Demand Registration. 2.1 After the earlier of (i) the first anniversary of the date of this Agreement, (ii) the consummation of an IPO or (iii) a Spin-Off or Hostile Change in Control at any time, Holders of at least fifty percent (50%) of all Registrable Securities then held by parties to this Agreement (or in the case of a Spin-Off the percentage of Registrable Securities equal to the proportion which the majority of the number shares of Common acquired pursuant to the Subscription Agreement bears to all Registrable Securities at the time of the Spin-Off) may request the Company to Register any or all of their Registrable Securities (a "Demand Notice"). Demand Notices shall be made in writing and shall specify the Holders making the Demand Notice, the number and type of Registrable Securities that each requests to be Registered, whether the Registrable Securities will be sold through an underwriter, and if so, the underwriters name, address, telephone number and contact person. The Company will prepare and file a Registration Statement in accordance with Section 4 for the Registrable Securities to be Registered pursuant to a valid Demand Notice; provided that the Company shall not be required to prepare or file a Registration Statement under this Section 2 more than once in any twelve (12) month period, more than twice after an IPO or more than three (3) times in total. Registrations pursuant to Demand Notices are subject to the further limitations set forth in Section 2.3. 2.2 Within ten (10) days from its receipt of a valid Demand Notice, the Company shall deliver written notice to all Holders that, pursuant to a Demand Notice, the Company will prepare and file a Registration Statement. Any Holder who was not a party to the Demand Notice may, within ten (10) days from receipt of the Company's notice, request the Company to include the Holder's Registrable Securities in the Registration Statement. If the Holders that initiated a Demand Notice specify therein that they intend to distribute their Registrable Securities through an underwriter, then each Holder that requests inclusion in the Registration Statement must participate in such underwriting, and become party to any required agreements, including, but not limited to, customary underwriting and indemnification agreements. The Company shall have the right to approve any underwriter, which approval shall not be unreasonably withheld. In the event that the underwriter limits the number of Registrable Securities to be included in the offering to fewer than the number that has been requested for Registration, then each Holder's Registrable Securities shall be included in the underwriting pro rata, based on the total number of Registrable Securities held by the participating Holders. 2.3 Registrations under this Section 2 are subject to the following limitations: (i) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice within one hundred eighty (180) days after the effective date of any Registration Statement filed by the Company in which the Holders party to the Demand Notice could have included their Registrable Securities; (ii) the Company may delay the effectiveness of a Demand Notice for a period of not more than six months after receipt of a Demand Notice in any 12-month period if the Company furnishes a certificate signed by its president stating that in the good faith judgment of the Company's board of directors it would be detrimental to the Company for the Registration Statement to be effected at such time; and (iii) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice if it is then preparing a Registration Statement in connection with an underwritten public offering of Company securities, and the Company may delay the effectiveness of such Demand Notice until one hundred eighty (180) days after the effective date of such Registration Statement.
Appears in 3 contracts
Samples: Registration Rights Agreement (Aironet Wireless Communications Inc), Registration Rights Agreement (Telxon Corp), Subscription Agreement (Aironet Wireless Communications Inc)
Demand Registration. 2.1 After (a) If the Company shall receive, at any time after the earlier to occur of (i) the first date one hundred eighty (180) days after the initial public offering of any series or class of the Company’s securities under the Act (the “IPO”), and (ii) the fourth anniversary of the date of this Agreementhereof, (ii) the consummation of an IPO or (iii) a Spin-Off or Hostile Change in Control at any time, from Preferred Stock Holders of holding at least fifty percent (50%) of all the Outstanding Registrable Securities then held by parties to this Agreement (or in the case of Preferred Stock Holders, a Spin-Off the percentage of Registrable Securities equal to the proportion which the majority of the number shares of Common acquired pursuant to the Subscription Agreement bears to all Registrable Securities at the time of the Spin-Off) may request the Company to Register any or all of their Registrable Securities (a "Demand Notice"). Demand Notices shall be made in writing and shall specify the Holders making the Demand Notice, the number and type of Registrable Securities that each requests to be Registered, whether the Registrable Securities will be sold through an underwriter, and if so, the underwriters name, address, telephone number and contact person. The Company will prepare and file a Registration Statement in accordance with Section 4 for the Registrable Securities to be Registered pursuant to a valid Demand Notice; provided written notice requesting that the Company shall not be required effect a registration statement under the Act with respect to prepare all or file a Registration Statement under this Section 2 more than once in any twelve (12) month periodpart of the Outstanding Registrable Securities held by such Preferred Stock Holders, more than twice after an IPO or more than three (3) times in total. Registrations pursuant to Demand Notices are subject to the further limitations set forth in Section 2.3.
2.2 Within ten (10) days from its receipt of a valid Demand Notice, then the Company shall deliver written notice to all Holders that, pursuant to a Demand Notice, the Company will prepare and file a Registration Statement. Any Holder who was not a party to the Demand Notice may, shall:
(i) within ten (10) days from of the receipt thereof, give written notice of such request to all Preferred Stock Holders; and
(ii) effect as soon as practicable, and in any event within ninety (90) days of the receipt of such request, the Company's noticeregistration under the Act of all Registrable Securities which the Preferred Stock Holders request to be registered, request by notice to the Company within thirty (30) days of the mailing of the notice sent by the Company in accordance with Section 3.2(a)(i), subject to the limitations of Section 3.2(b).
(b) If the Preferred Stock Holders initiating the registration request hereunder (the “Initiating Holders”) intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to Section 3.2(a) and the Company shall include such information in the written notice referred to in Section 3.2(a)(i). The underwriter will be selected by the Company and shall be reasonably acceptable to a majority in interest of the Initiating Holders. In such event, the right of any Preferred Stock Holder to include Registrable Securities in such registration shall be conditioned upon such Preferred Stock Holder’s participation in such underwriting and the inclusion of such Preferred Stock Holder's ’s Registrable Securities in the Registration Statementunderwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Preferred Stock Holder) to the extent provided herein. If the All Preferred Stock Holders that initiated a Demand Notice specify therein that they intend proposing to distribute their securities through such underwriting shall (together with the Company as provided in Section 3.5(e)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding any other provision of this Section 3.2, if the underwriter advises the Initiating Holders in writing that marketing factors require a limitation of the number of shares to be underwritten, then the Initiating Holders shall so advise all Preferred Stock Holders of Registrable Securities through an underwriterwhich would otherwise be underwritten pursuant hereto, then each Holder and the number of shares of Registrable Securities that requests inclusion may be included in the Registration Statement must participate underwriting shall be allocated among all Preferred Stock Holders thereof, including the Initiating Holders, in such underwritingproportion (as nearly as practicable) to the amount of Registrable Securities of the Company owned by each Preferred Stock Holder; provided, and become party to any required agreementshowever, including, but not limited to, customary underwriting and indemnification agreements. The Company shall have the right to approve any underwriter, which approval shall not be unreasonably withheld. In the event that the underwriter limits the number of shares of Registrable Securities to be included in such underwriting shall not be reduced unless all other securities are first entirely excluded from the offering to fewer than the number that has been requested for Registration, then each Holder's Registrable Securities shall be included in the underwriting pro rata, based on the total number of Registrable Securities held by the participating Holdersunderwriting.
2.3 Registrations under this Section 2 are subject to (c) Notwithstanding the following limitations: (i) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice within one hundred eighty (180) days after the effective date of any Registration Statement filed by the Company in which the Holders party to the Demand Notice could have included their Registrable Securities; (ii) the Company may delay the effectiveness of a Demand Notice for a period of not more than six months after receipt of a Demand Notice in any 12-month period foregoing, if the Company furnishes shall furnish to Preferred Stock Holders requesting registration pursuant to this Section 3.2 a certificate signed by its president the President of the Company stating that in the good faith judgment of the Company's board Board of directors Directors of the Company it would be seriously detrimental to the Company and its stockholders for the Registration Statement a registration statement to be effected at filed and it is therefore essential to defer the filing of such time; and (iii) registration statement, then the Company need shall have the right to defer taking action with respect to such filing for a period of not prepare or file a Registration Statement pursuant to a Demand Notice if it is then preparing a Registration Statement in connection with an underwritten public offering of Company securities, and the Company may delay the effectiveness of such Demand Notice until more than one hundred eighty twenty (180120) days after receipt of the request of the Initiating Holders.
(d) In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to this Section 3.2 after the Company has effected two (2) registrations on Form S-l pursuant to this Section 3.2 and such registration statements have been declared or ordered effective date and the sales of Registrable Securities under such Registration Statementregistration statements have closed.
(e) No incidental right under this Section 3.2 shall be construed to limit any registration required under Section 3.3 or Section 3.4 herein.
Appears in 3 contracts
Samples: Investors’ Rights Agreement (Rusnano), Investors’ Rights Agreement (BIND Therapeutics, Inc), Investors’ Rights Agreement (BIND Therapeutics, Inc)
Demand Registration. 2.1 After the earlier of (a) (i) Provided that the first anniversary Company does not have the Registration Statement filed pursuant to Section 2 effective and usable to such Holder or group of Holders requesting a Demand Registration under this Section, at any time after the date that the Company becomes a registrant under the Exchange Act, any Holder or group of Holders holding, in the aggregate, ten percent (10%) or more of the Registrable Securities issued and outstanding immediately following the effective date of this Agreementthe Plan (the “Initial Outstanding Amount”), (ii) shall have the consummation of an IPO or (iii) a Spin-Off or Hostile Change in Control at any timeright, Holders of at least fifty percent (50%) of all Registrable Securities then held by parties to this Agreement (or in the case of a Spin-Off the percentage of Registrable Securities equal written notice given to the proportion which the majority of the number shares of Common acquired pursuant Company (a “Demand Notice”), to the Subscription Agreement bears to all Registrable Securities at the time of the Spin-Off) may request the Company to Register register under and in accordance with the provisions of the Securities Act all or any or all portion of their the Registrable Securities designated by such Holder(s); provided, however, that (a "Demand Notice"). Demand Notices shall x) the estimated fair market value of the Registrable Securities requested to be made in writing and shall specify registered is equal to at least $10 million (or the Holders making the Demand Notice, the number and type entire amount of Registrable Securities that each requests to be Registered, whether then owned by the Holders if the estimated fair market value of the remaining Registrable Securities will be sold through an underwriteris less than $10 million), and if so, (y) prior to the underwriters name, address, telephone number and contact person. The time the Company will prepare and file a Registration Statement in accordance with Section 4 is eligible to use Form S-3 for the registration of Registrable Securities for resale, such Holder(s), in the aggregate, shall only be entitled to be Registered one Demand Registration per calendar year pursuant to a valid Demand Notice; provided that the Company shall not be required to prepare or file a Registration Statement under provisions of this Section 2 more than once 3(a)(i) unless any Demand Registration does not become effective or is not maintained in any twelve (12) month period, more than twice after an IPO or more than three (3) times in total. Registrations pursuant to Demand Notices are subject to effect for the further limitations respective periods set forth in Section 2.3.
2.2 Within 3(c), in which case the relevant Holder(s) will be entitled to an additional Demand Registration pursuant hereto. Following the time that the Company becomes eligible for use of Form S-3 (or any successor form), any Holder or group of Holders holding, in the aggregate, ten percent (10%) days from its receipt of a valid Demand Notice, the Company shall deliver written notice to all Holders that, pursuant to a Demand Notice, the Company will prepare and file a Registration Statement. Any Holder who was not a party to the Demand Notice may, within ten (10) days from receipt or more of the Company's noticeInitial Outstanding Amount, request the Company to include the Holder's Registrable Securities in the Registration Statement. If the Holders that initiated a Demand Notice specify therein that they intend to distribute their Registrable Securities through an underwriter, then each Holder that requests inclusion in the Registration Statement must participate in such underwriting, and become party to any required agreements, including, but not limited to, customary underwriting and indemnification agreements. The Company shall have the right to approve request the Company to register under and in accordance with the provisions of the Securities Act all or any underwriterportion of the Registrable Securities designated by such Holder(s); provided, which approval shall not be unreasonably withheld. In the event however, that the underwriter limits estimated fair market value of the number Registrable Securities requested to be registered is at least $10 million (or the entire amount of Registrable Securities to be included in then owned by the offering to fewer than Holders if the number that has been requested for Registration, then each Holder's estimated fair market value of the remaining Registrable Securities is less than $10 million), provided, however, that there shall be included in the underwriting pro rata, based on the total number of Registrable Securities held by the participating Holders.
2.3 no more than five (5) Demand Registrations under this Section 2 are subject to the following limitations: (i) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice within one hundred eighty (180) days after the effective date of any Registration Statement filed by the Company in which the Holders party to the Demand Notice could have included their Registrable Securities; (ii) the Company may delay the effectiveness of a Demand Notice for a period of not more than six months after receipt of a Demand Notice in any 12-month period if the Company furnishes a certificate signed by its president stating that in the good faith judgment of the Company's board of directors it would be detrimental to the Company for the Registration Statement to be effected at such time; and (iii) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice if it is then preparing a Registration Statement in connection with an underwritten public offering of Company securities, and the Company may delay the effectiveness of such Demand Notice until one hundred eighty (180) days after the effective date of such Registration Statementthis Agreement.
Appears in 3 contracts
Samples: Registration Rights Agreement (Howard Hughes Corp), Registration Rights Agreement (Howard Hughes Corp), Registration Rights Agreement
Demand Registration. 2.1 After (a) If, at any time following the earlier date on which the Company shall have registered any of its securities (iincluding registration of shares held by persons other than "Holders" hereunder) under the Exchange Act (unless such registration is in connection with a firmly underwritten initial public offering of the Company's Common Stock (an "IPO"), then, at any time more than 180 days after the effectiveness of such IPO), (x) the first anniversary of the date of this Agreement, (ii) the consummation of an IPO or (iii) a Spin-Off or Hostile Change in Control at any time, Holders of at least fifty percent (50%) of all Registrable Securities then held by parties to this Agreement (or in the case of a Spin-Off the percentage of Registrable Securities equal to representing a majority of such Registrable Securities and (y) the proportion which the holders of a majority of the number shares of Common acquired pursuant Series 3 Preferred Stock, each shall have the right (which right is in addition to the Subscription Agreement bears registration rights under Sections 2.3 and 2.4 hereof), exercisable by written notice to all Registrable Securities at the time of the Spin-Off) may request the Company to Register any or all of their Registrable Securities (a the "Demand Notice"). , to have the Company prepare and file with the SEC, in the case of the Holders of Registrable Securities representing a majority of such Registrable Securities on two (2) occasions (provided that two or more registration statements filed in response to one Demand Notices Notice shall be made counted as one occasion) and in writing the case of holders of a majority of the shares of Series 3 Preferred Stock on one (1) occasion (provided that two or more registration statements filed in response to one Demand Notice shall be counted as one occasion), a registration statement and such other documents, including a prospectus, as may be necessary in the opinion of both counsel for the Company and Holders' Counsel, in order to comply with the provisions of the Securities Act, so as to permit a public offering and sale of their respective Registrable Securities (which may be an underwritten offering if so demanded) and cause such registration statement to be declared effective by the SEC within 120 days after such filing. The Company shall specify give written notice (a "Registration Notice") of any registration request under Section 2.2(a) to all other Holders of the Holders making Registrable Securities within ten (10) days from the date of receipt of the Demand Notice. The Company will, as expeditiously as reasonably possible, register the number of shares specified in the Demand Notice and type in notices received from any other Holders of Registrable Securities that each requests to be Registered, whether the Registrable Securities will be sold through an underwriter, and if so, who notify the underwriters name, address, telephone number and contact person. The Company will prepare and file a within ten (10) days after receiving the Registration Statement in accordance with Section 4 for the Registrable Securities to be Registered pursuant to a valid Demand Notice; provided that the Company shall not have the right to delay or suspend the effectiveness of such registration request: (i) for such reasonable period of time until the Company receives or prepares financial statements for the fiscal period most recently ended prior to such written request, if necessary under applicable securities laws to avoid the use of stale financial statements, (ii) if the Company would be required to prepare divulge in such registration statement the existence of any fact relating to a material business situation, transaction or file negotiation not otherwise required to be disclosed, or (iii) if the Board of Directors of the Company shall determine in good faith that the registration to be effected would not be in the best interest of the Company, in each such case the Company shall have the right to delay such filing for a Registration Statement under period of no longer than ninety (90) days (provided, however, that the Company shall not utilize this Section 2 right more than once in any twelve (12) month period, more than twice after an IPO or more than three ).
(3b) times in total. Registrations pursuant to Demand Notices are subject Notwithstanding anything to the further limitations set forth contrary contained in Section 2.3.
2.2 Within ten (10) days from its receipt of a valid Demand Noticethis Agreement, the Company shall deliver written notice not be required to all Holders that, effect a registration pursuant to a Demand Notice, the Company will prepare and file a Registration Statement. Any Holder who was not a party to the Demand Notice may, within ten (10) days from receipt of the Company's notice, request the Company to include the Holder's Registrable Securities in the Registration Statement. If the Holders that initiated a Demand Notice specify therein that they intend to distribute their Registrable Securities through an underwriter, then each Holder that requests inclusion in the Registration Statement must participate in such underwriting, and become party to any required agreements, including, but not limited to, customary underwriting and indemnification agreements. The Company shall have the right to approve any underwriter, which approval shall not be unreasonably withheld. In the event that the underwriter limits the number of Registrable Securities to be included in the offering to fewer than the number that has been requested for Registration, then each Holder's Registrable Securities shall be included in the underwriting pro rata, based on the total number of Registrable Securities held by the participating Holders.
2.3 Registrations under this Section 2 are subject to the 2.2 within 180 days following limitations: (i) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice within one hundred eighty (180) days after the effective date of any Registration Statement (i) a registration statement filed by the Company in which the Holders party to the Demand Notice could have included their Registrable Securities; accordance with Sections 2.2 or 2.3 or (ii) a registration statement for the account of another holder of securities of the Company may delay the effectiveness of a Demand Notice for a period of not more than six months after receipt of a Demand Notice in any 12-month period if the Company furnishes a certificate signed by its president stating that Holders were afforded the opportunity to include the Registrable Securities in the good faith judgment of the Company's board of directors it would be detrimental to the Company for the Registration Statement to be effected at such time; and (iii) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice if it is then preparing a Registration Statement in connection with an underwritten public offering of Company securities, and the Company may delay the effectiveness of such Demand Notice until one hundred eighty (180) days after the effective date of such Registration Statementregistration.
Appears in 3 contracts
Samples: Investor Rights Agreement (Local Matters Inc.), Investor Rights Agreement (Local Matters Inc.), Investor Rights Agreement (Local Matters Inc.)
Demand Registration. 2.1 After At any time after the earlier of one hundred and eighty (i180) days following the first anniversary completion of a Public Sale or five (5) years after the Effective Time, upon the written request by Stockholders owning or holding, alone or with their Affiliates, more than fifty percent (50%) of the date issued and outstanding Preferred Stock (including for purposes of this Agreementcalculation any issued and outstanding shares of Common Stock issued upon conversion of shares of Preferred Stock), (ii) the consummation of an IPO which such Stockholders shall, in all events, include Mitsui and Kirin, respectively, so long as Mitsui or (iii) a Spin-Off or Hostile Change in Control at any timeKirin, Holders of as applicable, owns at least fifty percent (50%) of all Registrable Securities then held the number of shares of Preferred Stock (including for purposes of this calculation any issued and outstanding shares of Common Stock issued upon conversion of shares of Preferred Stock) owned by parties them, respectively, as of the Effective Time (subject to this Agreement (or proportionate adjustment in the case of any stock split, reverse stock split, recapitalization, reclassification stock dividend or other distribution with respect to such shares), requesting that the Company effect a Spin-Off public offering under the percentage Securities Act of all or part of the Registrable Securities equal to held by such Stockholders and specifying the proportion which intended method or methods of disposition of such Registrable Securities, the majority Company will promptly give written notice of the number shares of Common acquired pursuant to the Subscription Agreement bears such requested registration to all Registrable Stockholders and will use its best efforts to effect the registration under the Securities at Act, as expeditiously as is reasonable, of:
(i) the time of the Spin-Off) may request the Company to Register any or all of their Registrable Securities (a "Demand Notice"). Demand Notices shall be made in writing and shall specify the Holders making the Demand Notice, the number and type of Registrable Securities that each requests the Company has been so requested to be Registeredregister by such Stockholders, whether for disposition in accordance with the intended method of disposition stated in such request; and
(ii) all other Registrable Securities that the Company has been requested to register by other Stockholders by written request delivered to the Company within 30 days after the receipt of such written notice delivered by the Company; all to the extent required to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities will be sold through an underwriter, and if so, the underwriters name, address, telephone number and contact person. The Company will prepare and file a Registration Statement in accordance with Section 4 for the Registrable Securities so to be Registered pursuant registered. Anything herein to a valid Demand Notice; provided that the contrary notwithstanding, the Company shall not be required obligated to prepare or file a Registration Statement under consummate more than two (2) registrations pursuant to this Section 2 more than once 2(a); provided, that in each case at least eighty percent (80%) of the Registrable Securities requested to be registered are registered and sold to the public. In connection with any twelve (12) month period, more than twice after an IPO or more than three (3) times in total. Registrations underwritten offering with respect to which Stockholders shall have requested registration pursuant to Demand Notices are subject to the further limitations set forth in this Section 2.3.
2.2 Within ten (10) days from its receipt of a valid Demand Notice2(a), the Company shall deliver written notice to all Holders that, pursuant to a Demand Notice, the Company will prepare and file a Registration Statement. Any Holder who was not a party to the Demand Notice may, within ten (10) days from receipt of the Company's notice, request the Company to include the Holder's Registrable Securities in the Registration Statement. If the Holders that initiated a Demand Notice specify therein that they intend to distribute their Registrable Securities through an underwriter, then each Holder that requests inclusion in the Registration Statement must participate in such underwriting, and become party to any required agreements, including, but not limited to, customary underwriting and indemnification agreements. The Company shall have the right to approve any underwriterselect the lead managing underwriter (being an underwriting firm of national standing) with respect to such offering, which approval shall not be unreasonably withheld. In the event that the such underwriter limits the number of Registrable Securities to be included in the offering to fewer than the number that has been requested for Registration, then each Holder's Registrable Securities shall be included in the underwriting pro rata, based on the total number of Registrable Securities held by the participating Holders.
2.3 Registrations under this Section 2 are subject reasonably acceptable to the following limitations: (i) Stockholders requesting the Company need not prepare or file a Registration Statement pursuant to a Demand Notice within one hundred eighty (180) days after registration. Should the effective date Stockholders requesting the registration so elect, they may select an underwriting firm of any Registration Statement filed by the Company in national standing which the Holders party to the Demand Notice could have included their Registrable Securities; (ii) the Company may delay the effectiveness of a Demand Notice for a period of not more than six months after receipt of a Demand Notice in any 12-month period if the Company furnishes a certificate signed by its president stating that in the good faith judgment of the Company's board of directors it would be detrimental is reasonably acceptable to the Company for the Registration Statement to be effected at such time; and (iii) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice if it is then preparing a Registration Statement in connection with an underwritten public offering of Company securities, and the Company may delay the effectiveness act as co-lead manager of such Demand Notice until one hundred eighty (180) days after the effective date of such Registration Statementoffering.
Appears in 3 contracts
Samples: Registration Rights Agreement (Thorne Healthtech, Inc.), Registration Rights Agreement (Thorne Healthtech, Inc.), Registration Rights Agreement (Thorne Healthtech, Inc.)
Demand Registration. 2.1 After (a) If at any time after the earlier of (iA) the first anniversary of the date of this AgreementJuly 20, 2015 and (iiB) the consummation of an IPO or (iii) a Spin-Off or Hostile Change in Control at any time, Holders of at least fifty percent (50%) of all Registrable Securities then held by parties to this Agreement (or in the case of a Spin-Off the percentage of Registrable Securities equal to the proportion which the majority of the number shares of Common acquired pursuant to the Subscription Agreement bears to all Registrable Securities at the time of the Spin-Off) may request the Company to Register any or all of their Registrable Securities (a "Demand Notice"). Demand Notices shall be made in writing and shall specify the Holders making the Demand Notice, the number and type of Registrable Securities that each requests to be Registered, whether the Registrable Securities will be sold through an underwriter, and if so, the underwriters name, address, telephone number and contact person. The Company will prepare and file a Registration Statement in accordance with Section 4 for the Registrable Securities to be Registered pursuant to a valid Demand Notice; provided that the Company shall not be required to prepare or file a Registration Statement under this Section 2 more than once in any twelve (12) month period, more than twice after an IPO or more than three (3) times in total. Registrations pursuant to Demand Notices are subject to the further limitations set forth in Section 2.3.
2.2 Within ten (10) days from its receipt of a valid Demand Notice, the Company shall deliver written notice to all Holders that, pursuant to a Demand Notice, the Company will prepare and file a Registration Statement. Any Holder who was not a party to the Demand Notice may, within ten (10) days from receipt of the Company's notice, request the Company to include the Holder's Registrable Securities in the Registration Statement. If the Holders that initiated a Demand Notice specify therein that they intend to distribute their Registrable Securities through an underwriter, then each Holder that requests inclusion in the Registration Statement must participate in such underwriting, and become party to any required agreements, including, but not limited to, customary underwriting and indemnification agreements. The Company shall have the right to approve any underwriter, which approval shall not be unreasonably withheld. In the event that the underwriter limits the number of Registrable Securities to be included in the offering to fewer than the number that has been requested for Registration, then each Holder's Registrable Securities shall be included in the underwriting pro rata, based on the total number of Registrable Securities held by the participating Holders.
2.3 Registrations under this Section 2 are subject to the following limitations: (i) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice within one hundred eighty (180) days after the effective date of the registration statement for an IPO, the Company receives a request from Holders of at least fifty percent (50%) of the Registrable Securities then outstanding that the Company effect a registration with respect to at least ten percent (10%) of the Registrable Securities then outstanding, then the Company shall (i) within ten (10) days after the date such request is given, give notice thereof (the “Demand Notice”) to all Holders other than the Initiating Holders; and (ii) as soon as practicable, and in any Registration Statement filed event within sixty (60) days after the date such request is given by the Initiating Holders, file a registration statement under the Securities Act covering all Registrable Securities that the Initiating Holders requested to be registered and any additional Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company in which within twenty (20) days of the Holders party to date the Demand Notice could have included their Registrable Securities; is given, and in each case, subject to the limitations of Section 2.1(b) and Section 2.4.
(iib) Notwithstanding the Company may delay the effectiveness of a Demand Notice for a period of not more than six months after receipt of a Demand Notice in any 12-month period foregoing obligations, if the Company furnishes to Holders requesting a registration pursuant to this Section 2.1 a certificate signed by its president the Company’s chief executive officer stating that in the good faith judgment of the Company's board ’s Board of directors 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 Registration Statement to be effected at such timeCompany; and (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 need not prepare unable to comply with requirements under the Securities Act or file a Registration Statement pursuant Exchange Act, then the Company shall have the right to a Demand Notice if it is then preparing a Registration Statement in connection defer taking action with an underwritten public offering of Company securitiesrespect to such filing, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for a period of not more than ninety (90) days after the request of the Initiating Holders is given; provided, however, that the Company may delay not invoke this right more than twice in any twelve (12) month period; and provided further that the effectiveness Company shall not register any securities for its own account or that of any other stockholder during such Demand Notice until ninety (90) day period other than pursuant to an Excluded Registration.
(c) The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to this Section 2.1 (i) during the period that is sixty (60) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; (ii) after the Company has effected two (2) registrations under this Section 2.1; or (iii) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.3. A registration shall not be counted as “effected” for purposes of this Section 2.1 until such Registration Statementtime as the applicable registration statement has been declared effective by the SEC, unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Section 2.7, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1.
Appears in 3 contracts
Samples: Investors’ Rights Agreement, Investors’ Rights Agreement, Investors’ Rights Agreement (Histogenics Corp)
Demand Registration. 2.1 After (a) If at any time or from time to time the earlier Company shall receive a written request from (x) a Holder or Holders holding more than 15% of the then outstanding Registrable Securities (assuming for this purpose that all Preferred Shares are converted in full, and irrespective of any limitations on conversion contemplated by the Certificates of Designations of such stock) or (y) any Initial Investor Holder (such requesting Person(s), the “Requesting Holders”), that the Company effect the registration under the Securities Act of all or any portion of such Requesting Holders’ Registrable Securities, and specifying the intended method of disposition thereof, then the Company shall promptly give notice of such requested registration (each such request, a “Demand Registration”) at least 21 days prior to the anticipated filing date of the registration statement relating to such Demand Registration to the other Holders, and the Company shall effect (subject to the limitations set forth in Sections 2.01(e) hereof), as expeditiously as possible, the registration under the Securities Act of:
(i) all Registrable Securities for which the first anniversary Requesting Holders have requested registration under this Section 2.01, and
(ii) all other Registrable Securities that any other Holders (all such Holders, together with the Requesting Holders, the “Registering Holders”) have requested the Company to register by request received by the Company within 14 days after such Holders receive the Company’s notice of the date Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods of disposition specified in such request) of the Registrable Securities so to be registered; provided that no Person may participate in any registration statement pursuant to this AgreementSection 2.01(a) for an underwritten offering unless such Person agrees to sell its Registrable Securities to the underwriters selected as provided in Section 2.05(f) on the same terms and conditions as apply to the Requesting Holders (including pursuant to the terms of any over-allotment or “green shoe” option requested by the managing underwriter; provided that no Holder will be required to sell more than the number of Registrable Securities that such Holder has requested the Company to include in such transaction) and completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents reasonably required under the terms of such underwriting arrangements; provided, however, that no such Registering Holder shall be required to make any representations or warranties in connection with any such registration other than representations and warranties as to (i) such Person’s ownership of its Registrable Securities to be transferred free and clear of all liens, claims and encumbrances, (ii) the consummation of an IPO or such Person’s power and authority to effect such transfer, and (iii) a Spin-Off or Hostile Change such matters as may be reasonably requested pertaining to such Person’s compliance with securities laws; provided further, however, that the obligation of such Person to indemnify pursuant to any such underwriting arrangements shall be several, not joint and several, among such Persons selling Registrable Securities, and the liability of each such Person shall be in Control at any timeproportion thereto; and provided, Holders further, that such liability shall be limited to the net amount received by such Person from the sale of at least fifty percent (50%) of all its Registrable Securities then held by parties to this Agreement (or in the case of a Spin-Off the percentage of Registrable Securities equal to the proportion which the majority of the number shares of Common acquired pursuant to the Subscription Agreement bears to all Registrable Securities at the time of the Spin-Off) may request the Company to Register any or all of their Registrable Securities (a "Demand Notice"). Demand Notices shall be made in writing and shall specify the Holders making the Demand Notice, the number and type of Registrable Securities that each requests to be Registered, whether the Registrable Securities will be sold through an underwriter, and if so, the underwriters name, address, telephone number and contact person. The Company will prepare and file a Registration Statement in accordance with Section 4 for the Registrable Securities to be Registered pursuant to a valid Demand Noticesuch offering; provided that that, subject to Section 2.01(d) hereof, the Company shall not be required obligated to:
(A) effect any Demand Registration pursuant to prepare or file a Registration Statement under clause (x) of the first paragraph of this Section 2 2.01(a) unless the aggregate gross proceeds expected to be received from the sale of the Registrable Securities requested to be included by all Registering Holders in such Demand Registration are at least $50 million (prior to deducting underwriting discounts and commissions);
(B) effect more than once in any twelve one Demand Registration per Initial Investor Holder pursuant to clause (12y) month period, of the first paragraph of this Section 2.01(a) or effect more than twice after an IPO or more than three two Demand Registrations per Initial Investor Group pursuant to clause (3y) times of the first paragraph of this Section 2.01(a) (it being understood that the limitations in total. this clause (B) shall not limit rights to Demand Registrations pursuant to clause (x) of the first paragraph of this Section 2.01(a));
(C) effect a Demand Notices are subject Registration within 180 days of having effected a prior Demand Registration pursuant to this Section 2.01.
(b) Promptly after the expiration of the 14-day period referred to in Section 2.01(a)(ii) hereof, the Company will notify all Registering Holders of the identities of the other Registering Holders and the number of shares of Registrable Securities requested to be registered. At any time prior to the further limitations set forth effective date of the registration statement relating to such registration, the Requesting Holders holding a majority of the Registrable Securities requested by such Requesting Holders to be included in Section 2.3such registration may revoke such request without liability to any of the other Registering Holders, by providing a notice to the Company revoking such request.
2.2 Within ten (10c) The Company shall be liable for and pay all Registration Expenses in connection with each Demand Registration, regardless of whether such registration is effected.
(d) A Demand Registration shall not be deemed to have occurred:
(i) unless (A) the registration statement relating thereto shall have become effective under the Securities Act and shall have remained effective for a period of at least 180 consecutive days from its receipt (or such shorter period in which all Registrable Securities of the Registering Holders included in such registration have actually been sold thereunder), provided that such registration shall not be considered a Demand Registration if, after such registration statement becomes effective, such registration statement (or the use of the related prospectus) is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court, and (B) if in connection with an underwritten offering, all customary conditions in the applicable underwriting agreement shall have been satisfied, other than any failure primarily due to an act, omission or misrepresentation of a valid Holder participating therein; or
(ii) if due to the Demand NoticeMaximum Offering Size provision of Section 2.01(e) hereof, less than 75% of the Registrable Securities of the Requesting Holders sought to be included in such registration are included.
(e) If a Demand Registration involves an underwritten public offering and the managing underwriter advises the Requesting Holders that, in its view, the number of shares that the Registering Holders propose to include in such registration exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Demand Maximum Offering Size”), the Company shall deliver written notice include in such registration, in the priority listed below, up to the Demand Maximum Offering Size:
(i) first, all Registrable Securities requested to be registered by the Requesting Holders thatand all Registrable Securities requested to be included in such registration by any other Registering Holders (allocated, pursuant if necessary for the offering not to exceed the Demand Maximum Offering Size, pro rata among such Requesting Holders and other Registering Holders on the basis of the relative number of Registrable Securities so requested to be included in such registration by each); and
(ii) second, any shares of Common Stock proposed to be registered by the Company for its own account.
(f) The Company may defer the filing (but not the preparation) of a Demand Noticeregistration statement required by Section 2.01 hereof until a date not later than 90 days after the date of the request to file such registration statement if (i) at the time the Company receives the request to register shares, the Company will prepare and file a Registration Statement. Any Holder who was not a party is engaged in confidential negotiations or other confidential business activities or the Board of Directors of the Company determines that the Company is at such time otherwise in possession of material non-public information with respect to the Demand Notice mayCompany, within ten in each case, disclosure of which would be required in such registration statement (10) days from receipt but would not be required if such registration statement were not filed), and the Board of Directors of the Company's notice, request Company determines in good faith that such public disclosure at that time would be materially detrimental to the Company to include the Holder's Registrable Securities in the Registration Statement. If and its stockholders (other than, if applicable, the Holders that initiated requesting such registration), or (ii) prior to receiving the request to register shares, the Board of Directors of the Company had resolved to effect a Demand Notice specify therein that they intend to distribute their Registrable Securities through an underwriter, then each Holder that requests inclusion in registered underwritten public offering of Company equity securities for the Registration Statement must participate in such underwriting, Company’s account and become party to any required agreements, the Company had taken substantial steps (including, but not limited to, customary underwriting selecting a managing underwriter for such offering) and indemnification agreementsis actively proceeding with reasonable diligence to effect such offering. The Company A deferral of the filing of a registration statement pursuant to this Section 2.01(f) shall have be lifted, and the right to approve any underwriterrequested registration statement shall be filed forthwith, which approval shall not be unreasonably withheld. In the event that the underwriter limits the number of Registrable Securities to be included if, in the offering case of a deferral pursuant to fewer than the number that has been requested for Registration, then each Holder's Registrable Securities shall be included in the underwriting pro rata, based on the total number of Registrable Securities held by the participating Holders.
2.3 Registrations under this Section 2 are subject to the following limitations: clause (i) of the Company need not prepare preceding sentence, the negotiations or file other activities are terminated or publicly disclosed (or such material non-public information has been publicly disclosed), or, in the case of a Registration Statement deferral pursuant to a Demand Notice within one hundred eighty (180) days after the effective date of any Registration Statement filed by the Company in which the Holders party to the Demand Notice could have included their Registrable Securities; clause (ii) of the preceding sentence, the proposed registration for the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant to this Section 2.01(f), the Company may delay the effectiveness of a Demand Notice for a period of not more than six months after receipt of a Demand Notice shall promptly (but in any 12-month period if the Company furnishes event within 7 days), upon determining to seek such deferral, deliver to each Holder requesting such registration a certificate signed by its president an executive officer of the Company stating that the Company is deferring such filing pursuant to this Section 2.01(f) and (unless such Holder had previously requested in writing that the Company not disclose to it such information under this paragraph) a general statement of the reason for such deferral and an approximation of the anticipated delay (to the extent it shall be legally permissible for the Company to so disclose such information to such Holder). The Company may defer the filing of a registration statement pursuant to this Section 2.01(f) only once in any 360-day period and the period of deferrals shall not exceed 90 days in the good faith judgment of the Company's board of directors it would be detrimental to the Company for the Registration Statement to be effected at such time; and (iii) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice if it is then preparing a Registration Statement in connection with an underwritten public offering of Company securities, and the Company may delay the effectiveness of such Demand Notice until one hundred eighty (180) days after the effective date of such Registration Statementaggregate over any 360-day period.
