent necessary to reduce the total number amount of Registrable Securities sought to be registered by such Persons), (ii) second, provided that no securities sought to be included in by the Designated Holders have been excluded from such offering registration, the securities of other Persons entitled to exercise “piggy-back” registration rights pursuant to contractual commitments of the Company (pro rata based on the amount of securities sought to be registered by such Persons) and (iii) third, securities the Company proposes to register.
(g) The Company shall use its reasonable best efforts to keep any Registration Statement filed pursuant to this Section 2.3 continuously effective (i) for a period of two years after the Registration Statement first becomes effective, plus the number recommended of days during which such Registration Statement was not effective or usable pursuant to Sections 2.6(e) or 2.6(i); or (ii) if such Registration Statement related to an underwritten offering, for such period as in the opinion of counsel for the underwriters a prospectus is required by such managing law to be delivered in connection with sales of Registrable Securities by an underwriter or underwritersdealer. In the event the Holder making Company shall give any notice pursuant to Sections 2.6(e) or (i), the Demand additional time period mentioned in Section 2.3(f)(i) during which the Registration Statement is to remain effective shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Sections 2.6(e) or (i) to and including the date when each seller of a Registrable Security covered by the Registration Statement shall have received the copies of the supplemented or amended prospectus contemplated by Sections 2.6(e) or (i).
(h) The Company shall have the right at any time, to suspend the filing of a Registration Statement under this Section 2.3 or require that the Designated Holders of Registrable Securities suspend further open market offers and sales of Registrable Securities pursuant to a Registration Statement filed hereunder for a period not to exceed an aggregate of 30 days in any six month period or an aggregate of 60 days in any twelve-month period for valid business reasons (not including avoidance of their obligations hereunder) (i) to avoid premature public disclosure of a pending corporate transaction, including pending acquisitions or divestitures of assets, mergers and combinations and similar events; (ii) upon the occurrence of any of the events specified in Section 2.6(e), until the time that the Designated Holders receive notice copies of a supplement or amendment to the prospectus included in the applicable Registration Statement as contemplated in Section 2.6(e); and (iii) upon the occurrence of any of the events specified in Section 2.6(i), until the time the Company notifies the Designated Holders in writing that such suspension is no longer effective.
(i) The right of Designated Holders to register Registrable Securities pursuant to this Section 2(c) that the amount of Registrable Securities to be offered for such Holder shall be reduced2.3 is only exercisable if, such Holder shall be entitled to withdraw the Demand by written notice prior to the expiration of the Effectiveness Period, the Company within seven (7) days after receipt of such notice, with the effect that such Demand shall be deemed not becomes ineligible to have been made.
(d) If any of register the Registrable Securities covered on the Registration Statement contemplated by a Demand Section 2.2 or such Registration are Statement otherwise becomes unusable (other than due solely to be sold in an underwritten offeringsome act or omission by the Designated Holders electing to have Registrable Securities registered pursuant to such Registration Statement) or ineffective and the Company is not able to correct the misstatements, have the Approved Investors, in applicable stop order rescinded or otherwise restore the aggregate, that own or will own a majority effectiveness of the Registrable Securities that the Company has been requested to register (including the Requested Securities but excluding any securities to be issued Registration Statement as contemplated by the Company), shall have the right to select the investment banker or investment bankers and manager or managers that will underwrite the offering; provided, however, that such investment bankers and managers must be reasonably satisfactory to the Companythis Agreement.
Appears in 1 contract
Samples: Registration Rights Agreement (Gendell Jeffrey L Et Al)
Demand Registration. (a) At any time beginning six months from after one hundred eighty (180) days following the date consummation of this Agreement and the IPO, for so long as any Registrable Securities are then outstanding, a period of three years thereafter, Holder or Holders holding in the Holder may make one written request for registration under the Securities Act, aggregate at least twenty percent (a "Demand Registration"20%) of the Registrable Securities then outstanding shall have the right to request that the Company file and cause to become effective a Registration Statement with the SEC on the appropriate registration form for all or part of Holder's the Registrable Securities held by such Holder(s) once such Holder(s) are no longer subject to the lock-up applicable to them entered into in connection with the IPO (but which may be due to the expiration or waiver of such part, together lock-up with respect to such Registrable Securities) (a “Demand Notice”) by delivering a written request to the Company specifying the number of securities requested by Registrable Securities such Holder(s) wish to Register and the intended method of distribution thereof (a “Demand Registration” and the Holder(s) submitting such Demand Registration, the “Initiating Holder” or “Initiating Holders”, collectively). The Company shall (i) within 10 Business Days of the receipt of such request, give written notice of such Demand Registration (the “Company Notice”) to all Holders other Approved Investorsthan the Initiating Holder(s) (the “Eligible Holders”), (ii) as soon as practicable, and in any event within forty-five (45) days of receipt of such request, file a Registration Statement in respect of such Demand Registration, provided that all necessary documents for the registration can be obtained and prepared within such 45-day period; and (iii) use its reasonable best efforts to cause such Registration Statement to become effective as soon as practicable thereafter. The Company shall include in such Registration all Registrable Securities that the Eligible Holders request to be included in such Demand Registration pursuant to this Section 2, shall have an estimated market value at within the time of such request (based upon the then market price of a share of Common Stock 10 Business Days following their receipt of the Company) Company Notice. If the method of at least $250,000. Notwithstanding distributing the foregoingoffering is an underwritten public offering, the Company may designate in its sole discretion, the managing underwriter for such offering.
(b) The Company shall not be required obligated to file and use its reasonable best efforts to cause to become effective: (i) more than two Registration Statements initiated pursuant to Section 2(a); or (ii) any Registration Statement pursuant to Section 2(a) (A) if the Company believes, in good faith, that it will file and cause to be effective a registration statement with respect to Primary Securities (other than on Form F-4 or Form S-8 promulgated under the Securities Act or any successor forms thereto) within 60 days of such a demand or (B) if a registration statement with respect to Primary Securities (other than on Form F-4 or Form S-8 promulgated under the Securities Act or any successor forms thereto) has been declared effective and not withdrawn in the prior 180 days; provided that in connection with any such registration statement that has not been declared effective, the Company is in good faith using commercially reasonable efforts to cause such registration statement to become effective. The Registrable Securities requested to be Registered pursuant to Section 2(a) (including, for the avoidance of doubt, the Registrable Securities of Eligible Holders requested to be registered) must represent an aggregate price to the public of Registrable Securities that is reasonably expected to equal at least $10,000,000.
(c) With respect to any registration statement on behalf of pursuant to Section 2(a), the Holder within twelve months after the effective date of Company may include in such registration any earlier registration statement so long as the Holder was given a notice offering it the opportunity to sell Registrable Primary Securities under the earlier registration statement and the Holder did not request that its Registrable Securities be includedor Other Securities; provided, however, that if Holder requested the managing underwriter or underwriters formally advise(s) the Company in writing and with sufficient explanation that its the inclusion of all Registrable Securities, Primary Securities and Other Securities proposed to be included in such registration would interfere with the successful marketing (including, but not limited to, pricing) of all such securities, then the number of Registrable Securities, Primary Securities and Other Securities proposed to be included in such registration shall be included in the following order:
(i) first, the Registrable Securities held by the Holders requesting that their Registrable Securities be included in such registration pursuant to Section 2(a), pro rata based upon the earlier registration statement but not all were so number of Registrable Securities owned by each such Holder at the time of such registration; provided, however, that the number of Registrable Securities held by the Holders to be included through no fault of the Investor, the Investor may, but in such underwriting shall not be obligated toreduced unless all Primary Securities and Other Securities are first entirely excluded from the underwriting, require the Company to file another registration statement pursuant to a Demand Registration. Within fifteen (15provided that for purposes of this Subsection 2(c) days after receipt concerning apportionment, any selling Holder and all Affiliates of a request for a Demand Registration, the Company that selling Holder shall give written notice (the "Notice") of such request to all other Approved Investors and shall include in such registration all Registrable Securities that the Company has received written requests for inclusion therein within 15 days after the Notice is given (the "Requested Securities"). Thereafter, the Company may elect to include in such registration additional shares of Common Stock be deemed to be issued by the Company. All requests made pursuant a single “selling Holder,” and any pro rata reduction with respect to this Section 2 such “selling Holder” shall specify be based upon the aggregate number of Registrable Securities to be registeredowned by all persons included in such “selling Holder,” as defined in this sentence;
(ii) second, the Primary Securities; and
(iii) third, the Other Securities.
(bd) A requested registration shall not constitute a Demand Registration under this Section 2 until it has become effective.
(c) The Holder making the Demand Registration may elect whether the offering of such Registrable Securities pursuant be rescinded at any time prior to such Demand Registration shall be in registration being declared effective by the form of a firm commitment underwritten offering or otherwiseSEC by written notice to the Company from those Holders who initiated the request, at their discretion; provided, however, that such Holder may rescinded registration shall not elect that such offering be made on count as a delayed or continuous basis pursuant to rule 415 under the Securities Act. In any case in which an offering is in the form of a firm commitment underwritten offering, if the managing underwriter or underwriters of such offering advise the Company in writing that in its or their opinion the number of Registrable Securities proposed to be sold in such offering exceeds the number of Registrable Securities that can be sold in such offering without aversely affecting the market for the Company's Common Stock, the Company will include in such registration the number of Registrable Securities that in the opinion of such managing underwriter or underwriters can be sold without adversely affecting the market for the Company's Common Stock. In such event, the number of Registrable Securities, if any, to be offered for the accounts of Approved Investors (including the Holder making the Demand Registration) shall be reduced pro rata on the basis of the relative number of any Registrable Securities requested by each Approved Investor to be included in such registration to the extent necessary to reduce the total number of Registrable Securities to be included in such offering to the number recommended by such managing underwriter or underwriters. In the event the Holder making the Demand shall receive notice initiated pursuant to this Section 2(c2 for purposes of Section 2(b)(i) that above if (i) such request to rescind the amount of Registrable Securities to be offered for such Holder shall be reduced, such Holder shall be entitled to withdraw the Demand by written notice to the Company within seven (7) days after receipt of such notice, with the effect that such Demand shall be deemed not to have been made.
(d) If any of the Registrable Securities covered by registration is during a Demand Registration are to be sold in an underwritten offering, the Approved Investors, in the aggregate, that own or will own a majority of the Registrable Securities that period the Company has deferred taking action pursuant to Section 2(b)(ii) above or Section 10 below or (ii) if the Company shall have been requested to register reimbursed (including the Requested Securities but excluding any securities to be issued pro rata by the Company), shall have Holders requesting registration or in such other proportion as they may agree) for all reasonable and documented out-of-pocket expenses incurred by the right to select the investment banker or investment bankers and manager or managers that will underwrite the offeringCompany in connection with such rescinded registration; provided, further, however, that if, at the time of such investment bankers rescission, the Holders who initiated the request shall have learned of an event that is, or is reasonably likely to result in, a Material Adverse Change from that known to such Holders at the time of their request and managers must have withdrawn the request with reasonable promptness after learning of such information then the Holders shall not be reasonably satisfactory required to reimburse the Company for any out-of-pocket expenses incurred by the Company in connection with such rescinded registration and such rescinded registration shall not count as a registration initiated pursuant to this Section 2 for purposes of clause (i) of subsection (b).
(e) The Company shall be deemed to have effected a Registration for purposes of Section 2(a) only if the applicable Registration Statement (i) is declared effective by the SEC or becomes effective upon filing with the SEC, or (ii) is withdrawn at the request of the requesting Holders (other than as a result of a Material Adverse Change to the Company).
(f) In the event that the Company intends to effect a Registration for purposes of Section 2(a) by means of an Underwritten Offering, no Holder may include Registrable Securities in such Registration unless such Holder, subject to the limitations set forth in Section 9, (i) agrees to sell its Registrable Securities on the basis provided in the applicable underwriting arrangements; (ii) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents reasonably required and in customary form under the terms of such underwriting arrangements and (iii) cooperates with the Company’s reasonable and customary requests in connection with such Registration (it being understood that the Company’s failure to perform its obligations hereunder, which failure is caused by such Holder’s failure to cooperate, will not constitute a breach by the Company of this Agreement).
Appears in 1 contract
Samples: Registration Rights Agreement (Gyroscope Therapeutics Holdings LTD)
Demand Registration. (a) At Except as provided herein and subject to Section 2(c)(ii) hereof, following the initial registration of any of the Common Stock under the Securities Act, any Holder (a "Requesting Holder") may, at any time beginning six months from the date of this Agreement and for a period of three years thereafter, the Holder may make one a written request to the Company with a copy to the other Holder for registration under the Securities Act, Act of all or part of the Registrable Securities it then owns (a "Demand Registration") ). Any such request by the Requesting Holder shall specify the aggregate amount of all or part of Holder's Registrable Securities (but such part, together with the number of securities requested by other Approved Investors, to be included in such Demand Registration pursuant to this Section 2, registered and shall have an estimated market value at also specify the time intended method of disposition thereof. Within five Business Days after receipt of such request (based upon the then market price of a share of Common Stock of the Company) of at least $250,000. Notwithstanding the foregoingregistration request, the Company shall not be required serve written notice to file any the other Holder of such registration statement on behalf request, and shall commence the preparation of the Holder within twelve months after the effective date of any earlier registration statement so long as the Holder was given a notice offering it the opportunity to sell Registrable Securities under the earlier registration statement and the Holder did not request that its Registrable Securities be included; provided, however, that if Holder requested that its Registrable Securities be included in the earlier registration statement but not all were so included through no fault of the Investor, the Investor may, but shall not be obligated to, require the Registrable Securities. The Company to file another registration statement pursuant to a Demand Registration. Within fifteen (15) days after receipt of a request for a Demand Registration, the Company shall give written notice (the "Notice") of such request to all other Approved Investors and shall include in such registration all Registrable Securities that with respect to which the Company has received written requests for inclusion therein within 15 Business Days after the date of the Company's notice; provided, however, that the Company may, upon notice to each Requesting Holder, delay the effectuation of such Demand Registration for a reasonable period of time, but not more than 90 days after receipt of the Notice request for such Demand Registration, (x) as is given necessary to prepare audited financial statements of the Company for its most recently completed fiscal year or other audited financial statements reasonably required in the Registration Statement, or (y) if the "Requested Securities")Company would be required to divulge in such Registration Statement the existence of any fact relating to a proposed acquisition, financing or other material corporate development not otherwise required to be disclosed and the Board of Directors of the Company shall have in good faith determined that such disclosure would be materially adverse to the Company. ThereafterSuch notice of delay shall explain, in reasonable detail, the reasons for such delay. If the Company shall so delay the effectuation of the Demand Registration, each Requesting Holder may, within 30 days after receipt of the notice of delay, notify the Company that it is withdrawing its request for registration and, with respect to such Holder, such Demand Registration shall be deemed to be withdrawn and such request shall be deemed not to have been exercised for purposes hereof. In addition, if any such Holder so notifies the Company of its determination to withdraw its request for registration and, within the 60 days immediately following the 90-day deferral period, makes a written request to the Company for registration of the same class of Registrable Securities that were subject to the registration withdrawn pursuant to the preceding sentence, the Company may elect shall have no right to include in defer such registration additional shares of Common Stock to be issued by the Company. All requests made pursuant to this Section 2 shall specify the aggregate number of Registrable Securities to be registeredparagraph (a).
(b) A registration Except as provided by Section 2(d) below and subject to the hold-back restrictions set forth in Section 4 hereof, each Holder shall not constitute a be entitled to four Demand Registrations; provided, however, that only one Demand Registration under this Section 2 until it has become effectivemay be declared by each Holder in any three month period.
(ci) The Holder making the Demand Registration may elect whether the offering of such Registrable Securities pursuant to such Demand Registration shall be in the form of a firm commitment underwritten offering or otherwise; provided, however, that such Holder may not elect that such offering be made on a delayed or continuous basis pursuant to rule 415 under an Underwritten Offering if requested by the Securities ActRequesting Holder. In any case in which an offering is in the form of a firm commitment underwritten offering, if If the managing underwriter or underwriters of such offering advise unanimously determine in good faith that the Company in writing that in its or their opinion the number total amount of Registrable Securities proposed to be sold included in such offering exceeds is such as to materially adversely affect the number success of such offering, then the amount of Registrable Securities that can shall be sold reduced or limited pro rata among the Requesting Holder and the Participating Holder (as defined in such offering without aversely affecting Section 3(a)) in proportion to the market for the Company's Common Stock, the Company will include in such registration the number amount of Registrable Securities that in the opinion of such managing underwriter or underwriters can be sold without adversely affecting the market for the Company's Common Stock. In such event, the number of Registrable Securities, if any, sought to be offered for the accounts of Approved Investors (including the Holder making the Demand Registration) shall be reduced pro rata on the basis of the relative number of any Registrable Securities requested registered by each Approved Investor to be included in such registration each, to the extent necessary to reduce the total number amount of Registrable Securities to be included in such offering to the number recommended by amount that, in the reasonable opinion of such managing underwriter or underwriters. In , can be sold without materially adversely affecting the event the Holder making the Demand shall receive notice pursuant to this Section 2(c) that the amount of Registrable Securities to be offered for such Holder shall be reduced, such Holder shall be entitled to withdraw the Demand by written notice to the Company within seven (7) days after receipt success of such notice, with the effect that such Demand shall be deemed not to have been made.
(d) If any of the Registrable Securities covered by a Demand Registration are to be sold in an underwritten offering, the Approved Investors, in the aggregate, that own or will own a majority of the Registrable Securities that the Company has been requested to register (including the Requested Securities but excluding any securities to be issued by the Company), shall have the right to select the investment banker or investment bankers and manager or managers that will underwrite the offering; provided, however, that if USWCC is the Requesting Holder, the Participating Holders' shares of Registrable Securities shall be reduced to zero before any reduction in the number of shares of Common Stock to be sold by USWCC.
(ii) Notwithstanding anything contained in this Section 2, the Company shall not be obligated to comply with a Demand Registration if such investment bankers registration, in the reasonable judgment of the Company after consultation with a rating agency (then rating the Company or its Subsidiaries (as defined in the Securities Purchase Agreement)) or a regulatory authority (having jurisdiction over the Company or its Subsidiaries), as the case may be, such registration would (x) impair the claims-paying ability or financial strength rating of the Company or its Subsidiaries (including resulting in a downgrading of such rating) or (y) materially increase any capital charge or capital cost of the Company or its Subsidiaries, or if such regulatory authority otherwise objects to such offering.
(d) If (i) more than one-third of the Requesting Holder's Registrable Securities sought to be registered in any Demand Registration is not included in such registration pursuant to Section 2(c)(i), (ii) a Demand Registration is delayed pursuant to Section 2(a) hereof and managers must is not effective or otherwise is not effective within 180 days after the Requesting Holder's demand for registration, (iii) if such registration, after it has become effective, is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court by reason of an act or omission by the Company or any of its Subsidiaries or (iv) the conditions to closing specified in the purchase agreement or underwriting agreement entered into in connection with such registration are not satisfied because of an act or omission by the Company or any of its Subsidiaries (other than by reason of facts or circumstances not within the control of the Company or any such Subsidiary), then in each such case such Demand Registration shall not be reasonably satisfactory counted for purposes of calculating the number of demand rights exercised by the Requesting Holder in Section 2(b).
(e) Nothing in this Section 2 or in Section 3 hereof shall create any right in the Holder to require the CompanyCompany to register any securities other than Registrable Securities under the Securities Act.
Appears in 1 contract
Samples: Registration Rights Agreement (Financial Security Assurance Holdings LTD/Ny/)
Demand Registration. No later than the thirtieth (a30th) At day immediately following the written demand of any time beginning six months from the date of this Agreement and for a period of three years thereafter, the Holder may make one written request for registration under the Securities Act, (a "Demand Registration") of all or part of Holder's Registrable Securities (but such part, together with the number of securities requested by other Approved Investors, and subject to be included in such Demand Registration pursuant to this Section 2, shall have an estimated market value at the time of such request (based upon the then market price of a share of Common Stock of the Company3(j) of at least $250,000. Notwithstanding the foregoingand Section 3(k), the Company shall prepare and file with the SEC one or more Registration Statements, or amend the Registration Statement filed pursuant to Section 2(a) above if such Registration Statement has not be required to file any registration statement on behalf previously been declared effective, covering the resale of all of the Holder within twelve months after the effective date of any earlier registration statement so long as the Holder was given a notice offering it the opportunity to sell Registrable Securities under the earlier registration statement and the Holder did not request that its Registrable Securities be included; provided, however, that if Holder requested that its Registrable Securities be included in the earlier registration statement but not all were so included through no fault of the Investor, the Investor may, but shall not be obligated to, require the Company to file another registration statement pursuant to a Demand Registration. Within fifteen (15) days after receipt of a request for a Demand Registration, the Company shall give written notice (the "Notice") of such request to all other Approved Investors and shall include in such registration all 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 such Registration Statement shall be on Form S-3 or its successor form (except if the Company has received written requests is not then eligible to register for inclusion therein within 15 days after resale the Notice is given Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form in accordance herewith, subject to the provisions of Section 2(g)) registering the resale from time to time pursuant to any method or combination of methods legally available to, and requested by, the Holders of all of the Registrable Securities then held by such Holders that are not covered by an effective Registration Statement to effect a registration for resale of such additional Registrable Securities not covered by an effective resale registration statement, including any additional Registrable Securities that become issuable pursuant to the terms of the Notes, including upon the exercise of the Notes for Conversion Shares pursuant to the terms of the Notes (the "Requested “Additional Registrable Securities"”). Thereafter, subject to Section 3(j) and Section 3(k) and shall contain (unless otherwise directed by the Required Holders and approved by the Company may elect or required pursuant to include in written comments received from the SEC upon a review of such registration Registration Statement) substantially the “Plan of Distribution” attached hereto as Annex A. Such Registration Statement also shall cover, to the extent allowable under the Securities Act and the rules promulgated thereunder (including Rule 416), such indeterminate number of additional shares of Common Stock resulting from stock splits, stock dividends or similar transactions with respect to be issued by the Company. All requests made pursuant to this Section 2 shall specify the aggregate number of Registrable Securities to be registered.
(b) A registration shall not constitute a Demand Registration under this Section 2 until it has become effective.
(c) The Holder making the Demand Registration may elect whether the offering of such Registrable Securities pursuant to such Demand Registration shall be in the form of a firm commitment underwritten offering or otherwise; provided, however, that such Holder may not elect that such offering be made on a delayed or continuous basis pursuant to rule 415 under the Securities Act. In any case in which an offering is in the form of a firm commitment underwritten offering, if the managing underwriter or underwriters of such offering advise the Company in writing that in its or their opinion the number of Registrable Securities proposed to be sold in such offering exceeds the number of Registrable Securities that can be sold in such offering without aversely affecting the market for the Company's Common Stock, the Company will include in such registration the number of Registrable Securities that in the opinion of such managing underwriter or underwriters can be sold without adversely affecting the market for the Company's Common Stock. In such event, the number of Additional Registrable Securities, if any, to be offered for the accounts of Approved Investors (including the Holder making the Demand Registration) shall be reduced pro rata on the basis of the relative number of any Registrable Securities requested by each Approved Investor to be included in such registration to the extent necessary to reduce the total number of Registrable Securities to be included in such offering to the number recommended by such managing underwriter or underwriters. In the event the Holder making the Demand shall receive notice pursuant to this Section 2(c) that the amount of Registrable Securities to be offered for such Holder shall be reduced, such Holder shall be entitled to withdraw the Demand by written notice to the Company within seven (7) days after receipt of such notice, with the effect that such Demand shall be deemed not to have been made.
(d) If any of the Registrable Securities covered by a Demand Registration are to be sold in an underwritten offering, the Approved Investors, in the aggregate, that own or will own a majority of the Registrable Securities that the Company has been requested to register (including the Requested Securities but excluding any securities to be issued by the Company), shall have the right to select the investment banker or investment bankers and manager or managers that will underwrite the offering; provided, however, that such investment bankers and managers must be reasonably satisfactory to the Company.
Appears in 1 contract
Samples: Registration Rights Agreement (Douglas Elliman Inc.)
Demand Registration. (a) At any time beginning six months from Upon the date of this Agreement and for a period of three years thereafter, the Holder may make one written request for (a “Notice”) by one or more Holders, EVA shall promptly file with the Commission, as soon as reasonably practicable, but in no event more than 30 days following the receipt of the Notice, a registration statement (each, a “Registration Statement”) under the Securities Act, (a "Demand Registration") Act providing for the resale of all or part of Holder's the Registrable Securities (but which may, at the option of the Holders giving such partNotice, together with be a registration statement under the number Securities Act that provides for the resale of securities requested the Registrable Securities pursuant to Rule 415 from time to time by other Approved Investors, the Holders (a “Shelf Registration Statement”)). EVA shall use its commercially reasonable efforts to cause each Registration Statement to be included in declared effective by the Commission or otherwise become effective as soon as reasonably practicable after the initial filing of the Registration Statement. Any Registration Statement shall provide for the resale pursuant to any method or combination of methods legally available to, and requested by, the Holders of any and all Registrable Securities covered by such Demand Registration Statement. EVA shall use its commercially reasonable efforts to cause each Registration Statement filed pursuant to this Section 2, shall have an estimated market value at the time of such request (based upon the then market price of a share of Common Stock of the Company) of at least $250,000. Notwithstanding the foregoing, the Company shall not be required to file any registration statement on behalf of the Holder within twelve months after the effective date of any earlier registration statement so long as the Holder was given a notice offering it the opportunity to sell Registrable Securities under the earlier registration statement and the Holder did not request that its Registrable Securities be included; provided, however, that if Holder requested that its Registrable Securities be included in the earlier registration statement but not all were so included through no fault of the Investor, the Investor may, but shall not be obligated to, require the Company to file another registration statement pursuant to a Demand Registration. Within fifteen (15) days after receipt of a request for a Demand Registration, the Company shall give written notice (the "Notice") of such request to all other Approved Investors and shall include in such registration all Registrable Securities that the Company has received written requests for inclusion therein within 15 days after the Notice is given (the "Requested Securities"). Thereafter, the Company may elect to include in such registration additional shares of Common Stock 2.01 to be issued by the Company. All requests made pursuant to this Section 2 shall specify the aggregate number of Registrable Securities to be registered.
(b) A registration shall not constitute a Demand Registration under this Section 2 until it has become continuously effective.
(c) The Holder making the Demand Registration may elect whether the offering of such Registrable Securities pursuant to such Demand Registration shall be in the form of a firm commitment underwritten offering or otherwise; provided, however, that such Holder may not elect that such offering be made on a delayed or continuous basis pursuant to rule 415 under the Securities Act. In any case in which an offering is in the form of a firm commitment underwritten offering, if the managing underwriter or underwriters of such offering advise the Company in writing that in its or their opinion the number of Registrable Securities proposed to be sold in such offering exceeds the number of Registrable Securities that can be sold in such offering without aversely affecting the market for the Company's Common Stock, the Company will include in such registration the number of Registrable Securities that in the opinion of such managing underwriter or underwriters can be sold without adversely affecting the market for the Company's Common Stock. In such event, the number of Registrable Securities, if any, to be offered for the accounts of Approved Investors (including the Holder making the Demand Registration) shall be reduced pro rata on the basis of the relative number of any Registrable Securities requested by each Approved Investor to be included in such registration supplemented and amended to the extent necessary to reduce ensure that it is available for the total number resale of all Registrable Securities to be included in such offering to by the number recommended by such managing underwriter or underwriters. In the event the Holder making the Demand shall receive notice pursuant to this Section 2(c) that the amount of Registrable Securities to be offered for such Holder shall be reduced, such Holder shall be entitled to withdraw the Demand by written notice to the Company within seven (7) days after receipt of such notice, with the effect that such Demand shall be deemed not to have been made.