Appears in 3 contracts
Samples: Registration Rights Agreement (Universal American Financial Corp), Registration Rights Agreement (Welsh Carson Anderson & Stowe Ix Lp), Registration Rights Agreement (Perry Corp)
Demand Registration. 2.1 After (a) Subject to the earlier conditions of this Section 2.2, if the Company shall receive a written request from (i) the first anniversary Holders holding not less than thirty percent (30%) of the date shares of this AgreementCommon Stock issued or issuable upon conversion of the Series A Preferred (other than Landmark Registrable Securities) then outstanding, (ii) the consummation of an IPO or (iii) a Spin-Off or Hostile Change in Control at any time, Holders of at least holding not less than fifty percent (50%) of the Landmark Registrable Securities, (iii) the Holders holding not less than fifty percent (50%) of the shares of Common Stock issued or issuable upon conversion of the Series B Preferred (other than Landmark Registrable Securities) then outstanding or (iv) the Holders holding not less than fifty percent (50%) of the shares of Common Stock issued or issuable upon conversion of the Series B-1 Preferred (other than Landmark Registrable Securities) then outstanding (each, a “Demand Registration Request”), that the Company file a registration statement with respect to all or part of the Registrable Securities under the Securities Act, then the Company shall, within fifteen (15) calendar days of the receipt thereof, give written notice of such request to all Holders, and, subject to the limitations of this Section 2.2, use its commercially reasonable efforts to effect, as expeditiously as reasonably possible (and in any event within ninety (90) days of the date such request is given or such longer period as results from a delay for any reason from the SEC) the registration under the Securities Act of all Registrable Securities then held by parties that all Holders request to this Agreement (or in the case of a Spin-Off the percentage of Registrable Securities equal to the proportion which the majority of the number shares of Common acquired be registered pursuant to the Subscription Agreement bears to all Registrable Securities at the time of the Spin-Off) may request the Company to Register any or all of their Registrable Securities (a "Demand Notice"). Demand Notices shall be made in writing and shall specify the Holders making the Demand Notice, the number and type of Registrable Securities that each requests to be Registered, whether the Registrable Securities will be sold through an underwriter, and if so, the underwriters name, address, telephone number and contact person. The Company will prepare and file a Registration Statement in accordance with Section 4 for the Registrable Securities to be Registered pursuant to a valid Demand Notice; provided that the this Agreement.
(b) The Company shall not be required to prepare effect or file take any action to effect a Registration Statement under registration pursuant to this Section 2 more than once in any twelve (12) month period, more than twice after an IPO or more than three (3) times in total. Registrations pursuant to Demand Notices are subject to the further limitations set forth in Section 2.3.2.2:
2.2 Within ten (10) days from its receipt of a valid Demand Notice, the Company shall deliver written notice to all Holders that, pursuant to a Demand Notice, the Company will prepare and file a Registration Statement. Any Holder who was not a party to the Demand Notice may, within ten (10) days from receipt of the Company's notice, request the Company to include the Holder's Registrable Securities in the Registration Statement. If the Holders that initiated a Demand Notice specify therein that they intend to distribute their Registrable Securities through an underwriter, then each Holder that requests inclusion in the Registration Statement must participate in such underwriting, and become party to any required agreements, including, but not limited to, customary underwriting and indemnification agreements. The Company shall have the right to approve any underwriter, which approval shall not be unreasonably withheld. In the event that the underwriter limits the number of Registrable Securities to be included in the offering to fewer than the number that has been requested for Registration, then each Holder's Registrable Securities shall be included in the underwriting pro rata, based on the total number of Registrable Securities held by the participating Holders.
2.3 Registrations under this Section 2 are subject to the following limitations: (i) the Company need not prepare or file a Registration Statement pursuant prior to a Demand Notice within one hundred eighty (180) calendar days after the effective date of any Registration Statement filed by the Company in which the Holders party to the Demand Notice could have included their Registrable Securities; Initial Public Offering;
(ii) (A) solely with respect to Section 2.2(a)(i) above, after the Company has effected two (2) registrations pursuant thereto, (B) solely with respect to Section 2.2(a)(ii) above, after the Company has effected two (2) registrations pursuant thereto, (C) solely with respect to Section 2.2(a)(iii) above, after the Company has effected one (1) registration pursuant thereto, and (D) solely with respect to Section 2.2(a)(iv) above, after the Company has effected one (1) registration pursuant thereto, and such registrations have been declared or ordered effective (which, for the avoidance of doubt, shall mean that the registrations shall have been continuously effective for one hundred eighty (180) calendar days, or until all Registrable Securities covered thereby have been sold, if earlier);
(iii) if the Holders specified in Section 2.2(a) propose to dispose of Registrable Securities that may delay be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.4 below;
(iv) if the effectiveness Holders specified in Section 2.2(a) propose to sell Registrable Securities, the aggregate proceeds of which are less than $10,000,000; or
(v) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of filing of a Demand Notice registration under the Securities Act for the purposes of a period public offering of securities of the Company (including but not more than six months after limited to, registration statements related to follow-on offerings of securities of the Company, but excluding Special Registration Statements); provided that the Company shall, within thirty (30) days of its receipt of a Demand Notice Registration Request, provide written notice to all Holders specified in any 12-month period Section 2.2(a) of its intent to file a registration statement for a public offering of securities of the Company within sixty (60) days; provided further that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; and provided further that in the case of a public offering other than an Initial Public Offering that the Initiating Holders (as defined below) are permitted to register such shares in such registration as requested to be registered pursuant to Section 2.3 hereof; or
(vi) if the Company furnishes shall furnish to Holders requesting a registration statement pursuant to this Section 2.2 a certificate signed by its president the Chairman of the Board stating that in the good faith judgment of the Company's board of directors Board, it would be seriously detrimental to the Company and its stockholders for the Registration Statement such registration statement to be effected at such time; and (iii) , in which event the Company need shall have the right to defer such filing for a period of not prepare or file a Registration Statement pursuant to a Demand Notice if it is then preparing a Registration Statement in connection with an underwritten public offering of Company securities, and the Company may delay the effectiveness of such Demand Notice until one hundred eighty more than sixty (18060) days after receipt of the effective date request of the initiating Holders; provided that such Registration Statement.right to delay a request shall be exercised by the Company not more than twice in any twelve month period;
Appears in 3 contracts
Samples: Investor Rights Agreement, Investor Rights Agreement (Tpi Composites, Inc), Investor Rights Agreement (Tpi Composites, Inc)
Demand Registration. 2.1 After the earlier of (ia) the first anniversary of At any time after the date of this Agreement, (ii) the consummation of an IPO or (iii) a Spin-Off or Hostile Change in Control at any time, Holders of at least fifty percent (50%) of all Registrable Securities then held by parties to this Agreement (or in the case of a Spin-Off the percentage of Registrable Securities equal to the proportion which the majority of the number shares of Common acquired pursuant to the Subscription Agreement bears to all Registrable Securities at the time of the Spin-Off) may request the Company to Register any or all of their Registrable Securities (a "Demand Notice"). Demand Notices shall be made in writing and shall specify the Holders making the Demand Notice, the number and type of Registrable Securities that each requests to be Registered, whether the Registrable Securities will be sold through an underwriter, and if so, the underwriters name, address, telephone number and contact person. The Company will prepare and file a Registration Statement in accordance with Section 4 for the Registrable Securities to be Registered pursuant to a valid Demand Notice; provided that the Company shall not be required to prepare or file a Registration Statement under this Section 2 more than once in any twelve (12) month period, more than twice after an IPO or more than three (3) times in total. Registrations pursuant to Demand Notices are subject to the further limitations set forth in Section 2.3.
2.2 Within ten (10) days from its receipt of a valid Demand Notice, the Company shall deliver written notice to all Holders that, pursuant to a Demand Notice, the Company will prepare and file a Registration Statement. Any Holder who was not a party to the Demand Notice may, within ten (10) days from receipt of the Company's notice, request the Company to include the Holder's Registrable Securities in the Registration Statement. If the Holders that initiated a Demand Notice specify therein that they intend to distribute their Registrable Securities through an underwriter, then each Holder that requests inclusion in the Registration Statement must participate in such underwriting, and become party to any required agreements, including, but not limited to, customary underwriting and indemnification agreements. The Company shall have the right to approve any underwriter, which approval shall not be unreasonably withheld. In the event that the underwriter limits the number of Registrable Securities to be included in the offering to fewer than the number that has been requested for Registration, then each Holder's Registrable Securities shall be included in the underwriting pro rata, based on the total number of Registrable Securities held by the participating Holders.
2.3 Registrations under this Section 2 are subject to the following limitations: (i) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice within is one hundred and eighty (180) days after the effective date of the IPO Underwriting Agreement (or such earlier date as is permitted by the terms, or any waiver, of an applicable lock-up agreement entered into with the underwriters in connection with the IPO), any Stockholders that on the date a Demand (as hereinafter defined) is made constitute Demand Stockholders (a “Requesting Stockholder”) shall be entitled to make a written request of the Company (a “Demand”) for registration under the Securities Act of a number of Registrable Securities that equals or is greater than the Registrable Amount (a “Demand Registration”) and thereupon the Company will, subject to the terms of this Agreement, use its reasonable best efforts to effect the registration as promptly as practicable under the Securities Act of:
(i) the Registrable Securities which the Company has been so requested to register by the Requesting Stockholders for disposition in accordance with the intended method of disposition stated in such Demand which may be an Underwritten Offering;
(ii) all other Registrable Securities which the Company has been requested to register pursuant to Section 5.1(b); and
(iii) all Class A Shares which the Company may elect to register in connection with any offering of Registrable Securities, but subject to Section 5.1(f); all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and the additional Class A Shares, if any, to be so registered.
(b) A Demand shall specify: (i) the aggregate number of Registrable Securities requested to be registered in such Demand Registration, (ii) the intended method of disposition in connection with such Demand Registration, to the extent then known and (iii) the identity of the Requesting Stockholder (or Requesting Stockholders). Within two (2) Business Days after receipt of a Demand, the Company shall give written notice of such Demand to all other Stockholders. Subject to Section 5.1(f), the Company shall include in the Demand Registration Statement covered by such Demand all Registrable Securities with respect to which the Company has received a written request for inclusion therein within five (5) Business Days after the Company’s notice required by this paragraph has been given. Such written request shall comply with the requirements of a Demand as set forth in this Section 5.1(b).
(c) Each Demand Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder Beneficially Owns together with its Affiliates less than a Registrable Amount.
(d) Demand Registrations shall be on such registration form of the SEC for which the Company is eligible as shall be selected by the Requesting Stockholders, including, to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the SEC, and shall be reasonably acceptable to the Company.
(e) The Company shall not be obligated to effect any Demand Registration (A) within ninety (90) days of a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights pursuant to Section 5.2 (subject to Section 5.1(f)) and provided that at least 50% of the Holders party number of Registrable Securities requested by such Stockholders to be included in such Demand Registration were included or (B) within ninety (90) days of any other Underwritten Offering pursuant to Section 5.3(e). In addition, the Company shall be entitled to postpone (upon written notice to all Stockholders) for a reasonable period of time not to exceed ninety (90) days in succession the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice, or for more than one hundred and twenty (120) days in the aggregate, in any period of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating to such Demand Registration would cause the disclosure of material, non- public information that the Company has a bona fide business purpose for preserving as confidential. In the event of a postponement by the Company of the filing or effectiveness of a registration statement for a Demand Registration, the holders of a majority of Registrable Securities held by the Requesting Stockholders shall have the right to withdraw such Demand in accordance with Section 5.4.
(f) The Company shall not include any securities other than Registrable Securities in a Demand Registration, except with the written consent of Stockholders participating in such Demand Registration that hold a majority of the Registrable Securities included in such Demand Registration. If, in connection with a Demand Registration, any managing underwriter (or, if such Demand Registration is not an Underwritten Offering, a nationally recognized investment bank engaged in connection with such Demand Registration) advises the Company, in writing, that, in its opinion, the inclusion of all of the securities, including securities of the Company that are not Registrable Securities, sought to be registered in connection with such Demand Registration would adversely affect the marketability of the Registrable Securities sought to be sold pursuant thereto, then the Company shall include in such registration statement only such securities as the Company is advised by such underwriter or investment bank can be sold without such adverse effect as follows and in the following order of priority: (i) first, up to the number of Registrable Securities requested to be included in such Demand Notice could have included their Registrable SecuritiesRegistration by the Stockholders, which, in the opinion of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Stockholders requesting such Demand Registration on the basis of the number of such securities held by such Stockholders and such Stockholders that are Piggyback Sellers (as defined below); (ii) second, securities the Company may delay the effectiveness of a Demand Notice for a period of not more than six months after receipt of a Demand Notice in any 12-month period if the Company furnishes a certificate signed by its president stating that in the good faith judgment of the Company's board of directors it would be detrimental proposes to the Company for the Registration Statement to be effected at such timesell; and (iii) third, all other securities of the Company need duly requested to be included in such registration statement, pro rata on the basis of the number of such other securities requested to be included or such other method determined by the Company.
(g) Any investment bank(s) that will serve as an underwriter with respect to such Demand Registration or, if such Demand Registration is not prepare or file a Registration Statement pursuant to a Demand Notice if it is then preparing a Registration Statement an Underwritten Offering, any investment bank engaged in connection with an underwritten public offering of Company securitiestherewith, and shall be selected by the Company may delay the effectiveness of Stockholder participating in such Demand Notice until one hundred eighty (180) days after the effective date Registration that holds a number of Registrable Securities included in such Demand Registration Statementconstituting a plurality of all Registrable Securities included in such Demand Registration.
Appears in 2 contracts
Samples: Investor Rights Agreement (Chewy, Inc.), Investor Rights Agreement (Chewy, Inc.)
Demand Registration. 2.1 After (a) On or after the earlier of (i) the first 18-month anniversary of the date Closing Date, upon the written request of this Agreement, (ii) the consummation of an IPO or (iii) a Spin-Off or Hostile Change in Control at any time, Holders holders of at least fifty percent 40% of the then outstanding Registrable Securities held by the Investor Stockholders (50%the “Demand Party”) requesting that the Company effect the registration under the Securities Act of all or part of such Demand Party’s Registrable Securities then held and specifying the amount and intended method of disposition thereof, including without limitation, if requested on or after the 24-month anniversary of the Closing Date, pursuant to a shelf registration statement utilizing Rule 415 of the Securities Act (or its successor provision), and thereupon will, as expeditiously as reasonably practicable, use its reasonable best efforts to effect the registration under the Securities Act of the Registrable Securities which the Company has been so requested to register by parties the Demand Party; provided that in no event shall the Company be required to effect more than three (3) registrations pursuant to this Agreement (or Section 4.2; provided, further, that in the case of a Spin-Off the percentage of Registrable Securities equal to the proportion which the majority of the number shares of Common acquired pursuant to the Subscription Agreement bears to all Registrable Securities at the time of the Spin-Off) may request no event shall the Company be obligated to Register prepare and file any such registration statement or all of their Registrable Securities (any supplemental prospectus with respect to a "Demand Notice"). Demand Notices shall be made in writing and shall specify the Holders making the Demand Notice, the number and type sale of Registrable Securities that each requests would not obtain a minimum sales price of $25 million; provided, further, that the Company shall not be obligated to be Registeredfile a registration statement under this Section 4.2 within a period of 90 days after the effective date of any other registration statement for which the Holders exercised their rights under Section 4.1 or for which the Company filed pursuant to this Section 4.2; provided, whether further, that if all of the Registrable Securities will held by a Holder (together with those of its Affiliates) can be sold through an underwriterwithout restriction under SEC Rule 144(k), and if so, the underwriters name, address, telephone number and contact person. The Company will prepare and file a Registration Statement in accordance with Section 4 for the Registrable Securities to be Registered pursuant to a valid Demand Notice; provided that the Company shall not be required to prepare or file a Registration Statement under effect any registrations for such Holder pursuant to this Section 2 more than once in any twelve 4.2 (12) month period, more than twice after an IPO or more than three (3) times in total. Registrations pursuant to Demand Notices are subject to the further limitations set forth in Section 2.3.
2.2 Within ten (10) days from its receipt of a valid Demand Notice, the Company shall deliver written notice to all Holders that, pursuant to a Demand Notice, the Company will prepare and file a Registration Statement. Any Holder who was not a party to the Demand Notice may, within ten (10) days from receipt of the Company's notice, request the Company to include the Holder's Registrable Securities in the Registration Statement. If the Holders that initiated a Demand Notice specify therein that they intend to distribute their Registrable Securities through an underwriter, then each Holder that requests inclusion in the Registration Statement must participate in such underwriting, and become party to any required agreements, including, but not limited to, customary underwriting and indemnification agreements. The Company shall have the right to approve any underwriter, which approval shall not be unreasonably withheld. In the event that the underwriter limits the number of Registrable Securities to be included in the offering to fewer than the number that has been requested for Registration, then each Holder's Registrable Securities shall be included in the underwriting pro rata, based on the total number of Registrable Securities held by the participating Holders.
2.3 Registrations under this Section 2 are subject required to the following limitations: (i) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice within one hundred eighty (180) days after the effective date of any Registration Statement filed by the Company in which the Holders party to the Demand Notice could have included their Registrable Securities; (ii) the Company may delay maintain the effectiveness of a Demand Notice for a period any shelf registration statement as required by Section 4.3(b)). Nothing in this Section 4.2 shall limit the right of not more than six months after receipt of a Demand Notice in any 12-month period if Holder to request the Company furnishes a certificate signed by its president stating that in the good faith judgment registration of the Company's board Registrable Securities issuable upon conversion of directors it would be detrimental to the Company for Subject Shares held by such Holder notwithstanding the Registration Statement to be effected fact that at the time of the request such time; Holder holds Series B Preferred Stock and (iii) not the Company need not prepare or file a Registration Statement pursuant to a Demand Notice if it is then preparing a Registration Statement in connection with an underwritten public offering of Company securities, and the Company may delay the effectiveness of such Demand Notice until one hundred eighty (180) days after the effective date of such Registration StatementRegistrable Securities.
Appears in 2 contracts
Samples: Stockholders Agreement (Homestore Inc), Stockholders Agreement (Homestore Inc)
Demand Registration. 2.1 After (i) Upon the earlier of (iA) the first third anniversary of the date of this Agreement, Closing Date and (iiB) the consummation occurrence of a Demand Event (but only if a Demand Event Tag Along Right or Demand Event Drag Along Right has not been exercised), the Investor shall have the right, upon delivery of written notice to the Company (not more than twice in any 12-month period and subject, in each case, to Section 10(a) hereof) to require the Company to register under the Securities Act such amount of Registrable Securities owned by the Investor as may be specified in such notice in accordance with the procedures set forth in this Section 11(b), provided, that any such registration demanded by the Investor under this Section 11(b)(i) must be for an IPO or (iii) a Spin-Off or Hostile Change in Control at any time, Holders amount of Common Stock having an aggregate anticipated sales price of at least fifty percent (50%) $25,000,000. The rights of all the Investor to demand the registration of its Registrable Securities then held shall continue until (x) all the Registrable Securities owned by parties it shall have been Transferred to this Agreement transferees who are not entitled to the registration rights of the Investor hereunder in accordance with Section 15 hereof or, if earlier, (y) all its remaining Registrable Securities are already included in an effective resale registration statement on Form S-3 or other appropriate form for continuous or delayed offerings or are eligible to be Transferred in Public Sales to U.S. persons in the United States without registration under the Securities Act and without being subject to volume limitations under Rule 144 under the Securities Act, provided, in the case of (y), that there is a Spin-Off public float of the percentage Common Stock equal to at least 15% of the total outstanding shares of Common Stock.
(ii) If, by the fifth anniversary of the Closing Date, the Company has not completed one or more Public Sales which have resulted in a public float of the Common Stock equal to at least 15% of the total outstanding shares of Common Stock, then the Investor shall have the right to require the Company to register and effect a Public Sale of a sufficient number of shares of newly issued Common Stock which, together with shares of Common Stock being resold by WWC or any Other Shareholders (as defined below) and shares of Common Stock previously sold in Public Sales, will result in a public float of at least 15% of the total outstanding shares of Common Stock, all in accordance with the procedures set forth in this Section 11(b) for the registration of Registrable Securities.
(iii) If the Investor shall have demanded a registration of Registrable Securities equal to the proportion (which the majority of the number term will include for this purpose newly issued shares of Common acquired Stock referred to in Section 11(b)(ii) hereof) then the Company will:
(A) promptly give written notice of the proposed registration to all other shareholders entitled to piggyback registration rights under Section 11(c) hereof or any other contractual agreement of the Company (the "Other Shareholders") and
(B) as soon as practicable, use its best efforts to prepare and file with the Commission and cause to become effective such registration statement as would permit or facilitate the sale and distribution of all the Registrable Securities required to be covered thereby pursuant to the Subscription Agreement bears notice delivered by the Investor, together (subject to Section 11(b)(iv) below) with all or such portion of the securities of any Other Shareholders joining in such registration as are specified in written requests received by the Company within ten Business Days after written notice from the Company is delivered under Section 11(b)(iii)(A) above.
(iv) The Investor, at its election, shall have the Registrable Securities at covered by its request distributed by means of an underwritten public offering with a single or managing underwriter selected by the time Company and reasonably acceptable to the Investor. If any Other Shareholders so request, the securities of such Other Shareholders shall be included in the registration and underwriting being effected pursuant to this Section 11(b), subject to this Section 11(b)(iv). The Investor and the Company shall (together with all Other Shareholders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the Spin-Off) may request underwriter or underwriters selected for such underwriting by the Company and reasonably acceptable to Register any or all of their Registrable Securities the Investor (a the "Demand NoticeRepresentative"). Demand Notices Notwithstanding any other provision of this Section 11(b), if the Representative advises the Investor and the Company in writing that (x) marketing factors require a limitation on the number of shares to be underwritten or (y) the inclusion of shares held by officers and directors of the Company in the offering could, in the Representative's best judgment, materially reduce the offering price per share, then, in the case of the preceding clause (x), the Common Stock held by Other Shareholders shall be made excluded from such underwriting to the extent so required by such limitations and, in writing and shall specify the Holders making case of the Demand Noticepreceding clause (y), the Common Stock held by officers and directors of the Company shall be excluded from such underwriting to the extent advised by the Representative. If, after the exclusion of such shares, further reductions are required to meet the limitation on the number of shares to be underwritten as advised by the Representative, then the Investor may elect, in its sole discretion, to reduce the number of shares that will be included in the underwriting by it by such number of shares as is necessary to comply with such limitation, but in no event to an amount which is below the minimum amount for a demand registration as provided in Section 11(b)(i). If the Investor does not so elect, then the registration of its shares under Section 11(b)(i) will not proceed and type will be terminated without liability to any other Person. If the Representative has not limited the number of Registrable Securities that each requests or other securities to be Registeredunderwritten, whether the Company may include its securities for its own account in such registration if the Representative so agrees and if the number of Registrable Securities which would otherwise have been included in such registration and underwriting will not thereby be sold through an underwriterlimited.
(v) Notwithstanding the foregoing, and if so, the underwriters name, address, telephone number and contact person. The Company will prepare and file a Registration Statement in accordance with Section 4 for the Registrable Securities to be Registered pursuant to a valid Demand Notice; provided that the Company shall not be required to prepare or file a Registration Statement under this Section 2 more than once in any twelve (12) month period, more than twice after an IPO or more than three (3) times in total. Registrations pursuant to Demand Notices are subject furnish to the further limitations set forth in Section 2.3.
2.2 Within ten (10) days from its receipt Investor and the Other Shareholders a certificate signed by the President or Chief Executive Officer of a valid Demand Notice, the Company shall deliver written notice to all Holders stating that, pursuant in the good faith judgment of the Board, it would be materially detrimental to a Demand Notice, the Company will prepare and file a Registration Statement. Any Holder who was not a party its shareholders for such registration statement to be filed and that it is therefore essential to defer the Demand Notice may, within ten (10) days from receipt filing of the Company's notice, request the Company to include the Holder's Registrable Securities in the Registration Statement. If the Holders that initiated a Demand Notice specify therein that they intend to distribute their Registrable Securities through an underwritersuch registration statement, then each Holder that requests inclusion in the Registration Statement must participate in such underwriting, and become party to any required agreements, including, but not limited to, customary underwriting and indemnification agreements. The Company shall have the right to approve any underwriter, which approval shall not be unreasonably withheld. In the event that the underwriter limits the number of Registrable Securities to be included in the offering to fewer than the number that has been requested for Registration, then each Holder's Registrable Securities shall be included in the underwriting pro rata, based on the total number of Registrable Securities held by the participating Holders.
2.3 Registrations under this Section 2 are subject to the following limitations: (i) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice within one hundred eighty (180) days after the effective date of any Registration Statement filed by the Company in which the Holders party to the Demand Notice could have included their Registrable Securities; (ii) the Company may delay the effectiveness of a Demand Notice defer such filing for a period of not more than six months 90 days after receipt the delivery of such certificate, provided that the Investor shall not be required to accept such a Demand Notice deferral more than twice in any 12-month period if the Company furnishes a certificate signed by its president stating that in the good faith judgment of the Company's board of directors it would be detrimental to the Company for the Registration Statement to be effected at such time; and (iii) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice if it is then preparing a Registration Statement in connection with an underwritten public offering of Company securities, and the Company may delay the effectiveness of such Demand Notice until one hundred eighty (180) days after the effective date of such Registration Statementperiod.
Appears in 2 contracts
Samples: Shareholders Agreement (Voicestream Wireless Holding Corp), Shareholder Agreement (Hutchison Whampoa LTD /Wav)
Demand Registration. 2.1 After (a) If the earlier Company shall receive from any member of the Snow Xxxxxx Group or the TOBI Group (each, a “Requesting Equity Holder”) a written request that the Company effect a registration with respect to all or a part of the Registrable Shares held by such Requesting Equity Holder (a “Demand Registration”, which term shall include any Marketed Underwritten Demand Registration and demands for a Marketed Underwritten Takedown Offering), then the Company will:
(i) the first anniversary of within ten (10) days after the date of this Agreementsuch request, give written notice of the proposed registration to all Equity Holders (other than the Requesting Equity Holder) and the holders of Other Shares; and
(ii) the consummation of an IPO or (iii) a Spin-Off or Hostile Change in Control at any timeuse commercially reasonable efforts to, Holders of at least fifty percent (50%) of all Registrable Securities then held by parties to this Agreement (or as soon as practicable, effect such registration which shall, in the case of a Spinsecondary offering, be on Form S-3 if the Company is qualified for registration on Form S-3 under the Securities Act (or any comparable or successor form or forms thereto) (“Form S-3”) and if the Company is not qualified for registration on Form S-3 at such time, on Form S-1 under the Securities Act) (“Form S-1”) (including, without limitation, the execution of an undertaking to file post-Off effective amendments, appropriate qualifications under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the percentage Securities Act) as may be so requested and as would permit or facilitate the sale and distribution of all of such Registrable Securities equal Shares as are specified in such request, together with all or such portion of (A) the other Registrable Shares joining in such request as are specified in a written request from any Equity Holder received by the Company, (B) any Other Shares entitled to participate therein as are specified in a written request from the proportion which holders of such Other Shares received by the majority of Company, and/or (C) any Primary Shares proposed to be included in such registration by the number shares of Common acquired pursuant to the Subscription Agreement bears to all Registrable Securities at the time of the Spin-Off) may request Company by notice from the Company to Register any or all of their Registrable Securities the Requesting Equity Holder, in each case within twenty (a "Demand Notice"). Demand Notices shall be made in writing and shall specify 20) days after written notice from the Holders making the Demand Notice, the number and type of Registrable Securities that each requests to be Registered, whether the Registrable Securities will be sold through an underwriter, and if so, the underwriters name, address, telephone number and contact person. The Company will prepare and file a Registration Statement in accordance with is given under Section 4 for the Registrable Securities to be Registered pursuant to a valid Demand Notice2(a)(i) above; provided that the Company shall not be obligated to effect, or take any action to effect, any such registration pursuant to this Section 2(a):
(1) In any particular jurisdiction in which the Company would be required to prepare execute a general consent to service of process in effecting such registration, qualification or file a Registration Statement under this Section 2 more than once in any twelve (12) month periodcompliance, more than twice after an IPO or more than three (3) times in total. Registrations pursuant to Demand Notices are unless the Company is already subject to service in such jurisdiction and except as may be required by the further limitations set forth in Section 2.3.Securities Act or applicable rules or regulations thereunder;
2.2 Within ten (102) days from its receipt of a valid Demand Notice, If the Company shall deliver written notice furnish to all Holders that, pursuant to the Requesting Equity Holder a Demand Notice, certificate signed by the Chief Executive Officer (or other authorized officer) of the Company will prepare and file a Registration Statement. Any Holder who was not a party to stating that in the Demand Notice may, within ten (10) days from receipt reasonable discretion of the Company's notice, request Company the registration statement (i) would require the Company to include the Holder's Registrable Securities in the Registration Statement. If the Holders that initiated a Demand Notice specify therein that they intend to distribute their Registrable Securities through make an underwriter, then each Holder that requests inclusion in the Registration Statement must participate in such underwriting, and become party to any required agreements, including, but not limited to, customary underwriting and indemnification agreements. The Company shall have the right to approve any underwriter, which approval shall Adverse Disclosure or (ii) could not be unreasonably withheld. In the event that the underwriter limits the number of Registrable Securities to be included in the offering to fewer than the number that has been requested for Registration, then each Holder's Registrable Securities shall be included in the underwriting pro rata, based on the total number of Registrable Securities held by the participating Holders.
2.3 Registrations under this Section 2 are subject to the following limitations: (i) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice within one hundred eighty (180) days after the effective date of any Registration Statement filed effected by the Company in which compliance with the Holders party applicable financial statement requirements under applicable securities laws, the Company’s obligation to use its reasonable best efforts to comply with this Section 2(a), and its related obligations under Section 5, shall be deferred (provided that the Company shall only be permitted two deferrals pursuant to this Section 2(a)(ii)(2) and Section 2(d)(iv), in the aggregate, in any twelve-month period, with such deferrals not to exceed an aggregate of 90 days);
(3) If the Requesting Equity Holder and its Group propose to register Registrable Shares at an expected offering price, net of underwriter discounts and commissions, of less than $10,000,000 (net of Registration Expenses) in the aggregate; provided that this clause (4) shall not apply to a Shelf Registration covering an unspecified number of shares in accordance with Section 2(b); or
(4) With respect to registrations on Form S-3, in excess of an aggregate of more than four (4) Demand Registrations and/or Takedown Demands (as defined herein) in any calendar year or in excess of one Demand Registration or Takedown Demand per calendar quarter, excluding any Demand Registrations and Takedown Demands that are terminated in accordance with Section 2(b) below; or
(5) With respect to registrations on Form S-1, in excess of one (1) Demand Registration in any calendar year. Subject to the Demand Notice could have included their Registrable Securities; (iiprovisions of Section 2(e) below, the Company may delay the effectiveness of a Demand Notice for a period of not more than six months after receipt of a Demand Notice may, in any 12-month period if the Company furnishes a certificate signed by its president stating that sole discretion, include Other Shares in the good faith judgment registration statement filed pursuant to the request of the Company's board of directors it would be detrimental to the Company for the Registration Statement to be effected at such time; and (iii) the Company need not prepare or file a Registration Statement Requesting Equity Holders pursuant to a Demand Notice if it is then preparing a Registration Statement in connection with an underwritten public offering of Company securities, and the Company may delay the effectiveness of such Demand Notice until one hundred eighty (180) days after the effective date of such Registration Statementthis Section 2(a).
Appears in 2 contracts
Samples: Registration Rights Agreement (Velocity Financial, Inc.), Securities Purchase Agreement (Velocity Financial, Inc.)
Demand Registration. 2.1 After (a) Upon the earlier of (i) the first fifth anniversary of the date of this Agreement, Agreement and (ii) the consummation six-month anniversary of an IPO the Company’s IPO, the Company agrees that, upon the written request of either RN Stockholder or (iii) a Spin-Off MTVN Stockholder so long as RN Stockholder or Hostile Change in Control at any timeMTVN Stockholder, Holders of as applicable, owns at least fifty twenty-five percent (5025%) of all the then outstanding shares of Voting Stock (the “Initiating Holders”) (a “Demand Registration”), it will as promptly as reasonably practical (but in any event within 45 days of receipt of such request) prepare and file a registration statement under the Securities Act (a “Registration Statement”, which term will include any amendments thereto and any documents incorporated by reference therein); provided that (i) the Company will not be obligated to effect (x) a Demand Registration if a Registration Statement pursuant to this Section 6.01 or Section 6.02 in which the holders of Registrable Securities then held by parties had the right to include Registrable Securities was declared effective within 12 months prior to the date of the request for a Demand Registration, so long as the number of Registrable Securities which the holders of Registrable Securities requested to include in such Registration Statement was not reduced pursuant to Section 6.03 or (y) more than one Demand Registration (other than Demand Registrations taking the form of Shelf Options) for each of RN Stockholder and MTVN Stockholder (for a total of up to two Demand Registrations) under this Agreement and (ii) the Registrable Securities for which a Demand Registration has been requested will have a value (based on the average closing price per share of the Common Stock (or any successor security) for the ten trading days preceding the delivery of the Initiating Holders’ request for such Demand Registration, or, if such average trading information is not available, as determined in good faith by the Board) of not less than $10,000,000 (or, in the case of a Spin-Off Shelf Option, $5,000,000); provided further that no registration will be counted towards the percentage limitation in clause (i)(y) of the previous proviso unless all Registrable Securities requested to be registered where so registered or such registration was withdrawn at the request of the Initiating Holders (other than as a result of a material adverse change to the Company). Each such request for a Demand Registration by the Initiating Holders will specify the number of shares of Registrable Securities equal proposed to the proportion which the majority of the number shares of Common acquired pursuant to the Subscription Agreement bears to all Registrable Securities at the time of the Spin-Off) may request the Company to Register any or all of their Registrable Securities (a "Demand Notice"). Demand Notices shall be made in writing offered for sale and shall will also specify the Holders making the Demand Noticeintended method of distribution thereof and, the number and type of Registrable Securities that each requests to be Registered, whether the Registrable Securities will be sold through an underwriter, and if so, the underwriters name, address, telephone number and contact person. The Company will prepare and file a Registration Statement in accordance with Section 4 for the Registrable Securities to be Registered pursuant to a valid Demand Notice; provided that the Company shall not be required to prepare or file a Registration Statement under this Section 2 more than once in any twelve (12) month period, more than twice after an IPO or more than three (3) times in total. Registrations pursuant to Demand Notices are subject to the further limitations set forth in Section 2.3.
2.2 Within ten (10) days from its following receipt of a valid Demand Notice, the Company shall deliver written notice to all Holders that, pursuant to a Demand Noticesuch demand, the Company will prepare and file a give written notice of such Demand Registration Statement. Any Holder who was not a party to the Demand Notice mayholders of Registrable Securities (other than the Initiating Holders) as soon as practicable (but in no event less than 30 days before the anticipated filing date), and upon the written request, given within ten (10) 15 days from receipt after delivery of any such notice by the Company's notice, request of any such holder of Registrable Securities (other than the Company Initiating Holders) to include the Holder's in such Demand Registration Registrable Securities in the Registration Statement. If the Holders that initiated a Demand Notice (which request shall specify therein that they intend to distribute their Registrable Securities through an underwriter, then each Holder that requests inclusion in the Registration Statement must participate in such underwriting, and become party to any required agreements, including, but not limited to, customary underwriting and indemnification agreements. The Company shall have the right to approve any underwriter, which approval shall not be unreasonably withheld. In the event that the underwriter limits the number of Registrable Securities proposed to be included in such registration), the Company will cause all such Registrable Securities to be included in such registration on the offering to fewer than same terms and conditions as the number that has been requested for Registration, then each Holder's Registrable Securities of the Initiating Holders. Upon the written request of Initiating Holders holding at least ten percent (10%) of the Registrable Securities then outstanding, the Demand Registration shall be included in effected by filing the underwriting pro rataRegistration Statement on Form S-3 (if such form is available for such offering or, based on if such form is not available for such offering, other appropriate form) (the total number “Shelf Registration Statement”) which provides for the sale by the Participating Stockholders of their Registrable Securities held by from time to time in underwritten public offerings pursuant to Rule 415 under the participating Holders.
2.3 Registrations under this Section 2 are subject to Securities Act (the following limitations: “Shelf Option”); provided that (i) the Company need Initiating Holders may not prepare elect the Shelf Option if the request thereunder is in connection with or file a Registration Statement pursuant to a Demand Notice within one hundred eighty (180) days after would constitute the effective date of any Registration Statement filed by the Company in which the Holders party to the Demand Notice could have included their Registrable Securities; Company’s IPO and (ii) the Initiating Holders may not elect more than one Shelf Option within any 365 day period.
(b) The Company may delay agrees to use its commercially reasonable efforts (i) to cause any Registration Statement to be declared effective (unless it becomes effective automatically upon filing) as promptly as reasonably practicable after the effectiveness of a Demand Notice filing thereof and (ii) to keep such Registration Statement effective for a period of (x) not less than 90 days or, if earlier, the period sufficient to complete the distribution of the Registrable Securities pursuant to such Registration Statement or (y) in the case of a Shelf Registration Statement, for a period ending on the first date on which all the Registrable Securities covered by such Shelf Registration Statement have been sold pursuant to such Shelf Registration Statement, but in no event longer than 180 days. The Company shall be deemed not to have used its commercially reasonable efforts to keep a Registration Statement effective during the requisite period if it voluntarily takes any action that would result in the Participating Stockholders not being able to offer and sell their Registrable Securities included in such offering during that period, unless such action is required by applicable Law or is pursuant to Section 6.06. The Company further agrees to supplement or make amendments to the Registration Statement as may be necessary to keep such Registration Statement effective for the period set forth in clause (ii) above, including (A) to respond to the comments of the SEC, if any, (B) as may be required by the registration form utilized by the Company for such Registration Statement or by the instructions applicable to such registration form, (C) as may be required by the Securities Act or the rules and regulations thereunder or (D) the Company as may be reasonably requested in writing by any Participating Stockholder or any Underwriter. The Company agrees, at least ten days before filing with the SEC a Registration Statement or prospectus and at least two days before filing with the SEC any amendments or supplements thereto, to furnish to the Underwriters, if any, to the Participating Stockholders, and to one counsel selected by the Participating Stockholders copies of all such documents proposed to be filed, which documents shall be subject to the review and reasonable comments of such Persons.
(c) In the event an offering of shares of Registrable Securities involves one or more Underwriters, MTVN Stockholder and RN Stockholder (provided that they are Participating Stockholders in such offering) will jointly (and if only one such Stockholder is a Participating Stockholder in such offering, such Stockholder acting individually) select the lead bookrunning Underwriter and any additional Underwriters in connection with the offering, subject to the reasonable approval of the Company.
(d) Notwithstanding the foregoing provisions of this Section 6.01, the holders of Registrable Securities may not request a Demand Registration during a period commencing upon filing (or earlier, but not more than six months 30 days prior to such filing upon notice by the Company to the holders of Registrable Securities that it so intends to file) a Registration Statement for Equity Securities of the Company (for its own account or for any other security holder) and ending (i) 90 days after receipt such Registration Statement is declared effective by the SEC (or becomes automatically effective) or up to 180 days in the case of a Demand Notice an underwriting if and to the extent requested by the lead Underwriter, (ii) upon the withdrawal of such Registration Statement or (iii) 30 days after such notice if no such Registration Statement has been filed within such 30-day period, whichever occurs first; provided that the foregoing limitation will not apply if the holders of Registrable Securities were not given the opportunity, in violation of Section 6.01(a) or 6.02, to include its Registrable Securities in the Registration Statement described in this Section 6.01(d); provided, further, that in no event will the holders of Registrable Securities be restricted hereunder for more than 180 days in any 12-month period period.
(e) The Initiating Holders will be permitted to rescind a Demand Registration at any time; provided that if the Company furnishes Initiating Holders rescind a certificate signed by its president stating that in Demand Registration, such Demand Registration will nonetheless count as a Demand Registration for purposes of determining when future Demand Registrations can be requested pursuant to this Section 6.01, unless the good faith judgment of the Company's board of directors it would be detrimental to Initiating Holders reimburse the Company for the Registration Statement to be effected at such time; and (iii) all expenses incurred by the Company need not prepare or file a Registration Statement pursuant to a Demand Notice if it is then preparing a Registration Statement in connection with an underwritten public offering of Company securities, and the Company may delay the effectiveness of such Demand Notice until one hundred eighty (180) days after the effective date of such Registration StatementRegistration.
Appears in 2 contracts
Samples: Stockholder Agreement, Stockholder Agreement (Realnetworks Inc)
Demand Registration. 2.1 After the earlier of (i) Subject to the first terms and conditions of this Agreement (including Section 2(b)(iii)), at any time on or after the earlier to occur of (A) the second (2nd) anniversary of the date of this Agreement, Effective Date and (iiB) the consummation of an IPO or (iii) a Spin-Off or Hostile Change in Control at any time, Holders of at least fifty percent (50%) of all Registrable Securities then held by parties to this Agreement (or in the case of a Spin-Off the percentage of Registrable Securities equal to the proportion which the majority of the number shares of Common acquired pursuant to the Subscription Agreement bears to all Registrable Securities at the time of the Spin-Off) may request the Company to Register any or all of their Registrable Securities (a "Demand Notice"). Demand Notices shall be made in writing and shall specify the Holders making the Demand Notice, the number and type of Registrable Securities date that each requests to be Registered, whether the Registrable Securities will be sold through an underwriter, and if so, the underwriters name, address, telephone number and contact person. The Company will prepare and file a Registration Statement in accordance with Section 4 for the Registrable Securities to be Registered pursuant to a valid Demand Notice; provided that the Company shall not be required to prepare or file a Registration Statement under this Section 2 more than once in any twelve (12) month period, more than twice after an IPO or more than three (3) times in total. Registrations pursuant to Demand Notices are subject to the further limitations set forth in Section 2.3.
2.2 Within ten (10) days from its receipt of a valid Demand Notice, the Company shall deliver written notice to all Holders that, pursuant to a Demand Notice, the Company will prepare and file a Registration Statement. Any Holder who was not a party to the Demand Notice may, within ten (10) days from receipt of the Company's notice, request the Company to include the Holder's Registrable Securities in the Registration Statement. If the Holders that initiated a Demand Notice specify therein that they intend to distribute their Registrable Securities through an underwriter, then each Holder that requests inclusion in the Registration Statement must participate in such underwriting, and become party to any required agreements, including, but not limited to, customary underwriting and indemnification agreements. The Company shall have the right to approve any underwriter, which approval shall not be unreasonably withheld. In the event that the underwriter limits the number of Registrable Securities to be included in the offering to fewer than the number that has been requested for Registration, then each Holder's Registrable Securities shall be included in the underwriting pro rata, based on the total number of Registrable Securities held by the participating Holders.
2.3 Registrations under this Section 2 are subject to the following limitations: (i) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice within is one hundred eighty (180) days after the effective completion of the Initial Public Offering, upon written notice to the Company (a “Demand Notice”) delivered by (x) Holders beneficially owning not less than ten percent (10%) of the then outstanding shares of Company Common Stock in the aggregate or (y) a Holder that, together with its Affiliates, is both a Ten Percent Holder as of the date of this Agreement and could reasonably be considered an “Affiliate” (disregarding the proviso in the first sentence of the definition thereof) of the Company as of the date of such Demand Notice (an “Affiliated Holder”), which for the avoidance of doubt shall include any Holder with respect to which there is a director serving on the Board who was appointed by, or is otherwise employed by or affiliated with, such Holder or its Affiliates (each of the foregoing being referred to as the “Initiating Holders”) at any time requesting that the Company effect the registration (a “Demand Registration”) under the Securities Act of any or all of the Registrable Securities held by such Holders, the Company shall promptly (but in any event, not later than five (5) Business Days following the Company’s receipt of such Demand Notice) give written notice of the receipt of such Demand Notice to all other Holders that, to its knowledge, hold Registrable Securities (each, a “Demand Eligible Holder”). The Company shall promptly file the appropriate registration statement (the “Demand Registration Statement filed Statement”) and use its reasonable best efforts to effect, at the earliest practicable date, the registration under the Securities Act and under the applicable state securities laws of (1) the Registrable Securities which the Company has been so requested to register by the Company Initiating Holders in the Demand Notice, and (2) all other Registrable Securities which the Company has been requested to register by the Demand Eligible Holders party by written request (the “Demand Eligible Holder Request”) given to the Demand Notice could have included their Company within ten (10) Business Days after the giving of such written notice by the Company, in each case subject to Section 2(b)(v), all to the extent required to permit the disposition (in accordance with the intended methods of disposition) of the Registrable Securities; Securities to be so registered.
(ii) The Company may effect any requested Demand Registration using Form S-3 whenever the Company may delay is eligible to register for resale the effectiveness Registrable Securities on Form S-3 (unless the Initiating Holder(s) or the managing underwriter(s) of such offering requests the Company to use a Form S-1 in order to sell all of the Registrable Securities requested to be sold). Subject to the terms and conditions of this Agreement (including Section 2(b)(iii)), for so long as the Company is eligible to register for resale the Registrable Securities on Form S-3, each Ten Percent Holder shall have the right to request an unlimited number of Demand Registrations using Form S-3, which shall not constitute a Demand Registration for purposes of determining the number of Demand Registrations limited under Section 2(b)(iii)(B) below.
(iii) Notwithstanding anything herein to the contrary, (A) the Company shall only be required to comply with a Demand Notice for requesting that the Company conduct an Initial Public Offering when delivered by Holders of 25% or more of the outstanding shares of Company Common Stock, and (B) the Company shall only be required to (1) effect two Demand Registrations in any 6 month period, (2) effect a period total of not more than six months after receipt eight Demand Registrations by (x) Holders beneficially owning not less than 10% of the outstanding shares of the Company Common Stock in the aggregate and (y) Affiliated Holders, and an additional three Demand Registrations by each Ten Percent Holder throughout the term of this Agreement, and (3) comply with a request for a Demand Registration (other than a request that the Company conduct an Initial Public Offering) if the Initiating Holders, together with all other Demand Eligible Holders that request Registrable Securities be included in the Demand Registration pursuant to Section 2(b)(i), are requesting the registration of Registrable Securities, which is reasonably expected to result in aggregate gross proceeds in excess of $50 million. In connection with a Demand Notice requesting that the Company conduct an Initial Public Offering, the Company shall use its reasonable best efforts to cause the Company Common Stock to be listed on the New York Stock Exchange or The Nasdaq Global Market or any successor national securities exchange.
(iv) The Company shall use its reasonable best efforts to keep the Demand Registration Statement continuously effective under the Securities Act for the period of time necessary for the underwriters or Holders to sell all the Registrable Securities covered by such Demand Registration Statement or such shorter period which will terminate when all Registrable Securities covered by such Demand Registration Statement have been sold pursuant thereto (including, if necessary, by filing with the Commission 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 such Demand Registration Statement or by the Securities Act, any state securities or “blue sky” laws, or any other rules and regulations thereunder) (the “Effectiveness Period”). A Demand Registration requested pursuant to this Section 2(b) shall not be deemed to have been effected (A) if the Registration Statement is withdrawn without becoming effective, (B) if the Registration Statement does not remain effective in compliance with the provisions of the Securities Act and the laws of any 12-month period state or other jurisdiction applicable to the disposition of the Registrable Securities covered by such Registration Statement for the Effectiveness Period, (C) if, after it has become effective, such Registration Statement is subject to any stop order, injunction or other order or requirement of the Commission or other governmental or regulatory agency or court for any reason other than a violation of applicable law solely by any selling Holder and has not thereafter become effective, (D) in the event of an underwritten offering, if the conditions to closing specified in the underwriting agreement entered into in connection with such registration are not satisfied or waived other than by reason of some wrongful act or omission by an Initiating Holder, (E) if the Company furnishes does not include in the applicable Registration Statement any Registrable Securities held by a certificate signed Holder that is required by the terms hereof to be included in such Registration Statement, (F) if the Initiating Holders and Demand Eligible Holders have not been able to sell at least 75% of the Registrable Securities that they have requested to sell in the Demand Notice or Demand Eligible Holder Request, or (G) in the case of an Initial Public Offering only, if the Commission has indicated that all of its president stating comments on the Registration Statement have been cleared and the executive officers of the Company have participated in the related roadshow but the Registration Statement does not thereafter become effective.
(v) Notwithstanding any other provision of this Section 2(b), if (A) the Initiating Holders intend to distribute the Registrable Securities covered by a Demand Registration by means of an underwritten offering and (B) the managing underwriters advise the Company and the Initiating Holders that in their reasonable view, or, if such managing underwriters are unwilling to so advise the Company and the Initiating Holders, if the Company concludes after consultation with such managing underwriters and the Holders of Registrable Securities proposed to be included in such offering that in the good faith judgment Company’s reasonable view, the number of shares of Company Common Stock proposed to be included in such offering (including Registrable Securities requested by Holders to be included in such offering and any securities that the Company or any other Person proposes to be included that are not Registrable Securities) exceeds the number of shares of Company Common Stock which can be sold in an orderly manner in such offering within a price range acceptable to the Holders of a majority of the Registrable Securities requested to be included in such Demand Registration, then the Company shall so advise all Initiating Holders and Demand Eligible Holders with Registrable Securities proposed to be included in such underwritten offering, and shall include in such offering the number of shares of Company Common Stock which can be so sold in the following order of priority: (1) first, the Registrable Securities requested to be included in such underwritten offering by the Initiating Holders and the Demand Eligible Holders, which in the view of such underwriters or the Company's board , as applicable, can be sold in an orderly manner within the price range of directors it would such offering, pro rata among such Initiating Holders and Demand Eligible Holders on the basis of the number of Registrable Securities requested to be detrimental included therein by each such Initiating Holder and Demand Eligible Holder, and (2) second, Other Registrable Securities requested to be included in such underwritten offering to the Company for extent permitted hereunder pro rata among the Registration Statement respective holders of such Other Registrable Securities on the basis of the number of securities requested to be effected at included therein by each such time; and holder.
(iiivi) the Company need not prepare or file a Registration Statement The determination of whether any offering of Registrable Securities pursuant to a Demand Notice if it is then preparing Registration will be an underwritten offering shall be made in the sole discretion of the Holders of a Registration Statement majority of the Registrable Securities included in such underwritten offering, and such Holders of a majority of the Registrable Securities shall have the right to (A) determine the plan of distribution, including the price at which the Registrable Securities are to be sold and the underwriting commissions, discounts and fees, and (B) select the investment banker(s) and manager(s) to administer the offering (which shall consist of one (1) or more reputable nationally recognized investment banks, subject to the Company’s approval (which shall not be unreasonably withheld, conditioned or delayed)) and one (1) firm of counsel to represent all of the Holders (along with any reasonably necessary local counsel), in connection with an underwritten public offering of Company securitiessuch Demand Registration; provided, and that the Company may delay the effectiveness shall select such investment banker(s), manager(s) and counsel (including local counsel) if such Holders of such Demand Notice until one hundred eighty majority cannot so agree on the same within a reasonable time period.
(180vii) days after Any Holder whose Registrable Securities were to be included in any such registration pursuant to Section 2(b) may elect to withdraw any or all of its Registrable Securities therefrom, without prejudice to the rights of any such Holder or Holders to include Registrable Securities in any future registration (or registrations), by written notice to the Company delivered on or prior to the effective date of such the relevant Demand Registration Statement.
Appears in 2 contracts
Samples: Registration Rights Agreement, Registration Rights Agreement (MPM Holdings Inc.)
Demand Registration. 2.1 After (a) Liberty Media or its designee, on behalf of the earlier Liberty Holders, shall be entitled to make written requests from time to time for Demand Registration of all or any part of the Registrable Securities held by the Liberty Holders, provided that each such Demand Registration must be in respect of Registrable Securities representing not less than the lower of (iA) 10% of the first anniversary Initial Amount or, with respect to Registrable Securities other than shares of Class A Stock, a number of such other securities having a fair market value (based on the average of the closing prices of such securities on the principal stock exchange or interdealer quotation system on which such securities are traded for the five consecutive trading days immediately preceding the date of this Agreementthe written request for such Demand Registration or, if such securities are not publicly traded, as determined in good faith by the Company's Board of Directors) equal to at least 10% of the product of (iix) the consummation Initial Amount, multiplied by (y) the average of an IPO the closing prices of the Class A Stock on the principal stock exchange or interdealer quotation system on which the Class A Stock is traded for the same five trading day period or (iiiB) a Spin-Off or Hostile Change in Control at any time, Holders of at least fifty percent (50%) of all Registrable Securities then held by parties to this Agreement (or in the case of a Spin-Off the percentage of Registrable Securities equal to the proportion which the majority of the number shares of Common acquired pursuant to the Subscription Agreement bears to all Registrable Securities at the time of the Spin-Off) may request the Company to Register any or all of their Registrable Securities (a "Demand Notice"). Demand Notices shall be made in writing and shall specify the Holders making the Demand Notice, the number and type of Registrable Securities that each requests to be Registered, whether the Registrable Securities will be sold through an underwriterheld by the Liberty Holders. Notwithstanding the foregoing, and if so, the underwriters name, address, telephone number and contact person. The Company will prepare and file a Registration Statement in accordance with Section 4 for the Registrable Securities to be Registered pursuant to a valid Demand Notice; provided that the Company shall not be required obligated to prepare or file a Registration Statement under this Section 2 effect more than once in a total of five (5) Demand Registrations and Liberty Media and any twelve (12) month period, designee of Liberty Media may make no more than twice after an IPO or more than three (3) times in total. Registrations pursuant to Demand Notices are subject to the further limitations set forth in Section 2.3.
2.2 Within ten (10) days from its receipt of a valid Demand Notice, the Company shall deliver written notice to all Holders that, pursuant to two requests for a Demand Notice, the Company will prepare and file a Registration Statement. Any Holder who was not a party to the Demand Notice may, within ten (10) days from receipt of the Company's notice, request the Company to include the Holder's Registrable Securities in the Registration Statement. If the Holders that initiated a Demand Notice specify therein that they intend to distribute their Registrable Securities through an underwriter, then each Holder that requests inclusion in the Registration Statement must participate in such underwriting, and become party to any required agreements, including, but not limited to, customary underwriting and indemnification agreements. The Company shall have the right to approve any underwriter, which approval shall not be unreasonably withheld. In the event that the underwriter limits the number of Registrable Securities to be included in the offering to fewer than the number that has been requested for Registration, then each Holder's Registrable Securities shall be included in the underwriting pro rata, based on the total number of Registrable Securities held by the participating Holders.
2.3 Registrations under this Section 2 are subject to the following limitations: (i) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice within one hundred eighty (180) days after the effective date of any Registration Statement filed by the Company in which the Holders party to the Demand Notice could have included their Registrable Securities; (ii) the Company may delay the effectiveness of a Demand Notice for a period of not more than six months after receipt of a Demand Notice in any 12-month period if period.
(b) Any request for a Demand Registration will specify the Company furnishes aggregate number and kind of Registrable Securities proposed to be sold and will also specify the intended method of disposition thereof. A registration will not count as a certificate signed by its president stating that in the good faith judgment Demand Registration until it has become effective and at least 90% of the Company's board of directors it would be detrimental to the Company for the Registration Statement Registrable Securities requested to be effected at such time; and (iii) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice if it is then preparing a Registration Statement included in connection with an underwritten public offering of Company securities, and the Company may delay the effectiveness of such Demand Notice until one hundred eighty (180) days after the effective date of such Registration Statementhave been registered and sold.
Appears in 2 contracts
Samples: Agreement and Plan of Restructuring and Merger (New Unitedglobalcom Inc), Agreement and Plan of Restructuring and Merger (Liberty Media Corp /De/)
Demand Registration. 2.1 After the earlier of (i) For so long as the first anniversary Partnership owns any Registrable Securities and is otherwise entitled to exercise its right (“Initial Demand Right”) to request that ENLK prepare and file an initial registration statement (the “Initial Registration Statement”) under the Securities Act pursuant to Section 2.1(a) of the date of this Registration Rights Agreement, (iieither the TPG Investors, on the one hand, or the GS Investors, on the other hand, upon delivery of a written notice to the Partnership and the other Investor, may request that the Partnership exercise its Initial Demand Right and the Partnership, no earlier than three Business Days following receipt of such request, will exercise its Initial Demand Right in accordance with the Registration Rights Agreement; provided, however, that notwithstanding anything in this Section 6.2(a) the consummation of an IPO or (iii) a Spin-Off or Hostile Change in Control at any time, Holders of at least fifty percent (50%) of all Registrable Securities then held by parties to this Agreement (or in the case of a Spin-Off the percentage of Registrable Securities equal Registration Rights Agreement to the proportion which the majority of the number shares of Common acquired pursuant to the Subscription Agreement bears to all Registrable Securities at the time of the Spin-Off) may request the Company to Register any or all of their Registrable Securities (a "Demand Notice"). Demand Notices shall be made in writing and shall specify the Holders making the Demand Noticecontrary, the number and type of Registrable Securities that each requests to be Registered, whether the Registrable Securities will be sold through an underwriter, and if so, the underwriters name, address, telephone number and contact person. The Company will prepare and file a Registration Statement in accordance with Section 4 for the Registrable Securities to be Registered pursuant to a valid Demand Notice; provided that the Company shall not be required to prepare or file a Registration Statement under this Section 2 more than once in any twelve (12) month period, more than twice after an IPO or more than three (3) times in total. Registrations pursuant to Demand Notices are subject to the further limitations set forth in Section 2.3.
2.2 Within ten (10) days from its receipt of a valid Demand Notice, the Company shall deliver written notice to all Holders that, pursuant to a Demand Notice, the Company will prepare and file a Registration Statement. Any Holder who was not a party to the Demand Notice may, within ten (10) days from receipt of the Company's notice, request the Company to include the Holder's Registrable Securities in the Registration Statement. If the Holders that initiated a Demand Notice specify therein that they intend to distribute their Registrable Securities through an underwriter, then each Holder that requests inclusion in the Registration Statement must participate in such underwriting, and become party to any required agreements, including, but not limited to, customary underwriting and indemnification agreements. The Company no Investor shall have the right to approve any underwriter, which approval shall not be unreasonably withheld. In the event request that the underwriter limits Partnership exercise its Initial Demand Right after the number date on which such Investor and its Affiliates no longer collectively own more than 50% of the Class A Units that such Investor and its Affiliates owned as of the Closing.
(ii) If the Partnership has not exercised its Initial Demand Right, either the TPG Investors, on the one hand, or the GS Investors, on the other hand, to the extent such Investors directly own Registrable Securities and following prior consultation with the other Investors, may exercise any respective rights they may have to request that ENLK prepare and file an Initial Registration Statement pursuant to Section 2.1(a) of the Registration Rights Agreement; provided, however, that notwithstanding anything in this Section 6.2(a) or in the Registration Rights Agreement to the contrary, no Investor shall have the right to request that ENLK file an Initial Registration Statement after the date on which such Investor and its Affiliates no longer collectively own more than 50% of the Registrable Securities to be included in which such Investor was entitled as of the offering to fewer than Closing.
(iii) Following the number that has been requested filing of the Initial Registration Statement, for Registration, then each Holder's so long as the Partnership owns any Registrable Securities and is otherwise entitled to exercise its right to request the filing of additional Registration Statements under Section 2.1(a) of the Registration Rights Agreement (each, an “Additional Demand Right”), either the TPG Investors, on the one hand, or the GS Investors, on the other hand, upon delivery of a written notice to the Partnership and the other Investor, may request that the Partnership exercise an Additional Demand Right and the Partnership, no earlier than three Business Days following receipt of such request, will exercise such Additional Demand Right in accordance with the Registration Rights Agreement; provided, however, that without the prior written consent of the other Investors, neither the TPG Investors, on the one hand, nor the GS Investors, on the other hand, shall be included in have any right to request the underwriting pro rata, filing of a number of additional Registration Statements pursuant to this Section 6.2(a)(iii) and Section 6.2(a)(iv) that is greater than such Investors’ proportionate share (based on such Investors’ then-current relative ownership of the Registrable Securities owned by all Investors) of the total number of Registration Statements that are permitted under Section 2.1(a) of the Registration Rights Agreement, rounded to the nearest whole number.
(iv) Following the filing of the Initial Registration Statement, if any of the TPG Investors, on the one hand, or the GS Investors, on the other hand, directly owns any Registrable Securities, such Investor may exercise any rights it may have to request the filing of additional Registration Statements under Section 2.1(a) of the Registration Rights Agreement; provided, however, that such Investor provides written notice to the other Investor at least five Business Days prior to making any such request; provided further, that without the prior written consent of the other Investors, neither the TPG Investors, on the one hand, nor the GS Investors, on the other hand, shall have any right to request the filing of a number of additional Registration Statements pursuant to Section 6.2(a)(iii) and this Section 6.2(a)(iv) that is greater than such Investors’ proportionate share (based on such Investors’ then-current relative ownership of the Registrable Securities held owned by all Investors) of the participating Holders.
2.3 Registrations total number of Registration Statements that are permitted under this Section 2 are subject 2.1(a) of the Registration Rights Agreement, rounded to the following limitations: (i) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice within one hundred eighty (180) days after the effective date of any Registration Statement filed by the Company in which the Holders party to the Demand Notice could have included their Registrable Securities; (ii) the Company may delay the effectiveness of a Demand Notice for a period of not more than six months after receipt of a Demand Notice in any 12-month period if the Company furnishes a certificate signed by its president stating that in the good faith judgment of the Company's board of directors it would be detrimental to the Company for the Registration Statement to be effected at such time; and (iii) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice if it is then preparing a Registration Statement in connection with an underwritten public offering of Company securities, and the Company may delay the effectiveness of such Demand Notice until one hundred eighty (180) days after the effective date of such Registration Statementnearest whole number.
Appears in 2 contracts
Samples: Coordination and Securityholders’ Agreement (Enfield Holdings Advisors, Inc.), Coordination and Securityholders’ Agreement (Enfield Holdings Advisors, Inc.)
Demand Registration. 2.1 After (a) If the Company shall receive a request (each such request, an “Investor Request” and each requesting Investor, the “Requesting Investor”) from either (i) the Holders of a majority of the Series D Shares, Series C-2 Shares, Series C-1 Shares and Series C Shares, together as a single class on an as-converted basis, at any time after the earlier of (ix) 60 days after the first anniversary Initial Closing and (y) 180 days after the completion of the date of this Agreementan Initial Public Offering, or (ii) the consummation of an IPO or (iii) a Spin-Off or Hostile Change in Control at any time, Holders of at least fifty percent (50%) of all Registrable Securities then held by parties to this Agreement (or in the case of a Spin-Off the percentage of Registrable Securities equal to the proportion which the majority of the number shares Series B Shares, together as a single class on an as-converted basis, at least 180 days after the completion of Common acquired pursuant an Investor Request initiated by the Holders referred to in (i), in each case, that the Company file a registration statement under the Securities Act with respect to the Subscription Agreement bears proposed sale by such Requesting Investor of all or part of the Registrable Securities owned by such Requesting Investor. Promptly after receipt of the Investor Request, the Company shall, subject to Section 14, give written notice (the “Notice of Investor Request”) of such Investor Request to all Holders and, subject to the limitations of Section 2(c) below, shall file (as expeditiously as practicable and in any event within sixty (60) days of its receipt) and use its best efforts to effect, a registration statement under the Securities Act with respect to all Registrable Securities at that the time Holders request to be registered (such requesting Holders together with the Requesting Investors, the “Registering Shareholders”) within ten (10) business days of the Spin-Off) may request receipt the Company to Register any or all applicable Holder of their Registrable Securities the Notice of Investor Request (a "Demand Notice"). Demand Notices shall be made in writing and shall specify the Holders making the Demand Notice, the number and type of Registrable Securities that each requests to be Registered, whether the Registrable Securities will be sold through an underwriter, and if so, the underwriters name, address, telephone number and contact person. The Company will prepare and file a Registration Statement delivered in accordance with Section 4 for 22) ; provided, however, that no Investor Request shall be effected from Holders referred to in clause (ii) above if the aggregate gross proceeds expected to be received from the sale of the Registrable Securities requested to be included by all Registering Shareholders in such Investor Request are less than $20,000,000 (unless such Registrable Securities identified in the Investor Request constitute all remaining Registrable Securities held by the Registering Shareholders). All requests made pursuant to this Section 2(a) will specify the aggregate number of the Registrable Securities to be Registered registered and will also specify the intended methods of disposition thereof.
(b) If the Requesting Investors intend to distribute the Registrable Securities covered by their written request by means of an underwriting, they shall so advise the Company as a part of their Investor Request and the Company shall include such information in the Notice of Investor Request. In such event, the right of any Holder to include such Holder’s Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. The Holders of a majority in interest of the Registrable Securities participating in the underwriting, in consultation with the Company, shall select the managing underwriter or underwriters in such underwriting. All Holders proposing to distribute their securities through such underwriting shall (together with the Company as provided in Section 5(f)) enter into an underwriting agreement in customary form with the underwriter or underwriters so selected; provided, however, that (i) no Holder (or any of their assignees) shall be required to make any representations, warranties or indemnities except as they relate to such Holder’s ownership of shares and authority to enter into the underwriting agreement and to such Holder’s intended method of distribution, and the liability of such Holder shall be limited to an amount equal to the net proceeds from the offering received by such Holder, and (ii) each Holder shall be required to deliver all questionnaires, powers of attorney, escrow and custody agreements, legal opinions and other documents customarily required under the terms of such underwriting agreement. Notwithstanding any other provision of this Section 2, if the underwriter advises the Company and the Requesting Investor that, in its view, the number of shares of Registrable Securities requested to be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority order listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be registered by the Registering Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among the Registering Shareholders on the basis of the relative number of Registrable Securities so requested to be included in such registration by each); and
(ii) second, all Registrable Securities proposed to be registered by the Company.
(c) The Company shall be obligated to effect only eight (8) registrations pursuant to a valid Demand Notice; provided an Investor Request under Section 2 (it being understood that the Holders of a majority of the Series D Shares, Series C-2 Shares, Series C-1 Shares and Series C Shares, together as a single class on an as-converted basis, shall be entitled to request six (6) such registrations and the Holders of a majority of the Series B Shares, together as a single class on an as-converted basis, shall be entitled to request two (2) such registrations); provided, however, that in each case the Company shall be obligated to effect as many registrations as may be requested by Holders of Registrable Securities pursuant to any Investor Request in the event and so long as registration pursuant to Form S-3 or any similar “short-form” registration statement is available. The Company shall not be required obligated to prepare effect, or file a Registration Statement under this to take any action to effect, any registration pursuant to Section 2 more than once in any 3 if the Company has effected two registrations pursuant to Section 3 within the twelve (12) month period, more than twice after an IPO or more than three period immediately preceding the date of such request.
(3d) times in total. Registrations pursuant to Demand Notices are subject At any time prior to the further limitations set forth in Section 2.3effective date of the registration statement relating to an Investor Request, the Requesting Investor may revoke such request for a registration, without liability to any of the other Holders, by providing a notice to the Company revoking such request.
2.2 Within ten (10e) days from its receipt of a valid Demand Notice, the Company shall deliver written notice to all Holders that, pursuant to a Demand Notice, the Company will prepare and file a Registration Statement. Any Holder who was not a party to the Demand Notice may, within ten (10) days from receipt of the Company's notice, request the Company to include the Holder's Registrable Securities in the Registration Statement. If the Holders that initiated a Demand Notice specify therein that they intend to distribute their Registrable Securities through an underwriter, then each Holder that requests inclusion in the Registration Statement must participate in such underwriting, and become party to any required agreements, including, but not limited to, customary underwriting and indemnification agreements. The Company shall have the right to approve any underwriter, which approval A registration under this Section 2 shall not be unreasonably withheld. In deemed to have occurred:
(i) unless the event registration statement relating thereto (A) has become effective under the Securities Act and (B) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Holders included in such registration have actually been sold thereunder), provided that such registration statement shall not be considered a registration pursuant to an Investor Request 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 underwriter limits SEC or other governmental agency or court, or (2) less than sixty-six and two-thirds percent (662/3%) of the Registrable Securities included in such registration statement have been sold thereunder; or
(ii) if the number of Registrable Securities of the Requesting Shareholders included in the registration statement is reduced in accordance with Section 2(b) such that less than sixty-six and two-thirds percent (662/3%) of the Registrable Securities of the Registering Shareholders sought to be included in the offering to fewer than the number that has been requested for Registration, then each Holder's Registrable Securities shall be included in the underwriting pro rata, based on the total number of Registrable Securities held by the participating Holderssuch registration are included.
2.3 Registrations under this Section 2 are subject to (f) Notwithstanding the following limitations: (i) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice within one hundred eighty (180) days after the effective date of any Registration Statement filed by the Company in which the Holders party to the Demand Notice could have included their Registrable Securities; (ii) the Company may delay the effectiveness of a Demand Notice for a period of not more than six months after receipt of a Demand Notice in any 12-month period foregoing obligations, if the Company furnishes to Holders requesting a registration pursuant to this Section 2 a certificate signed by its president the Company’s chief executive officer stating that in the good faith judgment of the Company's ’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 Registration Statement to be effected at such timeCompany; and (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 need not prepare unable to comply with requirements under the Securities Act or file a Registration Statement pursuant Exchange Act, then the Company shall have the right to a Demand Notice if it is then preparing a Registration Statement in connection defer taking action with an underwritten public offering of Company securitiesrespect to such filing, and the Company may delay the any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for a period of such Demand Notice until one hundred eighty not more than sixty (18060) days after the effective date request of the Requesting Investors is given; provided, however, that the Company may not invoke this right more than twice in any twelve (12) month period; and provided further that the Company shall not register any securities for its own account or that of any other stockholder during such Registration Statementperiod.
Appears in 2 contracts
Samples: Registration Rights Agreement (OptiNose, Inc.), Registration Rights Agreement (OptiNose, Inc.)
Demand Registration. 2.1 After (a) If at any time following the earlier of (i) the first second anniversary of the date of this Agreement, the Company shall receive either—
(i) in the event there has not been the First Public Offering, a request from at least two (2) Initial Standby Purchasers that are not Affiliates of each other (but regarding affiliated Initial Standby Purchasers as a single Initial Standby Purchaser for these purposes) that hold in the aggregate fifteen percent (15%) or more of the then outstanding Common Stock, with at least two (2) of such Initial Standby Purchasers holding, individually, at least five percent (5%) or more of the then outstanding Common Stock, or
(ii) in the consummation event there has been the First Public Offering,
(1) a request from one or more Initial Standby Purchasers holding in the aggregate six percent (6%) or more of an IPO the then outstanding Common Stock or
(2) a request from one or more Standby Purchasers holding in the aggregate ten percent (10%) or more of the then outstanding Common Stock (any Standby Purchaser or Purchasers making the request pursuant to clause (i) or (iiiii), a “Requesting Stockholder”) that, in each case, the Company effect the registration under the Securities Act of all or any portion of such Requesting Stockholders’ Registrable Securities, and specifying the intended method of disposition thereof (which may include a Spin-Off or Hostile Change in Control at any timeShelf Registration provided that the Company is eligible to use Rule 415 for the purposes thereof), Holders then the Company shall promptly give notice of such requested registration (each such request shall be referred to herein as a “Demand Registration”) at least fifty percent five (50%5) Business Days prior to the anticipated filing date of the registration statement relating to such Demand Registration to the other Standby Purchasers and thereupon shall use its commercially reasonable efforts to effect, as expeditiously as possible, the registration under the Securities Act of:
(i) all Registrable Securities then held by parties for which the Requesting Stockholders have requested registration under this Section 2.01, and
(ii) subject to this Agreement (or the restrictions set forth in the case of a Spin-Off the percentage of Sections 2.01(h) and Section 2.09, all other Registrable Securities equal to that any other Standby Purchaser (all such other Standby Purchasers, together with the proportion which Requesting Standby Purchasers, the majority of the number shares of Common acquired pursuant to the Subscription Agreement bears to all Registrable Securities at the time of the Spin-Off“Registering Stockholders”) may request have requested the Company to Register any or register by request received by the Company within the relevant Registration Request Period, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered, provided that if such registration involves an underwritten Public Offering, all such Standby Purchasers requesting to be included in the registration must sell their Registrable Securities to the underwriters selected as provided in Section 2.04(f) on the same terms and conditions as apply to the Requesting Stockholders.
(a "Demand Notice"b) Subject to 2.01(e). Demand Notices shall be made in writing and shall specify the Holders making the Demand Notice, the number and type of Registrable Securities that each requests Company shall not be obligated to be Registeredeffect more than five Demand Registrations, whether the Registrable Securities will be sold through an underwriter, and if so, the underwriters name, address, telephone number and contact person. The Company will prepare and file a Registration Statement in accordance with Section 4 for the Registrable Securities to be Registered pursuant to a valid Demand Notice; provided that the Company shall not be obligated to effect a Demand Registration unless the aggregate market price or fair value on the date of such request of the Registrable Securities requested to be included in such Demand Registration equals or exceeds $40,000,000. In no event shall the Company be required to prepare or file a Registration Statement under this Section 2 effect more than once in one Demand Registration hereunder within any twelve (12) six-month period, more than twice after an IPO or more than three .
(3c) times in totalThe Company will from time to time as appropriate notify all Registering Stockholders of the identities of the other Registering Stockholders and the number of shares of Registrable Securities requested to be included therein. Registrations pursuant to Demand Notices are subject At any time prior to the further limitations effective date of the registration statement relating to such registration, the Requesting Stockholders may revoke such request, without liability to any of the other Registering Stockholders, by providing a notice to the Company revoking such request. A request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request), or (ii) the Requesting Stockholders reimburse the Company for all Registration Expenses of such revoked request.
(d) The Company shall be liable for and pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, except as set forth in Section 2.32.01(c).
2.2 Within ten (10e) days from its receipt Unless otherwise agreed with the Requesting Stockholders, any registration of a valid Demand Noticethe Company’s Common Stock pursuant to this Section 2.01 shall be effected solely for the purpose of registering the offer and sale of the Common Stock held by the Registering Stockholders and shall not be effected for any offer or sale by the Company of securities by the Company.
(f) If requested by one or more Standby Purchasers holding in the aggregate fifteen (15%) or more of the then outstanding Common Stock, the Company shall deliver written notice use its reasonable best efforts to have the Common Stock listed on a national securities exchange (including The Nasdaq Stock Market LLC) or quoted on the bulletin board of the NASD, so long as the Company is at the time subject to the reporting requirements under the Exchange Act, whether or not as a result of a Demand Registration, and otherwise qualifies for such listing or quotation.
(g) A Demand Registration shall not be deemed to have occurred:
(i) unless the registration statement relating thereto (A) has become effective under the Securities Act and (B) has remained effective for a period of at least 180 days, or in the case of a Shelf Registration, two years (or such shorter period in which all Holders Registrable Securities of the Registering Stockholders included in such registration have actually been sold thereunder), provided that such registration statement shall not be considered a Demand Registration if, after such registration statement becomes effective, (1) such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court and (2) less than 50% of the Registrable Securities included in such registration statement have been sold thereunder; or
(ii) if the Maximum Offering Size is reduced in accordance with Section 2.01(h) such that less than 50% of the Registrable Securities of the Requesting Stockholders sought to be included in such registration are included.
(h) If a Demand Registration involves an underwritten Public Offering (including any Shelf Registration used to effect a Public Offering) and the managing underwriter advises the Company and the Requesting Stockholders that, pursuant 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 Demand Noticematerial adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company will prepare and file a Registration Statement. Any Holder who was not a party shall include in such registration, in the priority listed below, up to the Demand Notice mayMaximum Offering Size:
(i) first, within ten all Registrable Securities requested to be registered by any Registering Stockholders (10) days from receipt allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such entities on the basis of the Company's notice, request the Company to include the Holder's Registrable Securities in the Registration Statement. If the Holders that initiated a Demand Notice specify therein that they intend to distribute their Registrable Securities through an underwriter, then each Holder that requests inclusion in the Registration Statement must participate in such underwriting, and become party to any required agreements, including, but not limited to, customary underwriting and indemnification agreements. The Company shall have the right to approve any underwriter, which approval shall not be unreasonably withheld. In the event that the underwriter limits the relative number of Registrable Securities so requested to be included in such registration by each), and
(ii) second, subject to Section 2.01(e), any securities proposed to be registered for the offering to fewer than account of the number that has been requested for Registration, then each Holder's Registrable Securities shall be included in the underwriting pro rata, based on the total number of Registrable Securities held by the participating HoldersCompany.
2.3 Registrations under this Section 2 are subject to the following limitations: (i) Upon notice to each Registering Stockholder, the Company need not prepare or file may postpone effecting a Registration Statement registration pursuant to this Section 2.01 on one occasion during any period of six consecutive months for a Demand Notice within one hundred eighty reasonable time specified in the notice but not exceeding thirty (18030) days after the effective date (which period may not be extended or renewed), if (i) an investment banking firm of any Registration Statement filed by recognized national standing shall advise the Company and the Requesting Stockholders in writing that effecting the registration would materially and adversely affect an offering of securities of the Company the preparation of which the Holders party to the Demand Notice could have included their Registrable Securities; had then been commenced or (ii) the Company may delay is in possession of material non-public information the effectiveness disclosure of a Demand Notice for a which would be required by the registration during the period of not more than six months after receipt of a Demand Notice specified in any 12-month period if such notice the Company furnishes a certificate signed by its president stating that reasonably believes would not be in the good faith judgment best interests of the Company's board of directors it would be detrimental to the Company for the Registration Statement to be effected at such time; and (iii) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice if it is then preparing a Registration Statement in connection with an underwritten public offering of Company securities, and the Company may delay the effectiveness of such Demand Notice until one hundred eighty (180) days after the effective date of such Registration Statement.