(d) If any of the Holders until all Registrable Securities covered by a Demand such Registration are Statement have ceased to be sold Registrable Securities (the “Effectiveness Period”). Each Registration Statement when effective (and the documents incorporated therein by reference) shall comply as to form in an underwritten offering, the Approved Investors, in the aggregate, that own or will own a majority all material respects with all applicable requirements of the Registrable Securities that the Company has been requested Act and shall not contain an untrue statement of a material fact or omit to register (including the Requested Securities but excluding any securities state a material fact required to be issued stated therein or necessary to make the statements therein not misleading. There shall be no limit on the number of Registration Statements that may be required by the Company), shall have the right to select the investment banker or investment bankers and manager or managers that will underwrite the offering; provided, however, that such investment bankers and managers must be reasonably satisfactory to the CompanyHolders hereunder.
Appears in 1 contract
Samples: Registration Rights Agreement (Enviva Partners, LP)
Demand Registration. (a) At any time beginning six months from the date of this Agreement commencing after ________, 2005 through and for a period of three years thereafterincluding _______, 2009, the Holder may make Majority Holders (as defined below) shall have the right (which right is in addition to the registration rights under Section 7.3 hereof), exercisable by written notice to the Company, to have the Company prepare and file with the Commission, on one written request for registration under the Securities Actoccasion, a Registration Statement (a "Demand Registration") and such other documents, including a prospectus, as may be necessary in order to comply with the provisions of all or part the Act, so as to permit a public offering and sale of Holder's the Registrable Securities during a period equal to the longer of (but i) nine (9) months and (ii) the unexpired term of the Warrants by the Majority Holders demanding such partregistration and any other Holders of Warrants who shall notify the Company within ten (10) days after receiving notice from the Company of such Demand Registration; provided, together with however, that after the number right to such Demand Registration is exercised by the Majority Holders, the Company shall have the right, instead of securities requested by other Approved Investorsfiling such Demand Registration, to redeem any Warrants exercisable to purchase, and any Shares constituting, Registrable Securities sought to be included in such Demand Registration pursuant to this Section 2at a redemption price equal to: (A) in the case of Warrants, shall have an estimated the difference between the Exercise Price of the Warrants and the current market value at the time of such request (based upon the then market price of a share of Common Stock as of the Companydate of the Redemption Notice (as defined below); and (B) in the case of at least $250,000. Notwithstanding the foregoingShares, the Company shall not be required to file any registration statement on behalf current market value as of the Holder within twelve months after the effective date of any earlier registration statement so long as the Holder was given a notice offering it the opportunity to sell Registrable Securities under the earlier registration statement and the Holder did not request that Redemption Notice. The Company may exercise its Registrable Securities be included; provided, however, that if Holder requested that its Registrable Securities be included in the earlier registration statement but not all were so included through no fault of the Investor, the Investor may, but shall not be obligated to, require the Company to file another registration statement pursuant to a Demand Registration. Within fifteen (15) days after receipt of a request for a Demand Registration, the Company shall give written redemption right by sending notice (the "Redemption Notice") to each Holder of such request Warrants exercisable to all other Approved Investors and shall include in such registration all purchase, or Shares constituting, Registrable Securities that the Company has received written requests for inclusion therein within 15 days after the Notice is given (the "Requested Securities"). Thereafter, the Company may elect to include in such registration additional shares of Common Stock to be issued by the Company. All requests made pursuant to this Section 2 shall specify the aggregate number of Registrable Securities to be registered.
(b) A registration shall not constitute a Demand Registration under this Section 2 until it has become effective.
(c) The Holder making the Demand Registration may elect whether the offering of such Registrable Securities pursuant to such Demand Registration shall be in the form of a firm commitment underwritten offering or otherwise; provided, however, that such Holder may not elect that such offering be made on a delayed or continuous basis pursuant to rule 415 under the Securities Act. In any case in which an offering is in the form of a firm commitment underwritten offering, if the managing underwriter or underwriters of such offering advise the Company in writing that in its or their opinion the number of Registrable Securities proposed to be sold in such offering exceeds the number of Registrable Securities that can be sold in such offering without aversely affecting the market for the Company's Common Stock, the Company will include in such registration the number of Registrable Securities that in the opinion of such managing underwriter or underwriters can be sold without adversely affecting the market for the Company's Common Stock. In such event, the number of Registrable Securities, if any, to be offered for the accounts of Approved Investors (including the Holder making the Demand Registration) shall be reduced pro rata on the basis of the relative number of any Registrable Securities requested by each Approved Investor sought to be included in such registration to the extent necessary to reduce the total number of Registrable Securities to be included in such offering to the number recommended by such managing underwriter or underwriters. In the event the Holder making the Demand shall receive notice pursuant to this Section 2(c) that the amount of Registrable Securities to be offered for such Holder shall be reduced, such Holder shall be entitled to withdraw the Demand by written notice to the Company Registration within seven twenty (720) days after receipt the Company delivers notice of the Demand Registration to the Holders. Such Redemption Notice shall state the redemption price for the Warrants and Shares and the closing date for such noticeredemption, with the effect that such Demand which shall be deemed not to have been made.
within sixty (d60) If any days of the Registrable Securities covered by a Demand Registration are to be sold in an underwritten offering, the Approved Investors, in the aggregate, that own or will own a majority of the Registrable Securities that the Company has been requested to register (including the Requested Securities but excluding any securities to be issued by the Company), shall have the right to select the investment banker or investment bankers and manager or managers that will underwrite the offering; provided, however, that such investment bankers and managers must be reasonably satisfactory to the CompanyRedemption Notice.
Appears in 1 contract
Samples: Warrant Agreement (Nephros Inc)
Demand Registration. (a) At Upon receipt of a written request (a "DEMAND REQUEST") from the Holders of Requisite Securities, the Company shall, as promptly as practicable prepare and cause to be filed with the SEC pursuant to Rule 415 under the Securities Act a Registration Statement on the appropriate form relating to resales of all Registrable Securities ("DEMAND REGISTRATION"). In addition to the foregoing, the Company may, at any time beginning six months from prior to the date receipt of a Demand Request, at its option, prepare and cause to be filed with the SEC pursuant to Rule 415 under the Act a Registration Statement on the appropriate form relating to resales of all Registrable Securities (a "COMPANY REGISTRATION," either of the Demand Registration or Company Registration being referred to herein as a "REGISTRATION"). The Company shall use its reasonable best efforts to cause any such Registration Statement to be declared effective by the SEC. To the extent necessary to ensure that the Registration Statement is available for sales of Registrable Securities by the Holders thereof entitled to the benefit of this Agreement and for a period of three years thereafterSection 4(a), the Holder Company shall use its reasonable best efforts to keep any Registration Statement required by this Section 4(a) continuously effective, supplemented, amended and current as required by and subject to the provisions of Section 4(a) hereof and in conformity with the requirements of this Agreement, the Securities Act and the rules and regulations of the Commission promulgated thereunder from time to time (including (A) preparing and filing with the SEC such amendments and post-effective amendments to the Registration Statement as may make one written request for registration be necessary to keep such Registration Statement effective; (B) cause the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act, and complying fully with Rules 424, 430A and 462, as applicable, under the Securities Act in a timely manner; and (a "Demand Registration"C) comply with the provisions of the Securities Act with respect to the disposition of all or part securities covered by such Registration Statement), until the second anniversary of Holder's the effective date of the Registration Statement; provided that such obligation shall expire before such date if all the Registrable Securities covered by the Registration Statement (but i) have been sold pursuant thereto or (ii) are no longer Restricted Securities.
(b) No Holder may include any of its Registrable Securities in any Registration Statement pursuant to this Agreement unless and until such partHolder furnishes to the Company in writing, together within 20 days after receipt of a request therefor, the information specified in Item 507 or 508 of Regulation S-K, as applicable, of The Securities Act for use in connection with the number of securities requested by other Approved Investors, any Registration Statement or Prospectus or preliminary Prospectus included therein. Each selling Holder agrees to promptly furnish additional information required to be included disclosed in order to make the information previously furnished to the Company by such Demand Holder not materially misleading.
(c) The Company shall be required to effect no more than one (1) Registration (including any Company Registration) pursuant to this Section 24. The Company shall be deemed not to have used its best efforts to keep the Registration Statement effective during the requisite period if it voluntarily takes any action that would result in Holders of Registrable Securities covered thereby not being able to offer and sell such Registrable Securities during that period, shall have an estimated market value at unless such action is required by applicable law or this Agreement.
(d) If the time of such request Company receives a Demand Request during a "lock-up" or "black out" period (based upon the then market price of "LOCK UP PERIOD") imposed on the Company pursuant to or in connection with any underwriting or purchase agreement relating to a share Rule 144A offering or a registered public offering of Common Stock of the Company) of at least $250,000. Notwithstanding the foregoingor securities convertible into or exchangeable for Common Stock, the Company shall not be required to file any registration statement on behalf a Registration Statement prior to the end of the Holder within twelve months after the effective date of any earlier registration statement so long as the Holder was given a notice offering it the opportunity to sell Registrable Securities under the earlier registration statement and the Holder did not request that its Registrable Securities be includedLock Up Period; provided, howeverthat such Lock Up Period shall not exceed 90 days or, that if Holder requested that its Registrable Securities be included in the earlier registration statement but not all were so included through no fault case of the Investor, the Investor may, but shall not be obligated to, require the Company to file another registration statement pursuant to a Demand Registration. Within fifteen (15) days after receipt of a request for a Demand Registration, the Company shall give written notice (the "Notice") of such request to all other Approved Investors and shall include in such registration all Registrable Securities that the Company has received written requests for inclusion therein within 15 days after the Notice is given (the "Requested Securities"). Thereafter, the Company may elect to include in such registration additional shares of Common Stock to be issued by the Company. All requests made pursuant to this Section 2 shall specify the aggregate number of Registrable Securities to be registered.
(b) A registration shall not constitute a Demand Registration under this Section 2 until it has become effective.
(c) The Holder making the Demand Registration may elect whether the offering of such Registrable Securities pursuant to such Demand Registration shall be in the form of a firm commitment underwritten offering or otherwise; provided, however, that such Holder may not elect that such offering be made on a delayed or continuous basis pursuant to rule 415 under the Securities Act. In any case in which an offering is in the form of a firm commitment underwritten offering, if the managing underwriter or underwriters of such offering advise the Company in writing that in its or their opinion the number of Registrable Securities proposed to be sold in such offering exceeds the number of Registrable Securities that can be sold in such offering without aversely affecting the market for the Company's Common Stockinitial Public Equity Offering, the Company will include in such registration the number of Registrable Securities that in the opinion of such managing underwriter or underwriters can be sold without adversely affecting the market for the Company's Common Stock180 days. In such event, the number Company shall use its reasonable best efforts to cause the Registration Statement to become effective no later than the later of Registrable Securities, if any, to be offered for the accounts of Approved Investors (including the Holder making the Demand Registrationi) shall be reduced pro rata on the basis of the relative number of any Registrable Securities requested by each Approved Investor to be included in such registration to the extent necessary to reduce the total number of Registrable Securities to be included in such offering to the number recommended by such managing underwriter or underwriters. In the event the Holder making the Demand shall receive notice pursuant to this Section 2(c) that the amount of Registrable Securities to be offered for such Holder shall be reduced, such Holder shall be entitled to withdraw the Demand by written notice to the Company within seven (7) 180 days after receipt of such notice, with the effect that such Demand shall be deemed not to have been made.
Request and (dii) If any 60 days after the end of the Registrable Securities covered by a Demand Registration are to be sold in an underwritten offering, Lock Up Period. The Company shall notify the Approved Investors, in the aggregate, that own or will own a majority Holders within 10 days of the Registrable Securities that the Company has been requested to register (including the Requested Securities but excluding imposition of any securities to be issued by the Company), shall have the right to select the investment banker or investment bankers and manager or managers that will underwrite the offering; provided, however, that such investment bankers and managers must be reasonably satisfactory to Lock Up Period on the Company.
Appears in 1 contract
Samples: Equity Registration Rights Agreement (Barneys New York Inc)
Demand Registration. (a) At Right to Demand Registration. Commencing December 15, 2000, at any ---------------------------- time beginning six months or from time to time when the date of this Agreement and Shelf Registration Statement provided for a period of three years thereafter, the Holder may make one written request for registration in Section 2.3 has not become or is not effective under the Securities Act, (a "Demand Registration") of the Majority Holders shall have the right to request in writing that the Company register all or part of Holder's such Holders' Registrable Securities (but a "Request") ------- (which Request shall specify the amount of Registrable Securities intended to be disposed of by such part, together Holders and the intended method or methods of disposition thereof) by filing with the number of securities requested by other Approved Investors, to be included in such SEC a Demand Registration pursuant to this Section 2, shall have an estimated market value at the time of such request (based upon the then market price of a share of Common Stock of the Company) of at least $250,000Statement. Notwithstanding the foregoing, the Company shall not be required to file any registration statement on behalf of the Holder within twelve months after the effective date of any earlier registration statement so long As promptly as the Holder was given a notice offering it the opportunity to sell Registrable Securities under the earlier registration statement and the Holder did not request that its Registrable Securities be included; provided, however, that if Holder requested that its Registrable Securities be included in the earlier registration statement but not all were so included through no fault of the Investor, the Investor maypracticable, but shall not be obligated to, require the Company to file another registration statement pursuant to a Demand Registration. Within fifteen (15) no later than 10 days after receipt of a request for a Demand RegistrationRequest, the Company shall give written notice (the "Notice") of such request requested registration to all other Approved Investors and Holders of Registrable Securities. Subject to Section 2.1(b), the Company shall include in such registration all a Demand Registration (i) the Registrable Securities that the Company has received written requests for inclusion therein within 15 days after the Notice is given (the "Requested Securities"). Thereafter, the Company may elect to include in such registration additional shares of Common Stock intended to be issued disposed of by the Company. All requests Initiating Holders and (ii) the Registrable Securities intended to be disposed of by any other Holder which shall have made pursuant to this Section 2 a written request (which request shall specify the aggregate number amount of Registrable Securities to be registered.
(b) A to the Company for inclusion thereof in such registration shall not constitute within 20 days after the receipt of such written notice from the Company. The Company shall, as expeditiously as possible following a Request, use its best efforts to cause to be filed with the SEC a Demand Registration under this Section 2 until it has become effective.
(c) The Holder making Statement providing for the Demand Registration may elect whether the offering of such Registrable Securities pursuant to such Demand Registration shall be in the form of a firm commitment underwritten offering or otherwise; provided, however, that such Holder may not elect that such offering be made on a delayed or continuous basis pursuant to rule 415 registration under the Securities Act. In any case in Act of the Registrable Securities which an offering is in the form of a firm commitment underwritten offering, if the managing underwriter or underwriters of such offering advise the Company in writing that in its or their opinion the number of Registrable Securities proposed has been so requested to be sold in register by all such offering exceeds the number of Registrable Securities that can be sold in such offering without aversely affecting the market for the Company's Common StockHolders, the Company will include in such registration the number of Registrable Securities that in the opinion of such managing underwriter or underwriters can be sold without adversely affecting the market for the Company's Common Stock. In such event, the number of Registrable Securities, if any, to be offered for the accounts of Approved Investors (including the Holder making the Demand Registration) shall be reduced pro rata on the basis of the relative number of any Registrable Securities requested by each Approved Investor to be included in such registration to the extent necessary to reduce permit the total number disposition of such Registrable Securities so to be registered in accordance with the intended method of disposition thereof specified in such Request (including, without limitation, by means of a shelf registration pursuant to Rule 415 under the Securities Act (a "Shelf ----- Registration") if so requested and if the Company is then eligible to use such a ------------ registration). The Company shall use its best efforts to have such Demand Registration Statement declared effective by the SEC as soon as practicable thereafter and to keep such Demand Registration Statement continuously effective for the period specified in Section 4.1(b). A Request may be withdrawn prior to the filing of the Demand Registration Statement by the Majority Holders of the Registration (a "Withdrawn --------- Request") and a Demand Registration Statement may be withdrawn prior to the ------- effectiveness thereof by the Majority Holders of the Registration (a "Withdrawn --------- Demand Registration"), and such withdrawals shall be treated as a Demand ------------------- Registration which shall have been effected pursuant to this Section 2.1, unless the Holders of Registrable Securities to be included in such offering Registration Statement reimburse the Company for its reasonable out-of-pocket Registration Expenses relating to the number recommended preparation and filing of such Demand Registration Statement (to the extent actually incurred); provided, however, that if a -------- ------- Withdrawn Request or Withdrawn Demand Registration is made (A) because of a material adverse change in the business, financial condition or prospects of the Company determined, in the case of an Underwritten Offering, by such the sole or lead managing underwriter Underwriter in its reasonable discretion, or underwriters. In (B) because the event the Holder making the Demand shall receive notice pursuant to this Section 2(c) sole or lead managing Underwriter advises that the amount of Registrable Securities to be offered for sold in such offering be reduced pursuant to Section 2.1(b) by more than 20% of the Registrable Securities to be included in such Registration Statement, or (C) because of a postponement of such registration pursuant to Section 2.6, then such withdrawal shall not be treated as a Demand Registration effected pursuant to this Section 2.1 (and shall not be counted toward the number of Demand Registrations), and the Company shall pay all Registration Expenses in connection therewith. Any Holder shall be reducedrequesting inclusion in a Demand Registration may, such Holder shall be entitled at any time prior to withdraw the effective date of the Demand Registration Statement (and for any reason) revoke such request by delivering written notice to the Company within seven (7) days after receipt revoking such requested inclusion. There is no limitation on the number of such notice, with Demand Registrations pursuant to this Section 2.1 which the effect that such Demand Company is obligated to effect. The registration rights granted pursuant to the provisions of this Section 2.1 shall be deemed not to have been made.
(d) If any of the Registrable Securities covered by a Demand Registration are to be sold in an underwritten offering, the Approved Investors, in the aggregate, that own or will own a majority of the Registrable Securities that the Company has been requested to register (including the Requested Securities but excluding any securities to be issued by the Company), shall have the right to select the investment banker or investment bankers and manager or managers that will underwrite the offering; provided, however, that such investment bankers and managers must be reasonably satisfactory addition to the Companyregistration rights granted pursuant to the other provisions of Section 2 hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (World Wrestling Federation Entertainment Inc)
Demand Registration. (ai) At any time beginning six months from If the date of this Agreement and Shelf Registration Statement is not available for use by the Holders for a period exceeding ten consecutive business days because the Company has failed to satisfy the eligibility requirements for the use of three years thereaftera registration statement on Form S-3, each Holder shall have the Holder may make one right, subject to the next sentence and to Section 2.3(b) and Section 2.3(d) below, to require the Company to file a Registration Statement under the 1933 Act (which Registration Statement shall only include such securities as shall be permitted to be included in the Shelf Registration Statement) covering all or any part of its respective Registrable Securities, by delivering a written request for registration under therefor to the Securities Act, (a "Demand Registration") of all or part of Holder's Registrable Securities (but such part, together with Company specifying the number of securities requested by other Approved Investors, Registrable Securities to be included in such Demand Registration registration by such Holder and the intended method of distribution thereof. If the Company again becomes eligible to use a registration statement on Form S-3 before a Holder exercises the right described in the immediately preceding sentence, such Holder will no longer be permitted to exercise that right with respect to that particular instance of the Company's failure to meet those eligibility requirements. All such requests by any Holder pursuant to this Section 2, shall have an estimated market value at 2.3(a)(i) are referred to herein as "Demand Registration Requests," and the time of such request registrations so requested are referred to herein as "Demand Registrations" (based upon the then market price of a share of Common Stock of the Company) of at least $250,000. Notwithstanding the foregoingwith respect to any Demand Registration, the Company shall not be required Holder(s) making such demand for registration being referred to file any registration statement on behalf of the Holder within twelve months after the effective date of any earlier registration statement so long as the Holder was given a notice offering it the opportunity to sell Registrable Securities under the earlier registration statement and the Holder did not request that its Registrable Securities be included; provided, however, that if Holder requested that its Registrable Securities be included in the earlier registration statement but not all were so included through no fault of the Investor, the Investor may"Initiating Holder"). As promptly as practicable, but shall not be obligated to, require the Company to file another registration statement pursuant to a Demand Registration. Within fifteen (15) no later than five business days after receipt of a request for a Demand RegistrationRegistration Request, the Company shall give written notice (the "Demand Exercise Notice") of such request Demand Registration Request to all other Approved Investors Holders of record of Registrable Securities.
(ii) The Company, subject to Section 2.3(d) and Section 2.3(e), shall include in a Demand Registration (x) the Registrable Securities of the Initiating Holder and (y) the Registrable Securities of any other Holder which shall have made a written request to the Company for inclusion in such registration all (which request shall specify the maximum number of Registrable Securities intended to be disposed of by such Holder) within ten days following the date of the Demand Exercise Notice.
(iii) The Company shall use its best efforts to promptly effect such registration under the 1933 Act of the Registrable Securities which the Company has been so requested to register, for distribution in accordance with such intended method of distribution.
(b) The Demand Registration rights granted in Section 2.3(a) to the Holders are subject to the following limitations: (i) each registration in respect of a Demand Registration Request must include, in the aggregate (based on the Common Shares included in such registration by the Company, all Holders and all holders of Piggyback Rights and Additional Piggyback Rights (each as defined below) participating in such registration), Common Shares having an aggregate market value of at least $5 million; (ii) the Company shall not be required to cause a registration pursuant to Section 2.3(a)(i) to be declared effective within a period of 90 days after the effective date of a registration statement filed by the Company covering a firm commitment public offering; (iii) if the Company is involved in a Material Transaction for which the Board of Trustees of the Company or an authorized committee thereof has concluded that any registration of Registrable Securities should not be made or continued because a Valid Business Reason exists, (x) the Company may postpone filing a Registration Statement relating to a Demand Registration Request until such Valid Business Reason no longer exists, but in no event for a period longer than the Material Transaction Tolling Period, and (y) in case a Registration Statement has been filed or is effective, in each case, relating to a Demand Registration Request, the Company may cause such Registration Statement to be withdrawn and/or its availability for use by the Holders suspended or may postpone amending or supplementing such Registration Statement until such Valid Business Reason no longer exists, but in no event for a period longer than the Material Transaction Tolling Period; and the Company shall give written notice of its determination to postpone, withdraw or suspend the availability for use by the Holders of a Registration Statement and of the fact that the Valid Business Reason for such postponement, withdrawal or suspension no longer exists, in each case, promptly after the occurrence thereof; and (iv) the Company's obligations under this Section 2.3 shall terminate at such time as the Company's obligation to keep the Shelf Registration Statement effective pursuant to Section 2.1(a)(ii) shall terminate. Each Holder of Registrable Securities agrees that, upon receipt of any notice from the Company that the Company has received written requests determined to withdraw or suspend the availability for inclusion therein within 15 use by the Holders of any Registration Statement pursuant to clause (iii) above, such Holder will discontinue its disposition of Registrable Securities pursuant to such Registration Statement and, if so directed by the Company, will deliver to the Company (at the Company's expense) all copies, other than permanent file copies, then in such Holder's possession of the Prospectus covering such Registrable Securities that was in effect at the time of receipt of such notice. If the Company shall have withdrawn or prematurely terminated a Registration Statement filed under Section 2.3(a)(i) (whether pursuant to clause (iii) above or as a result of any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court), the Company shall not be considered to have effected an effective registration for the purposes of this Agreement until the Company shall have filed a new Registration Statement covering the Registrable Securities covered by the withdrawn Registration Statement and such Registration Statement shall have been declared effective and shall not have been withdrawn. If the Company shall give any notice of withdrawal, postponement or suspension of a Registration Statement, the Company shall, at such time as the Valid Business Reason that caused such withdrawal or postponement no longer exists (but in no event later than such number of days after the Notice is given date of the postponement or withdrawal that equals the Material Transaction Tolling Period), use its best efforts to effect the registration under the 1933 Act of the Registrable Securities covered by the withdrawn or postponed Registration Statement in accordance with this Section 2.3 (unless the "Requested Securities"). ThereafterInitiating Holder shall have withdrawn such request, in which case the Company shall be considered to have effected an effective registration for the purposes of this Agreement).
(c) The Company, subject to Section 2.3(d) and Section 2.3(e), may elect to include in any Registration Statement and offering made pursuant to Section 2.3(a)(i), (i) any authorized but unissued Common Shares and (ii) any other Common Shares which are requested to be included in such registration additional shares pursuant to the exercise of Common Stock piggyback registration rights granted by the Company after the date hereof ("Additional Piggyback Rights"); PROVIDED, HOWEVER, that such inclusion shall be permitted only pursuant to and subject to the terms of the underwriting agreement or arrangements, if any, entered into by the Initiating Holder.
(d) If any requested registration pursuant to Section 2.3(a) involves an underwritten offering and the number of securities to be issued included in such registration (at the request of the Holders or any other Persons (including any Common Shares requested by the Company. All requests made pursuant , by Holders exercising Piggyback Rights or by holders exercising Additional Piggyback Rights)) in the opinion of the Underwriters' Representative exceeds the largest number (the "Section 2.3 Sale Number") that can be sold in an orderly manner in such offering within a price range acceptable to this the Initiating Holder, the Company shall include in such registration:
(i) all Registrable Securities requested to be included in such registration by Holders of Registrable Securities; PROVIDED, HOWEVER, that, if the number of such Registrable Securities exceeds the Section 2 2.3 Sale Number, the number of such Registrable Securities (not to exceed the Section 2.3 Sale Number) to be included in such registration shall specify be allocated on a pro rata basis among all Holders requesting that Registrable Securities be included in such registration based on the number of Registrable Securities then owned by each such Holder requesting inclusion in relation to the aggregate number of Registrable Securities to be registered.then owned by all such Holders requesting inclusion;
(bii) A registration shall not constitute a Demand Registration under this Section 2 until it has become effective.
(c) The Holder making the Demand Registration may elect whether the offering of such Registrable Securities pursuant to such Demand Registration shall be in the form of a firm commitment underwritten offering or otherwise; provided, however, that such Holder may not elect that such offering be made on a delayed or continuous basis pursuant to rule 415 under the Securities Act. In any case in which an offering is in the form of a firm commitment underwritten offering, if the managing underwriter or underwriters of such offering advise the Company in writing that in its or their opinion the number of Registrable Securities proposed to be sold in such offering exceeds the number of Registrable Securities that can be sold in such offering without aversely affecting the market for the Company's Common Stock, the Company will include in such registration the number of Registrable Securities that in the opinion of such managing underwriter or underwriters can be sold without adversely affecting the market for the Company's Common Stock. In such event, the number of Registrable Securities, if any, to be offered for the accounts of Approved Investors (including the Holder making the Demand Registration) shall be reduced pro rata on the basis of the relative number of any Registrable Securities requested by each Approved Investor to be included in such registration to the extent necessary to reduce that the total number of Registrable Securities to be included in such offering by all Holders is less than the Section 2.3 Sale Number, Common Shares that the Company proposes to register; and
(iii) to the number recommended by such managing underwriter or underwriters. In the event the Holder making the Demand shall receive notice pursuant to this Section 2(c) extent that the amount number of Registrable Securities to be offered for included by all Holders and the number of Common Shares to be included by the Company is less than the Section 2.3 Sale Number, any other Common Shares that the holders thereof propose to register pursuant to the exercise of Additional Piggyback Rights. If, as a result of the proration provisions of this Section 2.3(d), any Holder shall not be entitled to include all Registrable Securities in a registration that such Holder shall has requested be reducedincluded, such Holder may elect to withdraw his request to include Registrable Securities in such registration or may reduce the number requested to be included; PROVIDED, HOWEVER, that (x) such request must be made in writing prior to the execution of the underwriting agreement and (y) such withdrawal shall be entitled to withdraw the Demand by written notice to the Company within seven (7) days after receipt of such notice, with the effect that such Demand shall be deemed not to have been madeirrevocable.
(de) If In connection with any of the Registrable Securities covered by a Demand Registration are to be sold in an underwritten offeringRegistration, the Approved Investors, in the aggregate, that own or will own a majority of the Registrable Securities that the Company has been requested to register (including the Requested Securities but excluding any securities to be issued by the Company), Initiating Holder shall have the right to select designate the investment banker or investment bankers and manager or managers that will underwrite the offering; providedUnderwriters' Representative for such registration, however, PROVIDED that such investment bankers and managers must be Underwriters' Representative is reasonably satisfactory to the Company. No Holder may participate in any underwritten registration hereunder unless such Holder (a) agrees to sell such Holder's Registrable Securities on the basis provided in any underwriting arrangements approved by the Initiating Holder and (b) completes and executes all questionnaires, underwriting agreements and other documents required under the terms of such underwriting arrangements.
Appears in 1 contract
Samples: Registration Rights Agreement (First Union Real Estate Equity & Mortgage Investments)
Demand Registration. (a) At any time beginning six months from Commencing on the date of this Agreement and for a period of three years thereafterClosing Date, the Holder may make one written holders of at least sixty-six and two-thirds percent (662/3%) of the aggregate number of (i) Shares that were sold to Purchasers in the Transaction, (ii) Warrant Shares that are issuable upon exercise of the Warrants and (ii) Warrant Shares that are issuable upon exercise of the Agent Warrants (collectively, the “Registrable Securities”) shall have the right to request for registration under the Securities Act, (a "Demand Registration") of Act for all or part any portion of Holder's the Registrable Securities (but such part, together with upon the number of securities requested by other Approved Investors, to be included terms and conditions set forth in such Demand Registration pursuant to this Section 2, shall have an estimated market value at the time of such request (based upon the then market price of a share of Common Stock of the Company) of at least $250,0001(a). Notwithstanding the foregoing, the Company shall not be required to file any registration statement on behalf of the Holder within twelve months after the effective date of any earlier registration statement so long as the Holder was given a notice offering it the opportunity to sell Registrable Securities under the earlier registration statement and the Holder did not request that its Registrable Securities be included; provided, however, that if Holder requested that its Registrable Securities be included in the earlier registration statement but not all were so included through no fault of the Investor, the Investor may, but shall not be obligated to, require the Company to file another registration statement pursuant to a Demand Registration. Within fifteen (15) days Promptly after receipt of a request for a Demand Registration, registration pursuant to this Section 1(a) the Company shall give written notice notify each registered holder of Shares, Warrants or Agent Warrants (the "Notice"a “Holder”) in writing of such request for registration except to all other Approved Investors and shall include in the extent that such registration all Holder’s Registrable Securities that were included in the demand. Upon receipt of such notice from the Company has received (the “Company Notice”), the Holder or the Holder’s agent may give the Company a written requests for inclusion therein request to register all or some of the Holder’s Shares in the Registration Statement described in the Company Notice (the “Demand Notice”), provided that such Demand Notice is given within 15 ten (10) days after the date on which the Company Notice is given (with such request stating (i) the "Requested Securities"amount of Shares to be included and (ii) any other information reasonably requested by the Company to properly effect the registration of such Shares). ThereafterThe Company shall, as soon as practicable after the date on which the Company may elect Notice is given, use its best efforts to include file a Registration Statement with the Securities and Exchange Commission (the “SEC”) covering the Shares specified in such registration additional shares of Common Stock to be issued the Demand Notice and in any written request from any other Purchaser received by the CompanyCompany within ten (10) days of the date on which the Company Notice is given and will use its best efforts to cause the Registration Statement to become effective. All requests made pursuant No right to this Section 2 shall specify the aggregate number registration of Registrable Securities to be registered.
(b) A registration shall not constitute a Demand Registration Shares under this Section 2 until it has become effective.
(c) The Holder making the Demand Registration may elect whether the offering of such Registrable Securities pursuant to such Demand Registration shall be in the form of a firm commitment underwritten offering or otherwise; provided, however, that such Holder may not elect that such offering be made on a delayed or continuous basis pursuant to rule 415 under the Securities Act. In any case in which an offering is in the form of a firm commitment underwritten offering, if the managing underwriter or underwriters of such offering advise the Company in writing that in its or their opinion the number of Registrable Securities proposed to be sold in such offering exceeds the number of Registrable Securities that can be sold in such offering without aversely affecting the market for the Company's Common Stock, the Company will include in such registration the number of Registrable Securities that in the opinion of such managing underwriter or underwriters can be sold without adversely affecting the market for the Company's Common Stock. In such event, the number of Registrable Securities, if any, to be offered for the accounts of Approved Investors (including the Holder making the Demand Registration1(a) shall be reduced pro rata on the basis construed to limit any registration required under Section 1(b) hereof. The obligations of the relative number of any Registrable Securities requested by each Approved Investor to be included in such registration to the extent necessary to reduce the total number of Registrable Securities to be included in such offering to the number recommended by such managing underwriter or underwriters. In the event the Holder making the Demand shall receive notice pursuant to Company under this Section 2(c1(a) that the amount of Registrable Securities to be offered for such Holder shall be reduced, such Holder shall be entitled to withdraw the Demand by written notice to the Company within seven (7) days expire after receipt of such notice, with the effect that such Demand shall be deemed not to have been made.
(d) If any of the Registrable Securities covered by a Demand Registration are to be sold in an underwritten offering, the Approved Investors, in the aggregate, that own or will own a majority of the Registrable Securities that the Company has been requested afforded the Holders the opportunity to register (including the Requested Securities but excluding any securities to be issued by the Company), shall have the right to select the investment banker or investment bankers and manager or managers that will underwrite the offering; provided, however, that such investment bankers and managers must be reasonably satisfactory to the Companyexercise registration rights under this Section 1(a) for one registration.
Appears in 1 contract
Demand Registration. (a) At any time beginning six months Upon written notice to the Issuer prior to the Termination Date from a Holder or Holders holding a majority in interest of the date of this Agreement and for a period of three years thereafter, Registrable Securities (the Holder may make one written request for "Demand Request") requesting that the Issuer effect the registration under the Securities ActAct of any or all of the Registrable Securities held by such requesting Holders (the "Requesting Holders" which term shall include parties deemed "Requesting Holders" pursuant to Section 2.1(d)) in a firmly underwritten public offering, (the Issuer shall prepare as soon as practicable and, within 30 days after 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 Securities Act within 45 days after the filing of such registration statement. A registration effected pursuant to a Demand Request pursuant to this Section 2.1(a) shall be referred to herein as a "Demand Registration"." Notwithstanding any other provision of this Agreement to the contrary:
(i) the Holders may collectively exercise their rights to request Demand Registrations on not more the one occasion in any 12-month period;
(ii) the method of all or part of Holder's Registrable Securities (but such part, together with the number of securities disposition requested by other Approved Investors, to be included Holders in such connection with any Demand Registration pursuant to this Section 2may not, shall have an estimated market value at without the time of such request Issuer's written consent, be a Rule 415 Offering; and
(based upon iii) the then market price of a share of Common Stock of the Company) of at least $250,000. Notwithstanding the foregoing, the Company Issuer shall not be required to file any registration statement on behalf of the Holder within twelve months after the effective date of any earlier registration statement so long as the Holder was given a notice offering it the opportunity to sell Registrable Securities under the earlier registration statement and the Holder did not request that its Registrable Securities be included; provided, however, that if Holder requested that its Registrable Securities be included in the earlier registration statement but not all were so included through no fault of the Investor, the Investor may, but shall not be obligated to, require the Company to file another registration statement pursuant to effect a Demand Registration. Within fifteen (15) days after receipt of a request for a Demand Registration, the Company shall give written notice (the "Notice") of such request to all other Approved Investors and shall include in such registration all Registrable Securities that the Company has received written requests for inclusion therein within 15 days after the Notice is given (the "Requested Securities"). Thereafter, the Company may elect to include in such registration additional shares of Common Stock to be issued by the Company. All requests made pursuant to this Section 2 shall specify Registration hereunder unless the aggregate number of Registrable Securities to be registeredoffering size for such offering is at least $500 million.
(b) A registration shall not constitute Notwithstanding any other provision of this Agreement to the contrary, a Demand Registration under this Section 2 until it has become effective.
(c) The Holder making the Demand Registration may elect whether the offering of such Registrable Securities pursuant to such Demand Registration shall be in the form of a firm commitment underwritten offering or otherwise; provided, however, that such Holder may not elect that such offering be made on a delayed or continuous basis pursuant to rule 415 under the Securities Act. In any case in which an offering is in the form of a firm commitment underwritten offering, if the managing underwriter or underwriters of such offering advise the Company in writing that in its or their opinion the number of Registrable Securities proposed to be sold in such offering exceeds the number of Registrable Securities that can be sold in such offering without aversely affecting the market for the Company's Common Stock, the Company will include in such registration the number of Registrable Securities that in the opinion of such managing underwriter or underwriters can be sold without adversely affecting the market for the Company's Common Stock. In such event, the number of Registrable Securities, if any, to be offered for the accounts of Approved Investors (including the Holder making the Demand Registration) shall be reduced pro rata on the basis of the relative number of any Registrable Securities requested by each Approved Investor to be included in such registration to the extent necessary to reduce the total number of Registrable Securities to be included in such offering to the number recommended by such managing underwriter or underwriters. In the event the Holder making the Demand shall receive notice Holders pursuant to this Section 2(c) that 2.1 shall not be deemed to have been effected, and, therefore, not requested and the amount rights of Registrable Securities to be offered for such each Holder shall be reduced, such Holder shall be entitled to withdraw the Demand by written notice to the Company within seven (7) days after receipt of such notice, with the effect that such Demand shall be deemed not to have been made.
exercised for purposes of paragraph (da) If above, if (i) such Demand Registration has not become effective under the Securities Act or (ii) such Demand Registration, after it became effective under the Securities Act, was not maintained effective under the Securities Act (other than as a result of any stop order, injunction or other order or requirement of the Commission or other government agency or court solely on the account of a material misrepresentation or omission of a Holder) for at least 90 days (or such shorter period ending when all the Registrable Securities covered by thereby have been disposed of pursuant thereto) and, as a Demand Registration are to be sold in an underwritten offeringresult thereof, the Approved Investors, in the aggregate, that own or will own a majority of the Registrable Securities that the Company has been requested to register (including be registered cannot be distributed in accordance with the Requested Securities but excluding any securities to be issued plan of distribution set forth in the related registration statement. So long as a Demand Request is made by the Company)Holders prior to the Termination Date, the Holders shall not lose their right to their Demand Registration under Section 2.1(a) if the Demand Registration related to such Demand Request is delayed or not effected in the circumstances set forth in this Section 2.1(b) or Section 2.4.
(c) The Issuer shall have the right to select cause the investment banker registration of additional equity securities for sale for the account of the Issuer or investment bankers and manager or managers that will underwrite any other Person to whom the offering; providedIssuer has granted registration rights from time to time, however, that such investment bankers and managers must be reasonably satisfactory in the registration of Registrable Securities requested by the Holders pursuant to the Company.Section 2.1(a)
Appears in 1 contract
Samples: Registration Rights Agreement (Clear Channel Communications Inc)
Demand Registration. (a) At any time beginning six months from following the date termination of this the Merger Agreement and for but prior to the expiration of the Effectiveness Period, if the Company shall be requested (a period “Registration Request”) by Holders holding at least a majority of three years thereafter, the Holder may make one written request for then outstanding Registrable Securities (the “Requesting Stockholders”) to effect the registration under the Securities Act, (a "Demand Registration") Act of all or any part of Holder's the Registrable Securities, then the Company shall (i) within five (5) business days of the receipt of such Registration Request, give written notice of such request to all Holders describing the terms of such registration and, in the case of an Underwriting Request under Section 4 of this Agreement, describing the underwriting in which such securities are proposed to be sold and (ii) as soon as practicable (and in the case of an offering to be made on a continuous basis under Rule 415 or any other Registration Request not involving an Underwriting Request, in no event later than forty-five (45) days following the Registration Request) cause to be prepared and filed with the SEC a Registration Statement providing for the resale of all Registrable Securities which Holders request to be registered within fifteen (15) days following the Registration Request. The Registration Statement shall be on Form S-3 if the Company is then eligible to register for resale the Registrable Securities on such form (a “Short Form Registration”). If the Company is not then eligible to register for resale the Registrable Securities on Form S-3, such registration shall be on Form S-1 or another appropriate form in accordance herewith (a “Long Form Registration”). The Company shall cause the Registration Statement to be declared effective under the Securities Act as promptly as possible after the filing thereof (and in the case of an offering to be made on a continuous basis under Rule 415 or any other Registration Request not involving an Underwriting Request, in no event later than either of (A) two hundred seventy (270) calendar days following the date of the Registration Request or (B) five (5) Business Days following notification by the staff of the SEC to the Company that there will be no review of the Registration Statement or, if comments have been given, that the staff will have no further comments with respect thereto). The Company shall keep the Registration Statement continuously effective under the Securities Act until the date when all Registrable Securities covered by such Registration Statement have been sold. Reference is made to the Registration Default Payments (as such term is defined in the Notes) set forth in Section 11(d) of the Notes. The Company shall not be obligated to file and cause to become effective more than three (3) Registration Statements under a Long Form Registration pursuant to this Section 2(a). If the Requesting Stockholders notify the Company of their election to withdraw a Registration Request prior to such Registration Statement being declared effective by the SEC, the Company shall in turn withdraw such registration and the Company shall not be considered to have effected a registration for purpose of this Agreement. A Registration Statement shall not be counted for purposes of the foregoing until such time as such Registration Statement has been declared effective by the SEC and all of the Registrable Securities offered pursuant to such Registration Statement are sold thereunder upon the price and terms offered. There shall be a limit of two (2) on the number of Short Form Registrations in any twelve-month period pursuant to this Section 2(a). Notwithstanding anything to the contrary contained herein, (x) if the SEC specifically prohibits the Registration Statement from including all Registrable Securities (but such part, together “SEC Guidance”) (provided that the Company shall advocate with the SEC for the registration of all or the maximum number of securities requested the Registrable Securities permitted by other Approved Investors, SEC Guidance to be included in such Demand Registration pursuant to Statement, such maximum number, the “Rule 415 Amount”), then the Company will not be in breach of this Section 2provision by following such SEC Guidance, shall have an estimated market value and the Company will file such additional Registration Statements at the time of earliest practicable date on which the Company is permitted by SEC Guidance to file such request (based upon additional Registration Statements related to the then market price of a share of Common Stock Registrable Securities, each registering the Rule 415 Amount, seriatim, until all of the CompanyRegistrable Securities have been registered (and no such additional Registration Statements counting toward any limitation on the number of demands hereunder) and such number of at least $250,000. Notwithstanding Registrable Securities permitted to be included in each such Registration Statement shall be shared pro rata among all of the foregoingParticipating Stockholders based on the total number of Registrable Securities held by each such Participating Stockholder, and (y) the Company shall not be required to file make any demand registration statement on behalf of the Holder within twelve months after the effective date of any earlier registration statement so long as the Holder was given a notice offering it the opportunity to sell Registrable Securities under the earlier registration statement and the Holder did not request that its Registrable Securities be included; provided, however, that if Holder requested that its Registrable Securities be included in the earlier registration statement but not all were so included through no fault of the Investor, the Investor may, but shall not be obligated to, require the Company to file another registration statement pursuant to a Demand Registration. Within fifteen (15) days after receipt of a request for a Demand Registration, the Company shall give written notice (the "Notice") of such request to all other Approved Investors and shall include in such registration all Registrable Securities that the Company has received written requests for inclusion therein within 15 days after the Notice is given (the "Requested Securities"). Thereafter, the Company may elect to include in such registration additional shares of Common Stock to be issued by the Company. All requests made pursuant to this Section 2 shall specify the aggregate number of Registrable Securities to be registered.
(b) A registration shall not constitute a Demand Registration under this Section 2 until it has become effective.
(c2(a) The Holder making unless the Demand Registration may elect whether the maximum aggregate offering of such Registrable Securities pursuant to such Demand Registration shall be in the form of a firm commitment underwritten offering or otherwise; provided, however, that such Holder may not elect that such offering be made on a delayed or continuous basis pursuant to rule 415 under the Securities Act. In any case in which an offering is in the form of a firm commitment underwritten offering, if the managing underwriter or underwriters of such offering advise the Company in writing that in its or their opinion the number of Registrable Securities proposed to be sold in such offering exceeds the number of Registrable Securities that can be sold in such offering without aversely affecting the market for the Company's Common Stock, the Company will include in such registration the number of Registrable Securities that in the opinion of such managing underwriter or underwriters can be sold without adversely affecting the market for the Company's Common Stock. In such event, the number of Registrable Securities, if any, to be offered for the accounts of Approved Investors (including the Holder making the Demand Registration) shall be reduced pro rata on the basis of the relative number of any Registrable Securities requested by each Approved Investor to be included in such registration to the extent necessary to reduce the total number of Registrable Securities to be included in such offering to the number recommended by such managing underwriter or underwriters. In the event the Holder making the Demand shall receive notice pursuant to this Section 2(c) that the amount of Registrable Securities to be offered for such Holder shall be reduced, such Holder shall be entitled to withdraw the Demand by written notice to the Company within seven (7) days after receipt of such notice, with the effect that such Demand shall be deemed not to have been made.
(d) If any price of the Registrable Securities covered by a Demand Registration are requested to be sold in an underwritten offering, the Approved Investors, in the aggregate, that own so registered is expected to equal or will own a majority of the Registrable Securities that the Company has been requested to register (including the Requested Securities but excluding any securities to be issued by the Company), shall have the right to select the investment banker or investment bankers and manager or managers that will underwrite the offering; provided, however, that such investment bankers and managers must be reasonably satisfactory to the Companyexceed $5 million.
Appears in 1 contract
Demand Registration. (ai) At any time beginning six months from after the date expiration of this Agreement the Lock-Up Period, any Holder shall have the option and for right, exercisable by delivering a period of three years thereafter, written notice to the Holder may make one written request for registration under the Securities Act, Company (a "“Demand Registration") of all or part of Holder's Registrable Securities (but such part, together with the number of securities requested by other Approved InvestorsNotice”), to be included in such Demand Registration pursuant to this Section 2, shall have an estimated market value at the time of such request (based upon the then market price of a share of Common Stock of the Company) of at least $250,000. Notwithstanding the foregoing, the Company shall not be required to file any registration statement on behalf of the Holder within twelve months after the effective date of any earlier registration statement so long as the Holder was given a notice offering it the opportunity to sell Registrable Securities under the earlier registration statement and the Holder did not request that its Registrable Securities be included; provided, however, that if Holder requested that its Registrable Securities be included in the earlier registration statement but not all were so included through no fault of the Investor, the Investor may, but shall not be obligated to, require the Company to file another registration statement to, pursuant to the terms of and subject to the limitations contained in this Agreement, prepare and file with the Commission a Demand Registration. Within fifteen (15) days after receipt Registration Statement registering the offering and sale of a request for a Demand Registration, the Company shall give written notice (the "Notice") of such request to all other Approved Investors number and shall include in such registration all Registrable Securities that the Company has received written requests for inclusion therein within 15 days after the Notice is given (the "Requested Securities"). Thereafter, the Company may elect to include in such registration additional shares of Common Stock to be issued by the Company. All requests made pursuant to this Section 2 shall specify the aggregate number type of Registrable Securities to be registered.
(b) A registration shall not constitute a Demand Registration under this Section 2 until it has become effective.
(c) The Holder making on the terms and conditions specified in the Demand Registration Notice, which may elect whether the offering of such Registrable Securities pursuant to such Demand Registration shall be in the form of a firm commitment underwritten offering or otherwise; provided, however, that such Holder may not elect that such offering be made include sales on a delayed or continuous basis pursuant to rule Rule 415 under the Securities Actpursuant to a Shelf Registration Statement (a “Demand Registration”). In any case in which an offering is in the form of a firm commitment underwritten offering, if the managing underwriter or underwriters of such offering advise the Company in writing that in its or their opinion the number of Registrable Securities proposed to be sold in such offering exceeds The Demand Notice must set forth the number of Registrable Securities that can be sold the Initiating Holder intends to include in such offering without aversely affecting Demand Registration and the market for intended methods of disposition thereof. Notwithstanding anything to the Company's Common Stockcontrary herein, in no event shall the Company be required to effectuate a Demand Registration unless the Registrable Securities of the Holders to be included therein after compliance with Section 2(a)(ii) have an aggregate value of at least $50 million based on the VWAP (the “Minimum Amount”) as of the date of the Demand Notice.
(ii) 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, the Company shall give written notice of such Demand Notice to all Holders and, within 30 days after receipt of the Demand Notice (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case, within 90 days thereof), shall, subject to the limitations of this Section 2(a), file a Registration Statement in accordance with the terms and conditions of the Demand Notice, which Registration Statement shall cover all of the Registrable Securities that the Holders shall in writing request to be included in the Demand Registration (such request to be given to the Company within three Business Days (or if the Registration Statement will include be a Shelf Registration Statement, within one Business Day) after receipt of notice of the Demand Notice given by the Company pursuant to this Section 2(a)(ii)). The Company shall use reasonable best efforts to cause such Registration Statement to become and remain effective under the Securities Act until the earlier of (A) 180 days (or two years if a Shelf Registration Statement is requested) after the Effective Date or (B) the date on which all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”); provided, however, that such period shall be extended for a period of time equal to the period the Holders refrain from selling any securities included in such registration Registration Statement at the request of an underwriter of the Company or the Company pursuant to this Agreement.
(iii) Subject to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect (A) a Demand Registration within 90 days after the closing of any Underwritten Offering, (B) more than a total of four Demand Registrations for which Kimmeridge (or any transferee thereof in accordance with Section 8(e)) is the Initiating Holder, (C) more than a total of four Demand Registrations for which Rock Ridge (or any transferee thereof in accordance with Section 8(e)) is the Initiating Holder, (D) more than a total of four Demand Registrations for which Source (or any transferee thereof in accordance with Section 8(e)) is the Initiating Holder, and (E) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of the Registrable Securities held by the Initiating Holder shall have become and remains effective under the Securities Act and is sufficient to permit offers and sales of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice in accordance with the intended timing and method or methods of distribution thereof specified in the Demand Notice; provided, that a demand for a Shelf Registration Statement shall not count against the number of allowable Demand Registrations for (B), (C) and (D) of this paragraph. No Demand Registration shall be deemed to have occurred for purposes of this Section 2(a)(iii) if the Registration Statement relating thereto does not become effective or is not maintained effective for its entire Effectiveness Period, in which case the Initiating Holder shall be entitled to an additional Demand Registration in lieu thereof. Further, a Demand Registration shall not constitute a Demand Registration of the Initiating Holder for purposes of this Section 2(a)(iii) if, as a result of Section 2(a)(vi), 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 $50 million and (y) two-thirds of the number of Registrable Securities that the Initiating Holder set forth in the opinion applicable Demand Notice.
(iv) A Holder may withdraw all or any portion of its Registrable Securities included in a Demand Registration from such managing underwriter Demand Registration at any time prior to the effectiveness of 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 underwriters can be sold without adversely affecting a notice from a Holder to the market for the Company's Common Stock. In such event, the number of Registrable Securities, if any, to be offered for the accounts of Approved Investors (including effect that the Holder making the Demand Registration) shall be reduced pro rata on the basis is withdrawing an amount of the relative number of any its Registrable Securities requested by each Approved Investor to be included in such registration to that the extent necessary to reduce the total number remaining amount of Registrable Securities to be included in such offering the Demand Registration is below the Minimum Amount, the Company shall cease all efforts to secure effectiveness of the applicable Registration Statement. Such registration nonetheless shall be deemed a Demand Registration with respect to the Initiating Holder for purposes of Section 2(a)(iii) unless (A) the Initiating Holder shall have paid or reimbursed the Company for its pro rata share of all reasonable and documented out-of-pocket fees and expenses incurred by the Company in connection with the withdrawn registration of such Registrable Securities (based on the number recommended by of securities the Initiating Holder sought to register, as compared to the total number of securities included in such managing underwriter Demand Registration) or underwriters. (B) the withdrawal is made following the occurrence of a Material Adverse Change or pursuant to the Company’s request for suspension pursuant to Section 3(o).
(v) The Company may include in any such Demand Registration other Company Securities for sale for its own account or for the account of any other Person, subject to Section 2(a)(vi) and Section 2(d)(iii).
(vi) In the event case of a Demand Registration not being underwritten, if the Initiating Holder making advises the Company that in its reasonable opinion the aggregate number of securities requested to be included exceeds the number that can be included without being likely to have a significant adverse effect on the price, timing or distribution of the securities offered or the market for the securities offered, the Company shall include in such Demand shall receive notice pursuant Registration only that number of securities that in the reasonable opinion of the Initiating Holder will not have such adverse effect, with such number to this Section 2(cbe allocated as follows: (A) first, pro-rata among all Holders (including the Initiating Holder) that have requested to participate in such Demand Registration based on the amount relative number of Registrable Securities then held by each such Holder, (B) second, if there remains availability for additional securities to be offered included in such Demand Registration, to the Company, and (C) third, if there remains availability for additional securities to be included in such Holder Demand Registration, to any other holders entitled to participate in such Demand Registration, if applicable, based on the relative number of securities such holder is entitled to include in such Demand Registration.
(vii) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration on such appropriate registration form of the Commission (A) as shall be reducedselected by the Company and (B) as shall permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the Demand Notice; provided, such Holder that if the Company becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be entitled effected pursuant to withdraw an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Demand by Securities Act (if available to the Company). If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Company within seven (7) days after receipt that it intends to effect an offering of such notice, with the effect that such Demand shall be deemed not to have been made.