Appears in 2 contracts
Samples: Registration Rights Agreement (Safety-Kleen, Inc), Registration Rights Agreement (Safety-Kleen, Inc)
Demand Registration. 2.1 After The Mezzanine Holders shall have demand registration rights with respect to their Registrable Stock on the same terms and conditions as the demand registration rights of the DLJ Entities as set forth in Section 5.1 of the Stockholders Agreement, and the provisions of such Section 5.1 shall apply mutatis mutandis to the Registrable Stock of the Mezzanine Holders as though such Mezzanine Holders were "Selling Stockholders", subject to the following modifications:
(a) The Mezzanine Holders may request a Demand Registration only after the earlier to occur of the following: (i) the first anniversary of date that is three years from the date of this Agreement, Amendment and (ii) the consummation date that is six months from the date of an IPO or the Initial Public Offering.
(iiib) The Company shall not be obligated to effect more than three Demand Registrations for the Mezzanine Holders.
(c) The number of shares of Registrable Stock required to be registered by the Mezzanine Holders in connection with a Spin-Off or Hostile Change Demand Registration must have a fair market value in Control at any timethe reasonable opinion of DLJ Investment Partners II, Holders L.P. exercised in good faith of at least fifty percent $5,000,000 or, if less than $5,000,000, constitute all of the remaining shares of Preferred Stock or Common Stock, as the case may be, held by the Mezzanine Holders.
(50%d) If a Demand Registration requested by the Mezzanine Holders involves a Public Offering and the managing underwriter shall advise the Company and such Mezzanine Holders that, in its view, (i) the number of Company Securities requested to be included in such registration (including Common Stock which the Company proposes to be included which is not Registrable Stock) or (ii) the inclusion of some or all of the Company Securities owned by the Holders, in either case, exceeds the Maximum Offering Size, the Company will include in such registration Company Securities up to the Maximum Offering Size in the priority set forth in Section 5.1(d) of all Registrable Securities then held by parties to this the Stockholders Agreement (or in the case of a Spin-Off Demand Registration made by a DLJ Entity or its Permitted Transferee, with the percentage of Registrable Securities equal to the proportion which the majority of the number shares of Common acquired pursuant to the Subscription Agreement bears exception that first priority shall be given to all Registrable Securities at Stock requested to be registered by the time Selling Stockholder and by all other Mezzanine Holders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such entities on the basis of the Spin-Off) may request the Company to Register any or all relative number of their Registrable Securities (a "Demand Notice"). Demand Notices shall be made in writing and shall specify the Holders making the Demand Notice, the number and type shares of Registrable Securities that each requests Stock requested to be Registered, whether the Registrable Securities will be sold through an underwriter, and if so, the underwriters name, address, telephone number and contact person. The Company will prepare and file a Registration Statement in accordance with Section 4 for the Registrable Securities to be Registered pursuant to a valid Demand Notice; provided that the Company shall not be required to prepare or file a Registration Statement under this Section 2 more than once in any twelve (12) month period, more than twice after an IPO or more than three (3) times in total. Registrations pursuant to Demand Notices are subject to the further limitations set forth in Section 2.3registered).
2.2 Within ten (10) days from its receipt of a valid Demand Notice, the Company shall deliver written notice to all Holders that, pursuant to a Demand Notice, the Company will prepare and file a Registration Statement. Any Holder who was not a party to the Demand Notice may, within ten (10) days from receipt of the Company's notice, request the Company to include the Holder's Registrable Securities in the Registration Statement. If the Holders that initiated a Demand Notice specify therein that they intend to distribute their Registrable Securities through an underwriter, then each Holder that requests inclusion in the Registration Statement must participate in such underwriting, and become party to any required agreements, including, but not limited to, customary underwriting and indemnification agreements. The Company shall have the right to approve any underwriter, which approval shall not be unreasonably withheld. In the event that the underwriter limits the number of Registrable Securities to be included in the offering to fewer than the number that has been requested for Registration, then each Holder's Registrable Securities shall be included in the underwriting pro rata, based on the total number of Registrable Securities held by the participating Holders.
2.3 Registrations under this Section 2 are subject to the following limitations: (i) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice within one hundred eighty (180) days after the effective date of any Registration Statement filed by the Company in which the Holders party to the Demand Notice could have included their Registrable Securities; (ii) the Company may delay the effectiveness of a Demand Notice for a period of not more than six months after receipt of a Demand Notice in any 12-month period if the Company furnishes a certificate signed by its president stating that in the good faith judgment of the Company's board of directors it would be detrimental to the Company for the Registration Statement to be effected at such time; and (iii) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice if it is then preparing a Registration Statement in connection with an underwritten public offering of Company securities, and the Company may delay the effectiveness of such Demand Notice until one hundred eighty (180) days after the effective date of such Registration Statement.
Appears in 2 contracts
Samples: Stockholders Agreement (Manufacturers Services LTD), Preferred Stock and Warrant Subscription Agreement (Manufacturers Services LTD)
Demand Registration. 2.1 After (a) At any time after the expiration of the 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 written request (a “Notice”) by Holders collectively owning at least ten percent (10%) of the then-outstanding Registrable Securities (“Requesting Holders”), subject to adjustment pursuant to Section 3.04, the Partnership shall file with the Commission within sixty (60) calendar days following the receipt of the Notice, a registration statement (each, a “Registration Statement”) of the Partnership to permit the public sale by Holders of all Registrable Securities which are permitted to participate in such Registration Statement pursuant to this Agreement (and may cover other securities of the Partnership) 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 Registrable Securities, from time to time (a “Shelf Registration Statement”) or (ii) if the Partnership is not then eligible to file on Form S-3, on Form S-1 or under any other rule or regulation promulgated under the Securities Act, or any successor rule that may be adopted by the Commission, and all amendments and supplements to such Registration Statement, including post-effective amendments, in each case including the prospectus contained therein, all exhibits thereto and any document incorporated by reference therein.
(b) A Notice shall specify: (i) the first anniversary approximate aggregate number of the date of this AgreementRegistrable Securities requested to be registered by such Requesting Holder(s), (ii) the consummation intended method of an IPO or (iii) a Spin-Off or Hostile Change in Control at any timedisposition of the Registrable Securities, Holders of at least fifty percent (50%) of all Registrable Securities then held by parties to this Agreement (or in the case of a Spin-Off the percentage of Registrable Securities equal to the proportion which the majority of the number shares of Common acquired pursuant to the Subscription Agreement bears to all Registrable Securities at the time of the Spin-Off) may request the Company to Register any or all of their Registrable Securities (a "Demand Notice"). Demand Notices shall be made in writing and shall specify the Holders making the Demand Notice, the number and type of Registrable Securities that each requests to be Registered, whether the Registrable Securities will be sold through an underwriter, and if so, the underwriters name, address, telephone number and contact person. The Company will prepare and file a Registration Statement in accordance with Section 4 for the Registrable Securities to be Registered pursuant to a valid Demand Notice; provided that the Company shall not be required to prepare or file a Registration Statement under this Section 2 more than once in any twelve (12) month period, more than twice after an IPO or more than three (3) times in total. Registrations pursuant to Demand Notices are subject to the further limitations set forth in Section 2.3.
2.2 Within ten (10) days from its receipt of a valid Demand Notice, the Company shall deliver written notice to all Holders that, pursuant to a Demand Notice, the Company will prepare and file a Registration Statement. Any Holder who was not a party to the Demand Notice may, within ten (10) days from receipt of the Company's notice, request the Company to include the Holder's Registrable Securities in the Registration Statement. If the Holders that initiated a Demand Notice specify therein that they intend to distribute their Registrable Securities through an underwriter, extent then each Holder that requests inclusion in the Registration Statement must participate in such underwriting, and become party to any required agreements, including, but not limited to, customary underwriting and indemnification agreements. The Company shall have the right to approve any underwriter, which approval shall not be unreasonably withheld. In the event that the underwriter limits the number of Registrable Securities to be included in the offering to fewer than the number that has been requested for Registration, then each Holder's Registrable Securities shall be included in the underwriting pro rata, based on the total number of Registrable Securities held by the participating Holders.
2.3 Registrations under this Section 2 are subject to the following limitations: (i) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice within one hundred eighty (180) days after the effective date of any Registration Statement filed by the Company in which the Holders party to the Demand Notice could have included their Registrable Securities; (ii) the Company may delay the effectiveness of a Demand Notice for a period of not more than six months after receipt of a Demand Notice in any 12-month period if the Company furnishes a certificate signed by its president stating that in the good faith judgment of the Company's board of directors it would be detrimental to the Company for the Registration Statement to be effected at such time; known and (iii) the Company need not prepare or file identity of the Requesting Holder(s). Within five (5) business days after receipt of a Notice, the Partnership shall give written notice of such Notice to all other Holders.
(c) The Partnership shall use its commercially reasonable efforts to cause each Registration Statement to be declared effective by the Commission as soon as practicable after the initial filing date. Any Registration Statement shall provide for the resale pursuant to a Demand Notice if any method or combination of methods, and shall be on such appropriate registration forms of the Commission, legally available to, and requested by, the Requesting Holders of any and all Registrable Securities 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 continuously effective, supplemented and amended to the extent necessary to ensure that it is then preparing 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 comply as to form with all applicable requirements of the Securities Act and shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. Subject to Section 2.02(b), there shall be no limit on the number of Registration Statements that may be required by the Holders hereunder.
(d) To the extent the Partnership is a well-known seasoned issuer (as defined in Rule 405 under the Securities Act) (a “WKSI”), the Partnership shall file any Shelf Registration Statement in connection with the form of an underwritten public offering of Company securities, automatic shelf registration statement (as defined in Rule 405 under the Securities Act) or any successor form thereto. The Partnership shall use its reasonable best efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405 under the Company may delay Securities Act)) during the effectiveness of such Demand Notice until one hundred eighty (180) days after the effective date of such Registration StatementEffectiveness Period.
Appears in 2 contracts
Samples: Registration Rights Agreement (PetroLogistics LP), Registration Rights Agreement (PetroLogistics LP)
Demand Registration. 2.1 After (a) Subject to the earlier Transfer restrictions set forth in Sections 3.1 and 3.2, at any time during the period commencing as of the end of the Initial Share Holding Period and ending on the ten-year anniversary of the Closing Date, and, in the case of Silver Lake, TPG or August, after the Majority Stockholder has distributed Subject Shares pursuant to Section 3.3, upon the written request of any of the Majority Stockholder, TPG, Silver Lake or August (a “Demand Party”) requesting that the Company effect the registration under the Securities Act of all or part of such Demand Party’s Registrable Securities (a “Demand Registration”) and specifying the amount and intended method of disposition thereof, the Company will promptly give written notice of such requested registration to the Managing Registration Rights Holders (each of such Managing Registration Rights Holders will notify each of the Permitted Transferees of such Managing Registration Rights Holder that holds Registrable Securities) and other holders of securities entitled to notice of such registration and thereupon will, as expeditiously as reasonably possible, file a registration statement to effect the registration under the Securities Act of:
(i) such Registrable Securities which the first anniversary of Company has been so requested to register by the date of this Agreement, Demand Party;
(ii) the consummation of an IPO or (iii) a Spin-Off or Hostile Change in Control at any time, Holders of at least fifty percent (50%) of all Registrable Securities then held of other Registration Rights Holders which the Company has been requested to register by parties to this Agreement (or in the case of a Spin-Off the percentage of Registrable Securities equal written request given to the proportion which Company by the majority Managing Registration Rights Holders within 14 days after the giving of the number shares of Common acquired pursuant to the Subscription Agreement bears to all Registrable Securities at the time of the Spin-Off) may request such written notice by the Company to Register any or all of their Registrable Securities the Managing Registration Rights Holders (a "Demand Notice"). Demand Notices shall be made in writing and which request shall specify the Holders making amount and intended method of disposition of such securities); all to the Demand Notice, extent necessary to permit the number and type disposition (in accordance with the intended method thereof as aforesaid) of Registrable Securities that each requests to be Registered, whether the Registrable Securities will be sold through an underwriter, and if so, the underwriters name, address, telephone number and contact person. The Company will prepare and file a Registration Statement in accordance with Section 4 for the Registrable Securities such other securities so to be Registered pursuant to a valid Demand Noticeregistered; provided that the Company shall not be required to prepare effect the registration of Registrable Securities (A) at the request of the Majority Stockholder on more than two (2) occasions, (B) at the request of Silver Lake on more than two (2) occasions, (C) at the request of TPG on more than two (2) occasions, or (D) at the request of August on more than one (1) occasion; provided further, that the Company shall not be obligated to file a Registration Statement registration statement relating to any registration request under this Section 2 more than once in any twelve 4.2(a):
(121) month period, more than twice after an IPO or more than three (3) times in total. Registrations pursuant to Demand Notices are subject to the further limitations set forth in Section 2.3.
2.2 Within ten (10) days from its receipt within a period of a valid Demand Notice, the Company shall deliver written notice to all Holders that, pursuant to a Demand Notice, the Company will prepare and file a Registration Statement. Any Holder who was not a party to the Demand Notice may, within ten (10) days from receipt of the Company's notice, request the Company to include the Holder's Registrable Securities in the Registration Statement. If the Holders that initiated a Demand Notice specify therein that they intend to distribute their Registrable Securities through an underwriter, then each Holder that requests inclusion in the Registration Statement must participate in such underwriting, and become party to any required agreements, including, but not limited to, customary underwriting and indemnification agreements. The Company shall have the right to approve any underwriter, which approval shall not be unreasonably withheld. In the event that the underwriter limits the number of Registrable Securities to be included in the offering to fewer than the number that has been requested for Registration, then each Holder's Registrable Securities shall be included in the underwriting pro rata, based on the total number of Registrable Securities held by the participating Holders.
2.3 Registrations under this Section 2 are subject to the following limitations: (i) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice within one hundred eighty (180) 180 days after the effective date of any other registration statement relating to any registration request under this Section 4.2 or relating to any registration statement referred to under Section 4.1 or Section 4.3 hereof; or
(2) if (x) the requested registration pursuant to this Section 4.2 involves a registration on a form other than a Form S-3 (or any successor to Form S-3), and (y) the Registration Rights Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public of less than $20,000,000; or
(3) if (x) the requested registration pursuant to this Section 4.2 involves an underwritten offering, and (y) the Registration Rights Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public of less than $20,000,000; or
(4) if the Registration Rights Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public of less than $5,000,000; or
(5) if with respect thereto the managing underwriter, the SEC, the Securities Act, or the form on which the registration statement is to be filed, would require the conduct of a Special Audit, in which case the filing may be delayed until the completion of such Special Audit (and the Company shall, upon request of TPG, Silver Lake or August, as the case may be, use its commercially reasonable efforts to cause such Special Audit to be completed expeditiously and without unreasonable delay); or
(6) if the Company is in possession of material non-public information and the Board determines in good faith that disclosure of such information would not be in the best interests of the Company and its stockholders, in which case the filing of the registration statement may be delayed until the earlier of the second Business Day after such conditions shall have ceased to exist and the 120th day after receipt by the Company of the written request from the Majority Stockholder, TPG, Silver Lake or August, as the case may be, to register Registrable Securities under this Section 4.2(a); or
(7) if the Closing Shelf Registration Statement is then effective and available for the sale and distribution of such Demand Party’s Registrable Securities in the manner specified in such request.
(b) The Company will pay all Registration Expenses in connection with each registration of Registrable Securities requested pursuant to this Section 4.2.
(c) A registration requested pursuant to this Article IV will not be deemed to have been effected unless the registration statement filed by the Company with the SEC in connection with such registration has been declared effective by the SEC; provided that, if, within 100 days after it has become effective, the offering of Registrable Securities pursuant to such registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court, then such registration will be deemed not to have been effected.
(d) If a requested registration pursuant to this Section 4.2 involves an underwritten offering and regardless of whether the Company is registering any securities therein, the Board shall have the right to select the investment banker or bankers and managers to administer the offering, including the lead managing underwriter.
(e) If a requested registration pursuant to this Section 4.2 involves an underwritten offering and the managing underwriter advises the Company in writing that, in its opinion, the number of Registrable Securities requested to be included in such registration exceeds the number which can be sold in such offering, so as to be reasonably likely to have an adverse effect on the Holders party price, timing or distribution of the securities offered in such offering, then the Company will include in such registration such number of Registrable Securities requested to be included in such registration which, in the Demand Notice could have opinion of such managing underwriter, can be sold without having the adverse effect referred to above, which number shall be allocated pro rata among all such holders of Registrable Securities requesting to be included their in such registration based on the relative number of Registrable Securities then held by each such holder of Registrable Securities; (ii) . In the event that the number of Registrable Securities and Shares of other holders, in each case entitled to registration rights with respect to such Shares requested to be included in such registration is less than the number which, in the opinion of the managing underwriter, can be sold, the Company may delay include in such registration securities it proposes to sell for its own account up to the effectiveness number of a Demand Notice for a period of not more than six months after receipt of a Demand Notice in any 12-month period if the Company furnishes a certificate signed by its president stating that securities that, in the good faith judgment opinion of the Company's board of directors it would underwriter, can be detrimental to the Company for the Registration Statement to be effected at such time; and (iii) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice if it is then preparing a Registration Statement in connection with an underwritten public offering of Company securities, and the Company may delay the effectiveness of such Demand Notice until one hundred eighty (180) days after the effective date of such Registration Statementsold.
Appears in 2 contracts
Samples: Stockholders Agreement (Business Objects Sa), Stockholders Agreement (Crystal Decisions Inc)
Demand Registration. 2.1 After the earlier of (i) Holders of a majority of the first anniversary Registrable Securities held by the HMTF Holders may make up to three (3) written requests for a Demand Registration of all or any part of the Registrable Securities held by the HMTF Holders and their direct or indirect transferees; provided, that (A) each such Demand Registration by the HMTF Holders must be in respect of Registrable Securities with a fair market value of at least $50,000,000 or all of the Registrable Securities held by the requesting HMTF Holders if the aggregate fair market value of all of such Registrable Securities is less than $50,000,000 and (B) the HMTF Holders shall not be entitled to a Demand Registration if, during the 120 days preceding such request, the HMTF Holders had requested a Demand Registration unless the Company preempted such Demand Registration in accordance with Section 2.1(e) or the Company postponed the filing thereof in accordance with Section 3.1(a) and the requesting HMTF Holders withdrew the request for such Demand Registration. Upon exercise of all or any portion of the Warrants held by the HMTF Holders, the Holders of a majority of the Registrable Securities held by the HMTF Holders may make one (1) additional written request for a Demand Registration, subject to the proviso set forth in the foregoing sentence.
(ii) Holders of a majority of the Registrable Securities held by the Liberty Holders may make up to six (6) written requests for a Demand Registration of all or any part of the Registrable Securities held by the Liberty Holders and their direct or indirect transferees; provided, that (A) each such Demand Registration by the Liberty Holders must be in respect of Registrable Securities with a fair market value of at least $50,000,000 or all of the Registrable Securities held by the requesting Liberty Holders if the aggregate fair market value of all of such Registrable Securities is less than $50,000,000, and (B) the Liberty Holders shall not be entitled to a Demand Registration if, during the 120 days preceding such request, the Liberty Holders had requested a Demand Registration unless the Company preempted such Demand Registration in accordance with Section 2.1(e) or the Company postponed the filing thereof in accordance with Section 3.1(a) and the requesting Liberty Holders withdrew the request for such Demand Registration. Upon exercise of all or any portion of the Warrants held by the Liberty Holders, the Holders of a majority of the Registrable Securities held by the Liberty Holders may make up to two (2) additional written requests for a Demand Registration, subject to the proviso set forth in the foregoing sentence.
(iii) Any request for a Demand Registration will specify the aggregate number of shares of Registrable Securities proposed to be sold by the Requesting Holders and will also specify the intended method of disposition thereof. A registration will not count as a Demand Registration until it has become effective. Should a Demand Registration not become effective due to the failure of a Holder to perform its obligations under this Agreement or the inability of the Requesting Holders to reach agreement with the Underwriters for the proposed sale on price or other customary terms for such transaction, or in the event the Requesting Holders withdraw or do not pursue the request for the Demand Registration (in each of the foregoing cases, provided that at such time the Company is in compliance in all material respects with its obligations under this Agreement), then, subject to Section 2.1(b), such Demand Registration shall be deemed to have been effected (provided that (i) if, the Demand Registration does not become effective because a material adverse change has occurred, or is reasonably likely to occur, in the condition (financial or otherwise), business, assets or results of operations of the Company and its subsidiaries taken as a whole subsequent to the date of this Agreement, the written request made by the Requesting Holders (ii) if the consummation of an IPO Company withdraws the Demand Registration for any reason or preempts the request for the Demand Registration or (iii) a Spin-Off or Hostile Change in Control at any timeif, Holders after the Demand Registration has become effective, an offering of at least fifty percent (50%) of all Registrable Securities pursuant to a registration is interfered with by any stop order, injunction, or other order or requirement of the Commission or other governmental agency or court or (iv) if the Demand Registration is withdrawn at the request of the Requesting Holders pursuant to Section 2.1(f) or Section 3.1(a), then the Demand Registration shall not be deemed to have been effected and will not count as a Demand Registration).
(iv) Upon receipt of any request for a Demand Registration by holders of a majority of the Registrable Securities held by parties the HMTF Holders or the Liberty Holders, as the case may be, the Company shall promptly (but in any event within ten (10) days) give written notice of such proposed Demand Registration to this Agreement (or the HMTF Holders, in the case of a Spin-Off the percentage of Registrable Securities equal request by an HMTF Holder, and to the proportion which Liberty Holders, in the majority case of the number shares of Common acquired pursuant to the Subscription Agreement bears to all Registrable Securities at the time of the Spin-Off) may a request the Company to Register any or all of their Registrable Securities (by a "Demand Notice"). Demand Notices shall be made in writing and shall specify the Holders making the Demand Notice, the number and type of Registrable Securities that each requests to be Registered, whether the Registrable Securities will be sold through an underwriterLiberty Holder, and if soall such HMTF Holders or Liberty Holders, as the underwriters namecase may be (including their respective direct or indirect transferees) shall have the right, address, telephone number and contact person. The Company will prepare and file a Registration Statement in accordance with Section 4 for the Registrable Securities to be Registered pursuant to a valid Demand Notice; provided that the Company shall not be required to prepare or file a Registration Statement under this Section 2 more than once in any twelve (12) month period, more than twice after an IPO or more than three (3) times in total. Registrations pursuant to Demand Notices are subject to the further limitations set forth in Section 2.3.
2.2 Within ten (10) days from its receipt of a valid Demand Notice, the Company shall deliver exercisable by written notice to all Holders that, pursuant to a Demand Notice, the Company will prepare and file a Registration Statement. Any Holder who was not a party to the Demand Notice may, within ten twenty (1020) days from of their receipt of the Company's notice, request the Company to elect to include the Holder's Registrable Securities in the such Demand Registration Statement. If the Holders that initiated a Demand Notice specify therein that they intend to distribute such portion of their Registrable Securities through an underwriteras they may request. All such Holders requesting to have their Registrable Securities included in a Demand Registration in accordance with the preceding sentence shall be deemed to be "Requesting Holders" for purposes of this Section 2.1.
(b) In the event that the Requesting Holders withdraw or do not pursue a request for a Demand Registration and, then each Holder pursuant to Section 2.1(a) hereof, such Demand Registration is deemed to have been effected, the Holders may reacquire such Demand Registration (such that requests inclusion the withdrawal or failure to pursue a request will not count as a Demand Registration hereunder) if the Selling Holders reimburse the Company for any and all Registration Expenses incurred by the Company in connection with such request for a Demand Registration that was withdrawn or not pursued.
(c) If the Requesting Holders so elect, the offering of such Registrable Securities pursuant to such Demand Registration shall be in the Registration Statement must participate form of a "firm commitment" underwritten offering. A majority in such underwriting, and become party to any required agreements, including, but not limited to, customary underwriting and indemnification agreements. The Company interest of the Requesting Holders shall have the right to approve select the managing Underwriters and any underwriteradditional investment bankers and managers to be used in connection with any offering under this Section 2.1, subject to the Company's approval, which approval shall not be unreasonably withheld.
(d) The Requesting Holders will inform the Company of the time and manner of any disposition of Registrable Common Stock, and agree to reasonably cooperate with the Company in effecting the disposition of the Registrable Common Stock in a manner that does not unreasonably disrupt the public trading market for the Common Stock; provided, however, that the Holders' only right to a shelf registration statement shall be pursuant to Section 2.3.
(e) The Company will have the right to preempt any Demand Registration with a primary registration by delivering written notice (within seven business days after the Company has received a request for such Demand Registration) of such intention to the Requesting Holders indicating that the Company has identified a specific business need and use for the proceeds of the sale of such securities and had contemplated such sale of securities prior to receiving the Requesting Holders' notice, and the Company shall use commercially reasonable efforts to effect a primary registration within 90 days of such notice. In the event ensuing primary registration, the Holders will have such piggyback registration rights as are set forth in Section 2.2 hereof. Upon the Company's preemption of a requested Demand Registration, such requested registration will not count as the Holders' Demand Registration. If the Company thereafter decides to abandon its intention to pursue such sale of securities, it shall give notice thereof to any preempted Holders within two business days following the Company's decision. The Company may exercise the right to preempt a Demand Registration only once in any 360-day period; provided, that during any 360-day period the Company shall use its reasonable best efforts to permit a period of at least 180 consecutive days during which the Selling Holders may effect a Demand Registration.
(f) Securities to be sold for the account of any Person (including the Company) other than a Requesting Holder shall not be included in a Demand Registration if the managing Underwriter or Underwriters shall advise the Company and the Requesting Holders in writing that the underwriter limits inclusion of such securities will materially and adversely affect the price of the offering (a "Material Adverse Effect"). Furthermore, in the event the managing Underwriter or Underwriters shall advise the Company or the Requesting Holders that even after exclusion of all securities of other Persons (including the Company) pursuant to the immediately preceding sentence, the amount of Registrable Securities proposed to be included in such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effect, the Registrable Securities of the Requesting Holders to be included in such Demand Registration shall equal the number of shares which the Company and the Requesting Holders are so advised can be sold in such offering without a Material Adverse Effect and such shares shall be allocated pro rata among the Requesting Holders on the basis of the number of Registrable Securities requested to be included in the offering to fewer than the number such registration by each such Requesting Holder; provided, however, that has been requested for Registration, then each Holder's if any Registrable Securities shall requested to be included in the underwriting pro rata, based on the total number of Registrable Securities held by the participating Holders.
2.3 Registrations under this Section 2 are subject to the following limitations: (i) the Company need not prepare or file a Registration Statement registered pursuant to a Demand Notice within one hundred eighty Registration under Section 2.1 are excluded from registration hereunder, then the Holder(s) having shares excluded (180"Excluded Holders") days after shall have the effective date right to withdraw all, or any part, of any their shares from such registration and if withdrawn in full such Demand Registration Statement filed by the Company in which the Holders party shall not be deemed to the Demand Notice could have included their Registrable Securities; (ii) the Company may delay the effectiveness of been effected and will not count as a Demand Notice for a period of not more than six months after receipt of a Demand Notice in any 12-month period if the Company furnishes a certificate signed by its president stating that in the good faith judgment of the Company's board of directors it would be detrimental to the Company for the Registration Statement to be effected at such time; and (iii) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice if it is then preparing a Registration Statement in connection with an underwritten public offering of Company securities, and the Company may delay the effectiveness of such Demand Notice until one hundred eighty (180) days after the effective date of such Registration StatementRegistration.
Appears in 2 contracts
Samples: Preferred Stock and Warrant Purchase Agreement (Icg Services Inc), Registration Rights Agreement (Icg Holdings Canada Co /Co/)
Demand Registration. 2.1 After (a) Subject to the earlier Transfer restrictions set forth in Sections 3.1 and 3.2, at any time during the period commencing as of (i) the first end of the Initial Share Holding Period and ending on the ten-year anniversary of the date of this AgreementClosing Date, (ii) the consummation of an IPO or (iii) a Spin-Off or Hostile Change in Control at any timeand, Holders of at least fifty percent (50%) of all Registrable Securities then held by parties to this Agreement (or in the case of a Spin-Off Silver Lake, TPG or August, after the percentage Majority Stockholder has distributed Subject Shares pursuant to Section 3.3, upon the written request of Registrable Securities equal to the proportion which the majority any of the number shares of Common acquired pursuant to the Subscription Agreement bears to all Registrable Securities at the time of the Spin-OffMajority Stockholder, TPG, Silver Lake or August (a "Demand Party") may request requesting that the Company to Register any effect the registration under the Securities Act of all or all part of their such Demand Party's Registrable Securities (a "Demand NoticeRegistration"). ) and specifying the amount and intended method of disposition thereof, the Company will promptly give written notice of such requested registration to the Managing Registration Rights Holders (each of such Managing Registration Rights Holders will notify each of the Permitted Transferees of such Managing Registration Rights Holder that holds Registrable Securities) and other holders of securities entitled to notice of such registration and thereupon will, as expeditiously as reasonably possible, file a registration statement to effect the registration under the Securities Act of:
(i) such Registrable Securities which the Company has been so requested to register by the Demand Notices shall be made in writing and Party;
(ii) the Registrable Securities of other Registration Rights Holders which the Company has been requested to register by written request given to the Company by the Managing Registration Rights Holders within 14 days after the giving of such written notice by the Company to the Managing Registration Rights Holders (which request shall specify the Holders making amount and intended method of disposition of such securities); all to the Demand Notice, extent necessary to permit the number and type disposition (in accordance with the intended method thereof as aforesaid) of Registrable Securities that each requests to be Registered, whether the Registrable Securities will be sold through an underwriter, and if so, the underwriters name, address, telephone number and contact person. The Company will prepare and file a Registration Statement in accordance with Section 4 for the Registrable Securities such other securities so to be Registered pursuant to a valid Demand Noticeregistered; provided that the Company shall not be required to prepare effect the registration of Registrable Securities (A) at the request of the Majority Stockholder on more than two (2) occasions, (B) at the request of Silver Lake on more than two (2) occasions, (C) at the request of TPG on more than two (2) occasions, or (D) at the request of August on more than one (1) occasion; provided further, that the Company shall not be obligated to file a Registration Statement registration statement relating to any registration request under this Section 2 more than once in any twelve 4.2(a):
(121) month period, more than twice after an IPO or more than three (3) times in total. Registrations pursuant to Demand Notices are subject to the further limitations set forth in Section 2.3.
2.2 Within ten (10) days from its receipt within a period of a valid Demand Notice, the Company shall deliver written notice to all Holders that, pursuant to a Demand Notice, the Company will prepare and file a Registration Statement. Any Holder who was not a party to the Demand Notice may, within ten (10) days from receipt of the Company's notice, request the Company to include the Holder's Registrable Securities in the Registration Statement. If the Holders that initiated a Demand Notice specify therein that they intend to distribute their Registrable Securities through an underwriter, then each Holder that requests inclusion in the Registration Statement must participate in such underwriting, and become party to any required agreements, including, but not limited to, customary underwriting and indemnification agreements. The Company shall have the right to approve any underwriter, which approval shall not be unreasonably withheld. In the event that the underwriter limits the number of Registrable Securities to be included in the offering to fewer than the number that has been requested for Registration, then each Holder's Registrable Securities shall be included in the underwriting pro rata, based on the total number of Registrable Securities held by the participating Holders.
2.3 Registrations under this Section 2 are subject to the following limitations: (i) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice within one hundred eighty (180) 180 days after the effective date of any other registration statement relating to any registration request under this Section 4.2 or relating to any registration statement referred to under Section 4.1 or Section 4.3 hereof; or
(2) if (x) the requested registration pursuant to this Section 4.2 involves a registration on a form other than a Form S-3 (or any successor to Form S-3), and (y) the Registration Rights Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public of less than $20,000,000; or
(3) if (x) the requested registration pursuant to this Section 4.2 involves an underwritten offering, and (y) the Registration Rights Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public of less than $20,000,000; or
(4) if the Registration Rights Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public of less than $5,000,000; or
(5) if with respect thereto the managing underwriter, the SEC, the Securities Act, or the form on which the registration statement is to be filed, would require the conduct of a Special Audit, in which case the filing may be delayed until the completion of such Special Audit (and the Company shall, upon request of TPG, Silver Lake or August, as the case may be, use its commercially reasonable efforts to cause such Special Audit to be completed expeditiously and without unreasonable delay); or
(6) if the Company is in possession of material non-public information and the Board determines in good faith that disclosure of such information would not be in the best interests of the Company and its stockholders, in which case the filing of the registration statement may be delayed until the earlier of the second Business Day after such conditions shall have ceased to exist and the 120th day after receipt by the Company of the written request from the Majority Stockholder, TPG, Silver Lake or August, as the case may be, to register Registrable Securities under this Section 4.2(a); or
(7) if the Closing Shelf Registration Statement is then effective and available for the sale and distribution of such Demand Party's Registrable Securities in the manner specified in such request.
(b) The Company will pay all Registration Expenses in connection with each registration of Registrable Securities requested pursuant to this Section 4.2.
(c) A registration requested pursuant to this Article IV will not be deemed to have been effected unless the registration statement filed by the Company with the SEC in connection with such registration has been declared effective by the SEC; provided that, if, within 100 days after it has become effective, the offering of Registrable Securities pursuant to such registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court, then such registration will be deemed not to have been effected.
(d) If a requested registration pursuant to this Section 4.2 involves an underwritten offering and regardless of whether the Company is registering any securities therein, the Board shall have the right to select the investment banker or bankers and managers to administer the offering, including the lead managing underwriter.
(e) If a requested registration pursuant to this Section 4.2 involves an underwritten offering and the managing underwriter advises the Company in writing that, in its opinion, the number of Registrable Securities requested to be included in such registration exceeds the number which can be sold in such offering, so as to be reasonably likely to have an adverse effect on the Holders party price, timing or distribution of the securities offered in such offering, then the Company will include in such registration such number of Registrable Securities requested to be included in such registration which, in the Demand Notice could have opinion of such managing underwriter, can be sold without having the adverse effect referred to above, which number shall be allocated pro rata among all such holders of Registrable Securities requesting to be included their in such registration based on the relative number of Registrable Securities then held by each such holder of Registrable Securities; (ii) . In the event that the number of Registrable Securities and Shares of other holders, in each case entitled to registration rights with respect to such Shares requested to be included in such registration is less than the number which, in the opinion of the managing underwriter, can be sold, the Company may delay include in such registration securities it proposes to sell for its own account up to the effectiveness number of a Demand Notice for a period of not more than six months after receipt of a Demand Notice in any 12-month period if the Company furnishes a certificate signed by its president stating that securities that, in the good faith judgment opinion of the Company's board of directors it would underwriter, can be detrimental to the Company for the Registration Statement to be effected at such time; and (iii) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice if it is then preparing a Registration Statement in connection with an underwritten public offering of Company securities, and the Company may delay the effectiveness of such Demand Notice until one hundred eighty (180) days after the effective date of such Registration Statementsold.
Appears in 2 contracts
Samples: Stockholders Agreement (Business Objects Sa), Stockholders Agreement (Crystal Decisions Inc)
Demand Registration. 2.1 After (a) Subject to the earlier conditions of this Section 3.1:
(i) If the first anniversary of Company shall receive a written request from the date of this Agreement, (ii) the consummation of an IPO or (iii) a Spin-Off or Hostile Change in Control at any time, Series A Investor Holders of at least fifty forty percent (5040%) of all the total Registrable Securities then outstanding and held by the Series A Investors ("Series A Investor Initiating Holders") that the Company file a registration statement under the Securities Act covering the registration of Registrable Securities covering at least twenty percent (20%) of the Registrable Securities then held by parties to this Agreement the Series A Investors (or in any lesser percentage if the case anticipated aggregate offering price to the public would exceed $5,000,000), then the Company shall, within fifteen (15) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 3.1, use its best efforts to effect, as soon as practicable, the registration under the Securities Act of all Registrable Securities that the Holders request to be registered.
(ii) If the Company shall receive a Spin-Off written request from the percentage Series B Investor Holders of at least forty percent (40%) of the total Registrable Securities then outstanding and held by the Series B Investor Holders ("Series B Investor Initiating Holders") that the Company file a registration statement under the Securities Act covering the registration of Registrable Securities equal covering at least twenty percent (20%) of the Registrable Securities then held by the Series B Investors (or any lesser percentage if the anticipated aggregate offering price to the proportion which public would exceed $5,000,000), then the majority Company shall, within fifteen (15) days of the number shares receipt thereof, give written notice of Common acquired pursuant such request to all Holders, and subject to the Subscription Agreement bears limitations of this Section 3.1, use its best efforts to effect, as soon as practicable, the registration under the Securities Act of all Registrable Securities at that the time of the Spin-OffHolders request to be registered.
(iii) may request If the Company to Register any or all of their Registrable shall receive a written request from Xxxxxx ("Xxxxxx Initiating Holder") that the Company file a registration statement under the Securities (a "Demand Notice"). Demand Notices shall be made in writing and shall specify Act covering the Holders making the Demand Notice, the number and type registration of Registrable Securities covering at least forty percent (40%) of the Common Stock issued to and held by Xxxxxx in connection with the Merger (or any lesser percentage if the anticipated aggregate offering price to the public would exceed $5,000,000), then the Company shall, within fifteen (15) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 3.1, use its best efforts to effect, as soon as practicable, the registration under the Securities Act of all Registrable Securities that each requests the Holders request to be Registeredregistered.
(iv) If the Company shall receive a written request from UA ("UA Initiating Holder") that the Company file a registration statement under the Securities Act covering the registration of Registrable Securities covering at least forty percent (40%) of the Common Stock issued or issuable upon the exercise of the UA Warrant held by UA (or any lesser percentage if the anticipated aggregate offering price to the public would exceed $5,000,000), whether then the Company shall, within fifteen (15) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 3.1, use its best efforts to effect, as soon as practicable, the registration under the Securities Act of all Registrable Securities that the Holders request to be registered.