(d) If any all or part of the Registrable Securities covered by a included on such Registration Statement, the Company will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(viii) Without limiting Section 3, in connection with any Demand Registration are pursuant to and in accordance with this Section 2(a), the Company shall (A) promptly prepare and file or cause to be sold in an underwritten offeringprepared and filed (1) such additional forms, the Approved Investorsamendments, in the aggregatesupplements, that own prospectuses, certificates, letters, opinions and other documents, as may be necessary or will own a majority of the Registrable Securities that the Company has been requested advisable to register (or qualify the securities subject to such Demand Registration, including under the Requested Securities but excluding any securities to be issued by laws of such jurisdictions as the Company), Holders shall have the right to select the investment banker or investment bankers and manager or managers that will underwrite the offeringreasonably request; provided, however, that no such investment bankers qualification shall be required in any jurisdiction where, as a result thereof, the Company would become subject to general service of process or to taxation or qualification to do business in such jurisdiction solely as a result of registration and managers must (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 satisfactory 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.
(ix) In the event a Holder transfers Registrable Securities included on a Registration Statement and such Registrable Securities remain Registrable Securities following such transfer, at the request of such Holder, the Company 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 the Company be required to file a post-effective amendment to the CompanyRegistration 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) the Company 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 1 contract
Samples: Registration Rights Agreement (Desert Peak Minerals Inc.)
Demand Registration. (ai) At Subject to the terms and conditions of this Agreement, including Section 2(a)(ii) below, at any time beginning six months and from time to time after the date expiration of this Agreement and for a the lock-up period of three years thereafterapplicable to Corsair LP in the Company’s IPO, the Holder may make one written request for registration under the Securities Act, (a "Demand Registration") of all or part of Holder's Registrable Securities (but such part, together with the number of securities requested by other Approved Investors, to be included in such Demand Registration pursuant to this Section 2, Corsair LP shall have an estimated market value at the time of such request (based upon the then market price of a share of Common Stock of the Company) of at least $250,000. Notwithstanding the foregoing, the Company shall not be required right to file any registration statement on behalf of the Holder within twelve months after the effective date of any earlier registration statement so long as the Holder was given a notice offering it the opportunity to sell Registrable Securities under the earlier registration statement and the Holder did not request that its Registrable Securities be included; provided, however, that if Holder requested that its Registrable Securities be included in the earlier registration statement but not all were so included through no fault of the Investor, the Investor may, but shall not be obligated to, require the Company to file another one or more registration statement statements under the Securities Act (other than pursuant to a Demand Registration. Within fifteen (15) days after receipt of a request for a Demand Registration, the Company shall give written notice (the "Notice") of such request to all other Approved Investors and shall include in such registration all Registrable Securities that the Company has received written requests for inclusion therein within 15 days after the Notice is given (the "Requested Securities"). Thereafter, the Company may elect to include in such registration additional shares of Common Stock to be issued by the Company. All requests made pursuant to this Section 2 shall specify the aggregate number of Registrable Securities to be registered.
(b) A registration shall not constitute a Demand Registration under this Section 2 until it has become effective.
(c) The Holder making the Demand Registration may elect whether the offering of such Registrable Securities pursuant to such Demand Registration shall be in the form of a firm commitment underwritten offering statement on Form S-4 or otherwise; provided, however, that such Holder may not elect that such offering be made on a delayed Form S-8 or continuous basis pursuant to rule 415 any similar or successor forms under the Securities Act. In ) covering all or any case in which an offering is in the form of a firm commitment underwritten offering, if the managing underwriter or underwriters of such offering advise the Company in writing that in its or their opinion the number part of Registrable Securities proposed to be sold in such offering exceeds held by the number of Registrable Securities that can be sold in such offering without aversely affecting the market for the Company's Common Stock, the Company will include in such registration the number of Registrable Securities that in the opinion of such managing underwriter or underwriters can be sold without adversely affecting the market for the Company's Common Stock. In such event, the number of Registrable Securities, if any, to be offered for the accounts of Approved Investors (including the Holder making the Demand Registration) shall be reduced pro rata on the basis of the relative number of any Registrable Securities requested by each Approved Investor to be included in such registration to the extent necessary to reduce the total number of Registrable Securities to be included in such offering to the number recommended by such managing underwriter or underwriters. In the event the Holder making the Demand shall receive notice pursuant to this Section 2(c) that the amount of Registrable Securities to be offered for such Holder shall be reduced, such Holder shall be entitled to withdraw the Demand by EagleTree Entities upon written notice to the Company within seven (7a “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) days after give written notice of the receipt of such noticeDemand Notice to all Holders that, with to its knowledge, hold Registrable Securities (each a “Demand Eligible Holder”). The Company shall promptly (but in any event no more than 30 days after the effect that such date of the Demand shall be deemed not Notice) file the appropriate Registration Statement (the “Demand Registration Statement”) and use its commercially reasonable efforts to have been made.
effect, at the earliest practicable date, the registration under the Securities Act and under applicable state securities laws of (dA) If any of the Registrable Securities covered which the Company has been so requested to register by a Corsair LP in the Demand Registration are Notice, (B) all other Registrable Securities of the same class or series as those requested to be sold in an underwritten offering, registered by the Approved Investors, in the aggregate, that own or will own a majority of the Registrable Securities that Demand Eligible Holders which the Company has been requested to register by the Demand Eligible Holders by written request (including the Requested “Demand Eligible Holder Request”) given to the Company within five Business Days after the receipt of such written notice from the Company, and (C) any Registrable Securities but excluding any securities to be issued offered and sold by the Company, in each case subject to Section 2(a)(ii), shall have the right to select the investment banker or investment bankers and manager or managers that will underwrite the offering; provided, however, that such investment bankers and managers must be reasonably satisfactory all to the Companyextent required to permit the disposition (in accordance with the intended methods of disposition) of the Registrable Securities to be so registered. The Company shall effect any requested Demand Registration using a registration statement on Form S-3 whenever the Company is a Seasoned Issuer or a WKSI, and shall use an Automatic Shelf Registration Statement if it is a WKSI.
Appears in 1 contract
Samples: Registration Rights Agreement (Corsair Gaming, Inc.)
Demand Registration. (a1) At any time beginning six months from after the date hereof, and subject to the other provisions of this Agreement and for a period of three years thereafterSection 11, the Holder may make one Executive shall have the right, exercisable by making a written request for registration under to the Securities ActCompany, (a "Demand Registration") to demand that the Company effect the Registration of all or part of Holder's any Registrable Securities (but such part, together in accordance with the number provisions of securities requested by other Approved Investorsthe Act. The Company shall then comply with Section 11(a)(2) hereof. Any provision herein to the contrary notwithstanding, the right to be included in such Demand demand Registration pursuant to this Section 2, 11 shall be limited to one Registration demand per calendar year. A right to demand Registration hereunder shall be deemed to have an estimated market value at the time of such request (based upon the then market price of a share of Common Stock been exercised and all of the Company) 's demand Registration obligations hereunder for such calendar year shall be deemed to be fully satisfied when the registration statement filed on account of at least $250,000such exercise has been declared effective by the Commission. Notwithstanding the foregoing, If any other executive of the Company shall not be required to file any registration statement on behalf of the Holder within twelve months after the effective date of any earlier registration statement so long as the Holder was given a notice offering it the opportunity to sell Registrable Securities under the earlier registration statement and the Holder did not request that its Registrable Securities be included; provided, however, that if Holder requested that its Registrable Securities be included in the earlier registration statement but not all were so included through no fault of the Investor, the Investor may, but shall not be obligated to, require the Company to file another registration statement pursuant to a Demand Registration. Within fifteen (15) days after receipt of a request for a Demand Registration, the Company shall give written notice (the "Notice") of such request to all other Approved Investors and shall include in such registration all Registrable Securities that the Company has received written requests for inclusion therein within 15 days after the Notice is given (the "Requested Securities"). Thereafter, the Company may elect to include in such registration additional shares of Common Stock to be issued by the Company. All requests made pursuant to this Section 2 shall specify the aggregate number of Registrable Securities to be registered.
(b) A registration shall not constitute a Demand Registration under this Section 2 until it has become effective.
(c) The Holder making the Demand Registration may elect whether the offering of such Registrable Securities pursuant to such Demand Registration shall be in the form of a firm commitment underwritten offering exercises his or otherwise; provided, however, that such Holder may not elect that such offering be made on a delayed or continuous basis pursuant to rule 415 under the Securities Act. In any case in which an offering is in the form of a firm commitment underwritten offering, if the managing underwriter or underwriters of such offering advise the Company in writing that in its or their opinion the number of Registrable Securities proposed to be sold in such offering exceeds the number of Registrable Securities that can be sold in such offering without aversely affecting the market for the Company's Common Stock, the Company will include in such registration the number of Registrable Securities that in the opinion of such managing underwriter or underwriters can be sold without adversely affecting the market for the Company's Common Stock. In such event, the number of Registrable Securitiesher right, if any, to be offered for demand that the accounts of Approved Investors (including Company effect the Holder making the Demand Registration) shall be reduced pro rata on the basis of the relative number Registration of any Registrable Securities requested by each Approved Investor Securities, then the Executive shall have the right to be included in such registration to the extent necessary to reduce the total Register an equivalent number of Registrable Securities to be included in such offering to without reducing the number recommended by such managing underwriter or underwriters. In demand Registrations the event the Holder making the Demand Executive shall receive notice pursuant to this Section 2(c) that the amount of Registrable Securities to be offered for such Holder shall be reduced, such Holder shall be entitled to withdraw the Demand by written notice to the Company within seven (7) days after receipt of such notice, with the effect that such Demand shall be deemed not to have been madein any calendar year.
(d2) If any Following receipt of the Registrable Securities covered by a Demand Registration are request pursuant to be sold in an underwritten offeringSection 11(a)(1) hereof, the Approved Investors, in Company shall (i) file within ninety (90) days thereafter a registration statement on the aggregate, that own or will own a majority appropriate form under the Act for the shares of the Registrable Securities Common Stock that the Company has been requested to register Register; (including ii) if the Requested Securities but excluding any applicable Offering is pursuant to an underwriting agreement, enter into an underwriting agreement in such form as said managing or sole underwriter shall require (which must only contain terms and conditions customary for offerings of equity securities to be issued by the Company), shall have the right to select the investment banker or investment bankers and manager or managers of entities with market capitalizations that will underwrite the offering; provided, however, that such investment bankers and managers must be reasonably satisfactory are approximately equal to the Company's then current market capitalization and may contain customary provisions requiring the Company and the Executive to indemnify and provide contribution to the underwriter or underwriters of such Offering); and (iii) use its reasonable best efforts to have such registration statement declared effective as promptly as practicable and to remain effective for at least one hundred eighty (180) days. Notwithstanding any other provision hereof, the Executive acknowledges and agrees that there can be no guarantee or warranty from or by the Company that any such registration statement will ever be declared effective by the Commission, and that the Company makes no such guarantee or warranty in this Agreement.
Appears in 1 contract
Samples: Executive Employment Agreement (Avid Sportswear & Golf Corp)
Demand Registration. (a) At any time beginning six months after the Shelf Registration Statement referred to in Section 1 is effective, one or more Investors may notify the Company that they intend to offer or cause to be offered in an underwritten public offering all or any portion of their Registrable Securities, provided that the aggregate proceeds expected to be received from the date of this Agreement and for a period of three years thereafter, the Holder may make one written request for registration under the Securities Act, (a "Demand Registration") of all or part of Holder's Registrable Securities (but such part, together with the number sale of securities requested by other Approved Investors, to be included in such Demand Registration pursuant to this Section 2underwritten public offering equals or exceeds $10,000,000. Upon receipt of such request, the Company shall have an estimated market value at the time promptly deliver notice of such request to all Investors holding Registrable Securities who shall then have five (based 5) Business Days to notify the Company in writing of their desire to be included in such underwritten public offering. The Company shall state such in the written notice and in such event the right of any Person to participate in such registration shall be conditioned upon such Person’s participation in such underwritten public offering and the then market price 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 the filing of a share prospectus supplement or post-effective amendment with respect to the underwritten public offering of Common Stock of all Registrable Securities whose holders request participation in such underwritten public offering, but only to the Company) of at least $250,000. Notwithstanding the foregoingextent provided for in this Agreement; provided however, that the Company shall not be required to file any registration statement on behalf of effect an underwritten public offering pursuant to a request under this Section 2 more than three times. Notwithstanding anything to the Holder contrary contained herein, no request may be made under this Section 2 within twelve months ninety (90) days after the effective date of any earlier a registration statement so long or post-effective amendment filed by the Company covering a firm commitment underwritten public offering or, as applicable the Holder was given filing date of a notice offering it prospectus supplement related thereto, in which the opportunity to sell holders of Registrable Securities shall have been entitled to join pursuant to Section 3 and in which there shall have been included 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 earlier registration statement and relating to such registration has been declared effective by the Holder did not request that its Registrable Securities be includedCommission or, if such underwritten public offering is pursuant to a post-effective amendment to the Shelf Registration Statement, such post-effective amendment has been declared effective by the Commission, or, if such underwritten public offering is pursuant to a prospectus supplement to the Shelf Registration Statement, such prospectus supplement has been filed with the Commission; provided, provided however, that if Holder requested that its the participating Investors holding a majority of the Registrable Securities be included being offered by all participating Investors (a “Participating Majority”) may request, in writing, that the earlier Company withdraw a registration statement or post-effective amendment which has been filed under this Section 2(a) but has not all were so included through no fault of the Investoryet been declared effective, the Investor may, but shall not be obligated to, require and a Participating Majority may thereafter request the Company to reinstate such registration statement or post-effective amendment, if permitted under the Securities Act, or the holders of Registrable Securities may request that the Company file another registration statement pursuant (but only to a Demand Registration. Within fifteen the extent that such Registrable Securities have not already been registered on the Shelf 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).
(15b) days after receipt of a request for a Demand Registration, If the Company shall give written notice (the "Notice") managing underwriter of such request offering referred to all other Approved Investors and shall include in such registration all Registrable Securities that the Company has received written requests for inclusion therein within 15 days after the Notice is given (the "Requested Securities"). Thereafter, the Company may elect to include in such registration additional shares of Common Stock to be issued by the Company. All requests made pursuant to this Section 2 determines in good faith that the number of securities sought to be offered should be limited due to market conditions, then the number of securities to be included in such underwritten public offering shall specify be reduced to a number deemed satisfactory by such managing underwriter; provided, that the shares to be included shall be determined in the following order of priority: (i) Registrable Securities of Investors who requested such registration pursuant to Section 2(a), (ii) Registrable Securities of Investors who did not make the original request for registration, (iii) 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 pursuant to that certain Registration Rights Agreement, dated as of November 3, 2023, by and among the Company and the holders party thereto (the “Existing Registration Rights Agreement”), (iv) 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 pursuant to any agreement entered into after the date of this Agreement, (v) securities to be registered by the Company pursuant to such registration statement and (vi) securities held by persons not having any contractual or other right to include such securities in the registration statement. If there is a reduction of the number of Registrable Securities pursuant to clauses (i) or (ii), such reduction shall be made on a pro rata basis (based upon the aggregate number of Registrable Securities to be registered.
(b) A registration shall not constitute a Demand Registration under this Section 2 until it has become effectiveheld by such holders).
(c) The Holder making the Demand Registration may elect whether the offering of such Registrable Securities With respect to a request for registration pursuant to such Demand Registration shall be in the form of a firm commitment underwritten offering or otherwise; providedSection 2(a), however, that such Holder may not elect that such offering be made on a delayed or continuous basis pursuant to rule 415 under the Securities Act. In any case in which an offering is in the form of a firm commitment underwritten offering, if the managing underwriter or underwriters shall be chosen by the holders of such offering advise a majority of the Company in writing that in its or their opinion the number of Registrable Securities proposed to be sold in such offering exceeds the number of Registrable Securities that can (which approval will not be sold in such offering without aversely affecting the market for the Company's Common Stock, the Company will include in such registration the number of Registrable Securities that in the opinion of such managing underwriter unreasonably withheld or underwriters can be sold without adversely affecting the market for the Company's Common Stock. In such event, the number of Registrable Securities, if any, to be offered for the accounts of Approved Investors (including the Holder making the Demand Registration) shall be reduced pro rata on the basis of the relative number of any Registrable Securities requested by each Approved Investor to be included in such registration to the extent necessary to reduce the total number of Registrable Securities to be included in such offering to the number recommended by such managing underwriter or underwriters. In the event the Holder making the Demand shall receive notice pursuant to this Section 2(c) that the amount of Registrable Securities to be offered for such Holder shall be reduced, such Holder shall be entitled to withdraw the Demand by written notice to the Company within seven (7) days after receipt of such notice, with the effect that such Demand shall be deemed not to have been madedelayed).
(d) If any of the Registrable Securities covered by a Demand Registration are to be sold in an underwritten offering, the Approved Investors, in the aggregate, that own or will own a majority of the Registrable Securities that the Company has been requested to register (including the Requested Securities but excluding any securities to be issued by the Company), shall have the right to select the investment banker or investment bankers and manager or managers that will underwrite the offering; provided, however, that such investment bankers and managers must be reasonably satisfactory to the Company.
Appears in 1 contract
Samples: Registration Rights Agreement (Carbon Revolution Public LTD Co)
Demand Registration. (a) At Subject to Section 3.01(c), at any time beginning six months or from time to time the date of this Agreement and for a period of three years thereafter, Majority Holders shall have the Holder may make one written right to request for registration under in writing that the Securities Act, (a "Demand Registration") of Company register all or part of such Holder's ’s Registrable Securities (but such part, together a “Request”) (which Request shall specify the amount of Registrable Securities intended to be disposed of by the Holder and the intended method of disposition thereof) by filing with the number of securities requested by other Approved Investors, to be included in such SEC a Demand Registration pursuant to this Section 2, shall have an estimated market value at the time of such request (based upon the then market price of a share of Common Stock of the Company) of at least $250,000Statement. Notwithstanding the foregoing, the Company shall not be required to file any registration statement on behalf of the Holder within twelve months after the effective date of any earlier registration statement so long As promptly as the Holder was given a notice offering it the opportunity to sell Registrable Securities under the earlier registration statement and the Holder did not request that its Registrable Securities be included; provided, however, that if Holder requested that its Registrable Securities be included in the earlier registration statement but not all were so included through no fault of the Investor, the Investor maypracticable, but shall not be obligated to, require the Company to file another registration statement pursuant to a Demand Registration. Within fifteen (15) no later than 10 days after receipt of a request for a Demand RegistrationRequest, the Company shall give written notice (the "Notice") of such request requested registration to all other Approved Investors and Holders of Registrable Securities. Subject to Section 3.01(b), the Company shall include in such registration all Registrable Securities that the Company has received written requests for inclusion therein within 15 days after the Notice is given (the "Requested Securities"). Thereafter, the Company may elect to include in such registration additional shares of Common Stock to be issued by the Company. All requests made pursuant to this Section 2 shall specify the aggregate number of Registrable Securities to be registered.
(b) A registration shall not constitute a Demand Registration under this Section 2 until it has become effective.
(ci) The Holder making the Demand Registration may elect whether the offering of such Registrable Securities pursuant intended to such Demand Registration shall be in disposed of by the form of a firm commitment underwritten offering or otherwise; provided, however, that such Holder may not elect that such offering be made on a delayed or continuous basis pursuant to rule 415 under Initiating Holders and (ii) the Securities Act. In any case in which an offering is in the form of a firm commitment underwritten offering, if the managing underwriter or underwriters of such offering advise the Company in writing that in its or their opinion the number of Registrable Securities proposed intended to be sold in such offering exceeds the number disposed of Registrable Securities that can be sold in such offering without aversely affecting the market for the Company's Common Stock, the Company will include in such registration the number of Registrable Securities that in the opinion of such managing underwriter or underwriters can be sold without adversely affecting the market for the Company's Common Stock. In such event, the number of Registrable Securities, if any, to be offered for the accounts of Approved Investors by any other Holder which shall have made a written request (including the Holder making the Demand Registration) which request shall be reduced pro rata on the basis of the relative number of any Registrable Securities requested by each Approved Investor to be included in such registration to the extent necessary to reduce the total number of Registrable Securities to be included in such offering to the number recommended by such managing underwriter or underwriters. In the event the Holder making the Demand shall receive notice pursuant to this Section 2(c) that specify the amount of Registrable Securities to be offered registered and the intended method of disposition thereof) to the Company for inclusion thereof in such Holder registration within 20 days after the receipt of such written notice from the Company. The Company shall, as expeditiously as possible following a Request (but in no event later than 60 days after the date of the Initial Request), use its reasonable best efforts to cause to be filed with the SEC a Demand Registration Statement providing for the registration under the Securities Act of the resale of the Registrable Securities which the Company has been so requested to register by all such Holders, to the extent necessary to permit the disposition of such Registrable Securities so to be registered in accordance with the intended methods of disposition thereof specified in such Request or further requests. The Company shall use its reasonable best efforts to have such Demand Registration Statement declared effective by the SEC as soon as practicable thereafter and to keep such Demand Registration Statement continuously effective for the period specified in Section 4.02(b). A Request may be reduced, such Holder shall be entitled withdrawn prior to withdraw the filing of the Demand Registration Statement by the Majority Holders (a “Withdrawn Request”) and a Demand Registration Statement may be withdrawn prior to the effectiveness thereof by the Majority Holders (a “Withdrawn Demand Registration”), and such withdrawals shall not be treated as a Demand Registration which shall have been effected pursuant to this Section 3.01 (and shall not be counted toward the number of Demand Registrations). Any Holder requesting inclusion in a Demand Registration may, at any time prior to the effective date of the Demand Registration Statement (and for any reason), revoke such request by delivering written notice to the Company within seven (7) days after receipt revoking such requested inclusion. The registration rights granted pursuant to the provisions of such notice, with the effect that such Demand this Section 3.01 shall be deemed not to have been made.
(d) If any of the Registrable Securities covered by a Demand Registration are to be sold in an underwritten offering, the Approved Investors, in the aggregate, that own or will own a majority of the Registrable Securities that the Company has been requested to register (including the Requested Securities but excluding any securities to be issued by the Company), shall have the right to select the investment banker or investment bankers and manager or managers that will underwrite the offering; provided, however, that such investment bankers and managers must be reasonably satisfactory addition to the Companyregistration rights granted pursuant to the other provisions of Section 3.02 hereof.
Appears in 1 contract
Demand Registration. (a) At If at any time beginning six months after the filing of the Initial Registration Statement, the Company receives a request from Holder of Additional Registrable Securities then outstanding (an “Initiating Holder”) that the Company file a Registration Statement with respect to outstanding Additional Registrable Securities of such Initiating Holder not already covered by an existing Registration Statement, then the Company shall, (i) within ten (10) days after the date of this Agreement such request is given, give notice to all Holders other than the Initiating Holder, and for (ii) as soon as practicable, and in any event within thirty (30) days after the date such request is given, file a period of three years thereafter, the Holder may make one written request for Form S-3 registration statement under the Securities Act, (a "Demand Registration") of Act covering all or part of Holder's Additional Registrable Securities (but such part, together with the number of securities requested by other Approved Investors, to be included in such Demand Registration registration by the Initiating Holder and any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the notice pursuant to clause (i) above is given, and in each case, subject to the limitations of Sections 3(b) and (c). Upon the request of any Holder that Additional Registrable Securities be registered pursuant to this Section 23(a), all such Additional Registrable Securities shall have an estimated market value at thereafter be Registrable Securities for all purposes under this Agreement.
(b) Notwithstanding the time of such request (based upon foregoing obligations, if the then market price of Company furnishes to Holders requesting a share of Common Stock registration pursuant to this Section 3 a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Company’s Board of Directors it would be materially detrimental to the Company and its stockholders for such Registration Statement to either become effective or remain effective for as long as such Registration Statement otherwise would be required to remain effective, because such action would (i) materially interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company; (ii) require premature disclosure of at least $250,000. Notwithstanding material information that the foregoingCompany has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act, then the Company shall have the right to defer taking action with respect to such filing, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for a period of not be required to file any registration statement on behalf more than ninety (90) days after the request of the Initiating Holder within twelve months after the effective date of any earlier registration statement so long as the Holder was given a notice offering it the opportunity to sell Registrable Securities under the earlier registration statement and the Holder did not request that its Registrable Securities be includedis given; provided, however, that if Holder requested the Company may not invoke this right more than once in any twelve (12) month period; and provided further that the Company shall not register any securities for its Registrable Securities own account or that of any other stockholder during such ninety (90) day period other than pursuant to a registration relating to the sale of securities to employees of the Company or a subsidiary pursuant to a stock option, stock purchase, or similar plan; a registration on any form that does not include substantially the same information as would be required to be included in the earlier a registration statement but not all were so included through no fault covering the sale of the Investor, Additional Registrable Securities; or a registration in which the Investor may, but shall not be obligated to, require the Company to file another registration statement pursuant to a Demand Registration. Within fifteen (15) days after receipt of a request for a Demand Registration, the Company shall give written notice (the "Notice") of such request to all other Approved Investors and shall include in such registration all Registrable Securities that the Company has received written requests for inclusion therein within 15 days after the Notice is given (the "Requested Securities"). Thereafter, the Company may elect to include in such registration additional shares of only Common Stock to be issued by the Company. All requests made pursuant to this Section 2 shall specify the aggregate number being registered is Common Stock issuable upon conversion of Registrable Securities to be debt securities that are also being registered.
(b) A registration shall not constitute a Demand Registration under this Section 2 until it has become effective.
(c) The Holder making the Demand Registration may elect whether the offering of such Registrable Securities Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to such Demand Registration shall be in Section 3(a) during the form period that is thirty (30) days before the Company’s good faith estimate of a firm commitment underwritten offering or otherwise; providedthe date of filing of, however, that such Holder may not elect that such offering be made and ending on a delayed or continuous basis pursuant to rule 415 under the Securities Act. In any case in which an offering date that is in the form of a firm commitment underwritten offering, if the managing underwriter or underwriters of such offering advise the Company in writing that in its or their opinion the number of Registrable Securities proposed to be sold in such offering exceeds the number of Registrable Securities that can be sold in such offering without aversely affecting the market for the Company's Common Stock, the Company will include in such registration the number of Registrable Securities that in the opinion of such managing underwriter or underwriters can be sold without adversely affecting the market for the Company's Common Stock. In such event, the number of Registrable Securities, if any, to be offered for the accounts of Approved Investors ninety (including the Holder making the Demand Registration) shall be reduced pro rata on the basis of the relative number of any Registrable Securities requested by each Approved Investor to be included in such registration to the extent necessary to reduce the total number of Registrable Securities to be included in such offering to the number recommended by such managing underwriter or underwriters. In the event the Holder making the Demand shall receive notice pursuant to this Section 2(c) that the amount of Registrable Securities to be offered for such Holder shall be reduced, such Holder shall be entitled to withdraw the Demand by written notice to the Company within seven (790) days after receipt of such noticethe effective date of, with the effect that such Demand shall be deemed not to have been made.
(d) If any of the Registrable Securities covered by a Demand Registration are to be sold in an underwritten offeringCompany-initiated registration, the Approved Investorsprovided, in the aggregate, that own or will own a majority of the Registrable Securities that the Company has been requested is actively employing in good faith commercially reasonable efforts to register (including the Requested Securities but excluding any securities cause such registration statement to be issued by the Company), shall have the right to select the investment banker or investment bankers and manager or managers that will underwrite the offering; provided, however, that such investment bankers and managers must be reasonably satisfactory to the Companybecome effective.
Appears in 1 contract
Samples: Registration Rights Agreement (Porter Bancorp, Inc.)
Demand Registration. (a) At Upon written notice provided at any time beginning six months after January 1, 1997 from any Restricted Holder of Registrable Securities requesting that the date of this Agreement and for a period of three years thereafter, Company effect the Holder may make one written request for registration under the Securities Act, (a "Demand Registration") Act of any or all or part of Holder's the Registrable Securities (but held by such partRestricted Holder, together which notice shall specify the intended method or methods of disposition of such Registrable Securities, the Company shall use its best efforts to effect the registration under the Securities Act of such Registrable Securities for disposition in accordance with the number intended method or methods of securities requested by other Approved Investorsdisposition stated in such request (including in a Rule 415 Offering, if the Company is then eligible to register such Registrable Securities on Form S-3 (or a successor form) for such offering); provided that:
(i) with respect to any registration statement filed, or to be included in such Demand Registration filed, pursuant to this Section 22.1, if the Company shall furnish to the Restricted Holders of Registrable Securities that have made such request a certified resolution of the Board of Directors stating that in the Board of Directors' judgment it would (because of the existence of, or in anticipation of, any acquisition or financing activity, or the unavailability for reasons beyond the Company's reasonable control of any required financial statements, or any other event or condition be significantly disadvantageous (a "Disadvantageous Condition") to the Company or its stockholders for such a registration statement to be maintained effective, or to be filed and become effective, and setting forth the general reasons for such judgment (without the need to disclose any confidential or sensitive information), the Company 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 have an estimated market value be entitled not to file any such registration statement, until such Disadvantageous Condition no longer exists (notice of which the Company shall promptly deliver to such Restricted Holders) and upon receipt of any such notice of a Disadvantageous Condition, such Restricted Holders shall forthwith discontinue use of the prospectus contained in such registration statement and, if so directed by the Company, each such Restricted Holder will deliver to the Company all copies, other than permanent file copies then in such Restricted Holder's possession, of the prospectus then covering such Registrable Securities current at the time of receipt of such request (based upon notice, and, in the then market price of a share of Common Stock event no registration statement has yet been filed, all drafts of the Company) of at least $250,000. Notwithstanding the foregoing, the Company shall not be required to file any registration statement on behalf of the Holder within twelve months after the effective date of any earlier registration statement so long as the Holder was given a notice offering it the opportunity to sell prospectus covering such Registrable Securities under the earlier registration statement and the Holder did not request that its Registrable Securities be includedSecurities; provided, however, that if the filing of any such registration statement may not be delayed for a period in excess of six months due to the occurrence of any particular Disadvantageous Condition;
(ii) a Restricted Holder requested that its of Registrable Securities be included may exercise its rights under this Section 2.1 on not more than one occasion, except that (x) Apollo may exercise its rights under this Section 2.1 on not more than three occasions and (y) if, in the earlier any registration statement but not all were so included through no fault of the Investor, the Investor may, but shall not be obligated to, require the Company to file another registration statement pursuant to a Demand Registration. Within fifteen (15) days after receipt of a request for a Demand Registration, the Company shall give written notice (the "Notice") of such request to all other Approved Investors and shall include in such registration all Registrable Securities that the Company has received written requests for inclusion therein within 15 days after the Notice is given (the "Requested Securities"). Thereafter, the Company may elect to include in such registration additional shares of Common Stock to be issued by the Company. All requests made pursuant to this Section 2 2.1, a Restricted Holder is not able, as a result of cutbacks implemented pursuant to Section 2.1(d) or 2.2(c), to register for sale at least 75% of the Registrable Securities it requested be registered (and such deficiency shall specify not have been cured by concessions made by the aggregate Company or any other Restricted Holder) then such registration shall not count against the limits set forth in this Section 2.1(a)(ii); and
(iii) a Restricted Holder of Registrable Securities shall not have the right to exercise registration rights pursuant to this Section 2.1 in any twelve-month period following the registration and sale of Registrable Securities effected pursuant to a prior exercise of the registration rights provided in this Section 2.1, if such Restricted Holder did not elect to exercise its rights under Section 2.2 for such prior registration and sale with respect to the highest possible number of the Registrable Securities it held at such time.
(b) Notwithstanding any other provision of this Agreement to the contrary, a registration requested by a Restricted Holder of Registrable Securities pursuant to this
Section 2.1 shall not be deemed to have been effected (and, therefore, not requested for purposes of paragraph (a) above, (i) unless it has become effective, (ii) if after it has become effective such registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court for any reason other than a misrepresentation or an omission by such Restricted Holder and, as a result thereof, the Registrable Securities requested to be registered cannot be completely distributed in accordance with the plan of distribution set forth in the related registration statement or (iii) if the conditions to closing specified in the purchase agreement or underwriting agreement entered into in connection with such registration are not satisfied or waived other than solely by reason of some act or omission by such Restricted Holder of Registrable Securities.
(c) In the event that any registration pursuant to this Section 2.1 shall involve, in whole or in part, an underwritten offering, the Restricted Holder with respect to the greatest number of Registrable Securities to be registered.
(b) A registration registered shall not constitute a Demand Registration under this Section 2 until it has become effective.
(c) The Holder making have the Demand Registration may elect whether right to designate an underwriter as the offering lead underwriter of such Registrable Securities pursuant to such Demand Registration shall be in the form of a firm commitment underwritten offering or otherwise; provided, however, that such Holder may not elect that such offering be made on a delayed or continuous basis pursuant to rule 415 under the Securities Act. In any case in which an offering is in the form of a firm commitment underwritten offering, if the managing underwriter or underwriters of such offering advise the Company in writing that in its or their opinion the number of Registrable Securities proposed to be sold in such offering exceeds the number of Registrable Securities that can be sold in such offering without aversely affecting the market for the Company's Common Stock, the Company will include in such registration the number of Registrable Securities that in the opinion of such managing underwriter or underwriters can be sold without adversely affecting the market for the Company's Common Stock. In such event, the number of Registrable Securities, if any, to be offered for the accounts of Approved Investors (including the Holder making the Demand Registration) shall be reduced pro rata on the basis of the relative number of any Registrable Securities requested by each Approved Investor to be included in such registration to the extent necessary to reduce the total number of Registrable Securities to be included in such offering to the number recommended by such managing underwriter or underwriters. In the event the Holder making the Demand shall receive notice pursuant to this Section 2(c) that the amount of Registrable Securities to be offered for such Holder shall be reduced, such Holder shall be entitled to withdraw the Demand by written notice to the Company within seven (7) days after receipt of such notice, with the effect that such Demand shall be deemed not to have been made.
(d) If any of the Registrable Securities covered by a Demand Registration are to be sold in an underwritten offering, the Approved Investors, in the aggregate, that own or will own a majority of the Registrable Securities that the The Company has been requested to register (including the Requested Securities but excluding any securities to be issued by the Company), shall have the right to select cause the investment banker registration of additional securities for sale for the account of any Person (including, without limitation, the Company and any existing or investment bankers and manager former directors, officers or managers that will underwrite employees) in any registration of Registrable Securities requested by the offeringRestricted Holders pursuant to paragraph (a) above; provided, howeverthat, that notwithstanding any other provision of this Agreement, the Company shall not have the right to cause the registration of such investment bankers additional securities if and managers must be reasonably satisfactory to the extent such Restricted Holders are advised in writing (with a copy to the Company) by a nationally recognized investment banking firm selected by such Restricted Holders (which shall be the lead underwriter in the case of an underwritten offering) that, in such firm's view, registration of such additional securities would materially and adversely affect the offering and sale of the Registrable Securities then contemplated by any Restricted Holder. The Restricted Holders with respect to the Regis- trable Securities to be offered may require that any such additional securities be included in the offering proposed by such Restricted Holders on the same terms and conditions as the Registrable Securities that are included therein.
Appears in 1 contract
Samples: Registration Rights Agreement (Metropolis Realty Trust Inc)
Demand Registration. (ai) At Subject to Section 2(a)(iii) and 2(a)(iv), any time beginning six months from the date Holder or group of this Agreement and for a period of three years thereafter, the Holder may make one written request for registration under the Securities Act, (a "Demand Registration") of all or part of Holder's Holders that holds Registrable Securities (but such partthe “Initiating Holder”) that desires to sell shall have the option and right, together exercisable by delivering a written notice to the Partnership (a “Demand Notice”), to require the Partnership to, pursuant to the terms of and subject to the limitations contained in this Agreement, prepare and file with the Commission a Registration Statement registering the offering and sale of the number and type of securities requested 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 (the “Demand Registration”). The Partnership shall have the right to elect that any Demand Registration be made pursuant to a Shelf Registration Statement.
(ii) Within two (2) Trading Days of the receipt of the Demand Notice, the Partnership shall give written notice of such Demand Notice to all Holders eligible to participate in the Demand Registration pursuant to this Section 2(a) (the “ Demand Eligible Holders”) and shall, subject to the limitations of this Section 2(a), file a Registration Statement covering all of the Registrable Securities that the Demand Eligible Holders shall in writing request (such request to be given to the Partnership within three (3) days of receipt of such notice of the Demand Notice given by other Approved Investors, the Partnership pursuant to this Section 2(a)(ii)) to be included in such Demand Registration as promptly as practicable as directed by the Initiating Holder in accordance with the terms and conditions of the Demand Notice and use all commercially reasonable efforts to cause such Registration Statement to become effective under the Securities Act and remain effective under the Securities Act for not less than six (6) months following the Effective Date or such shorter period when all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”); provided, however, that the Partnership shall not be required to effect the registration of Registrable Securities pursuant to this Section 2( a) unless at least an aggregate of 2,500,000 Registrable Securities (as adjusted to reflect splits, combinations, dividends and recapitalizations) are offered or the Registrable Securities are offered at an aggregate proposed offering price of not less than $50 million.
(iii) During the Preference Period, (x) prior to delivering a Demand Notice to the Partnership in accordance with Section 2(a)(i), Xxxxxxxx shall give written notice (a “Pre-Demand Notice”) to Eagle Holdings of its intention to deliver a Demand Notice, which shall include a copy of the proposed Demand Notice and set forth in reasonable detail the proposed number of Registrable Securities and timing, method of distribution and other terms of the proposed sale of Registrable Securities subject thereto; (y) if Eagle Holdings has a good faith belief that it intends to dispose of Registrable Securities pursuant to a Registration Statement within 60 days after receipt of a Pre-Demand Notice, it shall have an estimated market value the right to issue a written notice to Xxxxxxxx (a “Denial Notice”), which shall set forth Eagle Holdings’ then-current good faith expectations for such disposition; and (z) upon receipt of a Denial Notice, Xxxxxxxx shall refrain from delivering a Demand Notice or disposing of Registrable Securities pursuant to a Registration Statement that does not cover such Registrable Securities as of the date of such Denial Notice for at least 90 days thereafter.
(iv) Xxxxxxxx shall not be eligible to participate in a Demand Registration initiated by Eagle Holdings during the Preference Period. Xxxxxxxx shall not deliver a Demand Notice for 90 after the effective date of any Demand Registration initiated by Eagle Holdings.
(v) Subject to the other limitations contained in this Agreement, the Partnership is not obligated hereunder to effect more than (A) one (1) Demand Registration on Form S-1 (or any equivalent or successor form under the Securities Act) in any twelve (12) month period; provided, that notwithstanding anything in this Agreement to the contrary, the Partnership shall not be obligated to effect any Demand Registration on Form S-1 (or any equivalent or successor form under the Securities Act) that is not requested by a Sponsor or a Special Successor; and (B) two (2) Demand Registrations on Form S-3 (or any equivalent or successor form under the Securities Act) in any twelve (12) month period.
(vi) Notwithstanding any other provision of this Section 2(a), the Partnership shall not be required to effect a registration or file a Registration Statement pursuant to this Section 2(a): (A) during the period starting with the date sixty (60) days prior to a good faith estimate, with the approval of a simple majority of the Board of Directors of the General Partner, of the date of filing of, and ending on a date ninety (90) days after the effective date of, a Partnership-initiated registration; provided that the Partnership is actively employing commercially reasonable efforts to cause such registration statement to become effective; (B) for a period of up to ninety (90) days after the date of a Demand Notice for registration pursuant to this Section 2(a) if at the time of such request (based upon 1) the then market price Partnership is engaged, or has fixed plans with the approval of a share simple majority of the Board of Directors of the General Partner to engage, within ninety (90) days of the time of such Demand Notice, in a firm commitment underwritten public offering of Common Stock Units in which the Holders of Registrable Securities include Registrable Securities pursuant to Section2(b), or (2) the Partnership is currently engaged in a self-tender or exchange offer and the filing of a Registration Statement would cause a violation of the CompanyExchange Act; or (C) for a period of at least $250,000. Notwithstanding up to ninety (90) days, if (1) the foregoing, General Partner determines that a postponement is in the Company shall not be required to file any registration statement on behalf best interest of the Holder within twelve months after Partnership and its Limited Partners generally due to a pending transaction or (2) the effective date General Partner determines that a postponement is in the best interest of the Partnership due to an investigation or other event (any earlier registration statement so long as the Holder was given such period, a notice offering it the opportunity to sell Registrable Securities under the earlier registration statement and the Holder did not request that its Registrable Securities be included“Suspension Period”); provided, however, that if Holder requested that its Registrable Securities be included in no event shall the earlier registration statement but not all were so included through no fault of the Investor, the Investor may, but shall not be obligated to, require the Company to file another registration statement pursuant to a Partnership postpone or defer any Demand Registration. Within fifteen (15) days after receipt of a request for a Demand Registration, the Company shall give written notice (the "Notice") of such request to all other Approved Investors and shall include in such registration all Registrable Securities that the Company has received written requests for inclusion therein within 15 days after the Notice is given (the "Requested Securities"). Thereafter, the Company may elect to include in such registration additional shares of Common Stock to be issued by the Company. All requests made Registration pursuant to this Section 2 shall specify the 2(a)(iv) and/or Section 7(f) for more than an aggregate number of Registrable Securities to be registeredone hundred and eighty (180) days in any twelve (12) month period.
(bvii) A registration shall not constitute a Demand Registration under Notwithstanding any other provision of this Section 2 until it has become effective.
2(a), if (cA) The Holder making the Demand Registration may elect whether the offering of such Registrable Securities pursuant Eligible Holders intend to such Demand Registration shall be in the form of a firm commitment underwritten offering or otherwise; provided, however, that such Holder may not elect that such offering be made on a delayed or continuous basis pursuant to rule 415 under the Securities Act. In any case in which an offering is in the form of a firm commitment underwritten offering, if the managing underwriter or underwriters of such offering advise the Company in writing that in its or their opinion the number of Registrable Securities proposed to be sold in such offering exceeds the number of Registrable Securities that can be sold in such offering without aversely affecting the market for the Company's Common Stock, the Company will include in such registration the number of Registrable Securities that in the opinion of such managing underwriter or underwriters can be sold without adversely affecting the market for the Company's Common Stock. In such event, the number of Registrable Securities, if any, to be offered for the accounts of Approved Investors (including the Holder making the Demand Registration) shall be reduced pro rata on the basis of the relative number of any Registrable Securities requested by each Approved Investor to be included in such registration to the extent necessary to reduce the total number of Registrable Securities to be included in such offering to the number recommended by such managing underwriter or underwriters. In the event the Holder making the Demand shall receive notice pursuant to this Section 2(c) that the amount of Registrable Securities to be offered for such Holder shall be reduced, such Holder shall be entitled to withdraw the Demand by written notice to the Company within seven (7) days after receipt of such notice, with the effect that such Demand shall be deemed not to have been made.
(d) If any of distribute the Registrable Securities covered by a Demand Registration are by means of an underwriting and (B) the managing underwriter advises the Partnership that the inclusion of all of the Demand Eligible Holders’ Registrable Securities in the subject Registration Statement would have a material adverse effect on the timing or success of the offering, then the Partnership shall so advise all Demand Eligible Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of Registrable Securities that may be included in the underwriting shall be allocated to the Demand Eligible Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Demand Eligible Holders (including the Initiating Holders). Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(viii) The Partnership may include in any such Demand Registration other Partnership Securities for sale for its own account or for the account of any other Person; provided that if the managing underwriter for the offering determines that the number of Partnership Securities proposed to be offered in such offering would have a material adverse effect on the timing or success of such offering, then the Registrable Securities to be sold by the Demand Eligible Holders shall be included in an underwritten offeringsuch registration before any Partnership Securities proposed to be sold for the account of the Partnership or any other Person.
(ix) Subject to the limitations contained in this Agreement, the Approved Investors, in Partnership shall effect any Demand Registration on Form S-3 (except if the aggregate, that own or will own a majority of Partnership is not then eligible to register for resale the Registrable Securities that on Form S-3, in which case such Demand Registration shall be effected on another appropriate form for such purpose pursuant to the Company has been requested Securities Act) and if the Partnership becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities through a firm commitment underwriting shall be effected pursuant to register an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (including if available to the Requested Securities but excluding any securities to be issued by the CompanyPartnership), shall have the right to select the investment banker or investment bankers and manager or managers that will underwrite the offering; provided, however, that such investment bankers if at any time a Registration Statement on Form S-3 is effective and managers must be reasonably satisfactory a Holder provides written notice to the CompanyPartnership that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, the Partnership will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(x) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), the Partnership shall, (A) promptly prepare and file or cause to be prepared and filed (1) such additional forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents, as may be necessary or advisable to register or qualify the securities subject to such Demand Registration, including under the securities laws of such states as the Demand Eligible Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, the Partnership would become subject to general service of process or to taxation or qualification to do business in such jurisdiction solely as a result of registration and (2) such forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents as may be necessary to apply for listing or to list the Registrable Securities subject to such Demand Registration on the Trading Market and (B) do any and all other acts and things that may be necessary or appropriate or reasonably requested by the Demand Eligible Holders to enable such Holders to consummate a public sale of such Registrable Securities in accordance with the intended timing and method or methods of distribution thereof.
(xi) In the event a Holder transfers Registrable Securities included on a Registration Statement and such Registrable Securities remain Registrable Securities following such transfer, at the request of such Holder, the Partnership shall amend or supplement such Registration Statement as may be necessary in order to enable such transferee to offer and sell such Registrable Securities pursuant to such Registration Statement.
(xii) The Partnership shall use commercially reasonable efforts to become eligible to use Form S-3 and, after becoming eligible to use Form S-3, shall use commercially reasonable efforts to remain eligible to use Form S-3, including by timely filing all reports with the Commission and meeting the other requirements of the Exchange Act.
Appears in 1 contract
Samples: Registration Rights Agreement (Access Midstream Partners Lp)
Demand Registration. Notwithstanding anything herein to the contrary, and in addition to its obligations under Section 3(a) hereinabove, the Company shall:
(ai) At any time beginning six months after receipt of a written request from the date of this Agreement and for Holder requesting that the Company effect a period of three years thereafter, the Holder may make one written request for registration (a “Demand Registration”) under the Securities Act, (a "Demand Registration") of Act covering all or part of Holder's the Registrable Securities (held by such Holder which specifies the intended method or methods of disposition thereof, as expeditiously as is possible, but such partin any event no later than 90 days after receipt of a written request for a Demand Registration, together file with the number SEC and use its reasonable best efforts to cause to be declared effective as soon as reasonably practicable, a registration statement (a “Demand Registration Statement”) relating to all shares of securities Registrable Securities which the Company has been so requested to register by other Approved Investorsthe Holder for sale, to be included the extent required to permit the disposition (in such accordance with the intended method or methods thereof, as aforesaid) of the Registrable Securities so registered.
(ii) If the Company is eligible to use Form S-3, any Demand Registration pursuant Statement may be required by the Holder to this Section 2, shall have be in an estimated market value at appropriate form under the time of such request (based upon the then market price of a share of Common Stock Securities Act relating to any or all of the CompanyRegistrable Securities in accordance with the methods and distribution set forth in the Form S-3 and Rule 415 under the Securities Act (the “Shelf Registration”). Any such demand to file a Form S-3 shall require the use of one Demand Registration. The Holder shall be entitled to an aggregate of two registrations of Registrable Securities.
(iii) of at least $250,000. Notwithstanding the foregoing, the The Company shall not be required to file any effect a registration statement on behalf of the Holder within twelve months after the effective date of any earlier registration statement so long as the Holder was given a notice offering it the opportunity to sell Registrable Securities under the earlier registration statement and the Holder did not request that its Registrable Securities be included; provided, however, that if Holder requested that its Registrable Securities be included in the earlier registration statement but not all were so included through no fault of the Investor, the Investor may, but shall not be obligated to, require the Company to file another registration statement pursuant to a Demand Registration. Within fifteen (15) days after receipt of a request for a Demand Registration, the Company shall give written notice (the "Notice") of such request to all other Approved Investors and shall include in such registration all Registrable Securities that the Company has received written requests for inclusion therein within 15 days after the Notice is given (the "Requested Securities"). Thereafter, the Company may elect to include in such registration additional shares of Common Stock to be issued by the Company. All requests made pursuant to this Section 2 shall specify 3:
(1) pursuant to a written opinion of counsel for the aggregate number of Company, all the Registrable Securities can be sold pursuant to be registered.Rule 144 in any three month period (such date being the “144 Sale Date”); or
(b2) A during the period starting with the date 45 days prior to the Company’s estimated date of filing of, and ending on the date 90 days immediately following the effective date of, any registration shall not constitute a Demand Registration under this Section 2 until it has become effective.
(c) The Holder making the Demand Registration may elect whether the statement pertaining to an underwritten public offering of such newly issued securities of the Company with respect to which the Holder has the right to request inclusion of Registrable Securities pursuant to such Demand Registration shall be in the form of a firm commitment underwritten offering or otherwise; providedSection 3, however, provided that such Holder may not elect that such offering be made on a delayed or continuous basis pursuant to rule 415 under the Securities Act. In any case in which an offering is in the form of a firm commitment underwritten offering, if the managing underwriter or underwriters of such offering advise the Company is actively employing in writing that in its or their opinion the number of Registrable Securities proposed good faith commercially reasonable efforts to be sold in such offering exceeds the number of Registrable Securities that can be sold in such offering without aversely affecting the market for the Company's Common Stock, the Company will include in such registration the number of Registrable Securities that in the opinion of such managing underwriter or underwriters can be sold without adversely affecting the market for the Company's Common Stock. In such event, the number of Registrable Securities, if any, to be offered for the accounts of Approved Investors (including the Holder making the Demand Registration) shall be reduced pro rata on the basis of the relative number of any Registrable Securities requested by each Approved Investor to be included in cause such registration to the extent necessary to reduce the total number of Registrable Securities to be included in such offering to the number recommended by such managing underwriter or underwriters. In the event the Holder making the Demand shall receive notice pursuant to this Section 2(c) that the amount of Registrable Securities to be offered for such Holder shall be reduced, such Holder shall be entitled to withdraw the Demand by written notice to the Company within seven (7) days after receipt of such notice, with the effect that such Demand shall be deemed not to have been madebecome effective.
(d) If any of the Registrable Securities covered by a Demand Registration are to be sold in an underwritten offering, the Approved Investors, in the aggregate, that own or will own a majority of the Registrable Securities that the Company has been requested to register (including the Requested Securities but excluding any securities to be issued by the Company), shall have the right to select the investment banker or investment bankers and manager or managers that will underwrite the offering; provided, however, that such investment bankers and managers must be reasonably satisfactory to the Company.
Appears in 1 contract
Samples: Registration Rights Agreement (Digital Lifestyles Group Inc)
Demand Registration. In the event that (a1) At any time beginning six months from a Qualified Placement in which the Company agrees to register with the SEC one or more securities issued in such Qualified Placement does not occur on or prior to the date that is one-hundred and eighty (180) days after the date of this Agreement Agreement, (2) the Company does not satisfy in a timely manner its obligations to investors in a Qualified Placement to register with the SEC all securities issued to investors in such Qualified Placement, including without limitation its obligations to file a registration statement with the SEC and for to cause it to be declared effective, (3) the Company does not satisfy its obligations under Section 2(a)(ii) below, or (4) the Investor is not able to sell all of its Registrable Securities because of an underwriter cutback described in Section 2(a)(iv) below (each such event being a period “Demand Triggering Event”), as soon as practicable (but in any case within sixty (60) days of three years thereafterthe first occurrence of a Demand Triggering Event) (the “Filing Deadline”), the Holder may make one written request for registration under Company shall prepare and file with the SEC a Registration Statement covering the resale of the Registrable Securities Act, (a "Demand Registration") in an amount at least equal to the number of all or part of Holder's Registrable Securities (but the “Demand Registration”). Such Registration Statement (the “Demand Registration Statement”) shall include the plan of distribution attached hereto as Exhibit A. The Demand Registration Statement also shall cover, to the extent allowable under the 1933 Act, such part, together with the indeterminate number of securities requested by other Approved Investorsadditional Common Shares resulting from share splits, share dividends or similar transactions with respect to be included in such the Registrable Securities. The Demand Registration pursuant Statement (and each amendment or supplement thereto, and each request for acceleration of effectiveness thereof) shall be provided in accordance with Section 3(c) to this Section 2, shall have an estimated market value at the time of such request (based upon the then market price of a share of Common Stock of the Company) of at least $250,000Investor and its counsel prior to its filing or other submission. Notwithstanding the foregoing, the Company shall not be required to (A) file any the Demand Registration Statement if the Company had completed the registration statement on behalf of the Holder within twelve months after the effective date of any earlier registration statement so long as the Holder was given a notice securities in connection with an underwritten public offering it the opportunity to sell Registrable Securities under the earlier registration statement and the Holder did not request that its Registrable Securities be included; provided, however, that if Holder requested that its Registrable Securities be included in the earlier registration statement but not all were so included through no fault of the Investor, the Investor may, but shall not be obligated to, require could have joined in accordance with Section 2(a)(ii) below within the Company to file another registration statement pursuant to a Demand Registration. Within fifteen prior one-hundred and eighty (15180) days after receipt of a request for a Demand Registration, the Company shall give written notice or (the "Notice"B) of such request to all other Approved Investors and shall include in such registration all Registrable Securities that the Company has received written requests for inclusion therein within 15 days after the Notice is given (the "Requested Securities"). Thereafter, the Company may elect to include in such registration additional shares of Common Stock to be issued by the Company. All requests made pursuant to this Section 2 shall specify the aggregate number of Registrable Securities to be registered.
(b) A registration shall not constitute a Demand file more than one Registration Statement under this Section 2 until it has become effective.
(c2(a)(i) The Holder making unless the Demand Registration may elect whether the offering Investor is not able to dispose of such Registrable Securities pursuant to such Demand Registration shall be in the form all of a firm commitment underwritten offering or otherwise; provided, however, that such Holder may not elect that such offering be made on a delayed or continuous basis pursuant to rule 415 under the Securities Act. In any case in which an offering is in the form of a firm commitment underwritten offering, if the managing underwriter or underwriters of such offering advise the Company in writing that in its or their opinion the number of Registrable Securities proposed to be sold in such offering exceeds the number of Registrable Securities that can be sold in such offering without aversely affecting the market for the Company's Common Stock, the Company will include in such registration the number of Registrable Securities that in the opinion of such managing underwriter or underwriters can be sold without adversely affecting the market for the Company's Common Stock. In such event, the number of Registrable Securities, if any, to be offered for the accounts of Approved Investors (including the Holder making the Demand Registration) shall be reduced pro rata on the basis shares because of the relative number of any Registrable Securities requested by each Approved Investor to be included provisions set forth in such registration to the extent necessary to reduce the total number of Registrable Securities to be included in such offering to the number recommended by such managing underwriter or underwriters. In the event the Holder making the Demand shall receive notice pursuant to this Section 2(c2(a)(iii) that the amount of Registrable Securities to be offered for such Holder shall be reduced, such Holder shall be entitled to withdraw the Demand by written notice to the Company within seven (7) days after receipt of such notice, with the effect that such Demand shall be deemed not to have been madebelow.