(v) If the Company shall receive a written request from a Founder ("Founder Initiating Holder") that the Company file a registration statement under the Securities Act covering the registration of Registrable Securities covering at least forty percent (40%) of the Common Stock held by Founder (or any lesser percentage if the anticipated aggregate offering price to the public would exceed $5,000,000), then the Company shall, within fifteen (15) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 3.1, use its best efforts to effect, as soon as practicable, the registration under the Securities Act of all Registrable Securities that the Holders request to be registered.
(b) If the Initiating Holders (for purposes of this Section 3.1, the term "Initiating Holder" shall mean a Series A Investor Initiating Holder, a Series B Investor Initiating Holder, the Xxxxxx Initiating Holder, the UA Initiating Holder or the Founder Initiating Holder, as applicable) intend to distribute the Registrable Securities will be sold through covered by their request by means of an underwriterunderwriting, they shall so advise the Company as a part of their request made pursuant to this Section 3.1, and if so, the underwriters name, address, telephone number and contact person. The Company will prepare and file a Registration Statement in accordance with Section 4 for the Registrable Securities to be Registered pursuant to a valid Demand Notice; provided that the Company shall not be required include such information in the written notice referred to prepare or file a Registration Statement under this Section 2 more than once in any twelve (12) month period, more than twice after an IPO or more than three (3) times in total. Registrations pursuant to Demand Notices are subject to the further limitations set forth in Section 2.3.
2.2 Within ten (10) days from its receipt of a valid Demand Notice3.1(a). In such event, the Company shall deliver written notice to all Holders that, pursuant to a Demand Notice, the Company will prepare and file a Registration Statement. Any right of any Holder who was not a party to the Demand Notice may, within ten (10) days from receipt of the Company's notice, request the Company to include its Registrable Securities in such registration shall be conditioned upon such Holder's participation in such underwriting and the inclusion of such Holder's Registrable Securities in the Registration Statementunderwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. If the All Holders that initiated a Demand Notice specify therein that they intend proposing to distribute their Registrable Securities securities through such underwriting shall enter into an underwriter, then each Holder that requests inclusion underwriting agreement in customary form with the Registration Statement must participate underwriter or underwriters selected for such underwriting by a majority in such underwriting, and become party interest of the Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to any required agreements, including, but not limited to, customary underwriting and indemnification agreements. The Company shall have the right to approve any underwriter, which approval shall not be unreasonably withheldCompany). In the event that the underwriter limits determines in good faith that marketing factors require a limitation of the number of Registrable Securities shares to be included in the offering to fewer than underwritten, the number of shares that has been requested for Registration, then each Holder's Registrable Securities shall may be included in the underwriting pro rata, based on shall be allocated among the total number of Holders in accordance with Section 3.2. Any Registrable Securities held by excluded or withdrawn from such underwriting shall be withdrawn from the participating Holdersregistration.
2.3 Registrations under this Section 2 are subject to the following limitations: (i) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice within one hundred eighty (180) days after the effective date of any Registration Statement filed by the Company in which the Holders party to the Demand Notice could have included their Registrable Securities; (ii) the Company may delay the effectiveness of a Demand Notice for a period of not more than six months after receipt of a Demand Notice in any 12-month period if the Company furnishes a certificate signed by its president stating that in the good faith judgment of the Company's board of directors it would be detrimental to the Company for the Registration Statement to be effected at such time; and (iii) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice if it is then preparing a Registration Statement in connection with an underwritten public offering of Company securities, and the Company may delay the effectiveness of such Demand Notice until one hundred eighty (180) days after the effective date of such Registration Statement.
Appears in 2 contracts
Samples: Investors' Rights Agreement (Buy Com Inc), Investors' Rights Agreement (Buy Com Inc)
Demand Registration. 2.1 After The Company may include in a Demand Registration Registrable Securities for the earlier account of the Demanding Holders and shares of Common Stock for the account of the Company or other stockholders exercising contractual piggy-back registration rights or other stockholders, on the same terms and conditions as the Registrable Securities are included therein for the account of the Demanding Holders; provided, however, that (i) if the first anniversary managing underwriter(s) of any underwritten offering that is the date subject of this Agreementsuch Demand Registration have informed the Company in writing that in their opinion the total number of securities that the Demanding Holders, (ii) the consummation of an IPO or (iii) Company and any other stockholders intend to include in such offering exceeds the number which can be sold in such offering within a Spin-Off or Hostile Change in Control at any time, price range acceptable to the Holders of at least fifty percent (50%) of all Registrable Securities then held by parties to this Agreement (or in the case of a Spin-Off the percentage of Registrable Securities equal to the proportion which the majority of the Registrable Securities requested to be included therein, then (x) the number shares of Common acquired pursuant Shares to be offered for the account of any stockholders other than the Demanding Holders shall be reduced (to zero, if necessary) pro rata in proportion to the Subscription Agreement bears respective number of Shares requested to all Registrable Securities at the time of the Spin-Offbe registered by such stockholders, and (y) may request the Company to Register any or all of their Registrable Securities (a "Demand Notice"). Demand Notices shall be made in writing and shall specify the Holders making the Demand Noticethereafter, if necessary, the number and type of Registrable Securities that each requests Shares to be Registered, whether the Registrable Securities will be sold through an underwriter, and if so, the underwriters name, address, telephone number and contact person. The Company will prepare and file a Registration Statement in accordance with Section 4 offered for the Registrable Securities to be Registered pursuant to a valid Demand Notice; provided that account of the Company shall not be required reduced (to prepare or file a Registration Statement under this Section 2 more than once in any twelve (12) month periodzero, more than twice after an IPO or more than three (3) times in total. Registrations pursuant to Demand Notices are subject if necessary), to the further limitations set forth in Section 2.3.
2.2 Within ten (10) days from its receipt of a valid Demand Notice, extent necessary to reduce the Company shall deliver written notice to all Holders that, pursuant to a Demand Notice, the Company will prepare and file a Registration Statement. Any Holder who was not a party to the Demand Notice may, within ten (10) days from receipt of the Company's notice, request the Company to include the Holder's Registrable Securities in the Registration Statement. If the Holders that initiated a Demand Notice specify therein that they intend to distribute their Registrable Securities through an underwriter, then each Holder that requests inclusion in the Registration Statement must participate in such underwriting, and become party to any required agreements, including, but not limited to, customary underwriting and indemnification agreements. The Company shall have the right to approve any underwriter, which approval shall not be unreasonably withheld. In the event that the underwriter limits the total number of Registrable Securities Shares requested to be included in the such offering to fewer the number of Shares, if any, recommended by such managing underwriter(s) (and if the number of Shares to be offered for the account of stockholders other than the number that Demanding Holders and for the account of the Company has been reduced to zero, and the number of Shares requested for Registration, then each Holder's Registrable Securities shall to be included in such offering by the underwriting pro rata, based on Demanding Holders exceeds the total number of Registrable Securities held Shares recommended by such managing underwriter(s), then the number of Shares to be offered for the account of the Demanding Holders shall be reduced pro rata in proportion to the respective number of Shares requested to be registered by the participating Demanding Holders.
2.3 Registrations under this Section 2 are subject to the following limitations: (i) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice within one hundred eighty (180) days after the effective date of any Registration Statement filed by the Company in which the Holders party to the Demand Notice could have included their Registrable Securities; and (ii) the Company may delay the effectiveness of a Demand Notice for a period of not more than six months after receipt of a Demand Notice in any 12-month period if the Company furnishes a certificate signed by its president stating offering that in is the good faith judgment of the Company's board of directors it would be detrimental to the Company for the Registration Statement to be effected at such time; and (iii) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice if it is then preparing a Registration Statement in connection with an underwritten public offering of Company securities, and the Company may delay the effectiveness subject of such Demand Notice until one hundred eighty Registration is not underwritten, only Demanding Holders, and no other party (180) days after including the effective date Company), shall be permitted to include securities in such Demand Registration unless the Demanding Holders owning a majority of the Shares included in such Demand Registration consent in writing to the inclusion of such Registration Statementsecurities therein.
Appears in 2 contracts
Samples: Registration Rights Agreement (Peapod Inc), Registration Rights Agreement (Royal Ahold)
Demand Registration. 2.1 After (a) If the earlier Company shall receive a written request (a “Demand Request”) from the Invus Transferee Group that the Company file a registration statement under the Securities Act covering the registration of (i) the first anniversary all or a portion of the date Registrable Securities owned by the Invus Transferee Group (or any member(s) thereof), then the Company shall, subject to the limitations of this AgreementSection 3.2, (ii) effect, as expeditiously as reasonably possible, the consummation of an IPO or (iii) a Spin-Off or Hostile Change in Control at any time, Holders of at least fifty percent (50%) registration under the Securities Act of all Registrable Securities then held by parties in accordance with the intended method of distribution thereof that the Invus Transferee Group, and any Piggyback Holders pursuant to this Agreement their rights under Section 3.3, request to be registered, subject to the provisions of Section 3.2(c). The Invus Transferee Group shall have the right to make an unlimited number of Demand Requests.
(b) If the Invus Transferee Group (or in the case of a Spin-Off the percentage of Registrable Securities equal any member(s) thereof) intends to the proportion which the majority of the number shares of Common acquired pursuant to the Subscription Agreement bears to all Registrable Securities at the time of the Spin-Off) may request the Company to Register any or all of their Registrable Securities (a "Demand Notice"). Demand Notices shall be made in writing and shall specify the Holders making the Demand Notice, the number and type of Registrable Securities that each requests to be Registered, whether distribute the Registrable Securities will be sold through covered by its request by means of an underwriterunderwritten public offering, and if so, it shall so advise the underwriters name, address, telephone number and contact personCompany as a part of their request made pursuant to this Section 3.2 or any request pursuant to Section 3.4. The Company will prepare Invus Transferee Group shall have the right to select the investment bank or banks and file managers to administer any offering made in connection with a Registration Statement in accordance with Section 4 for Demand Request, including the Registrable Securities to be Registered pursuant to a valid Demand Noticelead managing underwriter; provided that if the Invus Transferee Group declines to exercise such right, the Company shall select the investment bank or banks and managers to administer the offering, but the Invus Transferee Group shall continue to have such right pursuant to this Section 3.2(b) in any subsequent underwritten public offering.
(c) Notwithstanding anything herein to the contrary, the Company shall not be required obligated to prepare or file effect a Registration Statement under this Section 2 more than once in any twelve (12) month period, more than twice after an IPO or more than three (3) times in total. Registrations registration pursuant to Demand Notices are subject Section 3.2 unless the Registrable Securities requested to be registered by the further limitations set forth in Section 2.3.
2.2 Within ten (10) days from its receipt of a valid Demand NoticeInvus Transferee Group, together with the Company shall deliver written notice Registrable Securities requested to all be registered by any Piggyback Holders that, pursuant to a Demand NoticeSection 3.3, the Company will prepare and file a Registration Statement. Any Holder who was not a party are reasonably expected to the Demand Notice may, within ten (10) days from receipt of the Company's notice, request the Company to include the Holder's Registrable Securities result in the Registration Statement. If the Holders that initiated a Demand Notice specify therein that they intend to distribute their Registrable Securities through an underwriter, then each Holder that requests inclusion in the Registration Statement must participate in such underwriting, and become party to any required agreements, including, but not limited to, customary underwriting and indemnification agreements. The Company shall have the right to approve any underwriter, which approval shall not be unreasonably withheld. In the event that the underwriter limits the number of Registrable Securities to be included in the offering to fewer than the number that has been requested for Registration, then each Holder's Registrable Securities shall be included in the underwriting pro rata, based on the total number of Registrable Securities held by the participating Holders.
2.3 Registrations under this Section 2 are subject to the following limitations: aggregate gross cash proceeds (i) in the Company need not prepare or file a Registration Statement pursuant to a Demand Notice within case of the Initial Offering, in excess of one hundred eighty and fifty million dollars (180$150,000,000) days after the effective date of any Registration Statement filed by the Company in which the Holders party to the Demand Notice could have included their Registrable Securities; and (ii) the Company may delay the effectiveness of a Demand Notice for a period of not more than six months after receipt of a Demand Notice in any 12-month period if the Company furnishes a certificate signed by its president stating that in the good faith judgment case of the Company's board of directors it would be detrimental any registration subsequent to the Company for the Registration Statement to be effected at such time; and Initial Offering, fifty million dollars (iii) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice if it is then preparing a Registration Statement in connection with an underwritten public offering of Company securities, and the Company may delay the effectiveness of such Demand Notice until one hundred eighty (180) days after the effective date of such Registration Statement$50,000,000).
Appears in 2 contracts
Samples: Investor Rights Agreement, Investor Rights Agreement (Blue Buffalo Pet Products, Inc.)
Demand Registration. 2.1 After (a) If, on any two occasions, the earlier Company shall receive from any of (x) the Investors, (y) X. Xxxxx or (z) X. Xxxxx a written request (in any such case, the Demand Holder(s) providing such request is hereinafter sometimes referred to as an "Initiating Holder(s)") that the Company effect the registration of Registrable Securities or Other Registrable Securities, as the case may be, representing at least twenty-five percent (25%) of the Registrable Securities or Other Registrable Securities, as the case may be, then held by and issuable to (1) the Investors (or their successors or assignees) if the Initiating Holder is an Investor (or a successor or assignee of an Investor), (2) X. Xxxxx (or his successors or assignees) if the Initiating Holder is X. Xxxxx (or his successors or assignees), or (3) X. Xxxxx (or his successors or assignees) if the Initiating Holder is X. Xxxxx (or his successors or assignees) (or any lesser percentage if the reasonably anticipated aggregate price to the public of the Registrable Securities or Other Registrable Securities, as applicable, to be included in such registration by such Demand Holder would exceed $5,000,000) in connection with a firm commitment underwriting by a nationally recognized Underwriter selected by such Initiating Holder(s) and reasonably acceptable to the Company, the Company shall:
(i) promptly (and in no event less than 30 days before the first anniversary anticipated filing date of such registration statement) give written notice of the date of this Agreement, proposed registration to all other Holders; and
(ii) as soon as practicable, use all of its commercially reasonable best efforts to effect such registration as may be so requested and as would permit or facilitate the consummation sale and distribution of an IPO such portion of such Registrable Securities or Other Registrable Securities, as applicable, as are specified in such request, together with such portion of the Registrable Securities, Other Registrable Securities and Make Systems Registrable Securities of Holders joining in such request as are specified in a written request by such Holder(s) given within 30 days after receipt of such written notice from the Company.
(iiib) The right of any Holder to registration pursuant to this Section 2 shall be conditioned upon such Holder's participation, and the inclusion of such Holder's Registrable Securities, Other Registrable Securities or Make Systems Registrable Securities, in the underwriting (unless otherwise mutually agreed by such Holder, the Underwriter and a Spin-Off majority in interest of the Initiating Holder(s)) to the extent provided herein. A Holder may elect to include in such underwriting all or Hostile Change in Control at any timea part of the Registrable Securities, Other Registrable Securities or Make Systems Registrable Securities it holds.
(c) The Company shall, together with all Holders of at least fifty percent (50%) of all Registrable Securities, Other Registrable Securities then and Make Systems Registrable Securities proposing to distribute their securities through such underwriting, enter into an underwriting agreement in customary form with the Underwriter.
(d) Notwithstanding any other provision of this Section 2, if the Underwriter advises the Initiating Holder(s) in writing that the inclusion in the subject registration statement of Registrable Securities, Other Registrable Securities or Make Systems Registrable Securities held by parties to this Agreement (or in Holders other than Initiating Holder(s) would limit the case of a Spin-Off the percentage number of Registrable Securities equal or Other Registrable Securities sought to be included by the Initiating Holder(s) or reduce the offering price thereof, then the Registrable Securities, Other Registrable Securities and Make Systems Registrable Securities held by Holders other than the Initiating Holder(s) shall be excluded from such registration to the proportion which extent required by such limitation, in proportion, as nearly as practicable, to the majority respective number of the number shares of Common acquired pursuant to the Subscription Agreement bears to all Registrable Securities Stock they held at the time the Initiating Holder(s) provided the initial written request pursuant to this Section 2. No Registrable Securities, Other Registrable Securities or Make Systems Registrable Securities so excluded from the underwriting by reason of the Spin-Off) may request the Company to Register Underwriter's above marketing limitation shall be included in such registration. If any or all Holder of their Registrable Securities, Other Registrable Securities (a "Demand Notice"or Make Systems Registrable Securities disapproves of the terms of the underwriting, such person may elect to withdraw therefrom by written notice to the Company, the Underwriter and the Initiating Holder(s). Demand Notices The securities so withdrawn shall also be made in writing and shall specify withdrawn from registration. If the Holders making the Demand Notice, Underwriter has not limited the number and type of Registrable Securities that each requests to be RegisteredSecurities, whether the Other Registrable Securities will be sold through an underwriter, and if so, the underwriters name, address, telephone number and contact person. The Company will prepare and file a Registration Statement in accordance with Section 4 for the Make Systems Registrable Securities to be Registered pursuant underwritten, the Company may include its securities for its own account in such registration if the Underwriter so agrees and if the number of Registrable Securities, Other Registrable Securities and Make Systems Registrable Securities which would otherwise have been included in such registration and underwriting will not thereby be limited.
(e) No registration initiated by any of the Initiating Holders hereunder shall count as a registration under this Section 2 unless and until the Company has incurred expenses equal to a valid Demand Notice; provided that at least $20,000 related to the preparation of such registration.
(f) The Company shall not be required to prepare or file a Registration Statement effect any registration under this Section 2 more than once in any twelve (12) month period, more than twice after an IPO or more than three (3) times in total. Registrations pursuant to Demand Notices are subject to the further limitations set forth in Section 2.3.
2.2 Within ten (10) days from its receipt of a valid Demand Notice, the Company shall deliver written notice to all Holders that, pursuant to a Demand Notice, the Company will prepare and file a Registration Statement. Any Holder who was not a party to the Demand Notice may, within ten (10) days from receipt of the Company's notice, request the Company to include the Holder's Registrable Securities in the Registration Statement. If the Holders that initiated a Demand Notice specify therein that they intend to distribute their Registrable Securities through an underwriter, then each Holder that requests inclusion in the Registration Statement must participate in such underwriting, and become party to any required agreements, including, but not limited to, customary underwriting and indemnification agreements. The Company shall have the right to approve any underwriter, which approval shall not be unreasonably withheld. In the event that the underwriter limits the number of Registrable Securities to be included in the offering to fewer than the number that has been requested for Registration, then each Holder's Registrable Securities shall be included in the underwriting pro rata, based on the total number of Registrable Securities held by the participating Holders.
2.3 Registrations under this Section 2 are subject to the following limitations: if (i) the Company need not prepare or file a Registration Statement pursuant is, at the time at which it receives any such request by an Initiating Holder, conducting or, has before receipt of such request, notified the Holders that it had planned, within 60 days of receipt by the Company of such request, to a Demand Notice conduct an offering of its securities and the Company reasonably believes that such offering would be adversely affected by the requested registration, (ii) such request is received by the Company within one hundred eighty (180) days three months after the effective date of any Registration Statement filed by the Company in which the Holders party other registration statement relating to the Demand Notice could have included their Registrable Securities; (ii) the Company may delay the effectiveness of a Demand Notice for a period of not more than six months after receipt of a Demand Notice in any 12-month period if the Company furnishes a certificate signed by its president stating that in the good faith judgment of the Company's board of directors it would be detrimental to the Company for the Registration Statement to be effected at such time; and securities, (iii) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice if it is then preparing a Registration Statement in connection with an underwritten public offering filing of Company securities, and the registration statement would require the Company may delay to furnish audited financial statements customarily prepared at the effectiveness end of its fiscal year other than in respect of such Demand Notice until one hundred eighty fiscal year, or (180iv) the filing of the registration statement would require the Company to furnish unaudited financial statements customarily prepared at the end of its fiscal quarters other than in respect of its regularly reported interim quarterly periods.
(g) The Company shall not effect any registration under this Section 2 within 60 days after the effective date of receiving another such Registration Statementrequest.
Appears in 2 contracts
Samples: Registration Rights Agreement (Opnet Technologies Inc), Registration Rights Agreement (Opnet Technologies Inc)
Demand Registration. 2.1 After the earlier of (a) (i) Provided that the first anniversary Company does not have the Registration Statement filed pursuant to Section 2 effective and usable to such Holder or group of Holders requesting a Demand Registration under this Section, at any time after the date that the Company becomes a registrant under the Exchange Act, any Holder or group of Holders holding, in the aggregate, ten percent (10%) or more of the Registrable Securities issued and outstanding immediately following the effective date of this Agreementthe Plan (the “Initial Outstanding Amount”), (ii) shall have the consummation of an IPO or (iii) a Spin-Off or Hostile Change in Control at any timeright, Holders of at least fifty percent (50%) of all Registrable Securities then held by parties to this Agreement (or in the case of a Spin-Off the percentage of Registrable Securities equal written notice given to the proportion which the majority of the number shares of Common acquired pursuant Company (a “Demand Notice”), to the Subscription Agreement bears to all Registrable Securities at the time of the Spin-Off) may request the Company to Register register under and in accordance with the provisions of the Securities Act all or any or all portion of their the Registrable Securities designated by such Holder(s); provided, however, that (a "Demand Notice"). Demand Notices shall x) the Registrable Securities requested to be made in writing registered constitute at least ten percent (10%) of the Initial Outstanding Amount, and shall specify (y) prior to the Holders making time the Demand Notice, Company is eligible to use Form S-3 for the number and type registration of Registrable Securities that each requests for resale, such Holder(s), in the aggregate, shall only be entitled to be Registered, whether the Registrable Securities will be sold through an underwriter, and if so, the underwriters name, address, telephone number and contact person. The Company will prepare and file a Registration Statement in accordance with Section 4 for the Registrable Securities to be Registered pursuant to a valid Demand Notice; provided that the Company shall not be required to prepare or file a Registration Statement under this Section 2 more than once in any twelve (12) month period, more than twice after an IPO or more than three (3) times in total. Demand Registrations pursuant to the provisions of this Section 3(a)(i) unless any Demand Notices are subject to Registration does not become effective or is not maintained in effect for the further limitations respective periods set forth in Section 2.3.
2.2 Within 3(c), in which case the relevant Holder(s) will be entitled to an additional Demand Registration pursuant hereto. Following the time that the Company becomes eligible for use of Form S-3 (or any successor form), any Holder or group of Holders holding, in the aggregate, ten percent (10%) days from its receipt of a valid Demand Notice, the Company shall deliver written notice to all Holders that, pursuant to a Demand Notice, the Company will prepare and file a Registration Statement. Any Holder who was not a party to the Demand Notice may, within ten (10) days from receipt or more of the Company's noticeInitial Outstanding Amount, request the Company to include the Holder's Registrable Securities in the Registration Statement. If the Holders that initiated a Demand Notice specify therein that they intend to distribute their Registrable Securities through an underwriter, then each Holder that requests inclusion in the Registration Statement must participate in such underwriting, and become party to any required agreements, including, but not limited to, customary underwriting and indemnification agreements. The Company shall have the right to approve request the Company to register under and in accordance with the provisions of the Securities Act all or any underwriter, which approval shall not be unreasonably withheld. In portion of the event that the underwriter limits the number of Registrable Securities to be included in the offering to fewer than the number designated by such Holder(s); provided, however, that has been requested for Registration, then each Holder's such Registrable Securities represent at least ten percent (10%) of the Initial Outstanding Amount, provided, however, that there shall be included in the underwriting pro rata, based on the total number of Registrable Securities held by the participating Holders.
2.3 no more than five (5) Demand Registrations under this Section 2 are subject to the following limitations: (i) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice within one hundred eighty (180) days after the effective date of any Registration Statement filed by the Company in which the Holders party to the Demand Notice could have included their Registrable Securities; (ii) the Company may delay the effectiveness of a Demand Notice for a period of not more than six months after receipt of a Demand Notice in any 12-month period if the Company furnishes a certificate signed by its president stating that in the good faith judgment of the Company's board of directors it would be detrimental to the Company for the Registration Statement to be effected at such time; and (iii) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice if it is then preparing a Registration Statement in connection with an underwritten public offering of Company securities, and the Company may delay the effectiveness of such Demand Notice until one hundred eighty (180) days after the effective date of such Registration Statementthis Agreement.
Appears in 2 contracts
Samples: Registration Rights Agreement (Tronox Inc), Equity Commitment Agreement (Tronox Inc)
Demand Registration. 2.1 After the earlier of (i) the first anniversary of At any time on or after the date of this Agreementsix (6) months following the date hereof, (ii) the consummation of an IPO or (iii) a Spin-Off or Hostile Change in Control at any timeBuyer may, Holders of at least fifty percent (50%) of all Registrable Securities then held by parties written notice to this Agreement (or in the case of a Spin-Off the percentage of Registrable Securities equal to the proportion which the majority of the number shares of Common acquired pursuant to the Subscription Agreement bears to all Registrable Securities at the time of the Spin-Off) may request the Company to Register any or all of their Registrable Securities Seller (a "Demand Notice"). Demand Notices shall be made in writing and shall specify , demand that Seller register for sale under the Holders making Securities Act all or any portion of the Demand Notice, Conversion Shares or Warrant Shares (including shares covered by the number and type of Registrable Securities Notes and/or Warrants to the extent Seller receives appropriate assurances that each requests to be Registered, whether the Registrable Securities such Notes or Warrants will be sold through an underwriter, and if so, the underwriters name, address, telephone number and contact person. The Company will prepare and file a Registration Statement in accordance with Section 4 for the Registrable Securities converted or exercised prior to be Registered pursuant to a valid Demand Notice; provided that the Company shall not be required to prepare or file a Registration Statement under this Section 2 more than once in any twelve (12) month period, more than twice after an IPO or more than three (3) times in total. Registrations pursuant to Demand Notices are subject to the further limitations set forth in Section 2.3.
2.2 Within ten (10) days from its receipt of a valid Demand Notice, the Company shall deliver written notice to all Holders that, pursuant to a Demand Notice, the Company will prepare and file a Registration Statement. Any Holder who was not a party to the Demand Notice may, within ten (10) days from receipt of the Company's notice, request the Company to include the Holder's Registrable Securities in the Registration Statement. If the Holders that initiated a Demand Notice specify therein that they intend to distribute their Registrable Securities through an underwriter, then each Holder that requests inclusion in the Registration Statement must participate in such underwriting, and become party to any required agreements, including, but not limited to, customary underwriting and indemnification agreements. The Company shall have the right to approve any underwriter, which approval shall not be unreasonably withheld. In the event that the underwriter limits the number of Registrable Securities to be included in the offering to fewer than the number that has been requested for Registration, then each Holder's Registrable Securities shall be included in the underwriting pro rata, based on the total number of Registrable Securities held by the participating Holders.
2.3 Registrations under this Section 2 are subject to the following limitations: (i) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice within one hundred eighty (180) days after the effective date of any Registration Statement filed by the Company in which the Holders party to the Demand Notice could have included their Registrable Securities; (ii) the Company may delay the effectiveness of a Demand Notice for a period of not more than six months after receipt of a Demand Notice in any 12-month period if the Company furnishes a certificate signed by its president stating that in the good faith judgment of the Company's board of directors it would be detrimental to the Company for the Registration Statement to be effected at such time; and (iii) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice if it is then preparing a Registration Statement in connection with an underwritten public offering of Company securities, and the Company may delay upon the effectiveness of such registration) held by Buyer (or its successor in interest or transferee) in the amount and manner specified in the Demand Notice; PROVIDED, HOWEVER, that the reasonably anticipated aggregate price of the securities to be registered and offered to the public would exceed $500,000. Seller shall be obligated to register securities pursuant to this Section 6.2(b)(i) on two (2) occasions only; PROVIDED, HOWEVER, that if Seller is a registrant then entitled to file a registration statement on Form S-3 or any successor form thereto, Seller shall be obligated to register Buyer's securities on one (1) additional occasion if Buyer provides a Demand Notice until one hundred eighty (180) days after requesting that its securities be registered on Form S-3 or any successor form thereto; and PROVIDED, FURTHER, that any such obligation shall be deemed satisfied only when a registration statement covering all registrable securities specified in the effective date of such Registration StatementDemand Notice shall have become effective.
Appears in 2 contracts
Samples: Note Purchase Agreement (Immune Response Corp), Note Purchase Agreement (Immune Response Corp)
Demand Registration. 2.1 After the earlier of (ia) At any time after the first anniversary of the date of this Agreement, (ii) the consummation of an IPO or (iii) a Spin-Off or Hostile Change in Control at any timehereof, Holders of holding at least fifty fifty-one percent (5051%) of all the Registrable Securities then held by parties to this Agreement (or in the case of a Spin-Off the percentage of Registrable Securities equal to the proportion which the majority of the number shares of Common acquired pursuant to the Subscription Agreement bears to all Registrable Securities at the time of the Spin-Off) Holders may request require that the Company to Register file a registration statement on Form S-1 under the Securities Act of all or any or all part of their Registrable Securities (a "Demand NoticeRegistration"), subject to the terms and conditions of this Agreement; provided, however, that the Company shall not be obligated to effect more than two (2) registrations on Form S-1 pursuant to this Section 2.1(a). Any request for a Demand Notices Registration shall specify the approximate number of shares of Registrable Securities requested to be registered and the intended method of distribution of the shares. The Company shall, as use its best efforts to effect the registration on Form S-1 of the Registrable Securities (including pursuant to a shelf registration statement) which the Company has been requested to register pursuant to this Section 2.1(a). No additional registrations shall be made in writing and shall specify by the Company during the one hundred eighty (180) day period following the effective date of any demand registration pursuant to this Section 2.1(a).
(b) In the event the Holders making own Registrable Securities at such time as the Company shall have qualified for the use of Form S-3 (or any similar form or forms promulgated by the Commission), Holders of at least fifteen percent (15%) of the Registrable Securities then held by the Holders shall have the right to request, in addition to the Demand NoticeRegistrations, additional registrations on Form S-3 or its successor form, as the number case may be (collectively, "Form S-3") and type the Company shall promptly give notice of such proposed registration to all Holders of Registrable Securities that each requests and the Company shall, as soon as practicable but in any event within forty-five (45) days thereafter, use its best efforts to be Registered, whether effect the registration on Form S-3 of the Registrable Securities will (including pursuant to a shelf registration statement) which the Company has been requested to register (a) in each request and (b) in any response given within thirty (30) days of the receipt of the notice from the Company pursuant to this Section 2.1(b); provided, however, that the Company shall not be sold through an underwriter, obligated to file and if so, the underwriters name, address, telephone number and contact person. The Company will prepare and file a cause to become effective (i) more than two registrations in any twelve month period under this Section 2.1(b) or (ii) any Registration Statement in accordance with Section 4 for on Form S-3 where the proposed aggregate offering price of the Registrable Securities to be Registered sold thereunder is less than $1,000,000.
(c) If an offering pursuant to this Section 2 is underwritten and the managing underwriter(s) advises the Company in writing that in their reasonable and good faith opinion the number of shares of Registrable Securities required to be registered exceeds the number of shares of Registrable Securities that can be sold in an orderly manner in such offering within a valid price range acceptable to the Company and the Holders, the securities requested by the Company to be included, if any, shall first be excluded from such registration to the extent so required by such limitation; to the extent additional shares need to be excluded in order to conform to such limitation, the securities of the Company held by stockholders of the Company other than the Holders (the "Other Stockholders") shall next be excluded; and then, to the extent additional shares still need to be excluded in order to conform to such limitation, the Registrable Securities requested to be registered by the Holders shall be reduced pro rata based upon the number of shares of Registrable Securities owned by such Holders. The Company shall advise all holders of securities requesting registration as to the number of shares of securities that may be included in the registration and underwriting as allocated in the foregoing manner. If more than twenty percent (20%) of the Registrable Securities of the Holders are excluded pursuant to this Section 2.1(c), such registration will not constitute a Demand NoticeRegistration pursuant to Section 2.1(a). If any Other Stockholder or Holder who has requested inclusion in such registration as provided in Section 2.1(a) or Section 2.1(b) disapproves of the terms of the underwriting, such person may elect to withdraw therefrom by written notice to the Company, the underwriter and the Holders initiating such registration. The securities so withdrawn shall also be withdrawn from registration. If the underwriter has not limited the number of shares to be underwritten and otherwise determine that it would not have a material adverse effect on the marketing of the Registrable Securities, the Company may include its securities for its own account in such registration if the underwriter so agrees and if the number of shares of Registrable Securities and other securities of the Holders that would otherwise have been included in such registration and underwriting will not be limited thereby.
2.2 The Holders will have the right to select one or more underwriters to manage an offering under Section 2.1, which underwriters shall be reasonably acceptable to the Company. The right of any Holder to participate in an underwritten offering under Section 2.1 shall be conditioned upon such Holder's agreement to the terms of such underwriting, including the execution of an underwriting agreement with the underwriters in form and substance reasonably acceptable to the Company. In the event that the Company determines that proceeding with an offering pursuant to this Section 2 would materially interfere with, or require premature disclosure of, business activities or plans of the Company, or give rise, solely because of its timing, to any legal or contractual liability on the part of the Company, the Company may, by written notice, delay for a reasonable period of time the registration or offering, but in no event longer than one hundred twenty (120) days; provided that the Company shall not be required exercise its right to prepare or file delay a Registration Statement under registration pursuant to this Section 2 2.2 more than once in any twelve (12) month period, more than twice after an IPO or more than three (3) times in total. Registrations pursuant to Demand Notices are subject to the further limitations set forth in Section 2.3.
2.2 Within ten (10) days from its receipt of a valid Demand Notice, the Company shall deliver written notice to all Holders that, pursuant to a Demand Notice, the Company will prepare and file a Registration Statement. Any Holder who was not a party to the Demand Notice may, within ten (10) days from receipt of the Company's notice, request the Company to include the Holder's Registrable Securities in the Registration Statement. If the Holders that initiated a Demand Notice specify therein that they intend to distribute their Registrable Securities through an underwriter, then each Holder that requests inclusion in the Registration Statement must participate in such underwriting, and become party to any required agreements, including, but not limited to, customary underwriting and indemnification agreements. The Company shall have the right to approve any underwriter, which approval shall not be unreasonably withheld. In the event that the underwriter limits the number of Registrable Securities to be included in the offering to fewer than the number that has been requested for Registration, then each Holder's Registrable Securities shall be included in the underwriting pro rata, based on the total number of Registrable Securities held by the participating Holders.
2.3 Registrations under this Section 2 are subject to the following limitations: (i) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice within one hundred eighty (180) days after the effective date of any Registration Statement filed by the Company in which the Holders party to the Demand Notice could have included their Registrable Securities; (ii) the Company may delay the effectiveness of a Demand Notice for a period of not more than six months after receipt of a Demand Notice in any 12-month period if the Company furnishes a certificate signed by its president stating that in the good faith judgment of the Company's board of directors it would be detrimental to the Company for the Registration Statement to be effected at such time; and (iii) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice if it is then preparing a Registration Statement in connection with an underwritten public offering of Company securities, and the Company may delay the effectiveness of such Demand Notice until one hundred eighty (180) days after the effective date of such Registration Statement.
Appears in 2 contracts
Samples: Registration Rights Agreement (U S Realtel Inc), Registration Rights Agreement (U S Realtel Inc)
Demand Registration. (a) At any time, each Holder shall have the right to request (each such request, a "Registration Demand") that the Company file a registration statement under the Securities Act in respect of all or any portion of such Holder's Eligible Securities; provided that if any Holder shall request that a portion, but not all, of its Eligible Securities be registered in accordance with this Section 2.1 After the earlier (including a requested Takedown pursuant to subsection (c)(ii) below), such portion shall include not less than two hundred and fifty thousand (250,000) shares of Eligible Common Stock (i) the first anniversary or such lesser number of such shares having a market valuation of at least $5,000,000 as of the date the Registration Demand is made, based on the Closing Price on such date). A Registration Demand shall specify the number of this Agreementshares of Eligible Common Stock (and, (ii) the consummation of an IPO or (iii) a Spin-Off or Hostile Change in Control at any time, Holders of at least fifty percent (50%) of all Registrable Securities then held by parties to this Agreement (or in the case of a Spin-Off Registration Demand by the percentage of Registrable Securities equal to the proportion which the majority of the number shares of Common acquired pursuant to the Subscription Agreement bears to all Registrable Securities at the time of the Spin-Off) may request the Company to Register any or all of their Registrable Securities (a "Demand Notice"). Demand Notices shall be made in writing and shall specify the Holders making the Demand NoticeInitial Holder, the number and type of Registrable Securities Warrants) that each requests such Holder proposes to sell in the offering. If no Shelf Registration Statement shall be Registered, whether effective as of the Registrable Securities will be sold through an underwriter, and if sodate of the Registration Demand, the underwriters namedemanding Holders may elect to register such Eligible Securities in accordance with either Section 2.1(c)(i) or Section 2.1(d). If a Shelf Registration Statement shall be effective as of the date of the Registration Demand, address, telephone number and contact personthen all demanding Holders shall be deemed to have elected to register their Eligible Securities pursuant to Section 2.1(c)(ii). The Holders may make in the aggregate two (2) Registration Demands pursuant to Sections 2.1(c)(i) and 2.1(d) and four (4) Registration Demands per year pursuant to an existing Shelf Registration Statement pursuant to Section 2.1(c)(ii) for which the Company will prepare pay and file a Registration Statement bear all costs and expenses in accordance with Section 4 3.3 and thereafter the Holders may make an unlimited number of Registration Demands for which such requesting Holders shall pay and bear all costs and expenses.
(b) Upon receipt of a Registration Demand (other than a Takedown), the Registrable Securities Company shall give written notice thereof to be Registered pursuant all of the other Holders at least thirty (30) days prior to the initial filing of a valid Demand Notice; provided Registration Statement relating to such Registration Demand. Each of the other Holders shall have the right, within twenty (20) days after the delivery of such notice, to request that the Company shall not be required to prepare include all or file a portion of such Holder's Eligible Securities in such Registration Statement. Upon receipt of a Registration Statement under this Section 2 more than once in any twelve (12) month periodDemand that is a Takedown, more than twice after an IPO or more than a representative of the selling holders shall give written notice thereof to all of the other Holders at least three (3) times Business Days prior to the initial filing of a prospectus relating to such Registration Demand. Each of the other Holders shall have the right, within one (1) Business Day after the delivery of such notice, to request that the Company include all or a portion of such Holder's Eligible Securities in total. Registrations such Registration Statement.