(d) If any of the Registrable Securities covered by a Demand Registration are to be sold in an underwritten offering, the Approved Investors, in the aggregate, that own or will own a majority of the Registrable Securities that the Company has been requested to register (including the Requested Securities but excluding any securities to be issued by the Company), shall have the right to select the investment banker or investment bankers and manager or managers that will underwrite the offering; provided, however, that such investment bankers and managers must be reasonably satisfactory to the Company.
Appears in 1 contract
Samples: Registration Rights Agreement (Baywood International Inc)
Demand Registration. (a) At any time beginning six months From and after March 1, 2001, the Holders of at least 66 2/3% of the then outstanding Registrable Securities may notify the Company in writing that such Holders desire for the Company to cause all or a portion of such notifying Holders' Registrable Securities to be registered for sale to the public under the Act. Upon receipt of such written request, the Company will promptly notify in writing all other Holders of Registrable Securities of such request, which Holders shall within twenty days following such notice from the date of this Agreement and for a period of three years thereafterCompany, notify the Holder may make one written request for registration under the Securities Act, (a "Demand Registration") of all or part of Holder's Company in writing whether such persons desire to have Registrable Securities (but such part, together with the number of securities requested held by other Approved Investors, to be them included in such Demand Registration offering. The Company will, promptly following the expiration of such twenty day period, prepare and file subject to the provisions of this Section 1, and use its best efforts to prosecute to effectiveness, an appropriate filing with the SEC of a registration statement covering such Registrable Securities and the proposed sale or distribution thereof under the Act.
(b) Notwithstanding anything in this Section 1.2 to the contrary, the Company shall not be obligated to prepare or file any registration statement pursuant to this Section 21.2, shall have an estimated market value or to prepare or file any amendment or supplement thereto, at any time when the Company, in the good faith judgment of its Board of Directors, reasonably believes that the filing thereof at the time requested, or the offering of such request securities pursuant thereto, (based upon the then market price of i) would materially adversely affect a share of Common Stock pending or proposed public offering of the Company's securities, or an acquisition, merger, recapitalization, consolidation, reorganization or similar transaction, negotiations, discussions or pending proposals with respect thereto or (ii) would materially adversely affect the business or prospects of at least $250,000. the Company in view of the disclosures that may be required thereby of information about the business, assets, liabilities or operations of the Company not theretofore disclosed; provided, however, that the filing of a registration statement, or any supplement or amendment thereto, by the Company may be deferred pursuant to this Section 1.2 for no longer than 180 days (but only once in every twelve month period) after the delivery of such demand notice.
(c) Notwithstanding anything in this Section 1.2 to the foregoing, contrary: (i) the Company shall not be required to file any effect the registration statement on behalf of the Holder within twelve months after the effective date of any earlier registration statement so long as the Holder was given a notice offering it the opportunity to sell Registrable Securities under the earlier registration statement and the Holder did not request that its Registrable Securities be included; provided, however, that if Holder requested that its Registrable Securities be included in the earlier registration statement but not all were so included through no fault of the Investor, the Investor may, but shall not be obligated to, require the Company to file another registration statement pursuant to a Demand Registration. Within fifteen (15) days after receipt of a request for a Demand Registration, the Company shall give written notice (the "Notice") of such request to all other Approved Investors and shall include in such registration all Registrable Securities that the Company has received written requests for inclusion therein within 15 days after the Notice is given (the "Requested Securities"). Thereafter, the Company may elect to include in such registration additional shares of Common Stock to be issued by the Company. All requests made pursuant to this Section 2 1.2 more than one time; and (ii) the Company shall specify the aggregate number not be required to effect any such registration unless at least $5 million of Registrable Securities are to be registered.
sold in such registration (bwith such amount being determined based on the market price of the Common Stock on the date of the initiating Holder(s) A request). If any registration shall not constitute a Demand Registration under pursuant to this Section 2 until it has become effective.
(c) The Holder making the Demand Registration may elect whether the offering of such Registrable Securities pursuant to such Demand Registration shall be in the form of a firm commitment underwritten offering or otherwise; provided, however, that such Holder may not elect that such offering be made on a delayed or continuous basis pursuant to rule 415 under the Securities Act. In any case in which an offering 1.2 is in the form of a firm commitment underwritten offering, if the managing underwriter or underwriters of such offering advise the Company in writing that in its or their opinion the number of Registrable Securities proposed to be sold in such offering exceeds the number of Registrable Securities that can be sold in such offering without aversely affecting the market for the Company's Common Stock, the Company will include in such registration the number of Registrable Securities that in the opinion of such managing underwriter or underwriters can be sold without adversely affecting the market for the Company's Common Stock. In such event, the number of Registrable Securities, if any, to be offered for the accounts of Approved Investors (including the Holder making the Demand Registration) shall be reduced pro rata on the basis of the relative number of any Registrable Securities requested by each Approved Investor to be included in such registration to the extent necessary to reduce the total number of Registrable Securities to be included in such offering to the number recommended by such managing underwriter or underwriters. In the event the Holder making the Demand shall receive notice pursuant to this Section 2(c) that the amount of Registrable Securities to be offered for such Holder shall be reduced, such Holder shall be entitled to withdraw the Demand by written notice to the Company within seven (7) days after receipt of such notice, with the effect that such Demand shall be deemed not to have been made.
(d) If any of the Registrable Securities covered by a Demand Registration are to be sold in an underwritten offering, the Approved Investors, in the aggregate, that own or Company will own a majority of the Registrable Securities that the Company has been requested to register (including the Requested Securities but excluding any securities to be issued by the Company), shall have the right to select and obtain the investment banker or investment bankers and manager or managers that will underwrite administer the offering; provided, however, that such which investment bankers must offer terms which are reasonably competitive in the marketplace for similar size companies and managers must be reasonably satisfactory similar offerings. The Company shall (together with all Holders proposing to distribute Registrable Securities through such underwriting) enter into an underwriting agreement, containing usual and customary terms, with the managing underwriter selected for such underwriting. If any holder of Registrable Securities disapproves of the terms of the underwriting, such person may elect to withdraw therefrom by written notice to the CompanyCompany and the managing underwriter. The Registrable Securities so withdrawn shall also be withdrawn from registration.
(d) If any registration statement under this Section 1.2 is not declared effective (except for the reasons specified in Section 1.9 below and except as a result of Holders withdrawing Registrable Securities), then the holders of Registrable Securities may request an additional registration under this Section 1.2.
(e) No registrations effected under this Section 1.2 shall relieve the Company of its obligations to effect any registrations under, and pursuant to the terms of, Sections 1.3 and 1.4 hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Mobility Electronics Inc)
Demand Registration. (ai) At any time beginning six months from XT Investments shall have the date of this Agreement option and for right, exercisable by delivering a period of three years thereafter, written notice to the Holder may make one written request for registration under the Securities Act, Company (a "“Demand Registration") of all or part of Holder's Registrable Securities (but such part, together with the number of securities requested by other Approved InvestorsNotice”), to be included in such Demand Registration pursuant to this Section 2, shall have an estimated market value at the time of such request (based upon the then market price of a share of Common Stock of the Company) of at least $250,000. Notwithstanding the foregoing, the Company shall not be required to file any registration statement on behalf of the Holder within twelve months after the effective date of any earlier registration statement so long as the Holder was given a notice offering it the opportunity to sell Registrable Securities under the earlier registration statement and the Holder did not request that its Registrable Securities be included; provided, however, that if Holder requested that its Registrable Securities be included in the earlier registration statement but not all were so included through no fault of the Investor, the Investor may, but shall not be obligated to, require the Company to file another registration statement to, pursuant to the terms of and subject to the limitations contained in this Agreement, prepare and file with the Commission a Demand Registration. Within fifteen (15) days after receipt Registration Statement registering the offering and sale of a request for a Demand Registration, the Company shall give written notice (the "Notice") of such request to all other Approved Investors number and shall include in such registration all Registrable Securities that the Company has received written requests for inclusion therein within 15 days after the Notice is given (the "Requested Securities"). Thereafter, the Company may elect to include in such registration additional shares of Common Stock to be issued by the Company. All requests made pursuant to this Section 2 shall specify the aggregate number type of Registrable Securities to be registered.
(b) A registration shall not constitute a Demand Registration under this Section 2 until it has become effective.
(c) The Holder making on the terms and conditions specified in the Demand Registration may elect whether Notice in accordance with the offering intended timing and method or methods of such Registrable Securities pursuant to such Demand Registration shall be distribution thereof specified in the form of a firm commitment underwritten offering or otherwise; providedDemand Notice, however, that such Holder which may not elect that such offering be made include sales on a delayed or continuous basis pursuant to rule Rule 415 under (the Securities Act. In any case in which an offering is in the form “Demand Registration”).
(ii) Following receipt of a firm commitment underwritten offeringDemand Notice, if the managing underwriter or underwriters of such offering advise the Company in writing that in its or their opinion shall file a Registration Statement as promptly as practicable covering all of the number of Registrable Securities proposed to be sold in such offering exceeds the number of Registrable Securities that can be sold in XT Investments requests on such offering without aversely affecting the market for the Company's Common Stock, the Company will include in such registration the number of Registrable Securities that in the opinion of such managing underwriter or underwriters can be sold without adversely affecting the market for the Company's Common Stock. In such event, the number of Registrable Securities, if any, to be offered for the accounts of Approved Investors (including the Holder making the Demand Registration) shall be reduced pro rata on the basis of the relative number of any Registrable Securities requested by each Approved Investor Notice to be included in such Demand Registration in accordance with the terms and conditions of this Agreement and shall use its reasonable best efforts to cause such Registration Statement to become effective under the Securities Act and remain effective under the Securities Act for not less than twenty four (24) months following the Effective Date or such shorter period when all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”); provided, however, (i) that the Company shall not be required to effect the registration to the extent necessary to reduce the total number of Registrable Securities pursuant to this Section 2(a) unless the Registrable Securities are offered at an aggregate proposed offering price of not less than $25 million and (ii) the Effectiveness Period shall be extended by one (1) day for each additional day during any Suspension Period in effect following the Effective Date applicable thereto pursuant to Section 2(a)(iii). Subject to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect more than three (3) Demand Registrations. A registration will not count as a requested registration under this Section 2(a) until the Registration Statement relating to such registration has been declared effective by the Commission and unless XT Investments was able to register all the Registrable Securities requested by it to be included in such offering to registration.
(iii) Notwithstanding any other provision of this Section 2(a), the number recommended by such managing underwriter or underwriters. In the event the Holder making the Demand Company shall receive notice not be required to:
(A) file a Registration Statement pursuant to this Section 2(c2(a) during the period starting with the date thirty (30) days prior to a good faith estimate by the majority of the members of the board of directors of the Company (excluding any members of the board of directors that are employees or Affiliates of XT Investments)(the “Unaffiliated Board Members”), of the date of filing of, and ending on a date ninety (90) days after the effective date of, a Company initiated registration; provided that the amount Company is actively employing its reasonable best efforts to cause such registration statement to become effective;
(B) effect a registration or file a Registration Statement for a period of up to one hundred twenty (120) days after the date of a Demand Notice for registration pursuant to this Section 2(a) if at the time of such request (1) the Company is engaged, or has plans to engage, within thirty (30) days of the time of such Demand Notice, in a firm commitment underwritten public offering of Ordinary Shares, or (2) the Company is currently engaged in a self-tender or exchange offer and the filing of a Registration Statement would cause a violation of the Exchange Act;
(C) effect a registration or file a Registration Statement for a period of up to ninety (90) days, if (1) the Unaffiliated Board Members determine such registration would render the Company unable to comply with applicable securities laws or (2) the Unaffiliated Board Members determine such registration would require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or
(D) if the Company has filed a “shelf” registration statement pursuant to a Demand Notice under this Section 2(a) and has included Registrable Securities to be offered for therein (each such Holder shall be reducedRegistration Statement, such Holder a “Shelf Registration Statement”), the Company shall be entitled to withdraw suspend, for a reasonable period of time not in excess of 45 consecutive days and not more than 90 days in any 12-month period (except as a result of a review of any post-effective amendment by the Demand by written notice Commission before declaring any post-effective amendment to the Registration Statement effective; provided, that the Company within seven (7) days after receipt has used its reasonable best efforts to cause such post-effective amendment to be declared effective), the offer or sale of Registrable Securities pursuant to such notice, with the effect that such Demand shall be deemed not to have been made.registration statement by any holder of Registrable Securities if:
(d1) If a “road show” is not then in progress with respect to a proposed offering of Registrable Securities by such holder; and,
(2) either
(A) the Unaffiliated Board Members, in good faith, determine that (i) the offer or sale of any shares of Ordinary Shares would materially impede, delay or interfere with a significant transaction under negotiation by the Company, including any proposed financing, offer or sale of securities, acquisition, merger, tender offer, business combination, corporate reorganization, or consolidation, (ii) after the advice of counsel, the sale of Ordinary Shares covered by the Shelf Registration Statement would require disclosure of non-public material information not otherwise required to be disclosed under applicable law, and (iii) either (x) the Company has a bona fide business purpose for preserving the confidentiality of the Registrable proposed transaction, (y) disclosure would have a material adverse effect on the Company or the Company’s ability to consummate the proposed transaction, or (z) the proposed transaction renders the Company unable to comply with requirements of the Commission; or
(B) the Unaffiliated Board Members, in good faith, determine that the Company is required by law, rule or regulation to supplement the Shelf Registration Statement or file a post-effective amendment to the Shelf Registration Statement in order to incorporate information into the Shelf Registration Statement for the purpose of (i) including in the Shelf Registration Statement any Prospectus required under Section 10(a)(3) of the Securities covered by a Demand Act or (ii) reflecting in the Prospectus included in the Shelf Registration are to be sold in an underwritten offeringStatement any facts or events arising after the effective date of the Shelf Registration Statement (or the most recent post-effective amendment) that, the Approved Investors, individually or in the aggregate, that own or will own represents a majority of fundamental change in the Registrable Securities that information set forth in the Company has been requested Prospectus (any such period referred to register (including the Requested Securities but excluding any securities to be issued by the Companyin this Section 2(a)(iii), shall have the right to select the investment banker or investment bankers and manager or managers that will underwrite the offeringa “Suspension Period”); provided, however, that (i) in no event shall the Company postpone, defer or suspend any Demand Registration pursuant to this Section 2(a)(iii) and/or Section 7(g) for more than an aggregate of ninety (90) days in any twelve (12) month period, and
(ii) in the event the Company postpones, defers or suspends any Demand Registration pursuant to Section 2(a)(iii)(C)(1) or (2) or Section 2(a)(iii)(D), then during such investment bankers and managers must be reasonably satisfactory Suspension Period, the Company shall not engage in any transaction involving the offer, issuance, sale, or purchase of Ordinary Shares (whether for the benefit of the Company or a third Person), except transactions involving the issuance or purchase of Ordinary Shares as contemplated by Company employee benefit plans or employee or director arrangements. In order to suspend the use of the registration statement pursuant to this Section 2(a)(iii)(D), the Company shall promptly upon determining to seek such suspension, deliver to the Companyholders of Registrable Securities included in such registration statement, a certificate signed by the Chief Executive Officer of the Company stating that the Company is suspending use of such registration statement pursuant to Section 2(a)(iii)(D), the basis therefor in reasonable detail and a good faith estimate as to the anticipated duration of such suspension.
Appears in 1 contract
Samples: Registration Rights Agreement (Kenon Holdings Ltd.)
Demand Registration. (ai) At any time beginning six months from Until the first date of this Agreement and for a period of three years thereafteron which there are no Registrable Securities, the Holder may make one written request for registration under the Securities Act, (a "Demand Registration") of all or part of Holder's Registrable Securities (but such part, together with the number of securities requested by other Approved Investors, to be included in such Demand Registration pursuant to this Section 2, shall have an estimated market value at the time of such request (based upon the then market price of a share of Common Stock request of the Company) of at least $250,000. Notwithstanding the foregoingHolders, the Company shall prepare, and, on or prior to the applicable Filing Deadline, file with the SEC a Registration Statement on Form S-3 (or, if Form S-3 is not be required then available, on Form S-1 or such form of Registration Statement as is then available to file any effect a registration statement on behalf of the Holder within twelve months after Registrable Securities, subject to the effective date of any earlier registration statement so long as the Holder was given a notice offering it the opportunity to sell Registrable Securities under the earlier registration statement and the Holder did not request that its Registrable Securities be included; provided, however, that if Holder requested that its Registrable Securities be included in the earlier registration statement but not all were so included through no fault consent of the InvestorHolders, the Investor may, but which consent shall not be obligated tounreasonably withheld) covering the resale of the Registrable Securities, require which Registration Statement, to the Company to file another registration statement pursuant to a Demand Registration. Within fifteen extent allowable under the Securities Act and the rules and regulations promulgated thereunder (15) days after receipt including Rule 416), shall state that such Registration Statement also covers such indeterminate number of a request for a Demand Registration, the Company shall give written notice (the "Notice") of such request to all other Approved Investors and shall include in such registration all Registrable Securities that the Company has received written requests for inclusion therein within 15 days after the Notice is given (the "Requested Securities"). Thereafter, the Company may elect to include in such registration additional shares of Common Stock to be issued by the Company. All requests made as may become issuable upon exercise of or otherwise pursuant to this Section 2 the Warrants or the Warrant Shares to prevent dilution resulting from stock splits, stock dividends, stock issuances or similar transactions. The number of shares of Common Stock initially included in such Registration Statement shall specify be no less than the aggregate number of Registrable Securities to be registered.
(bi) A registration shall not constitute a Demand Registration under this Section 2 until it has become effective.
Warrant Shares that have been issued and (cii) The Holder making the Demand Registration may elect whether the offering Warrant Shares that are then issuable upon exercise of such Registrable Securities or otherwise pursuant to such Demand the Warrants, without regard to any limitations on the Holders’ ability to exercise the Warrants. Each Registration shall be in the form Statement (and each amendment or supplement thereto, and each request for acceleration of a firm commitment underwritten offering or otherwise; provided, however, that such Holder may not elect that such offering be made on a delayed or continuous basis pursuant to rule 415 under the Securities Act. In any case in which an offering is in the form of a firm commitment underwritten offering, if the managing underwriter or underwriters of such offering advise the Company in writing that in its or their opinion the number of Registrable Securities proposed to be sold in such offering exceeds the number of Registrable Securities that can be sold in such offering without aversely affecting the market for the Company's Common Stock, the Company will include in such registration the number of Registrable Securities that in the opinion of such managing underwriter or underwriters can be sold without adversely affecting the market for the Company's Common Stock. In such event, the number of Registrable Securities, if any, to be offered for the accounts of Approved Investors (including the Holder making the Demand Registrationeffectiveness thereof) shall be reduced pro rata on provided to (and shall be subject to the basis approval, which shall not be unreasonably withheld or delayed, of ) the Holders and their counsel prior to its filing or other submission..
(ii) If for any reason, despite the Company’s use of commercially reasonable efforts to include all of the relative number of any Registrable Securities requested by each Approved Investor in the Registration Statement filed pursuant to be included in such registration to Section 2(a)(i) above, the extent necessary to reduce SEC does not permit all of the total number of Registrable Securities to be included in, or for any other reason any Registrable Securities are not then included in, such Registration Statement, then the Company shall prepare, and, as soon as practicable but in such no event later than the Additional Filing Deadline, file with the SEC an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to the number recommended by such managing underwriter or underwriters. In the event the Holder making the Demand shall receive notice be made on a continuous basis pursuant to this Section 2(c) that the amount of Registrable Securities to be offered for such Holder shall be reduced, such Holder shall be entitled to withdraw the Demand by written notice to the Company within seven (7) days after receipt of such notice, with the effect that such Demand shall be deemed not to have been madeRule 415.
(d) If any of the Registrable Securities covered by a Demand Registration are to be sold in an underwritten offering, the Approved Investors, in the aggregate, that own or will own a majority of the Registrable Securities that the Company has been requested to register (including the Requested Securities but excluding any securities to be issued by the Company), shall have the right to select the investment banker or investment bankers and manager or managers that will underwrite the offering; provided, however, that such investment bankers and managers must be reasonably satisfactory to the Company.
Appears in 1 contract
Demand Registration. (a) At any time beginning six months from the date of this Agreement and for a period of three years thereafter, the Holder may make one written request for registration under the Securities Act, (a "Demand Registration") of all On or part of Holder's Registrable Securities (but such part, together with the number of securities requested by other Approved Investors, prior to be included in such Demand Registration pursuant to this Section 2, shall have an estimated market value at the time of such request (based upon the then market price of a share of Common Stock of the Company) of at least $250,000. Notwithstanding the foregoingeach Filing Date, the Company shall not be required to prepare and file any registration statement on behalf with the Commission a Registration Statement covering the resale of all of the Holder within twelve months after the effective date of any earlier registration statement so long as the Holder was given a notice offering it the opportunity to sell Registrable Securities under 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 earlier registration statement and Company is not then eligible to register for resale the Holder did not request that its Registrable Securities on Form S-3, in which case such registration shall be includedon another appropriate form in accordance herewith, subject to the provisions of Section 2(e)) and shall contain (unless otherwise directed by at least 85% in interest of the Holders) substantially the “Plan of Distribution” attached hereto as Annex A and substantially the “Selling Stockholder” section attached hereto as Annex B; provided, however, that if no Holder requested that its Registrable Securities shall be included in required to be named as an “underwriter” without such Xxxxxx’s express prior written consent. Subject to the earlier registration statement but not all were so included through no fault terms of the Investor, the Investor may, but shall not be obligated to, require the Company to file another registration statement pursuant to a Demand Registration. Within fifteen (15) days after receipt of a request for a Demand Registrationthis Agreement, the Company shall give use its best efforts to cause a Demand Registration Statement filed under this Agreement 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 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 (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 the counsel to the Company pursuant to a written notice opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders (the "Notice"“Effectiveness Period”). The Company shall telephonically request effectiveness of a Registration Statement as of 5:00 p.m. (New York City time) on a Trading Day. The Company shall immediately notify the Holders via e-mail of the effectiveness of a Registration Statement on the same Trading Day that the Company telephonically confirms effectiveness with the Commission, which shall be the date requested for effectiveness of such request Registration Statement. The Company shall, by 9:30 a.m. (New York City time) on the Trading Day after the effective date of such Registration Statement, file a final Prospectus with the Commission as required by Rule 424. Failure to so notify the Holder within one (1) Trading Day of such notification of effectiveness or failure to file a final Prospectus as foresaid shall be deemed an Event under Section 2(d).
(b) 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 commercially reasonable efforts to file amendments to the Demand 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 Approved Investors form available to register for resale the Registrable Securities as a secondary offering, subject to the provisions of Section 2(e); with respect to filing on Form S-3 or other appropriate form, and shall include in such registration all subject to the provisions of Section 2(d) with respect to the payment of liquidated damages with respect only to the Registrable Securities that the Company Commission has received written requests for inclusion therein within 15 days after the Notice is given (the "Requested Securities"). Thereafternot objected to under Rule 415; provided, however, that prior to filing such amendment, the Company may elect shall be obligated to include use diligent efforts to advocate with the Commission for the registration of all of the Registrable Securities in such registration additional shares accordance with the SEC Guidance, including without limitation, Compliance and Disclosure Interpretation 612.09.
(c) Notwithstanding any other provision of Common Stock 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 issued registered on a particular Demand Registration Statement as a secondary offering (and notwithstanding that the Company used diligent efforts to advocate with the Commission for the registration of all or a greater portion of Registrable Securities), unless otherwise directed in writing by a Holder as to its Registrable Securities, the Company. All requests made pursuant to this Section 2 shall specify the aggregate number of Registrable Securities to be registered.registered on such Registration Statement will be reduced as follows:
(b) A registration shall not constitute a Demand Registration under this Section 2 until it has become effective.
(c) The Holder making the Demand Registration may elect whether the offering of such Registrable Securities pursuant to such Demand Registration shall be in the form of a firm commitment underwritten offering or otherwise; provided, however, that such Holder may not elect that such offering be made on a delayed or continuous basis pursuant to rule 415 under the Securities Act. In any case in which an offering is in the form of a firm commitment underwritten offering, if the managing underwriter or underwriters of such offering advise the Company in writing that in its or their opinion the number of Registrable Securities proposed to be sold in such offering exceeds the number of Registrable Securities that can be sold in such offering without aversely affecting the market for the Company's Common Stocka. First, the Company will include in such registration the number of Registrable Securities that in the opinion of such managing underwriter shall reduce or underwriters can be sold without adversely affecting the market for the Company's Common Stock. In such event, the number of Registrable Securities, if any, to be offered for the accounts of Approved Investors (including the Holder making the Demand Registration) shall be reduced pro rata on the basis of the relative number of eliminate any Registrable Securities requested by each Approved Investor securities to be included other than Registrable Securities;
b. Second, the Company shall reduce Registrable Securities represented by Warrant Shares (applied, in such registration the case that some Warrant Shares may be registered, to the extent necessary to reduce Holders on a pro rata basis based on the total number of unregistered Warrant Shares held by such Holders); and
c. Third, the Company shall reduce Registrable Securities to represented by Shares (applied, in the case that some Shares may be included in such offering registered, to the Holders on a pro rata basis based on the total number recommended of unregistered Shares held by such managing underwriter or underwritersHolders). In the event of a cutback hereunder, the Company shall give the Holder at least three (3) Trading Days prior written notice along with the calculations as to such Xxxxxx’s allotment. In the event the Holder making Company amends the Demand shall receive notice pursuant Registration Statement in accordance with the foregoing, the Company will use its best efforts to this Section 2(c) that file with the amount of Registrable Securities to be offered for such Holder shall be reducedCommission, such Holder shall be entitled to withdraw the Demand as promptly as allowed by written notice Commission or SEC Guidance provided to the Company within seven (7) days after receipt or to registrants of securities in general, one or more registration statements on Form S-3 or such noticeother form available to register for resale those Registrable Securities that were not registered for resale on the Demand Registration Statement, with the effect that such Demand shall be deemed not to have been madeas amended.
(d) If any If: (i) the Demand Registration Statement is not filed on or prior to its Filing Date (if the Company files the Demand Registration Statement without affording the Holders the opportunity to review and comment on the same as required by Section 4(a) herein or the Company subsequent withdraws the filing of the Registration Statement, the Company shall be deemed to have not satisfied this clause as of the Filing Date (i)), or (ii) the Company fails to file with the Commission a request for acceleration of a Demand Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the Securities Act, within five Trading Days of the date that the Company is notified (orally or in writing, whichever is earlier) by the Commission that such Registration Statement will not be “reviewed” or will not be subject to further review, or (iii) prior to the effective date of a Demand Registration Statement, the Company fails to file a pre-effective amendment and otherwise respond in writing to comments made by the Commission in respect of such Registration Statement within ten (10) calendar days after the receipt of comments by or notice from the Commission that such amendment is required in order for such Registration Statement to be declared effective, or (iv) a Demand Registration Statement registering for resale all of the Registrable Securities covered (or the maximum number of Registrable Securities allowed by the Commission pursuant to Section 2(b)) is not declared effective by the Commission by the Effectiveness Date of the Demand Registration Statement or (v) after the effective date of a Demand 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, for more than ten (10) consecutive calendar days or more than an aggregate of fifteen (15) calendar days (which need not be sold in consecutive calendar days) during any 12-month period (any such failure or breach being referred to as an underwritten offering“Event”, and for purposes of clauses (i) and (iv), the Approved Investorsdate 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 (iii) the date which such ten (10) calendar day period is exceeded, and for purpose of clause (v) the date on which such ten (10) or fifteen (15) calendar day period, as applicable, is exceeded being referred to as “Event Date”), then, in addition to any other rights the aggregateHolders may have hereunder or under applicable law, that own or will own 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 majority penalty, equal to the product of 2.0% multiplied by the aggregate Subscription Amount paid by such Holder pursuant to the Purchase Agreement, up to a maximum of 10.0%. 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.
(e) If Form S-3 is not available for the registration of the resale of Registrable Securities hereunder, the Company shall (i) register the resale of the Registrable Securities on another appropriate form and (ii) undertake to register the Registrable Securities on Form S-3 as soon as such form is available, provided that the Company 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 requested to register (including the Requested Securities but excluding any securities to be issued declared effective by the Company), shall have the right to select the investment banker or investment bankers and manager or managers that will underwrite the offering; provided, however, that such investment bankers and managers must be reasonably satisfactory Commission.
(f) Notwithstanding anything to the Companycontrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as any underwriter without the prior written consent of such Holder.
Appears in 1 contract
Samples: Registration Rights Agreement (Cyclo Therapeutics, Inc.)
Demand Registration. (ai) At Any Holder that holds any time beginning six months from Registrable Securities shall have the date of this Agreement option and for right, exercisable by delivering a period of three years thereafter, the Holder may make one written request for registration under the Securities Act, notice to Triangle (a "“Demand Registration") of all or part of Holder's Registrable Securities (but such part, together with the number of securities requested by other Approved Investors, to be included in such Demand Registration pursuant to this Section 2, shall have an estimated market value at the time of such request (based upon the then market price of a share of Common Stock of the Company) of at least $250,000. Notwithstanding the foregoing, the Company shall not be required to file any registration statement on behalf of the Holder within twelve months after the effective date of any earlier registration statement so long as the Holder was given a notice offering it the opportunity to sell Registrable Securities under the earlier registration statement Notice,” and the Holder did not request that its Registrable Securities be included; provideddelivers such a Demand Notice, howeverthe “Initiating Holder”), that if Holder requested that its Registrable Securities be included to require Triangle to, pursuant to the terms of and subject to the limitations contained in this Agreement, prepare and file with the earlier registration statement but not all were so included through no fault Commission a Registration Statement registering the offering and sale of the Investor, the Investor may, but shall not be obligated to, require the Company to file another registration statement pursuant to a Demand Registration. Within fifteen (15) days after receipt of a request for a Demand Registration, the Company shall give written notice (the "Notice") of such request to all other Approved Investors number and shall include in such registration all Registrable Securities that the Company has received written requests for inclusion therein within 15 days after the Notice is given (the "Requested Securities"). Thereafter, the Company may elect to include in such registration additional shares of Common Stock to be issued by the Company. All requests made pursuant to this Section 2 shall specify the aggregate number type of Registrable Securities to be registered.
(b) A registration shall not constitute a Demand Registration under this Section 2 until it has become effective.
(c) The Holder making on the terms and conditions specified in the Demand Registration may elect whether Notice in accordance with the offering intended timing and method or methods of such Registrable Securities pursuant to such Demand Registration shall be distribution thereof specified in the form of a firm commitment underwritten offering or otherwise; providedDemand Notice, however, that such Holder which may not elect that such offering be made include sales on a delayed or continuous basis pursuant to rule Rule 415 under the Securities Act(a “Demand Registration”). In any case in which an offering is in the form of a firm commitment underwritten offering, if the managing underwriter or underwriters of such offering advise the Company in writing that in its or their opinion the number of Registrable Securities proposed to be sold in such offering exceeds The Demand Notice must set forth the number of Registrable Securities that can be sold in such offering without aversely affecting the market for the Company's Common Stock, the Company will Initiating Holder intends to include in such registration Demand Registration. Notwithstanding anything to the number of contrary herein, in no event shall Triangle be required to effectuate a Demand Registration for Registrable Securities that in having an aggregate value of less than $30 million based on the opinion VWAP of such managing underwriter or underwriters can be sold without adversely affecting Registrable Securities as of the market for the Company's Common Stock. In such event, the number date of Registrable Securities, if any, to be offered for the accounts of Approved Investors (including the Holder making the Demand Registration) shall be reduced pro rata on the basis of the relative number of any Registrable Securities requested by each Approved Investor to be included in such registration to the extent necessary to reduce the total number of Registrable Securities to be included in such offering to the number recommended by such managing underwriter or underwriters. In the event the Holder making the Demand shall receive notice pursuant to this Section 2(c) that the amount of Registrable Securities to be offered for such Holder shall be reduced, such Holder shall be entitled to withdraw the Demand by written notice to the Company within seven (7) days after receipt of such notice, with the effect that such Demand shall be deemed not to have been madeNotice.
(dii) If any Within five Business Days of the Registrable Securities covered by receipt of the Demand Notice, Triangle shall give written notice of such Demand Notice to all Holders and, as soon as reasonably practicable thereafter, shall, subject to the limitations of this Section 2(a), file a Demand Registration are to be sold in an underwritten offering, the Approved Investors, in the aggregate, that own or will own a majority Statement covering all of the Registrable Securities that the Company has been requested to register Holders shall in writing request (including the Requested Securities but excluding any securities such request to be issued given to Triangle within three days of receipt of such notice of the Demand Notice given by Triangle pursuant to this Section 2(a)(ii)) to be included in such Demand Registration as promptly as practicable as directed by the CompanyInitiating Holder in accordance with the terms and conditions of the Demand Notice and use all commercially reasonable efforts to cause such Registration Statement to become effective under the Securities Act and remain effective under the Securities Act until all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, Triangle is not obligated hereunder to effect (A) more than one Demand Registration in any 12 month period, (B) more than a total of three Demand Registrations pursuant to this Agreement and (C) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of the Registrable Securities held by the Holders providing such Demand Notice shall have become effective under the Securities Act and remains effective under the 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.
(iv) Notwithstanding any other provision of this Section 2(a), Triangle shall have not be required to effect a registration or file a Registration Statement (or any amendment thereto) for a period of up to 60 days, if (A) the right Board determines that a postponement is in the best interest of Triangle and its stockholders generally due to select a pending transaction involving Triangle, (B) the investment banker Board determines such registration would render Triangle unable to comply with applicable securities laws or investment bankers and manager or managers (C) the Board determines such registration would require disclosure of material information that will underwrite the offeringTriangle has a bona fide business purpose for preserving as confidential (any such period, a “Blackout Period”); provided, however, that (i) in no event shall any Blackout Period together with any Suspension Period collectively exceed an aggregate of 120 days in any 12 month period, (ii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or any Suspension Period, Triangle shall not engage in any transaction involving the offer, issuance, sale, or purchase of Triangle Securities (whether for the benefit of Triangle or a third Person), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or in connection with the conversion or exercise of outstanding securities, including the Convertible Note, and (iii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall not file a registration statement (or any amendment or supplement thereto) for any other holder of registration rights.
(v) Triangle may include in any such investment bankers Demand Registration other Triangle Securities for sale for its own account or for the account of any other Person; provided that if the managing underwriter, if any, for the Underwritten Offering determines that the type or number of Triangle Securities proposed to be offered in such offering would likely have an adverse effect in any material respect on the price, timing or distribution of the Registrable Securities proposed to be included in such offering, the Registrable Securities to be sold by the Holders shall be included in such registration before any Triangle Securities proposed to be sold for the account of Triangle or any other Person.
(vi) Subject to the limitations contained in this Agreement, Triangle shall effect any Demand Registration on Form S-3 (except if Triangle is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such Demand Registration shall be effected on another appropriate form for such purpose pursuant to the Securities Act) and managers must if Triangle becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to Triangle); provided, however, that if at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to Triangle that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, Triangle will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(vii) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), Triangle shall, (A) promptly prepare and file or cause to be prepared and filed (1) such additional forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents, as may be necessary or advisable to register or qualify the securities subject to such Demand Registration, including under the securities laws of such states as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, Triangle 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 satisfactory necessary or appropriate or reasonably requested by the Holders to enable the CompanyHolders to consummate a public sale of such Registrable Securities in accordance with the intended timing and method or methods of distribution thereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Triangle Petroleum Corp)
Demand Registration. (a) At any time beginning six months from at least one hundred eighty (180) days following the date of this Agreement and for a period of three years thereafterDistribution, the Holder Stockholder may make one written request submit a Registration Request for registration under the Securities Act, (a "Demand Registration") of Registration covering all or part of Holder's his Registrable Securities Shares, which request must request registration of at least Two Hundred Fifty Thousand (but such part, together with 250,000) Shares. The Registration Request shall state the number of securities requested by other Approved Investors, Registrable Shares to be included in such Demand registered and the intended plan of distribution thereof. eCost shall be obligated to honor Registration Requests to register Registrable Shares pursuant to this Section 2 on a total of only two (2, shall have an estimated market value at the time of such ) occasions. A request (based upon the then market price of withdrawn pursuant to Subsection 2(c) hereof or deemed to be a share of Common Stock of the CompanyPiggyback Registration pursuant to Subsection 2(d) of at least $250,000. Notwithstanding the foregoing, the Company hereof shall not be counted as a Registration Request. eCost shall be deemed to have satisfied its obligation under this Section 2 with respect to a Registration Request if a registration statement filed pursuant to a Registration Request becomes effective under the Act and remains effective for the period required hereby, or if the failure of such a registration statement to become or remain effective results primarily from any action or inaction of the Stockholder. Subject to the conditions and limitations of Section 4 hereof, eCost will use commercially reasonable efforts to file any a registration statement on behalf under the Act registering the Registrable Shares covered by a Registration Request within forty-five (45) days after it receives such Registration Request unless such Registration Request is withdrawn as permitted by Subsection 2(c) hereof.
(b) The right to Demand Registration is subject to the procedures in Section 4 hereof and the following additional conditions and limitations:
(i) The Stockholder may withdraw the Stockholder's Registrable Shares from the Registration Request at any time prior to the time the registration statement becomes effective, provided that eCost may ignore a notice of withdrawal made within twenty-four (24) hours of the Holder within twelve months after time the effective date of any earlier registration statement so long as becomes effective. Following such a withdrawal, eCost shall not take any further action to register the Holder was given a notice offering it the opportunity to sell withdrawn Registrable Securities under the earlier registration statement Shares, and the Holder did not request that its Registrable Securities be included; provided, however, that if Holder requested that its Registrable Securities be included in the earlier registration statement but not all were so included through no fault of the Investor, the Investor may, but shall not be obligated toto register any Registrable Shares if the number of non-withdrawn Registrable Shares is less than Two Hundred Fifty Thousand (250,000) Shares. However, require except as otherwise provided in Subsection 2(c) or (d) hereof, a Registration Request, once made, shall count as having been made for purposes of Subsection 2(a), unless it is withdrawn by the Company to file another registration statement pursuant to a Demand Registration. Within Stockholder making such request within fifteen (15) days after receipt having been made or it is withdrawn before eCost devotes any significant efforts to the preparation of the registration statement.
(ii) Unless otherwise agreed to by eCost, any Demand Registration must relate to a request firm commitment underwriting for which the managing underwriter shall be reasonably satisfactory to eCost (such satisfaction not to be withheld unreasonably) or a Demand Registrationnon-underwritten offering on a "shelf" basis in accordance with Rule 415 under the Act.
(iii) eCost shall be permitted to use any registration form available to it for the registration of Registrable Shares, the Company shall give written notice (the "Notice") of such request to all other Approved Investors and shall include in such registration all Registrable Securities that the Company has received written requests for inclusion therein within 15 days after the Notice is given (the "Requested Securities"). Thereafter, the Company may elect not be obligated to include in such registration additional shares of Common Stock the prospectus any information that may be incorporated by reference or that is not required to be issued included therein by the Company. All requests made pursuant to this Section 2 shall specify the aggregate number of Registrable Securities to be registeredapplicable registration form.
(biv) A registration shall not constitute a Demand No Registration Request may be made by the Stockholder if the amount of shares proposed to be sold could be sold by the Stockholder without limitation under this Section 2 until it has become effectiveRule 144 under the Act.
(c) The Holder making Notwithstanding the Demand foregoing, if eCost is aware at the time it receives a Registration may elect whether the offering Request that a registered public sale of such Registrable Securities pursuant to such Demand Registration shall be in the form of a firm commitment underwritten offering Shares is being contemplated or otherwise; provided, however, that such Holder may not elect that such offering be made on a delayed or continuous basis pursuant to rule 415 under the Securities Act. In any case in which an offering is in the form process of a firm commitment underwritten offeringbeing prepared (except as provided in Section 7 hereof), if it will notify the managing underwriter or underwriters of such offering advise the Company in writing that in its or their opinion the number of Registrable Securities proposed to be sold in such offering exceeds the number of Registrable Securities that can be sold in such offering without aversely affecting the market for the Company's Common Stock, the Company will include in such registration the number of Registrable Securities that in the opinion of such managing underwriter or underwriters can be sold without adversely affecting the market for the Company's Common Stock. In such event, the number of Registrable Securities, if any, to be offered for the accounts of Approved Investors (including the Holder making the Demand Registration) shall be reduced pro rata on the basis Stockholder of the relative number of any Registrable Securities requested by each Approved Investor to be included in relevant facts, and the Stockholder who joined such registration to Registration Request shall have the extent necessary to reduce the total number of Registrable Securities to be included in such offering to the number recommended by such managing underwriter or underwriters. In the event the Holder making the Demand shall receive notice pursuant to this Section 2(c) that the amount of Registrable Securities to be offered for such Holder shall be reduced, such Holder shall be entitled right to withdraw the Demand request by written notice given to the Company eCost within seven ten (710) days after receipt of eCost's notice under this Subsection 2(c), in which case such notice, with the effect that such Demand shall Registration Request will be deemed not to have been mademade for purposes of Subsection 2(a).
(d) If For an additional ninety (90) days following the date on which the Stockholder may first submit a Registration Request for Demand Registration, eCost will be entitled to include Shares in any of the Registrable Securities covered by a Demand Registration are and to reduce the number of Shares to be sold in an underwritten offeringby the Stockholder thereunder to a minimum of twenty percent (20%), collectively, of the total offering plus any underwriters' over-allotment option. If, as a result of this cutback procedure, the Approved Investors, number of Shares sold by the Stockholder in such offering constitutes less than the aggregate, that own or will own a majority number of the Registrable Securities that the Company has been Shares requested to register (including the Requested Securities but excluding any securities to be issued registered by the Company)Stockholder, shall the registration would be treated as a Piggyback Registration under Section 3 below, and a Registration Request will be deemed not to have the right to select the investment banker or investment bankers and manager or managers that will underwrite the offering; provided, however, that such investment bankers and managers must be reasonably satisfactory to the Companybeen made for purposes of Subsection 2(a) hereof.
Appears in 1 contract
Demand Registration. (a) At any time beginning six months and from time to time, the Controlling Shareholder shall have the option and right, exercisable by delivering a written notice to the Company (each such notice, a “Demand Notice”), to require the Company to, pursuant to the terms of and subject to the limitations contained in this Agreement, prepare and file with the Commission a Registration Statement registering the offering and sale of the number and type of Registrable Securities 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, which may include sales on a delayed or continuous basis pursuant to Rule 415 (the “Demand Registration”). The Company shall be obligated to effect an unlimited number of registrations for the Controlling Shareholder under this Section 2.1, subject to market conditions.
(b) Subject to the provisions of Section 2.5 below, the Company shall use its reasonable best efforts to file a Registration Statement (which may be submitted as a confidential submission to the extent permitted by applicable securities laws) as promptly as practicable, in any case within customary time periods, after receipt of each Demand Notice, and shall use its reasonable best efforts to cause such Registration Statement to be declared effective under the Securities Act as promptly as practicable after the filing thereof and to remain effective under the Securities Act for not less than the period set forth in clauses (i) to (iii) of this Section 2.1(b) (the “Effectiveness Period”):
(i) The Company shall use reasonable best efforts to keep any shelf registration statement (a “Shelf Registration Statement”) filed on Form F-3 continuously effective under the Securities Act to permit the Prospectus forming a part of it to be usable by the Controlling Shareholder until the date as of this Agreement which the Controlling Shareholder no longer holds Registrable Securities.
(ii) If the Registration Statement filed is a Shelf Registration Statement on any form other than Form F-3 and for a period of three years thereaftersuch Registration Statement was not filed in connection with an Underwritten Offering, the Holder may make one written request for registration Company shall use commercially reasonable efforts to keep the Registration Statement continuously effective under the Securities Act until such time as the Company is eligible to file a Shelf Registration Statement on Form F-3 covering the Registrable Securities thereon or such shorter period during which all Registrable Securities included in the Registration Statement have actually been sold.
(iii) If the Registration Statement filed is a Shelf Registration Statement on any form other than Form F-3 and such Registration Statement was filed in connection with an Underwritten Offering, the Company shall use commercially reasonable efforts to keep the Registration Statement continuously effective under the Securities Act, (for a "Demand Registration") of all or part of Holder's Registrable Securities (but such part, together with the number of securities requested by other Approved Investors, to be included in such Demand Registration pursuant to this Section 2, shall have an estimated market value at the time of such request (based upon the then market price of a share of Common Stock of the Company) period of at least $250,000. 180 days after the Effective Date thereof or such other period as the underwriters for any Underwritten Offering may determine to be appropriate, or such shorter period during which all Registrable Securities included in the Registration Statement have actually been sold; provided that such period shall be extended for a period of time equal to the period the Controlling Shareholder may be required to refrain from selling any securities included in the Registration Statement at either the request of the Company or an underwriter of the Company pursuant to the provisions of this Agreement.
(c) In addition, the Effectiveness Period shall be extended by one (1) day for each additional day during any Suspension Period in effect following the Effective Date applicable thereto pursuant to Section 2.5.
(d) The Registrable Securities covered by any Registration Statement demanded under this Section 2.1 shall be distributed by means of a firm commitment underwritten offering unless otherwise agreed to in writing by the Controlling Shareholder.
(e) Notwithstanding the foregoing, the Company shall not be required to file effect registration under this Section 2.1 before ninety (90) days after the Effective Date of any other previously effective Registration Statement for an Underwritten Offering of securities pursuant to a Controlling Shareholder-initiated registration (other than pursuant to a registration statement on behalf of the Holder within twelve months after the effective date of any earlier registration statement so long Form F-4, S-4 or S-8) or a Piggy-Back Underwritten Offering (as the Holder was given a notice offering it the opportunity to sell Registrable Securities under the earlier registration statement and the Holder did not request that its Registrable Securities be included; defined below), provided, however, that if Holder requested that its Registrable Securities be included nothing in the earlier registration statement but not all were so included through no fault of the Investor, the Investor may, but this clause shall not be obligated to, require the Company to file another registration statement pursuant to a Demand Registration. Within fifteen (15) days after receipt of a request for a Demand Registration, the Company shall give written notice (the "Notice") of such request to all other Approved Investors and shall include in such registration all Registrable Securities that the Company has received written requests for inclusion therein within 15 days after the Notice is given (the "Requested Securities"). Thereafter, the Company may elect to include in such registration additional shares of Common Stock to be issued by derogate from the Company. All requests made pursuant to this ’s obligations under Section 2 shall specify the aggregate number of Registrable Securities to be registered2.4 hereof.
(b) A registration shall not constitute a Demand Registration under this Section 2 until it has become effective.
(c) The Holder making the Demand Registration may elect whether the offering of such Registrable Securities pursuant to such Demand Registration shall be in the form of a firm commitment underwritten offering or otherwise; provided, however, that such Holder may not elect that such offering be made on a delayed or continuous basis pursuant to rule 415 under the Securities Act. In any case in which an offering is in the form of a firm commitment underwritten offering, if the managing underwriter or underwriters of such offering advise the Company in writing that in its or their opinion the number of Registrable Securities proposed to be sold in such offering exceeds the number of Registrable Securities that can be sold in such offering without aversely affecting the market for the Company's Common Stock, the Company will include in such registration the number of Registrable Securities that in the opinion of such managing underwriter or underwriters can be sold without adversely affecting the market for the Company's Common Stock. In such event, the number of Registrable Securities, if any, to be offered for the accounts of Approved Investors (including the Holder making the Demand Registration) shall be reduced pro rata on the basis of the relative number of any Registrable Securities requested by each Approved Investor to be included in such registration to the extent necessary to reduce the total number of Registrable Securities to be included in such offering to the number recommended by such managing underwriter or underwriters. In the event the Holder making the Demand shall receive notice pursuant to this Section 2(c) that the amount of Registrable Securities to be offered for such Holder shall be reduced, such Holder shall be entitled to withdraw the Demand by written notice to the Company within seven (7) days after receipt of such notice, with the effect that such Demand shall be deemed not to have been made.
(d) If any of the Registrable Securities covered by a Demand Registration are to be sold in an underwritten offering, the Approved Investors, in the aggregate, that own or will own a majority of the Registrable Securities that the Company has been requested to register (including the Requested Securities but excluding any securities to be issued by the Company), shall have the right to select the investment banker or investment bankers and manager or managers that will underwrite the offering; provided, however, that such investment bankers and managers must be reasonably satisfactory to the Company.
Appears in 1 contract
Demand Registration. (a) At any time beginning six months from Upon expiration of the date of this Agreement and for a period of three years thereafterLock-Up Period as provided in the Purchase Agreement, the Holder holders of a majority of the Registrable Securities then outstanding may make one written request for registration under the Securities Act, (a "Demand Registration") Act of all of the Registrable Securities that are not then registered on an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 or part any other form for which the Company then qualifies or which counsel for the Company shall deem appropriate and which form shall be available for the resale by the Holders of Holder's all of the Registrable Securities (each, a “Demand Registration”). Upon receipt of such request, the Company shall promptly (but in no event later than twenty (20) calendar days after receipt of such part, together with request) deliver notice of such request to all other holders of Registrable Securities who shall then have ten (10 calendar days from the number date such notice is given to notify the Company in writing of securities requested by other Approved Investors, their desire to be included in such Demand registration. The Company shall (i) use its commercially reasonable efforts to make the initial filing of the Registration Statement within ninety (90) calendar days after the date on which the initial request is given (ii) use its commercially reasonable efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter, and (iii) use its commercially reasonable efforts to keep such Registration Statement effective until the date on which all securities under such Registration Statement have ceased to be Registrable Securities (the “Effectiveness Period”). The Registration Statement filed hereunder shall contain (except if otherwise required pursuant to this Section 2, shall have an estimated market value at written comments received from the time Commission upon a review of such request (based upon Registration Statement) that “Plan of Distribution” in substantially the then market price of a share of Common Stock of the Company) of at least $250,000. form attached hereto as Annex A. Notwithstanding the foregoing, in the event that the staff (the “Staff”) of the Commission should limit the number of Registrable Securities that may be sold pursuant to the Registration Statement, the Company may remove from the Registration Statement such number of Registrable Securities as specified by the Commission on behalf of all of the holders of Registrable Securities on a pro rata basis among the holders thereof. In such event, the Company shall give the Purchasers prompt notice of the number of Registrable Securities excluded therefrom. The Company shall not be required to file effect a registration pursuant to Form S-3 (or any registration statement on behalf of the Holder within twelve months after the effective date of any earlier registration statement so long as the Holder was given a notice offering it the opportunity to sell Registrable Securities under the earlier registration statement and the Holder did not request that its Registrable Securities be included; provided, however, that if Holder requested that its Registrable Securities be included in the earlier registration statement but not all were so included through no fault of the Investor, the Investor may, but shall not be obligated to, require other form for which the Company to file another registration statement pursuant to a Demand Registration. Within fifteen (15) days after receipt of a request then qualifies or which counsel for a Demand Registration, the Company shall give written notice (deem appropriate and which form shall be available for the "Notice") of such request to all other Approved Investors and shall include in such registration all Registrable Securities that the Company has received written requests for inclusion therein within 15 days after the Notice is given (the "Requested Securities"). Thereafter, the Company may elect to include in such registration additional shares of Common Stock to be issued resale by the Company. All requests made pursuant to this Section 2 shall specify Holders of all of the aggregate number Registrable Securities) more than two (2) times for the holders of Registrable Securities to be registeredas a group.
(b) A registration shall not constitute a Demand Registration under this Section 2 until it has become effective.
(c) The Holder making the Demand Registration may elect whether the offering of such Registrable Securities pursuant to such Demand Registration shall be in the form of a firm commitment underwritten offering or otherwise; provided, however, that such Holder may not elect that such offering be made on a delayed or continuous basis pursuant to rule 415 under the Securities Act. In any case in which an offering is in the form of a firm commitment underwritten offering, if the managing underwriter or underwriters of such offering advise the Company in writing that in its or their opinion the number of Registrable Securities proposed to be sold in such offering exceeds the number of Registrable Securities that can be sold in such offering without aversely affecting the market for the Company's Common Stock, the Company will include in such registration the number of Registrable Securities that in the opinion of such managing underwriter or underwriters can be sold without adversely affecting the market for the Company's Common Stock. In such event, the number of Registrable Securities, if any, to be offered for the accounts of Approved Investors (including the Holder making the Demand Registration) shall be reduced pro rata on the basis of the relative number of any Registrable Securities requested by each Approved Investor to be included in such registration to the extent necessary to reduce the total number of Registrable Securities to be included in such offering to the number recommended by such managing underwriter or underwriters. In the event the Holder making the Demand shall receive notice pursuant to this Section 2(c) that the amount of Registrable Securities to be offered for such Holder shall be reduced, such Holder shall be entitled to withdraw the Demand by written notice to the Company within seven (7) days after receipt of such notice, with the effect that such Demand shall be deemed not to have been made.
(d) If any of the Registrable Securities covered by a Demand Registration are to be sold in an underwritten offering, the Approved Investors, in the aggregate, that own or will own a majority of the Registrable Securities that the Company has been requested to register (including the Requested Securities but excluding any securities to be issued by the Company), shall have the right to select the investment banker or investment bankers and manager or managers that will underwrite the offering; provided, however, that such investment bankers and managers must be reasonably satisfactory to the Company.
Appears in 1 contract
Samples: Registration Rights Agreement (Viveve Medical, Inc.)