(i) As promptly as practicable and in no event later than sixty (60) days after the Company receives a Registration Demand electing to register Eligible Securities pursuant to Demand Notices are subject to the further limitations set forth in Section 2.3.
2.2 Within ten this paragraph (10) days from its receipt of a valid Demand Noticec), the Company shall deliver written notice to file under the Securities Act a "shelf" registration statement (the "Shelf Registration Statement") providing for the registration and the sale on a continuous or delayed basis of all Holders thatthe Eligible Securities, pursuant to Rule 415 under the Securities Act and/or any similar rule that may be adopted by the SEC (the "Shelf Registration"). The Company agrees to use its reasonable best efforts to cause such Shelf Registration Statement to become or be declared effective as soon as practicable but no later than 75 calendar days after the filing (the "75 Day Effective Date") and to keep such Shelf Registration continuously effective for a period ending on the occurrence of the earlier of: (x) the third anniversary of such Registration Demand Noticeand (y) notification by all of the requesting Holders that such Holders have sold all of the Eligible Securities owned by them. The Company further agrees to supplement or make amendments to the Shelf Registration Statement and the prospectus included therein (x) as may be necessary to effect and maintain the effectiveness of such Shelf Registration Statement for the period set forth in the previous sentence and (y) as may be required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration or by the Securities Act or rules and regulations thereunder for shelf registration. The Company agrees to furnish to the Holders of the securities registered thereby copies of any such supplement or amendment (but excluding any periodic reports required to be filed with the SEC under the Exchange Act of 1934) so that the Initial Holder, or if the Initial Holder is no longer a Holder, the Holders, through the Representative(s), have a reasonable opportunity to comment thereon prior to its being used and/or filed with the SEC.
(ii) As promptly as practicable after the Company receives a Registration Demand from a Holder or Holders pursuant to which a Holder is deemed to have elected to register Eligible Securities pursuant to an existing Shelf Registration Statement (a "Takedown"), the Company will prepare and shall, subject to the Takedown Blackout Period described below, file a Registration Statement. Any Holder who was not a party Prospectus with the SEC and otherwise comply with the Securities Act and all rules, regulations and instructions thereunder applicable to the Demand Notice may, within ten (10) days from receipt of the Company's notice, request the Company to include the Holder's Registrable Securities in the Registration Statement. If the Holders that initiated a Demand Notice specify therein that they intend to distribute their Registrable Securities through an underwriter, then each Holder that requests inclusion in the Registration Statement must participate in such underwriting, and become party to any required agreements, including, but not limited to, customary underwriting and indemnification agreements. The Company shall have the right to approve any underwriter, which approval shall not be unreasonably withheldTakedown. In the event that no Prospectus or other filing is required nor any other action necessitating the underwriter limits Company's participation is required to effect a sale of Eligible Securities pursuant to an effective Shelf Registration Statement filed pursuant to Section 2.1(c)(i), each selling Holder agrees to provide the number Company with at least three (3) Business Days' notice of Registrable the proposed sale (which may or may not include the amount of Eligible Securities to be included in registered) pursuant to the offering to fewer than effective Shelf Registration Statement; provided, however, that the number that has been requested for RegistrationCompany shall, then each Holder's Registrable Securities shall be included in the underwriting pro rata, based on the total number of Registrable Securities held by the participating Holders.
2.3 Registrations under this Section 2 are subject to Section 2.3(g), have the following limitationsright to postpone any such sale whether before or after the filing of the applicable Prospectus or Shelf Registration Statement for a reasonable period of time not to exceed ninety (90) days (a "Takedown Blackout Period") if: (i) the Company need determines in its good faith judgment that it would, in connection with such sale, be required to disclose in such Registration Statement (or any prospectus supplement to be used in connection therewith) information not prepare otherwise then required by law to be publicly disclosed and (ii) either (x) in the good faith judgment of the Board of Directors of the Company, such disclosure would adversely affect any material corporate development or file business transaction contemplated by the Company or (y) the Company has a bona fide purpose for preserving as confidential such information; provided further that the Takedown Blackout Period shall earlier terminate upon the completion or abandonment of the relevant corporate development or business transaction or upon public disclosure by the Company or public disclosure by the Company or public admission by the Company of such information specified in (i) above.
(d) As promptly as practicable and in no event later than sixty (60) days after the Company receives a Registration Statement Demand electing to register Eligible Securities pursuant to this Section 2.1(d), the Company shall file with the SEC a Demand Notice within Registration Statement, on any form that shall be available and appropriate for the sale of the Eligible Securities in accordance with the intended method of distribution thereof. The Company shall include in such Registration Statement all of the Eligible Securities of such requesting Holders that such Holders have requested to be included therein pursuant to Sections 2.1(a) and 2.1(b); provided, however, that, if the requested registration involves an underwritten offering, the Eligible Securities to be registered may be reduced if the managing underwriter delivers a notice (a "Cutback Notice") pursuant to Section 2.1(g). The Company shall use its reasonable best efforts to cause each such Registration Statement to be declared effective (and to obtain acceleration of such effectiveness) as soon as practicable but no later than 75 days after filing such Registration Statement and to keep such Registration Statement continuously effective and usable for resale of such Eligible Securities, for a period of one hundred eighty (180) days after from the date on which the SEC declares such Registration Statement effective date or such shorter period as is necessary to complete the distribution of the securities registered thereunder.
(e) The Initial Holder or, if the Initial Holder is not a selling holder, the Representative(s) shall determine the method of distribution of Eligible Securities pursuant to a Registration Demand.
(f) If a Registration Demand involves an underwritten offering, the investment banker or investment bankers and manager or managers that will administer such offering will be selected by the Initial Holder or, if the Initial Holder is not a selling holder, the Representative(s); provided that the Persons so selected shall be reasonably satisfactory to the Company.
(g) In the event that the proposed offering is an underwritten offering and includes securities to be offered for the account of the Company (the "Company Shares"), the provisions of this Section 2.1(g) shall be applicable if the managing underwriter delivers a Cutback Notice stating that, in its opinion, the aggregate number of shares of Eligible Common Stock, plus the Company Shares proposed to be sold therein, exceeds the maximum number of shares specified by the managing underwriter in such Cutback Notice that may be distributed without adversely affecting the price, timing or distribution of the Common Stock being distributed. If the managing underwriter delivers such Cutback Notice, the number of shares of Eligible Common Stock requested to be registered and Company Shares shall be reduced in the following order until the number of shares to be offered has been reduced to the maximum number of shares specified by the managing underwriter in the Cutback Notice: first, the Company Shares and second, the Eligible Common Stock in proportion to the respective number of shares of Eligible Common Stock that each Holder has requested to be registered.
(h) The Company will pay all Registration Expenses (as set forth in Section 3.3) in connection with a registration under this Section 2.1.
(i) No Registration Demand (other than a Takedown) may be made until the expiration of six (6) months following the completion of the distribution of the securities registered under any Registration Statement that has been filed by and has become effective pursuant to a prior Registration Demand.
(j) A Registration Demand will not be deemed satisfied (and will not count for purposes of the Company limitations in which the Holders party to the Demand Notice could have included their Registrable Securities; Section 2.1(a)) (iii) the Company may delay the effectiveness of unless a Demand Notice registration statement with respect thereto has become effective and has been kept continuously effective for a period of not more than six months at least 180 days (or such shorter period which shall terminate when all Eligible Securities covered by such registration statement have been sold), (ii) if, after receipt of a Demand Notice in it has become effective, such registration is interfered with by any 12-month period if the Company furnishes a certificate signed by its president stating that in the good faith judgment stop order, injunction or other order or requirement of the Company's board of directors it would be detrimental SEC or other governmental agency or court for any reason not attributable to the Company for the Registration Statement to be effected at selling holders participating in such time; registration and has not thereafter become effective, or (iii) if the Company need not prepare conditions to closing specified in the relevant underwriting or file a Registration Statement pursuant to a Demand Notice if it is then preparing a Registration Statement agency agreement entered into in connection with an underwritten public such offering are not satisfied or waived, other than by reason of Company securities, and the Company may delay the effectiveness a breach of such Demand Notice until one hundred eighty (180) days after agreement by the effective date selling holders participating in such offering or wilful failure on the part of the selling holders participating in such Registration Statementoffering.
Appears in 2 contracts
Samples: Registration Rights Agreement (Whwel Real Estate Lp), Registration Rights Agreement (Wellsford Real Properties Inc)
Demand Registration. 2.1 After (a) At any time commencing after , 1999 (12 months from the earlier of Effective Date) through and including , 2003 (i) 60 months from the first anniversary Effective Date), the Holders of the date of this Agreement, Representative's Purchase Options and/or Units underlying same representing a "Majority" (ii) the consummation of an IPO or (iii) a Spin-Off or Hostile Change in Control at any time, Holders of at least fifty percent (50%as hereinafter defined) of such securities (assuming the exercise of all Registrable Securities then held by parties to this Agreement of the Representative's Purchase Options) shall have the right (or which right is in the case of a Spin-Off the percentage of Registrable Securities equal addition to the proportion which the majority of the number shares of Common acquired pursuant registration rights under Section 7.2 hereof), exercisable by written notice to the Subscription Agreement bears Company, to all Registrable Securities at the time of the Spin-Off) may request have the Company to Register any or all of their Registrable Securities (a "Demand Notice"). Demand Notices shall be made in writing and shall specify the Holders making the Demand Notice, the number and type of Registrable Securities that each requests to be Registered, whether the Registrable Securities will be sold through an underwriter, and if so, the underwriters name, address, telephone number and contact person. The Company will prepare and file with the Commission, on one occasion, a Registration Statement registration statement and such other documents, including a prospectus, as may be necessary in accordance with Section 4 the opinion of both counsel for the Registrable Securities Company and counsel for the Representative and Holders, in order to be Registered pursuant comply with the provisions of the Act, so as to permit a valid Demand Notice; provided that public offering and sale of their respective Units underlying same for nine (9) consecutive months by such Holders and any other Holders of the Representative's Purchase Options and/or Units underlying same who notify the Company shall not be required to prepare or file a Registration Statement under this Section 2 more than once in any twelve (12) month period, more than twice after an IPO or more than three (3) times in total. Registrations pursuant to Demand Notices are subject to the further limitations set forth in Section 2.3.
2.2 Within within ten (10) days after receiving notice from its receipt of a valid Demand Notice, the Company shall deliver of such request.
(b) The Company covenants and agrees to give written notice of any registration request under this Section 7.3 by any Holder or Holders to all other registered Holders that, pursuant to a Demand Notice, of the Company will prepare Representative's Purchase Options and file a Registration Statement. Any Holder who was not a party to the Demand Notice may, Units underlying same within ten (10) days from the date of the receipt of any such registration request.
(c) In addition to the Companyregistration rights under Section 7.2 and subsection (a) of this Section 7.3, at any time commencing after , 1999 (12 months from the Effective Date) through and including , 2003 (60 months from the Effective Date), any Holder or Holders of a Majority of Representative's notice, request Purchase Options and/or the Company to include the Holder's Registrable Securities in the Registration Statement. If the Holders that initiated a Demand Notice specify therein that they intend to distribute their Registrable Securities through an underwriter, then each Holder that requests inclusion in the Registration Statement must participate in such underwriting, and become party to any required agreements, including, but not limited to, customary underwriting and indemnification agreements. The Company Units underlying same shall have the right right, exercisable by written request to approve the Company, to have the Company prepare and file, on one occasion, with the Commission a registration statement so as to permit a public offering and sale for nine (9) consecutive months by any underwritersuch Holder or Holders, which approval provided, however, that the provisions of Section 7.4(b) hereof shall not be unreasonably withheld. In the event that the underwriter limits the number of Registrable Securities apply to be included in the offering to fewer than the number that has been requested for Registration, then each Holder's Registrable Securities any such registration request and registration and all costs incident thereto shall be included in at the underwriting pro rata, based on expense of the total number of Registrable Securities held by the participating HoldersHolder or Holders making such request.
2.3 Registrations under this Section 2 are subject (d) Notwithstanding anything to the following limitations: contrary contained herein, if the Company shall not have filed a registration statement for the Units, the shares of Preferred Stock, the Preferred Warrants and the shares of Preferred Stock underlying the Preferred Warrants underlying the Representative's Purchase Options within the time period specified in Section 7.4(a) hereof pursuant to the written notice specified in Section 7.3(a) of a Majority of the Holders of the Representative's Purchase Options and/or Units underlying same, the Company agrees that upon the written notice of election of a Majority of the Holders of the Representative's Purchase Options and/or Units underlying same it shall repurchase (i) any and all Units underlying the Representative's Purchase Options at the higher of Market Price per Unit of the Units on (x) the date of the notice sent pursuant to Section 7.3(a) or (y) the expiration of the period specified in Section 7.4(a). Such repurchase shall be in immediately available funds and shall close within two (2) days after the later of (i) the Company need not prepare expiration of the period specified in Section 7.4(a) or file a Registration Statement pursuant to a Demand Notice within one hundred eighty (180) days after the effective date of any Registration Statement filed by the Company in which the Holders party to the Demand Notice could have included their Registrable Securities; (ii) the Company may delay the effectiveness of a Demand Notice for a period of not more than six months after receipt of a Demand Notice in any 12-month period if the Company furnishes a certificate signed by its president stating that in the good faith judgment delivery of the Company's board written notice of directors it would be detrimental to the Company for the Registration Statement to be effected at such time; and (iii) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice if it is then preparing a Registration Statement election specified in connection with an underwritten public offering of Company securities, and the Company may delay the effectiveness of such Demand Notice until one hundred eighty (180) days after the effective date of such Registration Statementthis Section 7.3(d).
Appears in 1 contract
Samples: Representative's Purchase Option Agreement (Kids Stuff Inc)
Demand Registration. 2.1 After the earlier of (i) Subject to the first terms and conditions of this Agreement (including Section 2(a)(ii)), at any time after the third (3rd) anniversary of the date of this Agreementhereof, (ii) or if the consummation of Company consummates an IPO or (iii) a Spin-Off or Hostile Change in Control at any time, Holders of at least fifty percent (50%) of all Registrable Securities then held by parties to this Agreement (or in the case of a Spin-Off the percentage of Registrable Securities equal Initial Public Offering prior to the proportion which the majority third (3rd) anniversary of the number shares of Common acquired pursuant to the Subscription Agreement bears to all Registrable Securities at the time of the Spin-Off) may request the Company to Register any or all of their Registrable Securities (a "Demand Notice"). Demand Notices shall be made in writing and shall specify the Holders making the Demand Noticedate hereof, the number and type of Registrable Securities date that each requests to be Registered, whether the Registrable Securities will be sold through an underwriter, and if so, the underwriters name, address, telephone number and contact person. The Company will prepare and file a Registration Statement in accordance with Section 4 for the Registrable Securities to be Registered pursuant to a valid Demand Notice; provided that the Company shall not be required to prepare or file a Registration Statement under this Section 2 more than once in any twelve (12) month period, more than twice after an IPO or more than three (3) times in total. Registrations pursuant to Demand Notices are subject to the further limitations set forth in Section 2.3.
2.2 Within ten (10) days from its receipt of a valid Demand Notice, the Company shall deliver written notice to all Holders that, pursuant to a Demand Notice, the Company will prepare and file a Registration Statement. Any Holder who was not a party to the Demand Notice may, within ten (10) days from receipt of the Company's notice, request the Company to include the Holder's Registrable Securities in the Registration Statement. If the Holders that initiated a Demand Notice specify therein that they intend to distribute their Registrable Securities through an underwriter, then each Holder that requests inclusion in the Registration Statement must participate in such underwriting, and become party to any required agreements, including, but not limited to, customary underwriting and indemnification agreements. The Company shall have the right to approve any underwriter, which approval shall not be unreasonably withheld. In the event that the underwriter limits the number of Registrable Securities to be included in the offering to fewer than the number that has been requested for Registration, then each Holder's Registrable Securities shall be included in the underwriting pro rata, based on the total number of Registrable Securities held by the participating Holders.
2.3 Registrations under this Section 2 are subject to the following limitations: (i) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice within is one hundred eighty (180) days after the effective date completion of the Initial Public Offering, upon written notice to the Company (a “Demand Notice”) delivered by an Initiating Holder or group of Initiating Holders at any time requesting that the Company effect the registration (a “Demand Registration”) under the Securities Act of any Registration Statement filed or all of the Registrable Securities held by such Holders, the Company in which the Holders party to the Demand Notice could have included their Registrable Securities; shall promptly (ii) the Company may delay the effectiveness of a Demand Notice for a period of not more than six months after receipt of a Demand Notice but in any 12-month period if the Company furnishes a certificate signed by its president stating that in the good faith judgment event, not later than five (5) Business Days of the Company's board ’s receipt of directors it would be detrimental to such Demand Notice) give written notice of the Company for the Registration Statement to be effected at such time; and (iii) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice if it is then preparing a Registration Statement in connection with an underwritten public offering of Company securities, and the Company may delay the effectiveness receipt of such Demand Notice until one hundred eighty to all other Holders that, to its knowledge, hold at least 0.5% of the Company Common Shares then outstanding (180each, a “Demand Eligible Holder”) days and shall promptly file the appropriate registration statement (the “Demand Registration Statement”) and use its commercially reasonable efforts to effect, at the earliest practicable date, the registration under the Securities Act and applicable state securities laws of (A) the Registrable Securities which the Company has been so requested to register by the Initiating Holders in the Demand Notice, and (B) all other Registrable Securities which the Company has been requested to register by the Demand Eligible Holders by written request (the “Demand Eligible Holder Request”) given to the Company within ten (10) Business Days or, to the extent the Company states in such written notice that such registration will be on Form S-3, five (5) Business Days, after the effective date giving of such Registration Statementwritten notice by the Company, in each case subject to Section 2(a)(v), all to the extent required to permit the disposition (in accordance with the intended methods of disposition) of the Registrable Securities to be so registered.
Appears in 1 contract
Samples: Registration Rights Agreement
Demand Registration. 2.1 After (a) Subject to the conditions of this Section 2.2, if at any time after the earlier of (i) the first anniversary of two (2) years after the date of this Agreement, Agreement or (ii) six (6) months following the consummation closing date of the Initial Offering, the Company shall receive a written request from the Initiating Holders or the Initiating Preferred F Holder(s) that the Company file a registration statement under the Securities Act covering the registration of all or a portion of the Registrable Securities having an IPO aggregate proposed offering price to the public (net of underwriters’ discounts or (iiicommissions) a Spin-Off or Hostile Change in Control at any time, Holders of at least fifty percent five million dollars (50%$5,000,000) (a “Qualified Public Offering”), then the Company shall, within ten (10) business days of the receipt thereof, give written notice of such request to all Holders, other than the Applicable Initiating Holders, and subject to the limitations of this Section 2.2, use commercially reasonable efforts to effect, as expeditiously as reasonably possible, the registration under the Securities Act of all Registrable Securities then held that all Applicable Initiating Holders request to be registered and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Applicable Initiating Holder’s or Applicable Initiating Holders’ Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holders joining in such request as are specified in a written request received by parties the Company within twenty (20) days of the mailing of the Company’s notice pursuant to this Agreement Section 2.2(a).
(b) If the Applicable Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.2 or any request pursuant to Section 2.4 and the Company shall include such information in the case written notice referred to in Section 2.2(a) or Section 2.4(a), as applicable. In such event, the right of a Spin-Off the percentage of any Holder to include its Registrable Securities equal to in such registration shall be conditioned upon such Holder’s participation in such underwriting and the proportion which inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by such Holder and the Applicable Initiating Holders holding a majority of the number shares of Common acquired pursuant Registrable Securities requested by such Applicable Initiating Holders to be registered) to the Subscription Agreement bears extent provided herein. All Holders proposing to all Registrable Securities at the time of the Spin-Off) may request the Company to Register any or all of distribute their Registrable Securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Holders of a majority of the Registrable Securities held by all Applicable Initiating Holders (a "Demand Notice"which underwriter or underwriters shall be reasonably acceptable to the Company). Demand Notices shall be made in writing and shall specify Notwithstanding any other provision of this Section 2.2 or Section 2.4, if the Holders making underwriter advises the Demand Notice, Company that marketing factors require a limitation of the number and type of securities to be underwritten (including Registrable Securities) then the Company shall so advise all Holders of Registrable Securities that each requests would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated first to such Holders of Preferred F Registrable Securities, on a pro rata basis based on the number of Preferred F Registrable Securities requested to be Registeredregistered by all such Holders (including the Initiating Preferred F Holder(s)) and, whether second to the Holders of such Registrable Securities will other than the Preferred F Registrable Securities, on a pro rata basis based on the number of Registrable Securities other than the Preferred F Registrable Securities requested to be sold through an underwriterregistered by all such Holders (including the Initiating Holders); provided, and if sohowever, that the underwriters name, address, telephone number and contact person. The Company will prepare and file a Registration Statement in accordance with Section 4 for the of shares of Registrable Securities to be Registered pursuant to a valid Demand Notice; provided that included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) Notwithstanding the forgoing, the Company shall not be required to prepare or file effect a Registration Statement under registration pursuant to this Section 2 more than once in any twelve (12) month period, more than twice after an IPO or more than three (3) times in total. Registrations pursuant to Demand Notices are subject to the further limitations set forth in Section 2.3.2.2:
2.2 Within ten (10) days from its receipt of a valid Demand Notice, the Company shall deliver written notice to all Holders that, pursuant to a Demand Notice, the Company will prepare and file a Registration Statement. Any Holder who was not a party to the Demand Notice may, within ten (10) days from receipt of the Company's notice, request the Company to include the Holder's Registrable Securities in the Registration Statement. If the Holders that initiated a Demand Notice specify therein that they intend to distribute their Registrable Securities through an underwriter, then each Holder that requests inclusion in the Registration Statement must participate in such underwriting, and become party to any required agreements, including, but not limited to, customary underwriting and indemnification agreements. The Company shall have the right to approve any underwriter, which approval shall not be unreasonably withheld. In the event that the underwriter limits the number of Registrable Securities to be included in the offering to fewer than the number that has been requested for Registration, then each Holder's Registrable Securities shall be included in the underwriting pro rata, based on the total number of Registrable Securities held by the participating Holders.
2.3 Registrations under this Section 2 are subject to the following limitations: (i) prior to the Company need not prepare or file a Registration Statement pursuant to a Demand Notice within one hundred eighty earliest of (180A) days after the effective date that is six (6) months following the closing date of any Registration Statement filed by the Company in which the Holders party to the Demand Notice could have included their Registrable Securities; Initial Offering, (iiB) the Company may delay the effectiveness of a Demand Notice for a period of not more than six months after receipt of a Demand Notice in any 12-month period if the Company furnishes a certificate signed by its president stating that in the good faith judgment expiration of the Company's board of directors it would be detrimental to the Company for the Registration Statement to be effected at such time; and (iii) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice if it is then preparing a Registration Statement in connection with an underwritten public offering of Company securities, and the Company may delay the effectiveness of such Demand Notice until one hundred eighty (180) days after the effective date of such Registration Statement.restrictions on transfer set forth in
Appears in 1 contract
Demand Registration. 2.1 After (a) Subject to the provisions of the Stockholders Agreement and this Section 3, KKR Holders which, individually or in the aggregate, at the time of the request provided for below, hold at least 10% of the Issuer’s issued and outstanding Common Stock, may, at any time and from time to time, make a written request to the Issuer for registration, on the appropriate registration form, as provide by Section 3(d) below, under and in accordance with the provisions of the Securities Act, of all or part of the Registrable Securities then held by such KKR Holders. Subject to the provisions of the Stockholders Agreement and this Section 3, upon the earlier to occur of (i) the first anniversary closing of the date of this AgreementIssuer IPO, and (ii) the consummation fifth anniversary of an IPO the Closing Date, Trimaran Holders, which, individually or (iii) a Spin-Off or Hostile Change in Control the aggregate, at the time of the request provided for below, hold at least 10% of the Issuer’s issued and outstanding Common Stock, may, at any time and from time to time, Holders make a written request to the Issuer for registration on the appropriate registration form, as provide by Section 3(d) below, under and in accordance with the provisions of at least fifty percent (50%) the Securities Act, of all or part of the Registrable Securities then held by parties such Trimaran Holders.
(b) Promptly upon receipt of any such request contemplated by this Section 3(a) (but in no event more than five business days thereafter), the Issuer will serve written notice (the “Demand Notice”) of such registration request to this Agreement all Holders (or in the case of a Spin-Off the percentage of Registrable Securities equal to the proportion which the majority of the number shares of Common acquired including Minority Stockholders and Management Holders deemed Holders pursuant to Section 11 hereof), and the Subscription Agreement bears to Issuer will include in such registration all Registrable Securities at of any such Holder with respect to which the time of the Spin-Off) may request the Company to Register any or all of their Registrable Securities (a "Demand Notice"). Demand Notices shall be made in writing and shall specify the Holders making the Demand Notice, the number and type of Registrable Securities that each Issuer has received written requests to be Registered, whether the Registrable Securities will be sold through an underwriter, and if so, the underwriters name, address, telephone number and contact person. The Company will prepare and file a Registration Statement in accordance with Section 4 for the Registrable Securities to be Registered pursuant to a valid Demand Notice; provided that the Company shall not be required to prepare or file a Registration Statement under this Section 2 more than once in any twelve (12) month period, more than twice inclusion therein within 10 days after an IPO or more than three (3) times in total. Registrations pursuant to Demand Notices are subject to the further limitations set forth in Section 2.3.
2.2 Within ten (10) days from its receipt of a valid Demand Notice, the Company shall deliver written notice to all Holders that, pursuant to a Demand Notice, the Company will prepare and file a Registration Statement. Any Holder who was not a party to the Demand Notice may, within ten (10) days from receipt of has been given to the Company's notice, request applicable Holders. All requests made pursuant to this Section 3 will specify the Company to include the Holder's Registrable Securities in the Registration Statement. If the Holders that initiated a Demand Notice specify therein that they intend to distribute their Registrable Securities through an underwriter, then each Holder that requests inclusion in the Registration Statement must participate in such underwriting, and become party to any required agreements, including, but not limited to, customary underwriting and indemnification agreements. The Company shall have the right to approve any underwriter, which approval shall not be unreasonably withheld. In the event that the underwriter limits the number aggregate amount of Registrable Securities to be included in registered and will also specify the offering to fewer than the number that has been requested for Registration, then each Holder's Registrable Securities shall be included in the underwriting pro rata, based on the total number intended methods of Registrable Securities held by the participating Holdersdisposition thereof.
2.3 Registrations under this Section 2 are subject to the following limitations: (i) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice within one hundred eighty (180) days after the effective date of any Registration Statement filed by the Company in which the Holders party to the Demand Notice could have included their Registrable Securities; (ii) the Company may delay the effectiveness of a Demand Notice for a period of not more than six months after receipt of a Demand Notice in any 12-month period if the Company furnishes a certificate signed by its president stating that in the good faith judgment of the Company's board of directors it would be detrimental to the Company for the Registration Statement to be effected at such time; and (iii) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice if it is then preparing a Registration Statement in connection with an underwritten public offering of Company securities, and the Company may delay the effectiveness of such Demand Notice until one hundred eighty (180) days after the effective date of such Registration Statement.
Appears in 1 contract
Demand Registration. 2.1 After the earlier of (ia) the first anniversary of the date of this Agreement, (ii) the consummation of an IPO or (iii) a Spin-Off or Hostile Change in Control If at any time, Holders subject to the terms of any “lock-up” agreement entered into with one or more underwriters (unless waived by such underwriter(s)), the Company shall receive a request (each such request shall be referred to herein as a “Demand Registration”) from a Shareholder or group of Shareholders (the requesting Shareholder(s) shall be referred to herein as the “Requesting Shareholder”), holding at least fifty thirty percent (5030%) of the Registrable Securities then outstanding, that the Company effect the registration under the Securities Act all or any portion of the Requesting Shareholder’s Registrable Securities and, in each case, specifying the intended method of disposition thereof, then the Company shall as promptly as practicable following the date of receipt by the Company of such request give notice of such Demand Registration at least fifteen (10) days after receipt of such Demand Registration to the other Shareholders, if any, and thereupon shall (i) as soon as practicable, and in any event within forty five (45) days after the date the Demand Registration is given by the Requesting Shareholder, file a registration statement under the Securities Act, and (ii) use its commercially reasonable efforts to effect, as expeditiously as possible, and in any event within one hundred twenty (120) days after the date the Demand Registration is given by the Requesting Shareholder, the effectiveness of the registration statement, in each case covering:
(i) subject to the restrictions set forth in Sections 2.01(e), all Registrable Securities then held by parties for which the Requesting Shareholder has requested registration under this Section 2.01, and
(ii) subject to this Agreement (or the restrictions set forth in the case of a Spin-Off the percentage of Sections 2.01(e), all other Registrable Securities equal to the proportion which the majority of the number shares of Common acquired pursuant same class as those requested to be registered by the Subscription Agreement bears to Requesting Shareholder that any other Shareholders (all Registrable Securities at such Shareholders, together with the time of Requesting Shareholder, the Spin-Off) may request “Registering Shareholders”), if any, have requested the Company to Register any or all register pursuant to this Section 2.01, by request received by the Company within seven Business Days after such Shareholders receive the Company’s notice of their Registrable Securities (a "Demand Notice"). Demand Notices shall be made in writing and shall specify the Holders making the Demand NoticeRegistration, all to the number and type extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of Registrable Securities that each requests to be Registered, whether the Registrable Securities will be sold through an underwriter, and if so, the underwriters name, address, telephone number and contact person. The Company will prepare and file a Registration Statement in accordance with Section 4 for the Registrable Securities so to be Registered pursuant to a valid Demand Notice; registered, provided that that, the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Registrable Securities requested to be included in such Demand Registration equals or exceeds $10,000,000. In no event shall the Company be required to prepare or file a Registration Statement under this Section 2 effect more than once in any twelve two (122) month period, more than twice after an IPO or more than three (3) times in total. Demand Registrations pursuant to Demand Notices are subject this Section 2.01.
(b) Promptly after the expiration of the seven-Business Day period referred to in Section 2.01(a)(ii), the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the further limitations effective date of the registration statement relating to such registration, the Requesting Shareholder may revoke such request, without liability, by providing a notice to the Company revoking such request. Notwithstanding clause (d) below, a request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request) or (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth in Section 2.3under clause (v) of the definition of the term Registration Expenses) of such revoked request.
2.2 Within ten (10c) The Company shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A Demand Registration shall not be deemed to have occurred unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) has remained effective for a period of at least 180 days from (or such shorter period in which all Registrable Securities of the Registering Shareholders included in such registration have actually been sold thereunder), provided that a Demand Registration shall not be deemed to have occurred if, after such registration statement becomes effective, such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court.
(e) If the Requesting Shareholder intends to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as part of their request pursuant to section 2.01, and the Company shall include such information in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder that, in its receipt view, the number of a valid Demand Noticeshares of Registrable Securities requested to be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall deliver written notice to all Holders thatinclude in such registration, pursuant to a Demand Noticein the priority listed below, the Company will prepare and file a Registration Statement. Any Holder who was not a party up to the Demand Notice mayMaximum Offering Size:
(i) first, within ten (10) days from receipt of the Company's notice, request the Company to include the Holder's all Registrable Securities in the Registration Statement. If the Holders that initiated a Demand Notice specify therein that they intend to distribute their Registrable Securities through an underwriter, then each Holder that requests inclusion in the Registration Statement must participate in such underwriting, and become party to any required agreements, including, but not limited to, customary underwriting and indemnification agreements. The Company shall have the right to approve any underwriter, which approval shall not be unreasonably withheld. In the event that the underwriter limits the number of Registrable Securities requested to be included in such registration by all Registering Shareholders (allocated, if necessary for the offering not to fewer than exceed the number that has been requested for RegistrationMaximum Offering Size, then each Holder's Registrable Securities shall be included in the underwriting pro rata, based rata among such Shareholders on the total basis of the relative number of Registrable Securities held by each such Shareholder, or in such other proportion as shall mutually be agreed to by all such Registering Shareholders); and
(ii) second, any securities proposed to be registered by the participating HoldersCompany (including for the benefit of any other Persons not party to this Agreement).
2.3 Registrations under (f) The Company may postpone effecting a registration pursuant to this Section 2 are subject 2.01 on two occasions during any period of twelve consecutive months for a reasonable time specified in the notice but not exceeding 90 days in the aggregate in any period of twelve consecutive months (which period may not be extended or renewed), if the Company furnishes to the following limitations: Requesting Shareholder a certificate signed by the Company’s chief executive officer stating that (i) effecting the registration would materially and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company need or (ii) effecting the registration would require the premature disclosure of material information that the Company has a bona fide business purpose to preserve as confidential. In addition, the Company shall not prepare be obligated to effect, or file a Registration Statement to take any action to effect, any registration pursuant to Section 2.01 during the period that is thirty (30) days before the Company’s good faith estimate of the date of filing of, and ending on a Demand Notice within one hundred eighty date that is ninety (18090) days after the effective date of of, a Company-initiated registration (other than a registration on Form S-8 or any Registration Statement filed by successor or similar forms), provided that the Company is actively employing in which the Holders party to the Demand Notice could have included their Registrable Securities; (ii) the Company may delay the effectiveness of a Demand Notice for a period of not more than six months after receipt of a Demand Notice in any 12-month period if the Company furnishes a certificate signed by its president stating that in the good faith judgment of the Company's board of directors it would be detrimental commercially reasonable efforts to the Company for the Registration Statement cause such registration statement to be effected at such time; and (iii) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice if it is then preparing a Registration Statement in connection with an underwritten public offering of Company securities, and the Company may delay the effectiveness of such Demand Notice until one hundred eighty (180) days after the effective date of such Registration Statementbecome effective.
Appears in 1 contract
Samples: Registration Rights Agreement (Sol-Gel Technologies Ltd.)
Demand Registration. 2.1 After (a) If the earlier Company shall receive from any member of the Snow Pxxxxx Group or the TOBI Group (each, a “Requesting Equity Holder”) a written request that the Company effect a registration with respect to all or a part of the Registrable Shares held by such Requesting Equity Holder (a “Demand Registration”, which term shall include any Marketed Underwritten Demand Registration and demands for a Marketed Underwritten Takedown Offering), then the Company will:
(i) the first anniversary of within ten (10) days after the date of this Agreementsuch request, give written notice of the proposed registration to all Equity Holders (other than the Requesting Equity Holder) and the holders of Other Shares; and
(ii) use its reasonable best efforts to, as soon as practicable and in any event within ninety (90) days, in the consummation case of an IPO or (iii) any registration of shares conducted on a Spin-Off or Hostile Change in Control at any time, Holders of at least fifty percent (50%) of all Registrable registration statement on Form S-1 under the Securities then held by parties to this Agreement Act (or any comparable or successor form or forms thereto) or within forty-five (45) days, in the case of a Spinregistration of shares conducted on a registration statement on Form S-3 under the Securities Act (or any comparable or successor form or forms thereto, a “Form S-3”), effect such registration (which shall, in the case of a secondary offering, be on Form S-3 if the Company is qualified for registration on Form S-3 at such time) (including, without limitation, the execution of an undertaking to file post-Off effective amendments, appropriate qualifications under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the percentage Securities Act) as may be so requested and as would permit or facilitate the sale and distribution of all of such Registrable Securities equal Shares as are specified in such request, together with all or such portion of (A) the other Registrable Shares joining in such request as are specified in a written request from any Equity Holder received by the Company, (B) any Other Shares entitled to participate therein as are specified in a written request from the proportion which holders of such Other Shares received by the majority of Company, and/or (C) any Primary Shares proposed to be included in such registration by the number shares of Common acquired pursuant to the Subscription Agreement bears to all Registrable Securities at the time of the Spin-Off) may request Company by notice from the Company to Register any or all of their Registrable Securities the Requesting Equity Holder, in each case within twenty (a "Demand Notice"). Demand Notices shall be made in writing and shall specify 20) days after written notice from the Holders making the Demand Notice, the number and type of Registrable Securities that each requests to be Registered, whether the Registrable Securities will be sold through an underwriter, and if so, the underwriters name, address, telephone number and contact person. The Company will prepare and file a Registration Statement in accordance with is given under Section 4 for the Registrable Securities to be Registered pursuant to a valid Demand Notice2(a)(i) above; provided that the Company shall not be obligated to effect, or take any action to effect, any such registration pursuant to this Section 2(a):
(1) In any particular jurisdiction in which the Company would be required to prepare execute a general consent to service of process in effecting such registration, qualification or file a Registration Statement under this Section 2 more than once in any twelve (12) month periodcompliance, more than twice after an IPO or more than three (3) times in total. Registrations pursuant to Demand Notices are unless the Company is already subject to service in such jurisdiction and except as may be required by the further limitations set forth in Section 2.3.Securities Act or applicable rules or regulations thereunder;
2.2 Within ten (102) days from its receipt of a valid Demand Notice, If the Company shall deliver written notice furnish to all Holders that, pursuant to the Requesting Equity Holder a Demand Notice, certificate signed by the Chief Executive Officer (or other authorized officer) of the Company will prepare and file a Registration Statement. Any Holder who was not a party to stating that in the Demand Notice may, within ten (10) days from receipt reasonable discretion of the Company's notice, request Company the registration statement (i) would require the Company to include the Holder's Registrable Securities in the Registration Statement. If the Holders that initiated a Demand Notice specify therein that they intend to distribute their Registrable Securities through make an underwriter, then each Holder that requests inclusion in the Registration Statement must participate in such underwriting, and become party to any required agreements, including, but not limited to, customary underwriting and indemnification agreements. The Company shall have the right to approve any underwriter, which approval shall Adverse Disclosure or (ii) could not be unreasonably withheld. In the event that the underwriter limits the number of Registrable Securities to be included in the offering to fewer than the number that has been requested for Registration, then each Holder's Registrable Securities shall be included in the underwriting pro rata, based on the total number of Registrable Securities held by the participating Holders.
2.3 Registrations under this Section 2 are subject to the following limitations: (i) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice within one hundred eighty (180) days after the effective date of any Registration Statement filed effected by the Company in which compliance with the Holders party applicable financial statement requirements under applicable securities laws, the Company’s obligation to use its reasonable best efforts to comply with this Section 2(a), and its related obligations under Section 5, shall be deferred (provided that the Company shall only be permitted two deferrals pursuant to this Section 2(a)(ii)(2) and Section 2(d)(iv), in the aggregate, in any twelve-month period, with such deferrals not to exceed an aggregate of 90 days);
(3) If the Requesting Equity Holder and its Group propose to register Registrable Shares at an expected offering price, net of underwriter discounts and commissions, of less than $10,000,000 (net of Registration Expenses) in the aggregate; provided that this clause (4) shall not apply to a Shelf Registration covering an unspecified number of shares in accordance with Section 2(b);
(4) With respect to an aggregate of more than four (4) Demand Registrations and/or Takedown Demands (as defined herein) initiated by the Snow Pxxxxx Group in any calendar year, excluding any Demand Registrations and Takedown Demands that are terminated by the Snow Pxxxxx Group in accordance with Section 2(b) below; or
(5) With respect to an aggregate of more than one (1) Demand Registration or Takedown Demand (as defined herein) initiated by the TOBI Group, excluding any Demand Registrations and Takedown Demands that are terminated by the TOBI Group in accordance with Section 2(d)(ii) below. Subject to the Demand Notice could have included their Registrable Securities; (iiprovisions of Section 2(e) below, the Company may delay the effectiveness of a Demand Notice for a period of not more than six months after receipt of a Demand Notice may, in any 12-month period if the Company furnishes a certificate signed by its president stating that sole discretion, include Other Shares in the good faith judgment registration statement filed pursuant to the request of the Company's board of directors it would be detrimental to the Company for the Registration Statement to be effected at such time; and (iii) the Company need not prepare or file a Registration Statement Requesting Equity Holders pursuant to a Demand Notice if it is then preparing a Registration Statement in connection with an underwritten public offering of Company securities, and the Company may delay the effectiveness of such Demand Notice until one hundred eighty (180) days after the effective date of such Registration Statementthis Section 2(a).
Appears in 1 contract
Samples: Registration Rights Agreement (Velocity Financial, Inc.)
Demand Registration. 2.1 After (a) At the request of Sponsors, the ------------------- Company shall use reasonable efforts to effect the registration under the Securities Act pursuant to the terms of this Section 4.1(a) of the shares of Common Stock held by Sponsors; provided that upon the Public Sale of all of -------- Sponsors' Common Stock, Sponsors will no longer be entitled to any registration rights pursuant to this Section 4.
1. At the request of Cendant, the Company shall use reasonable efforts to effect a registration under the Securities Act pursuant to this Section 4.1(a) of the shares of Common Stock or Convertible Preferred Stock held by Cendant. Sponsors jointly and Cendant shall each be entitled to four underwritten registrations pursuant to this Section 4.1 and Sponsors jointly and Cendant shall each be entitled to one "shelf" registration pursuant to this Section 4.
1. Until the earlier of (i) the first third anniversary of the date hereof or (ii) the date on which Sponsors own less than 5% of the Common Stock, in any such registration requested by Sponsors or Cendant, and in any additional underwritten registrations of Common Stock held by Sponsors or Cendant which the Company elects to effect (other than as required pursuant to this AgreementSection 4.1(a)), Sponsors shall be entitled to register up to the greater of (i) 80% of the total number of shares to be registered in the secondary offering by Sponsors and Cendant (including any shares to be sold by Sponsors and Cendant pursuant to the underwriters' over-allotment option, if exercised) or (ii) such percentage of the total number of shares to be registered in the secondary offering by Sponsors and Cendant such that Sponsors will have sold at least 70% of all shares sold by Sponsors and Cendant following the Company's initial public offering. After the third anniversary of the date hereof, in any registration requested by Sponsors or Cendant, and in any additional under written registrations of Common Stock held by Sponsors or Cendant which the Company elects to effect (other than as required pursuant to this Section 4.1(a)), each of Sponsors and Cendant shall be entitled to register a number of shares equal to 50% of the total number of shares to be registered in the secondary offering by Sponsors and Cendant (including any shares to be sold by Sponsors and Cendant pursuant to the underwriters' over-allotment option, if exercised). Notwithstanding the foregoing, once Sponsors own less than 5% of the Common Stock, in any registration requested by Cendant or Sponsors, Cendant shall be entitled to register 100% of the total number of shares to be registered in a secondary offering (including any shares to be sold pursuant to the underwriters' overallotment option, if exercised), subject to Sponsors' right to include shares in such registration pursuant to Section 4.2 (subject to the limitations set forth in Section 4.2(b)). In any registration hereunder, Cendant shall be entitled, at its election, to (i) register the number of shares permitted to be registered by Cendant hereunder or (ii) cause the Company to register on its own behalf the number of shares set forth in clause (i) and use the proceeds from the sale of such shares to redeem, at Cendant's election, the Convertible Preferred Stock or Senior Preferred Stock, if permitted by applicable law. If the proceeds of any sale under this Section 4.1 are not permitted under applicable law to be used to redeem the Convertible Preferred Stock or Senior Preferred Stock, then such proceeds shall be held by the Company to be paid in respect of such shares when and to the extent permitted by law.
(b) Registrations under this Section 4.1 shall be on such appropriate registration form of the Commission (i) as shall be selected by the Company and (ii) as shall permit the disposition of the Common Stock in accordance with the intended method or methods of disposition.
(c) The Company will pay all Registration Expenses in connection with any registration pursuant to this Section 4.1.
(d) If a registration pursuant to this Section 4.1 involves an underwritten offering, the underwriter or underwriters thereof shall be selected, after consultation with the Company, jointly by Sponsors and Cendant, and shall be reasonably acceptable to the Company.
(e) A registration requested pursuant to this Section 4.1 shall not be deemed to have been effected (i) if a registration statement with respect thereto has not become effective, provided that a registration which does not become effective after the Company has filed a registration statement with respect thereto solely by reason of the refusal of Sponsors or Cendant to proceed shall be deemed to have been effected by the Company at the request of Sponsors or Cendant, as the case may be, (ii) if, after it has become effective, such registration becomes subject to, for longer than 90 days, any stop order, injunction or other order of the consummation of an IPO Commission or other governmental agency or court for any reason 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, other than by reason of some act or omission by Sponsors. If a Spin-Off or Hostile Change in Control at any time, Holders of at least fifty percent (50%) of all Registrable Securities then held by parties registration requested pursuant to this Agreement (or in the case of Section 4.1 is to be a Spin-Off the percentage of Registrable Securities equal to the proportion which the majority of the number shares of Common acquired pursuant to the Subscription Agreement bears to all Registrable Securities at the time of the Spin-Off) may request "shelf" registration, the Company shall use reasonable efforts to Register any or all of their Registrable Securities (a "Demand Notice"). Demand Notices shall be made in writing and shall specify keep such registration statement effective for one year after the Holders making the Demand Noticeeffective date thereof, the number and type of Registrable Securities that each requests to be Registered, whether the Registrable Securities will be sold through an underwriter, and if so, the underwriters name, address, telephone number and contact person. The Company will prepare and file a Registration Statement in accordance with Section 4 for the Registrable Securities to be Registered pursuant to a valid Demand Notice; provided that the Company shall not be required to prepare keep the registration statement effective if the continued effectiveness of the registration statement would require the Company to disclose a material financing, acquisition or file a Registration Statement under this Section 2 more than once in any twelve (12) month period, more than twice after an IPO or more than three (3) times in total. Registrations pursuant to Demand Notices are subject to the further limitations set forth in Section 2.3.
2.2 Within ten (10) days from its receipt of a valid Demand Notice, other corporate development and the Company shall deliver written notice have determined that such disclosure is not in the best interests of the Company for such period not to all Holders exceed 180 days; and provided further that the requirement to use reasonable efforts to keep the registration statement effective shall be extended one day for each day that the Company allows the effectiveness of the registration statement to lapse in reliance on the preceding proviso.
(f) If a registration pursuant to this Section 4.1 involves an underwritten offering, and the managing underwriter shall advise the Company in writing (with a copy to each holder of Common Stock being registered) that, pursuant in its opinion, the number of shares of Common Stock requested to be included in such registration exceeds the number which can be sold in such offering within a Demand Noticeprice range acceptable to the Stockholders requesting such registration, the Company will prepare and file a Registration Statement. Any Holder who was not a party include in such registration, to the Demand Notice may, within ten (10) days from receipt extent of the Company's notice, request number which the Company to include the Holder's Registrable Securities in the Registration Statement. If the Holders that initiated a Demand Notice specify therein that they intend to distribute their Registrable Securities through an underwriter, then each Holder that requests inclusion in the Registration Statement must participate is so advised can be sold in such underwritingoffering, and become party to any required agreements, including, but not limited to, customary underwriting and indemnification agreements. The Company shall have the right to approve any underwriter, which approval shall not be unreasonably withheld. In the event that the underwriter limits the number of Registrable Securities Common Stock to be included in such registration by Sponsors and Cendant (or, if Cendant makes the offering to fewer than election described in Section 4.1(a), the Company) pro rata among such holders on the basis of the number that has been of --- ---- shares of Common Stock requested for Registration, then each Holder's Registrable Securities shall to be included in the underwriting pro rata, based on the total number of Registrable Securities held by the participating Holderssuch holders.
2.3 Registrations under this Section 2 are subject to the following limitations: (i) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice within one hundred eighty (180) days after the effective date of any Registration Statement filed by the Company in which the Holders party to the Demand Notice could have included their Registrable Securities; (ii) the Company may delay the effectiveness of a Demand Notice for a period of not more than six months after receipt of a Demand Notice in any 12-month period if the Company furnishes a certificate signed by its president stating that in the good faith judgment of the Company's board of directors it would be detrimental to the Company for the Registration Statement to be effected at such time; and (iii) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice if it is then preparing a Registration Statement in connection with an underwritten public offering of Company securities, and the Company may delay the effectiveness of such Demand Notice until one hundred eighty (180) days after the effective date of such Registration Statement.
Appears in 1 contract
Samples: Stockholders Agreement (NRT Inc)
Demand Registration. 2.1 After the earlier of (i) the first anniversary The Holders of a majority in interest of the date Series A Exchange Shares that are Registrable Securities, collectively, may make up to two written requests for registration under the Securities Act of this Agreement, all or any part of the Series A Exchange Shares held by such Holders (the "Series A Demand Registrations") and (ii) the consummation Holders of an IPO a majority in interest of the Series B Exchange Shares that are Registrable Securities, collectively, may make up to two written requests for registration under the Securities Act of all or any part of the Series B Exchange Shares held by such Holders (iiithe "Series B Demand Registrations" and, together with the Series A Demand Registrations, the "Demand Registrations"); provided that (A) if, in accordance with the terms of the Series B Certificate of Designations, all outstanding shares of Series B Preferred are converted into shares of Series A Preferred, then the number of Series B Demand Registrations shall be reduced by one and the remaining Series B Demand Registration, if any, shall thereupon be converted into a SpinSeries A Demand Registration, (B) no Holder may request a Demand Registration prior to the nine-Off or Hostile Change month anniversary of the Closing Date, (C) no Demand Registration may be requested within 180 days after the preceding request for a Demand Registration, and (D) each Demand Registration must be (1) in Control at any time, Holders respect of Registrable Securities with a fair market value of at least fifty percent $25,000,000 or (50%2) in respect of all remaining Series A Exchange Shares or Series B Exchange Shares, as applicable, that are Registrable Securities and have a fair market value of at least $500,000. Such request will specify the aggregate number of shares of Registrable Securities proposed to be sold and will also specify the intended method of disposition thereof. Upon any such request, the Issuer shall promptly give written notice of the requested registration at least 15 days prior to the anticipated filing date of the registration statement relating to such Demand Registration to each non-requesting Holder. Promptly after the expiration of such 15-day period, the Issuer will notify all requesting Holders of the identities of the other requesting Holders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, the requesting Holders may revoke such request, without liability to any of the other requesting Holders, by providing a notice to the Issuer revoking such request.
(b) A Demand Registration shall not be deemed to have occurred unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) has remained effective for a period of at least 60 days, exclusive of any period referred to in (A) below (or such shorter period in which all Registrable Securities then held by parties of the Holders included in such registration have actually been sold thereunder). In addition, a Demand Registration shall not be deemed to have occurred if, after any registration statement requested pursuant to this Agreement Section 2.01 becomes effective, (A) such registration statement is interfered with by any stop order, injunction or in the case of a Spin-Off the percentage of Registrable Securities equal to the proportion which the majority other order or requirement of the number shares Commission or other governmental agency or court (other than such an event which occurs on no more than one occasion with respect to such registration statement and does not exceed a period of Common acquired pursuant to the Subscription Agreement bears to all Registrable Securities at the time five business days) and (B) less than 75% of the Spin-Off) may request the Company to Register any or all of their Registrable Securities (a "Demand Notice"). Demand Notices shall be made in writing and shall specify the Holders making the Demand Notice, the number and type of Registrable Securities that each requests to be Registered, whether the Registrable Securities will included in such registration statement has been sold thereunder. Should a Demand Registration not become effective due to the failure of a Holder to perform its obligations under this Agreement, provided, however, that at such time the Issuer is in compliance in all material respects with its obligations under this Agreement, then such Demand Registration shall be sold through an underwriterdeemed to have been effected; provided that if such failure to perform is due to a material adverse change in the condition (financial or otherwise), business, assets or results of operations of the Issuer and if soits subsidiaries taken as a whole that occurs subsequent to the date of the written request made by the requesting Holders, then the Demand Registration shall not be deemed to have been effected.
(c) In the event that the requesting Holders withdraw or do not pursue a request for a Demand Registration and, pursuant to Section 2.01(b) hereof, such Demand Registration is deemed to have been effected, the underwriters name, address, telephone number Holders may reacquire such Demand Registration (such that the withdrawal or failure to pursue a request will not count as a Demand Registration hereunder) if the Holders reimburse the Issuer for any and contact person. The Company will prepare and file all Registration Expenses (as defined in Section 3.03) incurred by the Issuer in connection with such request for a Registration Statement in accordance with Section 4 for the Registrable Securities to be Registered pursuant to a valid Demand NoticeRegistration; provided that the Company shall not right to reacquire a Demand Registration may be required to prepare or file exercised a Registration Statement under this Section 2 more than once in any twelve maximum of two times.
(12d) month periodIf the Selling Holders so elect, more than twice after an IPO or more than three (3) times in total. Registrations the offering of such Registrable Securities pursuant to such Demand Notices are subject to Registration shall be in the further limitations set forth form of an underwritten offering. A majority in Section 2.3.
2.2 Within ten (10) days from its receipt of a valid Demand Notice, the Company shall deliver written notice to all Holders that, pursuant to a Demand Notice, the Company will prepare and file a Registration Statement. Any Holder who was not a party to the Demand Notice may, within ten (10) days from receipt interest of the Company's notice, request the Company to include the Holder's Registrable Securities in the Registration Statement. If the Selling Holders that initiated a Demand Notice specify therein that they intend to distribute their Registrable Securities through an underwriter, then each Holder that requests inclusion in the Registration Statement must participate in such underwriting, and become party to any required agreements, including, but not limited to, customary underwriting and indemnification agreements. The Company shall have the right to approve select the managing Underwriters and any underwriteradditional investment bankers and managers to be used in connection with such offering, which approval but prior to making such selection shall consult with the Issuer with respect thereto. In such event, the Issuer will reasonably assist with such offering and will make members of senior management reasonably available to participate (but only at such times and to such extent as will not be unreasonably withheldinterfere with the performance of their duties to the Issuer) in a customary "roadshow" at the Selling Holders' expense if the Underwriters believe that such a roadshow would assist in an orderly distribution of the Registrable Securities.
(e) The Issuer will have the right to preempt any Demand Registration with a primary registration by delivering written notice (within five business days after the Issuer has received a request for such Demand Registration) of such intention to the Selling Holders indicating that the Issuer has identified a specific business need and use for the proceeds of the sale of such securities and the Issuer shall use commercially reasonable efforts to effect a primary registration within 60 days of such notice. In the event that ensuing primary registration, the underwriter limits Holders will have such Piggyback Registration rights as are set forth in Section 2.02 hereof. Upon the number Issuer's preemption of Registrable Securities to be included in the offering to fewer than the number that has been a requested for Demand Registration, then each Holder's Registrable Securities shall be included in the underwriting pro rata, based on the total number of Registrable Securities held by the participating Holders.
2.3 Registrations under this Section 2 are subject to the following limitations: (i) the Company need such requested registration will not prepare or file a Registration Statement pursuant to count as a Demand Notice within one hundred eighty (180) days after the effective date of any Registration; provided that a Demand Registration Statement filed by the Company in which will not be deemed preempted if the Holders party are permitted to the Demand Notice could have included their Registrable Securities; (ii) the Company may delay the effectiveness of a Demand Notice for a period of not more than six months after receipt of a Demand Notice in any 12-month period if the Company furnishes a certificate signed by its president stating that in the good faith judgment of the Company's board of directors it would be detrimental to the Company for the Registration Statement to be effected at such time; and (iii) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice if it is then preparing a Registration Statement sell all requested securities in connection with an underwritten public the ensuing primary offering by exercising their Piggyback Registration rights. The Issuer may exercise the right to preempt only twice in any 360-day period; provided, that during any 360 day period there shall be two periods of Company securitiesat least 90 consecutive days each during which the Selling Holders may effect a Demand Registration.
(f) Subject to Section 2.03, and the Company may delay Issuer will be entitled to include in a Demand Registration shares of Common Stock for its own account or for the effectiveness account of such Demand Notice until one hundred eighty (180) days after the effective date of such Registration Statementother Persons.
Appears in 1 contract
Samples: Registration Rights Agreement (Francisco Partners Lp)
Demand Registration. 2.1 After the earlier of (a) (i) Subject to the first anniversary restrictions contemplated by Section 3, and for so long as the Investor beneficially owns Registrable Securities representing, in the aggregate and on an as-converted basis, more than 7.5% of the date outstanding Total Equity (calculated on an as-converted basis) or Senior Notes with an aggregate principal value of more than $50 million, upon the written request of the Investor (for purposes of this AgreementArticle IV, (iithe “Demand Party”) requesting that the consummation of an IPO or (iii) a Spin-Off or Hostile Change in Control at any time, Holders of at least fifty percent (50%) Company effect the registration under the Securities Act of all or part of such Demand Party’s Registrable Securities then held by parties and specifying the amount and intended method of disposition thereof, the Company thereupon will, as expeditiously as reasonably practicable, use its reasonable best efforts to effect the registration under the Securities Act pursuant to this Agreement (or in the case Section 4.1 of a Spin-Off the percentage of Registrable Securities equal to the proportion which the majority of the number shares of Common acquired pursuant to the Subscription Agreement bears to all Registrable Securities at the time of the Spin-Off) may request the Company to Register any or all of their Registrable Securities (a "Demand Notice"). Demand Notices shall be made in writing and shall specify the Holders making the Demand Notice, the number and type of Registrable Securities that each requests to be Registered, whether the Registrable Securities will which the Company has been so requested to register by the Demand Party; provided that in no event shall the Company be sold through an underwriterrequired to effect more than three (3) registrations (each of which may involve a Marketed Offering) pursuant to this Section 4.1; provided, and if sofurther, that in no event shall the underwriters name, address, telephone number and contact person. The Company will be obligated to prepare and file any such registration statement that would not obtain a Registration Statement in accordance with Section 4 for the Registrable Securities to be Registered pursuant to a valid Demand Noticeminimum aggregate sales price of $25 million; provided provided, further, that the Company shall not be required obligated to prepare or file a Registration Statement registration statement or undertake a Marketed Offering under this Section 2 more than once in any twelve (12) month period, more than twice after an IPO or more than three (3) times in total. Registrations pursuant to Demand Notices are subject to the further limitations set forth in Section 2.3.
2.2 Within ten (10) days from its receipt 4.1 within a period of a valid Demand Notice, the Company shall deliver written notice to all Holders that, pursuant to a Demand Notice, the Company will prepare and file a Registration Statement. Any Holder who was not a party to the Demand Notice may, within ten (10) days from receipt of the Company's notice, request the Company to include the Holder's Registrable Securities in the Registration Statement. If the Holders that initiated a Demand Notice specify therein that they intend to distribute their Registrable Securities through an underwriter, then each Holder that requests inclusion in the Registration Statement must participate in such underwriting, and become party to any required agreements, including, but not limited to, customary underwriting and indemnification agreements. The Company shall have the right to approve any underwriter, which approval shall not be unreasonably withheld. In the event that the underwriter limits the number of Registrable Securities to be included in the offering to fewer than the number that has been requested for Registration, then each Holder's Registrable Securities shall be included in the underwriting pro rata, based on the total number of Registrable Securities held by the participating Holders.
2.3 Registrations under this Section 2 are subject to the following limitations: (i) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice within one hundred eighty (180) 90 days after the effective date of any Registration Statement other registration statement filed by the Company, the filing of a Shelf Prospectus Supplement by the Company in which or the Holders party to consummation of a Marketed Offering by the Demand Notice could have included their Registrable SecuritiesCompany; (ii) and, provided, further, that the Company may delay satisfy its obligations hereunder by filing a registration statement for an offering of securities of the effectiveness of Company to be made on a Demand Notice for continuous basis pursuant to Rule 415 (or any successor provision thereto) under the Securities Act (together with any amendments thereto, and including any documents incorporated by reference therein, a period of not more than six months after receipt of a Demand Notice in any 12-month period “Shelf Registration Statement”), if the Company furnishes a certificate signed by its president stating that in the good faith judgment of the Company's board of directors it would be detrimental is then eligible to the Company for the Registration Statement to be effected use such form at such time; and (iii) . For the avoidance of doubt, if the Company need not prepare or is eligible to file a Registration Statement pursuant to a Demand Notice if it is then preparing a Registration Statement in connection with an underwritten public offering of Company securities, and the Company may delay the effectiveness of such Demand Notice until one hundred eighty (180) days after the effective date of such Shelf Registration Statement, any demand to register more than one type of Registrable Securities for sale in one offering shall constitute only one registration for purposes of this Section 4.1(a).
Appears in 1 contract
Demand Registration. 2.1 After (a) At any time after 180 days after the earlier IPO each of (i1) the first anniversary Riverwood Entities (acting as a group), (2) the FTV Entities (acting as a group), (3) WPP and (4) the Founders (acting as a group) (such Shareholders identified in clauses (1) through (4), the “Registration Rights Holders”) may each notify the Company that they intend to offer or cause to be offered for public sale all or any portion of their Registrable Securities in the manner specified in such request (the “Demand Request”). In addition, any two of the date Registration Rights Holders, acting together, may notify the Company of this Agreementone additional Demand Request. No later than twenty (20) days after receipt of such Demand Request, the Company shall promptly deliver notice of such request to all other Shareholders holding Registrable Securities who shall then have thirty (ii30) days to notify the Company in writing of their desire to be included in such registration. If the Demand Request contemplates an underwritten public offering, the Company shall state such in the written notice and in such event the right of any Person to participate in such registration shall be conditioned upon such Person’s participation in such underwritten public offering and the inclusion of such Person’s Registrable Securities in the underwritten public offering to the extent provided herein. The Company will use its commercially reasonable efforts to expeditiously effect (but in any event no later than 180 days after the receipt of the Demand Request) the consummation of an IPO or (iii) a Spin-Off or Hostile Change in Control at any time, Holders of at least fifty percent (50%) registration of all Registrable Securities then held by parties to this Agreement (or whose holders request participation in such registration under the case of a Spin-Off the percentage of Registrable Securities equal Act, but only to the proportion which the majority of the number shares of Common acquired pursuant to the Subscription Agreement bears to all Registrable Securities at the time of the Spin-Off) may request the Company to Register any or all of their Registrable Securities (a "Demand Notice"). Demand Notices shall be made extent provided for in writing and shall specify the Holders making the Demand Noticethis Section 2.1; provided, the number and type of Registrable Securities that each requests to be Registeredhowever, whether the Registrable Securities will be sold through an underwriter, and if so, the underwriters name, address, telephone number and contact person. The Company will prepare and file a Registration Statement in accordance with Section 4 for the Registrable Securities to be Registered pursuant to a valid Demand Notice; provided that the Company shall not be required to prepare or file effect registrations pursuant to a Registration Statement request under this Section 2.1 more than five times, one by each of (1) the Riverwood Entities (acting as a group), (2) the FTV Entities (acting as a group), (3) WPP and (4) the Founders (acting as a group) and one by any two of (1) the Riverwood Entities (acting as a group), (2) the FTV Entities (acting as a group), (3) WPP and (4) the Founders (acting as a group). Notwithstanding anything to the contrary contained herein, no request may be made under this Section 2 more than once in any twelve (12) month period, more than twice after an IPO or more than three (3) times in total. Registrations pursuant to Demand Notices are subject to the further limitations set forth in Section 2.3.
2.2 Within ten (10) days from its receipt of a valid Demand Notice, the Company shall deliver written notice to all Holders that, pursuant to a Demand Notice, the Company will prepare and file a Registration Statement. Any Holder who was not a party to the Demand Notice may, within ten (10) days from receipt of the Company's notice, request the Company to include the Holder's Registrable Securities in the Registration Statement. If the Holders that initiated a Demand Notice specify therein that they intend to distribute their Registrable Securities through an underwriter, then each Holder that requests inclusion in the Registration Statement must participate in such underwriting, and become party to any required agreements, including, but not limited to, customary underwriting and indemnification agreements. The Company shall have the right to approve any underwriter, which approval shall not be unreasonably withheld. In the event that the underwriter limits the number of Registrable Securities to be included in the offering to fewer than the number that has been requested for Registration, then each Holder's Registrable Securities shall be included in the underwriting pro rata, based on the total number of Registrable Securities held by the participating Holders.
2.3 Registrations under this Section 2 are subject to the following limitations: (i) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice within one hundred eighty and twenty (180120) days after the effective date of any Registration Statement a registration statement filed by the Company covering a firm commitment underwritten public offering (subsequent to the IPO) in which the holders of Registrable Securities shall have been entitled to join and in which there shall have been effectively registered a majority of the Registrable Securities as to which registration shall have been requested. A registration will not count as a requested registration under this Section 2.1(a) unless and until the registration statement relating to such registration has been declared effective by the Commission at the request of the initiating Shareholders; provided, however, that a majority in interest of the participating holders of Registrable Securities may request, in writing, that the Company withdraw a registration statement which has been filed under this Section 2.1(a) but has not yet been declared effective, and a majority in interest of such holders may thereafter request the Company to reinstate such registration statement, if permitted under the Securities Act, or to file another registration statement, in accordance with the procedures set forth herein and without reduction in the number of demand registrations permitted under this Section 2.1(a).
(b) If a requested registration involves an underwritten public offering and the managing underwriter of such offering 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 be reduced to a number deemed satisfactory by such managing underwriter; provided, that the shares to be excluded shall be determined in the following order of priority: (i) securities to be registered by the Company pursuant to such registration statement shall be the first to be reduced or excluded, (ii) Registrable Securities of Shareholders requesting to have their securities included in the demand registration statement filed by the Company in which compliance with the Holders party Demand Request shall be the second to be reduced or excluded, and (iii) Registrable Securities of the Shareholders initiating the Demand Request shall be the last to be reduced or excluded. If there is a reduction of the number of Registrable Securities pursuant to clause (iii), such reduction shall be made in proportion (as nearly as practicable) to the number of Registrable Securities owned by the Shareholders initiating the Demand Notice could have Request, and, if such reduction exceeds 25% of the Registrable Securities of Shareholders requested to be included their Registrable Securities; in such offering, then the registration shall not cause a reduction in the number of demand registrations permitted under Section 2.1(a).
(c) With respect to a request for registration pursuant to Section 2.1(a) which is for an underwritten public offering, the managing underwriter shall be chosen by the majority of the Registration Rights Holder (s) that made the Demand Request. The Company may not cause any other registration of securities for sale for its own account (other than a registration effected solely to implement an employee benefit plan or a transaction to which Rule 145 of the Securities Act is applicable) to become effective within one hundred and twenty (120) days following the effective date of any registration required pursuant to this Section 2.1.
(d) The Company will not be obliged to effect any demand registration when (i) the request for registration does not cover that number of common shares with an anticipated gross offering price of at least $10,000,000, or (ii) the Company may delay the effectiveness amount of a Demand Notice for a period of not common shares to be sold in such registration represents more than six months after receipt of a Demand Notice in any 12-month period if the Company furnishes a certificate signed by its president stating that in the good faith judgment 15% of the Company's board of directors it would be detrimental to the Company for the Registration Statement to be effected at such time; and (iii) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice if it is then preparing a Registration Statement in connection with an underwritten public offering of Company securities, and the Company may delay the effectiveness of such Demand Notice until one hundred eighty (180) days after the effective date of such Registration Statement’s share capital.
Appears in 1 contract
Demand Registration. 2.1 After Upon the earlier of written request from any Initiating Holder (i"Requesting Initiating Holder") that the first anniversary Company effect any registration with respect to all or any portion of the date of this Agreement, (ii) the consummation of an IPO or (iii) a Spin-Off or Hostile Change in Control at any time, Holders of at least fifty percent (50%) of all Registrable Securities then held by parties to this Agreement (or in the case of a Spin-Off the percentage of Registrable Securities equal to the proportion which the majority of the number shares of Common acquired pursuant to the Subscription Agreement bears to all Registrable Securities at the time of the Spin-Off) may request the Company to Register any or all of their Registrable Securities (other than a "Demand Notice"registration on Form F-3 or any related form of registration statement). Demand Notices shall be made in writing and shall specify the Holders making the Demand Notice, the number Company will:
2.1.1. Promptly give written notice of the proposed registration to all other Holders holding Registrable Securities; and
2.1.2. As soon as practicable, use its best efforts to effect such registration (including, without limitation, the execution of an undertaking to file posteffective amendments, appropriate qualifications under foreign, blue sky or other state securities laws and type appropriate compliance with applicable regulations issued under the Securities Act), as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Registrable Securities that each requests to be Registeredas are specified in such request, whether together with all or such portion of the Registrable Securities will be sold through an underwriter, and if so, of any Holder(s) joining in such request as are specified in a written request given within twenty (20) days after receipt of such written notice from the underwriters name, address, telephone number and contact person. The Company will prepare and file a Registration Statement in accordance with the provisions of Section 4 for the Registrable Securities 2.2 hereof (such Holder(s) being referred to be Registered pursuant to a valid Demand Noticeas "Participating Holders"); provided that the Company shall not be obligated to take any action to effect any such registration, qualification or compliance pursuant to this Section 2. 1:
(i) In any particular jurisdiction in which the Company would be required to prepare execute a general consent to service of process in effecting such registration, qualification or file a Registration Statement under this Section 2 more than once in any twelve (12) month periodcompliance, more than twice after an IPO or more than three (3) times in total. Registrations pursuant to Demand Notices are unless the Company is already subject to service in such jurisdiction and except as may be required by the further limitations set forth in Section 2.3.Securities Act;
2.2 Within ten (10ii) Prior to two hundred and seventy (270) days from its receipt of a valid Demand Notice, after the Company shall deliver written notice to all Holders that, pursuant to a Demand Notice, the Company will prepare and file a Registration Statement. Any Holder who was not a party to the Demand Notice may, within ten date hereof,
(10iii) days from receipt of the Company's notice, request the Company to include the Holder's Registrable Securities in the Registration Statement. If the Initiating Holders that initiated propose to sell a Demand Notice specify therein that they intend to distribute their Registrable Securities through an underwriter, then each Holder that requests inclusion in the Registration Statement must participate in such underwriting, and become party to any required agreements, including, but not limited to, customary underwriting and indemnification agreements. The Company shall have the right to approve any underwriter, which approval shall not be unreasonably withheld. In the event that the underwriter limits the number of shares of Registrable Securities at an aggregate offering price (after deduction for underwriter commissions and expenses) to be included in the offering public of less than Five Million Dollars ($5,000,000);
(iv) After the Company has effected two (2) such registrations pursuant to fewer than this Section 2.1 at the number that request of Telia, and one such registration pursuant to this Section 2.1 at the request of Xxxxxxx, and one (1) such registration pursuant to this Section 2.1 at the request of Shamrock and Trefoil, taken together, and one (1) such registration pursuant to this Section 2.1 at the request of the WP Entities, and each such registration has been requested for Registration, then each Holder's Registrable Securities shall be included in declared or ordered effective; or
(v) If the underwriting pro rata, based on the total number of Registrable Securities held request is received by the participating Holders.
2.3 Registrations under this Section 2 are subject to the following limitations: (i) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice within less than one hundred eighty and twenty (180120) days after following the effective date of any Registration Statement previous registration statement filed by pursuant to a request made pursuant to this Section 2. L Subject to the foregoing clauses (i) through (v) and to Section 2.1.5 (below), the Company in which shall file a registration statement covering the Holders party Registrable Securities so requested to the Demand Notice could have included their Registrable Securities; (ii) the Company may delay the effectiveness of a Demand Notice for a period of not more than six months be registered as soon as practicable after receipt of a Demand Notice in any 12-month period if the Company furnishes a certificate signed by its president stating that in request from the good faith judgment of the Company's board of directors it would be detrimental to the Company for the Registration Statement to be effected at such time; and (iii) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice if it is then preparing a Registration Statement in connection with an underwritten public offering of Company securities, and the Company may delay the effectiveness of such Demand Notice until one hundred eighty (180) days after the effective date of such Registration StatementRequesting Initiating Holders.
Appears in 1 contract
Samples: Registration Rights Agreement (Warburg Pincus Equity Partners Lp)
Demand Registration. 2.1 After (a) IPO and Demand by Holders.
(i) TPG, following consultation with LGP, and, until the earlier of (i) MD’s Death or Disability and (ii) such time that the first anniversary MD Investors have sold more than 50% of the Company Shares held by the MD Investors as of the date of this Agreement, MD, shall have the right, by delivering or causing to be delivered a written notice to the Issuer by the Majority TPG Investors, to require the Issuer to register, pursuant to the terms of this Agreement, under and in accordance with the provisions of the Securities Act, the sale of the number of shares of Issuer Shares and Registrable Securities (if any) specified by TPG (in consultation with LGP and, until the earlier of (i) MD’s Death or Disability and (ii) such time that the consummation MD Investors have sold more than 50% of the Company Shares held by the MD Investors as of the date of this Agreement, MD) to be so issued and sold in an IPO (an “IPO Demand Registration”). In connection with any such IPO in which TPG is selling (or causing to be sold) Registrable Securities held by it in such IPO (whether pursuant to an IPO Demand Registration or otherwise), the Issuer shall promptly (but in no event more than five (5) Business Days after receipt of any request for an IPO Demand Registration) deliver a written notice to the other Sponsors, the MD Investors and any Noteholder Investor that holds at least 2% of the outstanding Registrable Securities on an as-converted, fully-diluted basis, and in such event each such Sponsor, MD Investor and any such Noteholder Investor(s) shall have the right to participate in such offering on a pro rata basis with TPG (it being understood that in connection with any IPO in which TPG is not selling (or causing to be sold) Registrable Securities held by it, no such notice need be sent and no Registrable Securities of the other Sponsors, the MD Investors or the Noteholder Investors need be included in the registration for the IPO).
(ii) If at any time after the Effectiveness Date, there is no currently effective Shelf Registration Statement on file with the SEC, (i) any of the Majority TPG Investors, (ii) so long as the MD Investors then hold the Demand Threshold Amount, the Majority MD Investors, (iii) so long as LGP then holds the Demand Threshold Amount, any of the Majority LGP Investors or (iv) any Noteholder Investor that holds the Demand Threshold Amount (each of the Majority TPG Investors, the Majority MD Investors, the Majority LGP Investors, or any such Noteholder Investor, a Spin-Off or Hostile Change in Control at any time, Holders of at least fifty percent (50%“Demand Holder”) shall have the right to make a written request to the Issuer for Registration of all Registrable Securities then held by parties to this Agreement (or in the case part of a Spin-Off the percentage of Registrable Securities equal to the proportion which the majority of the number shares of Common acquired pursuant to the Subscription Agreement bears to all Registrable Securities at the time of the Spin-Off) may request the Company to Register any or all of their Registrable Securities (a "Demand Notice"). Demand Notices shall be made in writing and shall specify the Holders making the Demand Notice, the number and type of Registrable Securities that each requests to be Registered, whether the Registrable Securities will held by it on (x) Form S-1 or any successor form or any similar long-form registration statement (a “Long-Form Registration”), or (y) Form S-3 or any successor form or any similar short-form registration statement (a “Short-Form Registration”) if the Issuer is qualified to use such short form. Any such request pursuant to clauses (i) and (ii) of this Section 6.1(a) shall hereinafter be sold through an underwriter, referred to as a “Demand Registration.” Each request for a Demand Registration shall specify (x) the kind and if so, the underwriters name, address, telephone number and contact person. The Company will prepare and file a Registration Statement in accordance with Section 4 for the aggregate amount of Registrable Securities to be Registered pursuant to a valid Demand Notice; provided that and/or, in the Company shall not be required to prepare or file a Registration Statement under this Section 2 more than once in any twelve (12) month period, more than twice after case of an IPO or more than three (3) times in total. Registrations pursuant to Demand Notices are subject to the further limitations set forth in Section 2.3.
2.2 Within ten (10) days from its receipt of a valid Demand NoticeRegistration, the Company shall deliver written notice number of shares of Issuer Shares to all Holders that, pursuant to a Demand Notice, the Company will prepare be issued and file a Registration Statement. Any Holder who was not a party to the Demand Notice may, within ten (10) days from receipt of the Company's notice, request the Company to include the Holder's Registrable Securities in the Registration Statement. If the Holders that initiated a Demand Notice specify therein that they intend to distribute their Registrable Securities through an underwriter, then each Holder that requests inclusion in the Registration Statement must participate in such underwriting, sold and become party to any required agreements, including, but not limited to, customary underwriting and indemnification agreements. The Company shall have the right to approve any underwriter, which approval shall not be unreasonably withheld. In the event that the underwriter limits the number of Registrable Securities (if any) to be included in the offering to fewer than the number that has been requested for Registrationsold, then each Holder's Registrable Securities shall be included in the underwriting pro rata, based on the total number of Registrable Securities held by the participating Holders.