Demand Registration. (a) At any time beginning six months and from time to time following the date last day of this Agreement and for a period of three years thereafterthe Holding Period, the Holder Investor Holders may make one written request for in writing that the Company effect the registration under the Securities Act, (a "Demand Registration") Act of all or part any portion of Holder's the Registrable Securities held by the Investor Holders (each, a “Demand Notice”). Promptly after its receipt of any Demand Notice (but in no event later than 10 business days following receipt thereof), the Company shall deliver written notice thereof to all other Holders and shall use commercially reasonable efforts to file, as promptly as practicable but in no event later than 45 days after its receipt of such partDemand Notice, together a Registration Statement covering all Registrable Securities that have been requested to be registered (i) in the Demand Notice and (ii) by any other Holders by written notice to the Company delivered within 10 days after the date on which the Company has given such Holders notice of the Demand Notice, in accordance with the number methods(s) of securities distribution specified by the Investor Holders in the Demand Notice. Any registration requested by other Approved Investors, to be included in such Demand Registration pursuant to this Section 2, shall have an estimated market value at the time of such request 2(a) or pursuant to Section 3(a) is referred to herein as a “Demand Registration.”
(based upon the then market price of a share of Common Stock of the Companyb) of at least $250,000. Notwithstanding the foregoingSubject to Section 3(a), the Company shall not be required to file any registration statement on behalf of effect more than two Demand Registrations (other than non-underwritten Short-Form Registrations pursuant to Section 3) and Shelf Underwritten Offerings in the Holder within twelve months after the effective date of any earlier registration statement so long as the Holder was given a notice offering it the opportunity to sell Registrable Securities under the earlier registration statement and the Holder did not request that its Registrable Securities be includedaggregate; provided, however, that if Holder a Registration Statement shall not count as a Demand Registration requested that its under Section 2(a) unless and until it has become effective and the Holders requesting such registration are able to register and sell at least 50% of the Registrable Securities requested to be included in the earlier registration statement but not all were so included through no fault of the Investor, the Investor may, but such registration. The Company shall not be obligated toto effect any Demand Registration if the Registrable Securities to be included in such Registration Statement do not have an anticipated aggregate public offering price (before any underwriting discounts and commissions), require determined by the Company in good faith, of at least $1,000,000. The Company shall not be obligated to file another effect any Demand Registration during the period starting with the date 60 days prior to the Company’s good faith estimate of the date of filing of, and ending on the 180th day immediately following the effective date of, any registration statement pursuant pertaining to securities of the Company (other than (i) a Demand Registrationregistration effected solely to implement an employee benefit plan or a transaction to which Rule 145 under the Securities Act is applicable or (ii) a Registration Statement on Form X-0, X-0 or any successor form thereto or another form not available for registering the Registrable Securities for sale to the public). Within fifteen (15) The Company may postpone for up to 180 days after receipt the filing or effectiveness of a request Registration Statement for a Demand RegistrationRegistration if the Board determines in its reasonable good faith judgment that such Demand Registration would (i) materially interfere with a significant acquisition, corporate reorganization, capital transaction or other similar transaction involving the Company shall give written notice Company; (the "Notice"ii) require premature disclosure of such request to all other Approved Investors and shall include in such registration all Registrable Securities material information that the Company has received written requests a bona fide business purpose for inclusion therein within 15 days after preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act; provided, that in such event the Investor Holders shall be entitled to withdraw the Demand Notice relating to such Demand Registration and, if such Demand Notice is given (withdrawn, such Demand Registration shall not count as one of the "Requested Securities"). Thereafter, permitted Demand Registrations hereunder and the Company shall pay all registration expenses in connection with such registration. The Company may elect to include in such registration additional shares of Common Stock to be issued by the Company. All requests made pursuant to this Section 2 shall specify the aggregate number of Registrable Securities to be registered.
(b) A registration shall not constitute delay a Demand Registration under this Section 2 until it has become effectivehereunder only once in any period of 12 consecutive months.
(c) The Holder making If the Investor Holders make a Demand Registration may Notice and elect whether to distribute the offering of such Registrable Securities pursuant to such Demand Registration shall be covered thereby in the form of a firm commitment underwritten offering or otherwise; provided, however, that such Holder may not elect that such offering be made on a delayed or continuous basis pursuant to rule 415 under the Securities Act. In any case in which an offering is in the form of a firm commitment underwritten offering, if they shall so advise the Company as a part of the Demand Notice and the Company shall include such information in its notice to the other Holders. The Investor Holders shall select the managing underwriter(s) in connection with such offering, subject to the prior written approval (not to be unreasonably withheld) by the Company of such managing underwriter(s).
(d) If a Demand Registration involves an underwritten offering and the managing underwriter or underwriters of such offering advise advises the Company and the Investor Holders in writing that in its or their opinion the number of shares of Common Stock proposed to be included in the Demand Registration exceeds the number of shares of Common Stock which can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to be included in such registration would adversely affect the price per share of the Registrable Securities proposed to be sold in such offering exceeds underwritten offering, the Company shall include in such Demand Registration: (i) first, the number of shares of Common Stock that the Holders propose to sell, allocated pro rata among the respective Holders thereof on the basis of the number of Registrable Securities that can be sold in owned by each such offering without aversely affecting the market for the Company's Common Stock, the Company will include in such registration the number of Registrable Securities that in the opinion of such managing underwriter or underwriters can be sold without adversely affecting the market for the Company's Common Stock. In such eventHolder; and (ii) second, the number of Registrable Securities, if any, to be offered for the accounts shares of Approved Investors (including the Holder making the Demand Registration) shall be reduced pro rata on the basis of the relative number of any Registrable Securities requested by each Approved Investor Common Stock proposed to be included therein by any other Persons (including shares of Common Stock to be sold for the account of the Company and/or other holders of Common Stock), allocated among such Persons in such registration to the extent necessary to reduce the total number of Registrable Securities to be included in such offering to the number recommended by such managing underwriter or underwriters. In the event the Holder making the Demand shall receive notice pursuant to this Section 2(c) that the amount of Registrable Securities to be offered for such Holder shall be reduced, such Holder shall be entitled to withdraw the Demand by written notice to the Company within seven (7) days after receipt of such notice, with the effect that such Demand shall be deemed not to have been mademanner as they may agree.
(de) If The Company shall not include in any Demand Registration that does not involve an underwritten offering any securities which are not Registrable Securities without the prior written consent (not to be unreasonably withheld) of the Registrable Securities covered by a Demand Registration are to be sold in an underwritten offering, the Approved Investors, in the aggregate, that own or will own a majority of the Registrable Securities that the Company has been requested to register (including the Requested Securities but excluding any securities to be issued by the Company), shall have the right to select the investment banker or investment bankers and manager or managers that will underwrite the offering; provided, however, that such investment bankers and managers must be reasonably satisfactory to the CompanyInvestor Holders.
Appears in 1 contract
Samples: Registration Rights Agreement (MHI Hospitality CORP)
Demand Registration. (a) At any time beginning six months from Upon the date of this Agreement and for a period of three years thereafter, the Holder may make one written request for registration under the Securities Act, (a "Demand Registration"“Notice”) of all or part of Holder's Registrable Securities (but such part, together with the number of securities requested by other Approved Investors, to be included in such Demand Registration pursuant to this Section 2, shall have an estimated market value Holders collectively owning at the time of such request (based upon the then market price of a share of Common Stock least 5% of the Company) of at least $250,000. Notwithstanding the foregoingthen-outstanding Registrable Securities, the Company shall not be required to file any with the Commission, as soon as reasonably practicable, but in no event more than 90 days following the receipt of the Notice, a registration statement on behalf (each a “Registration Statement”) under the Securities Act providing for the resale of such Registrable Securities (which may, at the option of the Holder within twelve months after the effective date of any earlier Holders giving such Notice, be a registration statement so long as the Holder was given a notice offering it the opportunity to sell Registrable Securities under the earlier registration statement and Securities Act that provides for the Holder did not request that its Registrable Securities be included; provided, however, that if Holder requested that its Registrable Securities be included in the earlier registration statement but not all were so included through no fault of the Investor, the Investor may, but shall not be obligated to, require the Company to file another registration statement pursuant to a Demand Registration. Within fifteen (15) days after receipt of a request for a Demand Registration, the Company shall give written notice (the "Notice") of such request to all other Approved Investors and shall include in such registration all Registrable Securities that the Company has received written requests for inclusion therein within 15 days after the Notice is given (the "Requested Securities"). Thereafter, the Company may elect to include in such registration additional shares of Common Stock to be issued by the Company. All requests made pursuant to this Section 2 shall specify the aggregate number of Registrable Securities to be registered.
(b) A registration shall not constitute a Demand Registration under this Section 2 until it has become effective.
(c) The Holder making the Demand Registration may elect whether the offering resale of such Registrable Securities pursuant to such Demand Registration Rule 415 from time to time by the Holders). There shall be in the form of a firm commitment underwritten offering or otherwise; provided, however, that such Holder may not elect that such offering be made no limit on a delayed or continuous basis pursuant to rule 415 under the Securities Act. In any case in which an offering is in the form of a firm commitment underwritten offering, if the managing underwriter or underwriters of such offering advise the Company in writing that in its or their opinion the number of Registration Statements that may be required by the Holders pursuant to this Section 2.01. The Company shall use its commercially reasonable efforts to cause each Registration Statement to be declared effective by the Commission as soon as reasonably practicable after the initial filing of the Registration Statement. Any Registration Statement shall provide for the resale pursuant to any method or combination of methods legally available to, and requested by, the Holders of any and all such Registrable Securities proposed covered by such Registration Statement. The Company shall use its commercially reasonable efforts to cause each Registration Statement filed pursuant to this Section 2.01 to be sold in such offering exceeds the number of Registrable Securities that can be sold in such offering without aversely affecting the market for the Company's Common Stockcontinuously effective, the Company will include in such registration the number of Registrable Securities that in the opinion of such managing underwriter or underwriters can be sold without adversely affecting the market for the Company's Common Stock. In such event, the number of Registrable Securities, if any, to be offered for the accounts of Approved Investors (including the Holder making the Demand Registration) shall be reduced pro rata on the basis of the relative number of any Registrable Securities requested by each Approved Investor to be included in such registration supplemented and amended to the extent necessary to reduce ensure that it is available for the total number resale of all such Registrable Securities to be included in by the Holders until all such offering to the number recommended by such managing underwriter or underwriters. In the event the Holder making the Demand shall receive notice pursuant to this Section 2(c) that the amount of Registrable Securities to be offered for such Holder shall be reduced, such Holder shall be entitled to withdraw the Demand by written notice to the Company within seven (7) days after receipt of such notice, with the effect that such Demand shall be deemed not to have been made.
(d) If any of the Registrable Securities covered by a Demand such Registration are Statement have ceased to be sold Registrable Securities (the “Effectiveness Period”). Each Registration Statement when effective (and the documents incorporated therein by reference) shall comply as to form in all material respects with all applicable requirements of the Securities Act and the Exchange Act and shall not contain an underwritten offering, untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the Approved Investorsstatements therein not misleading (in the case of any prospectus contained in such Registration Statement, in the aggregate, that own or will own a majority light of the Registrable Securities that the Company has been requested to register (including the Requested Securities but excluding any securities to be issued by the Companycircumstances under which a statement is made), shall have the right to select the investment banker or investment bankers and manager or managers that will underwrite the offering; provided, however, that such investment bankers and managers must be reasonably satisfactory to the Company.
Appears in 1 contract
Demand Registration. (a) At 2.2.1 Upon the written request of Holder at any time beginning six months from after the date one year after the closing of this Agreement and for a period of three years thereafter, the Holder may make one written request for registration under the Securities Act, (a "Demand Registration") of all or part of HolderCompany's Registrable Securities (but such part, together with the number of securities requested by other Approved Investors, to be included in such Demand Registration pursuant to this Section 2, shall have an estimated market value at the time of such request (based upon the then market price of a share first Underwritten Offering of Common Stock of the CompanyCompany made pursuant to an effective Registration Statement under the Securities Act (the "Initial Offering") that the Company file a Registration Statement under the Securities Act covering the registration of at least $250,000Registrable Securities, the Company shall effect, as soon as practicable, the registration under the Securities Act of all Registrable Securities that Holder requests to be registered; provided that the number of securities to be registered shall be not less than 50% of the Registrable Securities held by Holder.
2.2.2 The Company shall not be obligated to effect more than two (2) registrations pursuant to this Section 2.2.
2.2.3 The Company shall not be required to effect a registration pursuant to this Section 2.2 during the period starting with the date of filing of, and ending on the date 90 days following the effective date of the Registration Statement pertaining to the Initial Offering, provided that the Company is making reasonable and good faith efforts to cause such Registration Statement to become effective. Notwithstanding the foregoingIn addition, the Company shall not be required to file any effect a registration statement on behalf of the Holder within twelve months after the effective date of any earlier registration statement so long as the Holder was given a notice offering it the opportunity to sell Registrable Securities under the earlier registration statement and the Holder did not request that its Registrable Securities be included; provided, however, that if Holder requested that its Registrable Securities be included in the earlier registration statement but not all were so included through no fault of the Investor, the Investor may, but shall not be obligated to, require the Company to file another registration statement pursuant to a Demand Registration. Within fifteen (15) days after receipt of a request for a Demand Registration, the Company shall give written notice (the "Notice") of such request to all other Approved Investors and shall include in such registration all Registrable Securities that the Company has received written requests for inclusion therein within 15 days after the Notice is given (the "Requested Securities"). Thereafter, the Company may elect to include in such registration additional shares of Common Stock to be issued by the Company. All requests made pursuant to this Section 2 shall specify 2.2 if within 30 days of receipt of a written request from Holder pursuant to Section 2.2.1, the aggregate number Company gives notice to Holder of Registrable Securities the Company's intention to be registeredfile a Registration Statement for its Initial Offering within 90 days.
(b) A registration shall not constitute a Demand Registration under this Section 2 until it has become effective.
(c) The Holder making 2.2.4 Notwithstanding the Demand Registration may elect whether the offering of such Registrable Securities pursuant to such Demand Registration shall be in the form of a firm commitment underwritten offering or otherwise; provided, however, that such Holder may not elect that such offering be made on a delayed or continuous basis pursuant to rule 415 under the Securities Act. In any case in which an offering is in the form of a firm commitment underwritten offeringforegoing, if the managing underwriter or underwriters of such offering advise the Company in writing that in its or their opinion the number of Registrable Securities proposed shall furnish to be sold in such offering exceeds the number of Registrable Securities that can be sold in such offering without aversely affecting the market for the Company's Common Stock, the Company will include in such registration the number of Registrable Securities that in the opinion of such managing underwriter or underwriters can be sold without adversely affecting the market for the Company's Common Stock. In such event, the number of Registrable Securities, if any, to be offered for the accounts of Approved Investors (including the Holder making the Demand Registration) shall be reduced pro rata on the basis of the relative number of any Registrable Securities requested by each Approved Investor to be included in such registration to the extent necessary to reduce the total number of Registrable Securities to be included in such offering to the number recommended by such managing underwriter or underwriters. In the event the Holder making the Demand shall receive notice requesting a Registration Statement pursuant to this Section 2(c) 2.2, a certificate signed by the Chairman of the Board stating that in the amount good faith judgment of Registrable Securities to the Board of Directors of the Company, it would be offered for such Holder shall be reduced, such Holder shall be entitled to withdraw the Demand by written notice seriously detrimental to the Company within seven (7) days after receipt and its stockholders for such Registration Statement to be filed and it is therefore essential to defer the filing of such notice, with the effect that such Demand shall be deemed not to have been made.
(d) If any of the Registrable Securities covered by a Demand Registration are to be sold in an underwritten offeringStatement, the Approved Investors, in the aggregate, that own or will own a majority of the Registrable Securities that the Company has been requested to register (including the Requested Securities but excluding any securities to be issued by the Company), shall have the right to select defer such filing for a period of not more than 120 days after receipt of the investment banker or investment bankers and manager or managers that will underwrite the offeringrequest of Holder; provided, however, provided that such investment bankers and managers must right to delay a request shall be reasonably satisfactory to exercised by the CompanyCompany no more than twice in any one-year period.
Appears in 1 contract
Samples: Investor's Rights Agreement (One Source Technologies Inc)
Demand Registration. (a1) At any time beginning six months from after the date hereof, and subject to the other provisions of this Agreement and for a period of three years thereafterSection 12, the Holder may make one Executive shall have the right, exercisable by making a written request for registration under to the Securities ActCompany, (a "Demand Registration") to demand that the Company effect the Registration of all or part of Holder's any Registrable Securities (but such part, together in accordance with the number provisions of securities requested by other Approved Investorsthe Act. The Company shall then comply with Section 12(a)(2) hereof. Any provision herein to the contrary notwithstanding, the right to be included in such Demand demand Registration pursuant to this Section 2, 12 shall be limited to one Registration demand per calendar year. A right to demand Registration hereunder shall be deemed to have an estimated market value at the time of such request (based upon the then market price of a share of Common Stock been exercised and all of the Company) 's demand Registration obligations hereunder for such calendar year shall be deemed to be fully satisfied when the registration statement filed on account of at least $250,000such exercise has been declared effective by the Commission. Notwithstanding the foregoing, If any other executive of the Company shall not be required to file any registration statement on behalf of the Holder within twelve months after the effective date of any earlier registration statement so long as the Holder was given a notice offering it the opportunity to sell Registrable Securities under the earlier registration statement and the Holder did not request that its Registrable Securities be included; provided, however, that if Holder requested that its Registrable Securities be included in the earlier registration statement but not all were so included through no fault of the Investor, the Investor may, but shall not be obligated to, require the Company to file another registration statement pursuant to a Demand Registration. Within fifteen (15) days after receipt of a request for a Demand Registration, the Company shall give written notice (the "Notice") of such request to all other Approved Investors and shall include in such registration all Registrable Securities that the Company has received written requests for inclusion therein within 15 days after the Notice is given (the "Requested Securities"). Thereafter, the Company may elect to include in such registration additional shares of Common Stock to be issued by the Company. All requests made pursuant to this Section 2 shall specify the aggregate number of Registrable Securities to be registered.
(b) A registration shall not constitute a Demand Registration under this Section 2 until it has become effective.
(c) The Holder making the Demand Registration may elect whether the offering of such Registrable Securities pursuant to such Demand Registration shall be in the form of a firm commitment underwritten offering exercises his or otherwise; provided, however, that such Holder may not elect that such offering be made on a delayed or continuous basis pursuant to rule 415 under the Securities Act. In any case in which an offering is in the form of a firm commitment underwritten offering, if the managing underwriter or underwriters of such offering advise the Company in writing that in its or their opinion the number of Registrable Securities proposed to be sold in such offering exceeds the number of Registrable Securities that can be sold in such offering without aversely affecting the market for the Company's Common Stock, the Company will include in such registration the number of Registrable Securities that in the opinion of such managing underwriter or underwriters can be sold without adversely affecting the market for the Company's Common Stock. In such event, the number of Registrable Securitiesher right, if any, to be offered for demand that the accounts of Approved Investors (including Company effect the Holder making the Demand Registration) shall be reduced pro rata on the basis of the relative number Registration of any Registrable Securities requested by each Approved Investor Securities, then the Executive shall have the right to be included in such registration to the extent necessary to reduce the total Register an equivalent number of Registrable Securities to be included in such offering to without reducing the number recommended by such managing underwriter or underwriters. In of demand Registrations the event the Holder making the Demand Executive shall receive notice pursuant to this Section 2(c) that the amount of Registrable Securities to be offered for such Holder shall be reduced, such Holder shall be entitled to withdraw the Demand by written notice to the Company within seven (7) days after receipt of such notice, with the effect that such Demand shall be deemed not to have been madein any calendar year.
(d2) If any Following receipt of the Registrable Securities covered by a Demand Registration are request pursuant to be sold in an underwritten offeringSection 12(a)(1) hereof, the Approved Investors, in Company shall (i) file within ninety (90) days thereafter a registration statement on the aggregate, that own or will own a majority appropriate form under the Act for the shares of the Registrable Securities Common Stock that the Company has been requested to register Register; (including ii) if the Requested Securities but excluding any applicable Offering is pursuant to an underwriting agreement, enter into an underwriting agreement in such form as said managing or sole underwriter shall require (which must only contain terms and conditions customary for offerings of equity securities to be issued by the Company), shall have the right to select the investment banker or investment bankers and manager or managers of entities with market capitalizations that will underwrite the offering; provided, however, that such investment bankers and managers must be reasonably satisfactory are approximately equal to the Company's then current market capitalization and may contain customary provisions requiring the Company and the Executive to indemnify and provide contribution to the underwriter or underwriters of such Offering); and (iii) use its reasonable best efforts to have such registration statement declared effective as promptly as practicable and to remain effective for at least one hundred eighty (180) days. Notwithstanding any other provision hereof, the Executive acknowledges and agrees that there can be no guarantee or warranty from or by the Company that any such registration statement will ever be declared effective by the Commission, and that the Company makes no such guarantee or warranty in this Agreement.
Appears in 1 contract
Samples: Executive Employment Agreement (European Micro Holdings Inc)
Demand Registration. (a) At any time beginning six months from after the Closing Date but before three (3) years after the Closing Date, the Holders shall have the right, by written notice delivered to the Company (such notice, a “Demand Notice”), to require the Company to register (the “Demand Registration”) under the Securities Act not less than 20% and up to 100% of the Registrable Securities. The Demand Notice must set forth the number of Registrable Securities that Holders delivering the Demand Notice intend to include in such Demand Registration and the intended methods of disposition thereof. The number of Demand Registrations pursuant to this Section 2(a) shall not exceed two (2).
(b) The Company shall file each Registration Statement prepared in connection with a Demand Registration within ninety (90) days of the date on which the Company received the Demand Notice and shall use its commercially reasonable efforts to cause the same to be declared effective by the SEC within one hundred eighty (180) days of this Agreement the date on which the Company received the Demand Notice and prepare and file with the SEC a Prospectus that will be available for resales by the Holders of Registrable Securities. The Company shall keep the Demand Registration effective for a period of three years thereafterninety (90) days, or six (6) months (the “Effectiveness Period”) if a Demand Registration is requested to be a shelf registration (a “Shelf Registration”) from the date on which the SEC declares such Registration Statement effective or such shorter period which will terminate upon the distribution of all Registrable Securities pursuant to such Registration Statement.
(c) Subject to the conditions set forth in Section 2(a) hereof, the Holder may make one written request for registration under the Securities Act, (a "Demand Registration") of all or part of Holder's Registrable Securities (but such part, together with the number of securities requested by other Approved Investors, to be included in such Demand Registration pursuant to this Section 2, shall have an estimated market value at the time of such request (based upon the then market price of a share of Common Stock of the Company) of at least $250,000. Notwithstanding the foregoing, the Company shall not be required to file any registration statement on behalf of the Holder within twelve months after the effective date of any earlier registration statement so long as the Holder was given a notice offering it the opportunity to sell Registrable Securities under the earlier registration statement and the Holder did not request that its Registrable Securities be included; provided, however, that if Holder requested that its Registrable Securities be included in the earlier registration statement but not all were so included through no fault of the Investor, the Investor Holders may, but shall not be obligated toat any time, require the Company to file another registration statement pursuant to make a Demand Registration. Within fifteen (15) days after receipt of a written request for a Demand Registration, the Company shall give written notice (the "Notice") of such request to all other Approved Investors and shall include in such registration all Registrable Securities that the Company has received written requests for inclusion therein within 15 days after the Notice is given (the "Requested Securities"). Thereafter, the Company may elect to include in such registration additional shares of Common Stock to be issued by the Company. All requests made pursuant to this Section 2 shall will specify the aggregate number of Registrable Securities to be registered.
(b) A registration shall not constitute registered and will also specify the intended methods of disposition thereof. If the Holders intend to distribute the Registrable Securities covered by the request by means of a Demand Registration under this Section 2 until it has become effective.
(c) The Holder making registered public offering involving an underwriting, then the Demand Registration may elect whether Notice shall so state. In such event, the offering of such Registrable Securities pursuant to such Demand Registration Company shall be in the form of designate a firm commitment underwritten offering or otherwisemanaging underwriter; provided, however, that such Holder may not elect that such offering be made on a delayed or continuous basis pursuant to rule 415 under the Securities Act. In any case in which an offering is in the form of a firm commitment underwritten offering, if the designated managing underwriter or underwriters of such offering advise shall be reasonably acceptable to the Company in writing that in its or their opinion the number of Registrable Securities proposed to be sold in such offering exceeds the number of Registrable Securities that can be sold in such offering without aversely affecting the market for the Company's Common Stock, the Company will include in such registration the number of Registrable Securities that in the opinion of such managing underwriter or underwriters can be sold without adversely affecting the market for the Company's Common Stock. In such event, the number of Registrable Securities, if any, to be offered for the accounts of Approved Investors (including the Holder making Holders delivering the Demand Registration) Notice. The Company and the Holders shall be reduced pro rata on the basis of the relative number of any Registrable Securities requested by each Approved Investor to be included enter into an underwriting agreement in customary form with such registration to the extent necessary to reduce the total number of Registrable Securities to be included in such offering to the number recommended by such managing underwriter or underwriters. In the event the Holder making the Demand shall receive notice pursuant to this Section 2(c) that the amount of Registrable Securities to be offered for such Holder shall be reduced, such Holder shall be entitled to withdraw the Demand by written notice to the Company within seven (7) days after receipt of such notice, with the effect that such Demand shall be deemed not to have been made.
(d) If any of the Registrable Securities covered by a Demand Registration are to be sold in an underwritten offering, the Approved Investors, in the aggregate, that own or will own a majority of the Registrable Securities that the Company has been requested to register (including the Requested Securities but excluding any securities to be issued by the Company), shall have the right to select the investment banker or investment bankers and manager or managers that will underwrite the offeringunderwriter; provided, however, that such investment bankers and managers must underwriting agreement shall be reasonably satisfactory acceptable to the Company.
(d) Notwithstanding the foregoing provisions of this Section 2, (i) the Company shall not be obliged to effect a Demand Registration pursuant to this Section 2 if a Registration Statement was previously filed as a result of a request pursuant to this Section 2 within a period of one hundred twenty (120) days of the Company’s receipt of the Demand Notice;
(ii) the Company shall not be obliged to effect a subsequent Demand Registration with respect to any Registrable Securities pursuant to this Section 2 if a Registration Statement covering all of such requested Registrable Securities shall have become and remains effective under the Securities Act;
(iii) if the Company has issued and sold to the public, pursuant to a registration statement filed under the Securities Act, any of its securities within three (3) months prior to the date of its receipt of a Demand Notice pursuant to this Section 2 and the Company’s investment banker has advised the Company in writing that the registration of the Registrable Securities would adversely affect the market for the Company’s securities covered by such Registration Statement, the Company shall have the right to delay the requested registration of the Registrable Securities for such period as the investment banker may so advise, but no more than ninety (90) days after the date on which such Demand Notice was made; or
(iv) the Company shall be entitled to postpone for a reasonable period of time but in no event more than ninety (90) days the filing of any Registration Statement otherwise required to be prepared and filed by it pursuant to this Section 2 if, at the time it receives a Demand Notice pursuant to this Section 2, the Company determines, in its reasonable judgment, that such registration and offering would materially interfere with any financing, acquisition, corporate reorganization or other material transaction involving the Company or its Affiliates and promptly gives the Holders written notice of such determination.
Appears in 1 contract