2.3 Registrations under this Section 2 are subject to the following limitations: and (iy) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice within one hundred eighty (180) days after the effective date intended methods of any Registration Statement filed by the Company in which the Holders party to the Demand Notice could have included their Registrable Securities; (ii) the Company may delay the effectiveness of a Demand Notice for a period of not more than six months after receipt of a Demand Notice in any 12-month period if the Company furnishes a certificate signed by its president stating that in the good faith judgment of the Company's board of directors it would be detrimental to the Company for the Registration Statement to be effected at such time; and (iii) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice if it is then preparing a Registration Statement in connection with an underwritten public offering of Company securities, and the Company may delay the effectiveness of such Demand Notice until one hundred eighty (180) days after the effective date of such Registration Statementdisposition thereof.
Appears in 1 contract
Samples: Principal Investors Stockholders’ Agreement (J Crew Group Inc)
Demand Registration. 2.1 After Subject to the limitations contained in Section 10.7, at any time after the earlier of the date that is (i) six months after the first anniversary of Qualifying Offering (as defined in the date of this Investment Agreement, ) or (ii) October 16, 1997 if the consummation Qualifying Offering has not occurred by such date, the Issuer shall be requested by holders of an IPO or (iii) warrants exercisable for a Spin-Off or Hostile Change in Control at any time, Holders of at least fifty percent (50%) of all Registrable Securities then held by parties to this Agreement (or in the case of a Spin-Off the percentage of Registrable Securities equal to the proportion which the majority of the number shares Stock Units then issuable upon the exercise of Common acquired all warrants issued to the Investors (as defined in the Investment Agreement) to effect the registration of any of its Restricted Securities under the Securities Act, the Issuer shall promptly give written notice of such proposed registration to all holders of outstanding Restricted Securities and thereupon shall, as expeditiously as possible, use its best efforts to effect the registration under the Securities Act by filing pursuant to Rule 415 of the Subscription Agreement bears to all Registrable Securities Act a "shelf" registration statement on Form S-3 (or, if the staff at the time SEC takes the position that Form S-3 is not available and holders of warrants exercisable for a majority of the Spin-OffStock Units then issuable upon the exercise of all warrants issued to the Investors so request, on Form S-1) may request the Company to Register any or covering all of their Registrable Securities (a "Demand Notice"). Demand Notices shall be made in writing and shall specify the Holders making the Demand NoticeRestricted Securities, the number and type holder or holders of Registrable Securities that each requests which shall have made written request to be Registeredthe Issuer for registration thereof within 30 days after the giving of such written notice by the Issuer, whether all to the Registrable Securities will be sold through an underwriter, and if so, extent required to permit the underwriters name, address, telephone number and contact person. The Company will prepare and file a Registration Statement disposition (in accordance with Section 4 for the Registrable intended methods thereof, as aforesaid) by the prospective Seller or Sellers of the Restricted Securities to be Registered pursuant to a valid Demand Noticeso registered; provided provided, that if Form S-3 is not available, the Company Issuer shall not be required to prepare or file a Registration Statement under this Section 2 more than once notify the holders of warrants in any twelve (12) month periodwriting of such fact, more than twice after an IPO or more than three (3) times in total. Registrations pursuant to Demand Notices are subject to the further limitations which notice shall set forth in Section 2.3.
2.2 Within ten (10) days from its receipt of a valid Demand Notice, the Company shall deliver written notice reasons therefor and the holders' right to all Holders that, pursuant to a Demand Notice, the Company will prepare and file a Registration Statementrequest registration on Form S-1. Any Holder who was not a party to the Demand Notice may, within ten (10) days from receipt of the Company's notice, request the Company to include the Holder's Registrable Securities in the Registration Statement. If the Holders that initiated a Demand Notice specify therein that they intend to distribute their Registrable Securities through an underwriter, then each Holder that requests inclusion in the Registration Statement must participate in such underwriting, and become party to any required agreements, including, but not limited to, customary underwriting and indemnification agreements. The Company shall have the right to approve any underwriter, which approval shall not be unreasonably withheld. In the event that the underwriter limits the number of Registrable Securities to be included in the offering to fewer than the number that has been requested for Registration, then each Holder's Registrable Securities registration statement filed on Form S-1 shall be included in the underwriting pro rata, based on the total number of Registrable Securities held maintained by the participating Holders.
2.3 Registrations under this Section 2 are subject to the following limitations: (i) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice within one hundred eighty (180) days after the effective date of any Registration Statement filed by the Company in which the Holders party to the Demand Notice could have included their Registrable Securities; (ii) the Company may delay the effectiveness of a Demand Notice Issuer for a period of 45 continuous days and, if not more than six months after receipt so maintained shall not be deemed to count against the number of a Demand Notice in any 12-month period if the Company furnishes a certificate signed by its president stating that in the good faith judgment of the Company's board of directors it would be detrimental effective registration statements pursuant to the Company for the Registration Statement this Section 10.3 permitted to be effected at such time; and (iii) the Company need not prepare or file a Registration Statement made by holders pursuant to a Demand Notice if it is then preparing a Registration Statement in connection with an underwritten public offering of Company securities, and the Company may delay the effectiveness of such Demand Notice until one hundred eighty (180) days after the effective date of such Registration StatementSection 10.
Appears in 1 contract
Samples: Preferred Stock Investment Agreement (Cd Radio Inc)
Demand Registration. 2.1 After (a) At any time commencing after , 1998 (12 months from the earlier of Effective Date) through and including , 2002 (i) 60 months from the first anniversary Effective Date), the Holders of the date of this Agreement, Representative's Purchase Options and/or Units underlying same representing a "Majority" (ii) the consummation of an IPO or (iii) a Spin-Off or Hostile Change in Control at any time, Holders of at least fifty percent (50%as hereinafter defined) of such securities (assuming the exercise of all Registrable Securities then held by parties to this Agreement of the Representative's Purchase Options) shall have the right (or which right is in the case of a Spin-Off the percentage of Registrable Securities equal addition to the proportion which the majority of the number shares of Common acquired pursuant registration rights under Section 7.2 hereof), exercisable by written notice to the Subscription Agreement bears Company, to all Registrable Securities at the time of the Spin-Off) may request have the Company to Register any or all of their Registrable Securities (a "Demand Notice"). Demand Notices shall be made in writing and shall specify the Holders making the Demand Notice, the number and type of Registrable Securities that each requests to be Registered, whether the Registrable Securities will be sold through an underwriter, and if so, the underwriters name, address, telephone number and contact person. The Company will prepare and file with the Commission, on one occasion, a Registration Statement registration statement and such other documents, including a prospectus, as may be necessary in accordance with Section 4 the opinion of both counsel for the Registrable Securities Company and counsel for the Representative and Holders, in order to be Registered pursuant comply with the provisions of the Act, so as to permit a valid Demand Notice; provided that public offering and sale of their respective Units underlying same for nine (9) consecutive months by such Holders and any other Holders of the Representative's Purchase Options and/or Units underlying same who notify the Company shall not be required to prepare or file a Registration Statement under this Section 2 more than once in any twelve (12) month period, more than twice after an IPO or more than three (3) times in total. Registrations pursuant to Demand Notices are subject to the further limitations set forth in Section 2.3.
2.2 Within within ten (10) days after receiving notice from its receipt of a valid Demand Notice, the Company shall deliver of such request.
(b) The Company covenants and agrees to give written notice of any registration request under this Section 7.3 by any Holder or Holders to all other registered Holders that, pursuant to a Demand Notice, of the Company will prepare Representative's Purchase Options and file a Registration Statement. Any Holder who was not a party to the Demand Notice may, Units underlying same within ten (10) days from the date of the receipt of any such registration request.
(c) In addition to the Companyregistration rights under Section 7.2 and subsection (a) of this Section 7.3, at any time commencing after , 1998 (12 months from the Effective Date) through and including , 2002 (60 months from the Effective Date), any Holder or Holders of a Majority of Representative's notice, request the Company to include the Holder's Registrable Securities in the Registration Statement. If the Holders that initiated a Demand Notice specify therein that they intend to distribute their Registrable Securities through an underwriter, then each Holder that requests inclusion in the Registration Statement must participate in such underwriting, and become party to any required agreements, including, but not limited to, customary underwriting and indemnification agreements. The Company Purchase Options and/or shares of Units underlying same shall have the right right, exercisable by written request to approve the Company, to have the Company prepare and file, on one occasion, with the Commission a registration statement so as to permit a public offering and sale for nine (9) consecutive months by any underwritersuch Holder or Holders, which approval provided, however, that the provisions of Section 7.4(b) hereof shall not apply to any such registration request and registration and all costs incident thereto shall be unreasonably withheld. In at the event expense of the Holder or Holders making such request.
(d) Notwithstanding anything to the contrary contained herein, if the Company shall not have filed a registration statement for the shares of common stock, the Warrants and the Warrant Shares underlying the Representative's Purchase Options within the time period specified in Section 7.4(a) hereof pursuant to the written notice specified in Section 7.3(a) of a Majority of the Holders of the Representative's Purchase Options and/or Units underlying same, the Company agrees that upon the underwriter limits written notice of election of a Majority of the number Holders of Registrable Securities to be included the Representative's Purchase Options and/or Units underlying same it shall repurchase (i) any and all Units underlying the Representative's Purchase Options at the higher of the Market Price per Unit of the Units (or the combined price of the securities contained in the offering Units) on (x) the date of the notice sent pursuant to fewer than Section 7.3(a) or (y) the number that has been requested for Registration, then each Holder's Registrable Securities expiration of the period specified in Section 7.4(a). Such repurchase shall be included in immediately available funds and shall close within two (2) days after the underwriting pro rata, based on the total number later of Registrable Securities held by the participating Holders.
2.3 Registrations under this Section 2 are subject to the following limitations: (i) the Company need not prepare expiration of the period specified in Section 7.4(a) or file a Registration Statement pursuant to a Demand Notice within one hundred eighty (180) days after the effective date of any Registration Statement filed by the Company in which the Holders party to the Demand Notice could have included their Registrable Securities; (ii) the Company may delay the effectiveness of a Demand Notice for a period of not more than six months after receipt of a Demand Notice in any 12-month period if the Company furnishes a certificate signed by its president stating that in the good faith judgment delivery of the Company's board written notice of directors it would be detrimental to the Company for the Registration Statement to be effected at such time; and (iii) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice if it is then preparing a Registration Statement election specified in connection with an underwritten public offering of Company securities, and the Company may delay the effectiveness of such Demand Notice until one hundred eighty (180) days after the effective date of such Registration Statementthis Section 7.3(d).
Appears in 1 contract
Samples: Representative's Purchase Option Agreement (Sportstrac Inc)
Demand Registration. 2.1 After (a) At any time commencing one (1) year after the earlier of (i) the first anniversary Effective Date of the date Public Offering, and expiring four (4) years thereafter, the Holders of this AgreementRegistrable Securities representing more than 50% of such securities at that time outstanding shall have the right (which right is in addition to the registration rights under Section 7.2 hereof), exercisable by written notice to the Company, to have the Company prepare and file with the Commission, on one occasion, a registration statement and/or such other documents, including a prospectus, and/or any other appropriate disclosure document as may be reasonably necessary in the opinion of both counsel for the Company and counsel for the Underwriter and Holders, in order to comply with the provisions of the Act, so as to permit a public offering and sale of their respec(or such longer period of time as permitted by the Act) by such Holders and any other Holders of any of the Registrable Securities who notify the Company within twenty (ii20) days after being given notice from the consummation Company of an IPO or (iii) such request. A Demand Registration shall not be counted as a Spin-Off or Hostile Change in Control at any time, Holders Demand Registration hereunder until such Demand Registration has been declared effective by the SEC and maintained continuously effective for a period of at least fifty percent (50%) of nine months or such shorter period when all Registrable Securities then held by parties to this Agreement (or included therein have been sold in accordance with such Demand Registration, provided that a Demand Registration shall be counted as a Demand Registration hereunder if the Company ceases its efforts in respect of such Demand Registration at the request of the majority Holders making the demand for a reason other than a material and adverse change in the case business, assets, prospects or condition (financial or otherwise) of the Company and its subsidiaries taken as a Spin-Off the percentage whole.
(b) The Company covenants and agrees to give written notice of Registrable Securities equal to the proportion which any registration request under this Section 7.3 by the majority of the number shares of Common acquired pursuant to the Subscription Agreement bears Holders to all Registrable Securities at the time other registered Holders of the Spin-Off) may request the Company to Register any or all of their Registrable Securities (a "Demand Notice"). Demand Notices shall be made in writing and shall specify the Holders making the Demand Notice, the number and type of Registrable Securities that each requests to be Registered, whether the Registrable Securities will be sold through an underwriterwithin twenty (20) days from the date of the receipt of any such registration request.
(c) In addition to the registration rights under Section 7.2 and subsection (a) of this Section 7.3, at any time commencing one (1) year after the Effective Date of the offering, and if soexpiring four (4) years thereafter, the underwriters name, address, telephone number and contact person. The Company will prepare and file Holders of a Registration Statement in accordance with Section 4 for majority of the Registrable Securities to be Registered pursuant to a valid Demand Notice; provided that the Company shall not be required to prepare or file a Registration Statement under this Section 2 more than once in any twelve (12) month period, more than twice after an IPO or more than three (3) times in total. Registrations pursuant to Demand Notices are subject to the further limitations set forth in Section 2.3.
2.2 Within ten (10) days from its receipt of a valid Demand Notice, the Company shall deliver written notice to all Holders that, pursuant to a Demand Notice, the Company will prepare and file a Registration Statement. Any Holder who was not a party to the Demand Notice may, within ten (10) days from receipt of the Company's notice, request the Company to include the Holder's Registrable Securities in the Registration Statement. If the Holders that initiated a Demand Notice specify therein that they intend to distribute their Registrable Securities through an underwriter, then each Holder that requests inclusion in the Registration Statement must participate in such underwriting, and become party to any required agreements, including, but not limited to, customary underwriting and indemnification agreements. The Company shall have the right right, exercisable by written request to approve the Company, to have the Company prepare and file, on one occasion, with the Commission a registration statement or any underwriterother appropriate disclosure document so as to permit a public offering and sale for nine (9) consecutive months (or such longer period of time as permitted by the Act) by any such Holder of Registrable Securities; provided, which approval shall not be unreasonably withheld. In the event however, that the underwriter limits provisions such registration request and registration and all costs incident thereto shall be at the expense of the Holder or Holders participating in the offering pro-rata.
(d) Any written request by the Holders made pursuant to this Section 7.3 shall:
(i) specify the number of Registrable Securities which the Holders intend to be included in offer and sell and the offering minimum price at which the Holders intend to fewer than offer and sell such securities;
(ii) state the number that has been requested intention of the Holders to offer such securities for Registration, then each Holder's Registrable Securities shall be included in sale;
(iii) describe the underwriting pro rata, based intended method of distribution of such securities; and
(iv) contain an undertaking on the total number part of Registrable Securities held by the participating Holders.
2.3 Registrations under this Section 2 are subject Holders to provide all such information and materials concerning the following limitations: (i) Holders and take all such action as may be reasonably required to permit the Company need not prepare or file a Registration Statement pursuant to a Demand Notice within one hundred eighty (180) days after comply with all applicable requirements of the Commission and to obtain acceleration of the effective date of the registration statement.
(e) In the event the Company receives from the Holders of any Registration Statement filed Registrable Securities representing more than 50% of such securities at that time outstanding, a request that the Company effect a registration on Form S-3 with respect to the Registrable Securities and if Form S-3 is available for such offering, the Company shall, as soon as practicable, effect such registration as would permit or facilitate the sale and distribution of the Registrable Securities as are specified in the request. All expenses incurred in connection with a registration requested pursuant to this Section shall be borne by the Company in which the Holders party to the Demand Notice could have included their Registrable Securities; (iiexcept transfer taxes, if any, fees and expenses of Holder(s) the Company may delay the effectiveness of a Demand Notice for a period of not more than six months after receipt of a Demand Notice in any 12-month period if the Company furnishes a certificate signed by its president stating that in the good faith judgment of the Company's board of directors it would be detrimental to the Company for the Registration Statement to be effected at such time; and (iii) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice if it is then preparing a Registration Statement in connection with an underwritten public offering of Company securitiescounsel, and the Company may delay the effectiveness Holder's pro-rata portion of such Demand Notice until one hundred eighty (180any selling discounts or commissions). Registrations effected pursuant to this Section 7.3(e) days after the effective date of such Registration Statementshall not be counted as registrations pursuant to Section 7.3(a) and 7.3(c) hereof.
Appears in 1 contract
Samples: Underwriter's Warrant Agreement (Eagle Supply Group Inc)
Demand Registration. 2.1 After the earlier of (i) the first anniversary of the date of this Agreement, (ii) the consummation of an IPO or (iii) a Spin-Off or Hostile Change in Control at any time, Holders of at least fifty percent (50%) of all Registrable Securities then held by parties to this Agreement (or in the case of a Spin-Off the percentage of Registrable Securities equal Subject to the proportion which provisions contained in this Section 2.01 and in Sections 5.02 and 5.03 hereof, any Holder or group of Holders may, from time to time (each, a “Requesting Holder” and collectively, the majority of the number shares of Common acquired pursuant to the Subscription Agreement bears to all Registrable Securities at the time of the Spin-Off) may “Requesting Holders”), make a request the Company to Register any or all of their Registrable Securities in writing (a "“Demand Notice"). Demand Notices shall be made in writing and shall specify Request”) that Xerox effect the Holders making registration under the Demand Notice, the number and type Securities Act of Registrable Securities that each requests to be Registered, whether the Registrable Securities will be sold through an underwriter, and if so, the underwriters name, address, telephone number and contact person. The Company will prepare and file a Registration Statement in accordance with Section 4 for the Registrable Securities to be Registered pursuant to a valid Demand Notice; provided that the Company shall not be required to prepare or file a Registration Statement under this Section 2 more than once in any twelve (12) month period, more than twice after an IPO or more than three (3) times in total. Registrations pursuant to Demand Notices are subject to the further limitations set forth in Section 2.3.
2.2 Within ten (10) days from its receipt of a valid Demand Notice, the Company shall deliver written notice to all Holders that, pursuant to a Demand Notice, the Company will prepare and file a Registration Statement. Any Holder who was not a party to the Demand Notice may, within ten (10) days from receipt of the Company's notice, request the Company to include the Holder's Registrable Securities in the Registration Statement. If the Holders that initiated a Demand Notice specify therein that they intend to distribute their Registrable Securities through an underwriter, then each Holder that requests inclusion in the Registration Statement must participate in such underwriting, and become party to any required agreements, including, but not limited to, customary underwriting and indemnification agreements. The Company shall have the right to approve any underwriter, which approval shall not be unreasonably withheld. In the event that the underwriter limits the specified number of Registrable Securities to be included in the offering to fewer than the number that has been requested for Registration, then each Holder's Registrable Securities shall be included in the underwriting pro rata, based on the total number shares of Registrable Securities held by the participating Holders.Requesting Holder(s) (a “Demand Registration”); provided, however, that Xerox shall in no event be required to effect:
2.3 (a) more than two (2) Demand Registrations from the Icahn Group in the aggregate and two (2) Demand Registrations from the Xxxxxx Group in the aggregate (in each case regardless of the number of Additional Holders or Permitted Assignees who may become a Holder hereunder);
(b) more than one (1) Demand Registration from either the Icahn Group or the Xxxxxx Group in any 18-month period; and
(c) any Demand Registration if the Shelf Registration Statement is then effective, and such Shelf Registration Statement may be utilized by the Requesting Holders for the offering and sale of all of their Registrable Securities without a requirement under the Commission’s rules and regulations for a post-effective amendment thereto. Subject to the provisions contained in this Section 2 are subject to the following limitations: (i) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice within one hundred eighty (180) days after the effective date of any Registration Statement filed by the Company 2.01 and in which the Holders party to the Demand Notice could have included their Registrable Securities; (ii) the Company may delay the effectiveness of a Demand Notice for a period of not more than six months after Sections 5.02 and 5.03 hereof, upon receipt of a Demand Notice Request, Xerox shall cause to be included in a Registration Statement on an appropriate form under the Securities Act, filed with the Commission as promptly as practicable but in any 12-month period if the Company furnishes event not later than 75 days after receiving a certificate signed Demand Request, such Registrable Securities as may be requested by such Requesting Holders in their Demand Request. Xerox shall use its president stating that in the good faith judgment of the Company's board of directors it would be detrimental reasonable efforts to the Company for the cause any such Registration Statement to be effected at declared effective under the Securities Act as promptly as possible after such time; and (iii) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice if it is then preparing a Registration Statement in connection with an underwritten public offering of Company securities, and the Company may delay the effectiveness of such Demand Notice until one hundred eighty (180) days after the effective date of such Registration Statementfiling.
Appears in 1 contract
Demand Registration. 2.1 After (i) Subject to the earlier terms and conditions of this Agreement (including Section 2(a)(ii)), upon written notice to the Company (a “Demand Notice”) delivered by an Initiating Holder or group of Initiating Holders at any time requesting that the Company effect the registration (a “Demand Registration”) under the Securities Act of any or all of the Registrable Securities held by such Holders, the Company shall promptly (and in any event within five (5) Business Days) give written notice of the receipt of such Demand Notice to all other Holders of Registrable Securities then outstanding (each, a “Demand Eligible Holder”) and shall promptly file a registration statement (the “Demand Registration Statement”), and use its commercially reasonable efforts to effect the registration under the Securities Act and applicable state securities laws of (i) the first anniversary of the date of this Agreement, (ii) the consummation of an IPO or (iii) a Spin-Off or Hostile Change in Control at any time, Holders of at least fifty percent (50%) of all Registrable Securities then held by parties to this Agreement (or in the case of a Spin-Off the percentage of Registrable Securities equal to the proportion which the majority of Company has been so requested to register by the number shares of Common acquired pursuant to the Subscription Agreement bears to all Registrable Securities at the time of the Spin-Off) may request the Company to Register any or all of their Registrable Securities (a "Demand Notice"). Demand Notices shall be made Initiating Holders in writing and shall specify the Holders making the Demand Notice, the number and type of (ii) all other Registrable Securities that which the Company has been requested to register by the Demand Eligible Holders by written request given to the Company within five (5) Business Days (the “Demand Eligible Holder Request”), in each requests case subject to be RegisteredSection 2(a)(v)), whether all to the Registrable Securities will be sold through an underwriter, and if so, extent required to permit the underwriters name, address, telephone number and contact person. The Company will prepare and file a Registration Statement disposition (in accordance with Section 4 for the intended methods of disposition) of the Registrable Securities to be Registered so registered. Any Demand Registration may, at the option of the Initiating Holder(s), be a “shelf” registration pursuant to a valid Demand Notice; provided that Rule 415, including, to the extent the Company shall not be required to prepare or file a Registration Statement under this Section 2 more than once in any twelve (12) month period, more than twice after an IPO or more than three (3) times in total. Registrations pursuant to Demand Notices are subject to the further limitations set forth in Section 2.3.
2.2 Within ten (10) days from its receipt of a valid Demand Notice, the Company shall deliver written notice to all Holders thatis eligible, pursuant to a Demand Notice, Form S-3 registration statement (or the Company will prepare and file a Registration Statement. Any Holder who was not a party to the Demand Notice may, within ten (10) days from receipt of the Company's notice, request the Company to include the Holder's Registrable Securities in the Registration Statement. If the Holders that initiated a Demand Notice specify therein that they intend to distribute their Registrable Securities through an underwriter, then each Holder that requests inclusion in the Registration Statement must participate in such underwriting, and become party to any required agreements, including, but not limited to, customary underwriting and indemnification agreementsequivalent). The Company shall have the right to approve may effect any underwriter, which approval shall not be unreasonably withheld. In the event that the underwriter limits the number of Registrable Securities to be included in the offering to fewer than the number that has been requested for Registration, then each Holder's Registrable Securities shall be included in the underwriting pro rata, based on the total number of Registrable Securities held by the participating Holders.
2.3 Registrations under this Section 2 are subject to the following limitations: (i) the Company need not prepare or file a Demand Registration Statement pursuant to a Demand Notice within one hundred eighty (180) days after the effective date of any Registration Statement filed by the Company Shelf Takedown Prospectus Supplement if a shelf registration is then in which the Holders party effect with respect to the Demand Notice could have included their such Registrable Securities; (ii) the Company may delay the effectiveness of a Demand Notice for a period of not more than six months after receipt of a Demand Notice in any 12-month period if the Company furnishes a certificate signed by its president stating that in the good faith judgment of the Company's board of directors it would be detrimental to the Company for the Registration Statement to be effected at such time; and (iii) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice if it is then preparing a Registration Statement in connection with an underwritten public offering of Company securities, and the Company may delay the effectiveness of such Demand Notice until one hundred eighty (180) days after the effective date of such Registration Statement.
Appears in 1 contract
Samples: Registration Rights Agreement (Eldorado Resorts, Inc.)
Demand Registration. 2.1 After the earlier of (ia) the first anniversary of the date Subject to termination of this AgreementAgreement pursuant to Section 5.1, (ii) the consummation of an IPO or (iii) a Spin-Off or Hostile Change in Control at any time, Holders of at least fifty percent time after the Lock-up Period (50%as defined below) of all Registrable Securities then held by parties to this Agreement (or in the case of a Spin-Off the percentage of Registrable Securities equal to the proportion which the majority of the number shares of Common acquired pursuant to the Subscription Agreement bears to all Registrable Securities at the time of the Spin-Off) may request and when the Company is ineligible to Register any or all of their Registrable Securities (a "Demand Notice"). Demand Notices shall be made in writing and shall specify the Holders making the Demand Notice, the number and type of Registrable Securities that each requests to be Registered, whether the Registrable Securities will be sold through an underwriter, and if so, the underwriters name, address, telephone number and contact person. The Company will prepare and file use a Registration Statement in accordance with Section 4 for on Form S-3 or any successor form thereto, each of the Major Shareholders by written notice to the Company (the “Long-Form Notice”) may at any time and from time to time require registration under the Securities Act of all or any portion of its Registrable Securities to be Registered pursuant to on Form S-1 or any successor form thereto (a valid Demand Notice“Long-Form Registration”); provided that the Shares to be sold, when taken together with the amounts of Registrable Securities of any other Shareholder who elects to participate therein as provided in Section 3.1(c), equals or is greater than the Registrable Amount; provided, further, that, subject to Section 3.1(e), each Major Shareholder shall be permitted to effect no more than two (2) Long-Form Registrations. The Company shall not cause each Long-Form Registration to be required filed as soon as practicable, and to prepare or file use reasonable best efforts to cause to be declared effective by the SEC as soon as practicable after such filing date.
(b) Subject to termination of this Agreement pursuant to Section 5.1, at any point in time as the Company is eligible to use a Registration Statement on Form S-3 or any successor form thereto (a “Short-Form Registration” and, with a Long-Form Registration, a “Demand Registration”), each of the Major Shareholders by written notice delivered to the Company (the “Short-Form Notice”) may at any time and from time to time require a Short-Form Registration under this the Securities Act of all or any portion of its Registrable Securities, provided that, the Shares to be sold, when taken together with the amounts of Registrable Securities of any other Shareholder who elects to participate therein as provided in Section 2 more 3.1(c), equals or is greater than once in any twelve the Registrable Amount. Each Short-Form Notice shall specify whether the offering is intended to be made on a delayed or continuous basis pursuant to Rule 415 (12a “Continuous Shelf”) month period, more than twice after an IPO or via one or more underwritten offerings (a “Shelf Takedown”) or any combination of a Continuous Shelf and one or more Shelf Takedowns. The Company shall cause each Short-Form Registration to be filed as soon as practicable (and in no event later than three (3) times 90 days after the Short-Form Notice), and to use reasonable best efforts to cause it to be declared effective by the SEC as soon as practicable after the filing date. The Company shall use reasonable best efforts to keep a Short-Form Registration effective until all Registrable Securities covered thereby are either sold or disposed of in total. Registrations pursuant to Demand Notices are subject to accordance with the further limitations intended methods of disposition by the seller or sellers thereof set forth in Section 2.3such Short-Form Registration or are eligible for sale without restriction under Rule 144 under the Securities Act or, if earlier, until expiration of the permitted maximum period for a Continuous Shelf under Rule 415 of the Securities Act.
2.2 (c) Within ten (10) days from its Business Days after receipt of a valid Demand Notice, the Company shall deliver written notice to all Holders that, Long-Form Notice pursuant to Section 3.1(a) or a Demand NoticeShort-Form Notice pursuant to Section 3.1(b), the Company will prepare and file a Registration Statementdeliver written notice thereof to each Shareholder. Any Holder who was not a party Each other Shareholder may elect to the Demand Notice may, within ten (10) days from receipt of the Company's notice, request the Company participate with respect to include the Holder's its Registrable Securities in the Long-Form Registration Statementor the Short-Form Registration, as applicable, by delivering to the Company a written request to so participate within five (5) Business Days.
(d) If at any time a Major Shareholder elects to effect an underwritten offering pursuant to any Demand Registration, it shall advise the Company to such effect and the Company shall notify the other Shareholders who are participating in such Demand Registration of such election to the extent practicable. If the Holders that initiated a Demand Notice specify therein that they intend Each Shareholder who elects to distribute their Registrable Securities through an underwriter, then each Holder that requests inclusion in the Registration Statement must participate in such underwritingunderwritten offering within the timeframe and in the manner specified in the notice received by such Shareholder shall be permitted to do so, and become party subject to the following: if any required agreementsmanaging underwriter advises the Company, includingin writing, but not limited tothat, customary underwriting and indemnification agreements. The in its reasonable judgment, the inclusion of all of the securities sought to be registered in connection with such Demand Registration would adversely affect the marketability of the Registrable Securities sought to be sold pursuant thereto, then the Company shall have include in such registration statement only such securities as the right to approve any underwriterCompany is advised by such underwriter or investment bank can be sold without such adverse effect, which approval shall not be unreasonably withheld. In as follows and in the event that the underwriter limits following order of priority: (i) first, the number of Registrable Securities requested to be included in such Demand Registration by the offering to fewer than Major Shareholders, pro rata among such Major Shareholders on the basis of the number that has been requested for Registration, then each Holder's of such Registrable Securities shall be included in the underwriting pro rata, based on the total number of Registrable Securities held owned by the participating Holders.
2.3 Registrations under this Section 2 are subject to the following limitations: (i) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice within one hundred eighty (180) days after the effective date of any Registration Statement filed by the Company in which the Holders party to the Demand Notice could have included their Registrable Securitiessuch Major Shareholders; (ii) second, Registrable Securities duly requested to be included in such Demand Registration by other Shareholders pursuant to Section 3.1(c), pro rata among such Shareholders requesting to be included in such Demand Registration, on the Company may delay the effectiveness of a Demand Notice for a period of not more than six months after receipt of a Demand Notice in any 12-month period if the Company furnishes a certificate signed by its president stating that in the good faith judgment basis of the Company's board number of directors it would be detrimental to the Company for the Registration Statement to be effected at such timeRegistrable Securities owned by such Shareholders; and (iii) third, all other Shares of the Company need not prepare duly requested to be included in such Demand Registration, pro rata on the basis of the amount of such other Shares owned. The Major Shareholders participating in the offering and the executive officers of the Company shall jointly participate in the process of selecting the investment banker or file a investment bankers and managers that will serve as underwriters with respect to any such underwritten offering.
(e) A Long-Form Registration Statement pursuant to a Demand Notice this Section 3.1 shall count as one of the permitted Long-Form Registrations only if it the Major Shareholder requesting such Long-Form Registration is then preparing a Registration Statement able to register and sell at least 90% of the Registrable Securities requested by such Major Shareholder to be included in connection with an underwritten public offering of Company securitiessuch Long-Form Registration; provided, and however,in any event, the Company shall pay all expenses pursuant to Section 3.6 whether or not any Demand Registration has become effective and whether or not such Demand Registration has counted as one of the permitted Long-Form Registrations. The Company may delay postpone the filing or the effectiveness of such a registration statement for a Demand Notice until one hundred eighty (180) days after the effective date of such Registration Statementduring a Blackout Period.
Appears in 1 contract
Samples: Shareholders and Registration Rights Agreement (Isola Group Ltd.)
Demand Registration. 2.1 After the earlier of (a) (i) HEI shall have the first anniversary of right, on not more than four occasions in the date of this Agreementaggregate, and no more frequently than once during any six-month period, and (ii) the consummation of an IPO or Minority Stockholders as a group shall have the right (iii) a Spin-Off or Hostile Change in Control at any timethough such right need not be jointly exercised by the Minority Stockholders), Holders of at least fifty percent (50%) of all Registrable Securities then held by parties to this Agreement (or on not more than two occasions in the case aggregate (it being understood and agreed that two or more Minority Stockholders may make joint Demands hereunder or any Minority Stockholder may join in a Demand made by any other Minority Stockholder, and any such joint Demand or joining in of a SpinDemand shall be deemed to be a single Demand for all purposes hereof), and no more frequently than once during any six-Off the percentage of Registrable Securities equal month period, to the proportion which the majority of the number shares of Common acquired pursuant to the Subscription Agreement bears to all Registrable Securities at the time of the Spin-Off) may request require the Company to Register any register for offer and sale under the Securities Act (a "Demand") all or all a portion of their the Registrable Securities held by such Stockholder, subject to the restrictions set forth herein; provided that no Stockholder shall be entitled to make a Demand hereunder unless the Registrable Securities subject to such Demand represent at least 7% of the aggregate shares of Company Common Stock then issued and outstanding. As promptly as practicable after the Company receives from a Stockholder (the "Demanding Stockholder") a notice pursuant to this Section 4.1(a) (a "Demand Notice"). Demand Notices , a copy of which shall be made in writing have also been delivered to each other Minority Stockholder at the same time as to the Company, demanding that the Company register for offer and shall specify sale under the Holders making the Demand NoticeSecurities Act Registrable Securities, subject to Section 4.1(b), the number and type of Registrable Securities that each requests Company shall (i) use all reasonable efforts to be Registered, whether file as promptly as reasonably practicable with the Registrable Securities will be sold through an underwriter, and if so, the underwriters name, address, telephone number and contact person. The Company will prepare and file Commission a Registration Statement in accordance with Section 4 for relating to the Registrable offer and sale of the Applicable Securities to be Registered pursuant to a valid Demand Notice; on such form as the Company may reasonably deem appropriate (provided that the Company shall not not, unless the Company otherwise determines, be required obligated to prepare register any securities on a "shelf" registration statement or file otherwise to register securities for offer or sale on a continuous or delayed basis) and, thereafter, (ii) after the filing of an initial version of the Registration Statement, use reasonable efforts to cause such Registration Statement to be declared effective under this the Securities Act as promptly as practicable after the date of filing of such Registration Statement; provided, however, that no Demanding Stockholder shall be entitled to be named as a selling securityholder in the Registration Statement or to use the Prospectus forming a part thereof for resales of Registrable Securities unless such Demanding Stockholder has made an Election. Subject to Section 2 more than once in any twelve (12) month period, more than twice after an IPO or more than three (3) times in total. Registrations pursuant to Demand Notices are subject to the further limitations set forth in Section 2.3.
2.2 Within ten (10) days from its receipt of a valid Demand Notice4.1(b), the Company shall deliver written notice use reasonable efforts to all Holders that, pursuant keep each Registration Statement continuously effective in order to permit the Prospectus forming a Demand Notice, part thereof to be usable by such Demanding Stockholder for resales of Registrable Securities for an Effectiveness Period ending on the Company will prepare and file a Registration Statement. Any Holder who was not a party to the Demand Notice may, within ten earlier of (10i) 30 days from receipt the Effective Time of the Company's notice, request the Company to include the Holder's Registrable Securities in the Registration Statement. If the Holders that initiated a Demand Notice specify therein that they intend to distribute their Registrable Securities through an underwriter, then each Holder that requests inclusion in the such Registration Statement must participate in and (ii) such underwriting, and become party to any required agreements, including, but not limited to, customary underwriting and indemnification agreements. time as all of such securities have been disposed of by the selling securityholders.
(b) The Company shall have the right to approve 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 the Company determines based upon the advice of counsel that it would be advisable to disclose in the Registration Statement a planned or proposed financing, acquisition or other corporate transaction or other material information, and the Company shall have determined in good faith that such disclosure is not in the best interests of the Company and its stockholders; provided that no one such postponement shall exceed 90 days in any underwriter, which approval six-month period and all such postponements shall not exceed 180 days in the aggregate. The Company shall advise the Demanding Stockholder of any such determination as promptly as practicable after such determination.
(c) In connection with an underwritten offering, if the managing underwriter or underwriters advise the Company that in its or their opinion the number of Applicable Securities subject to a Demand exceeds the number which can be unreasonably withheldsold in such offering, the Company shall include in such Registration the number of Applicable Securities that, in the opinion of such managing underwriter or underwriters, can be sold in such offering (provided that, in the event of a joint Demand, the Applicable Securities included shall be allocated pro rata among the Demanding Stockholders on the basis of the relative number of Applicable Securities each such Demanding Stockholder has requested to be included in such Registration).
(d) The Company may include in any registration requested pursuant to Section 4.1(a) hereof other securities for sale for its own account or for the account of another Person, subject to the following sentence. In connection with an underwritten offering, if the managing underwriter or underwriters advise the Company that in its or their opinion the number of Applicable Securities requested by the Demanding Stockholder, together with other securities for sale for the account of the Company or any other Person, to be registered exceeds the number which can be sold in such offering, the Company shall include in such Registration the number of Applicable Securities and other securities that, in the opinion of such managing underwriter or underwriters, can be sold in such offering as follows: (i) first, the Applicable Securities requested to be registered by the Demanding Stockholder and (ii) second, any other securities requested to be included in such Registration.
(e) A Demanding Stockholder shall have the right to withdraw any Demand (i) prior to the time the Registration Statement in respect of such Demand has been declared effective, (ii) upon the issuance by the Commission or any other governmental agency of a stop order, injunction or other order which interferes with such Registration, (iii) upon the Company's availing itself of Section 4.1(b), or (iv) if such Demanding Stockholder is prevented pursuant to Section 4.1(c) or (d) from selling all of the Applicable Securities it requested to be registered. Notwithstanding such request to withdraw the Demand, the Registration requested by such Demanding Stockholder shall nonetheless be deemed to have been effected (and, therefore, requested) for purposes of Section 4.1(a) hereof if such Demanding Stockholder withdraws any Demand (A) pursuant to clause (i) of the preceding sentence after the Commission filing fee is paid with respect thereto or (B) pursuant to clause (iv) of the preceding sentence in circumstances where at least 50% of the Applicable Securities requested to be included in such Registration by such Demanding Stockholder could have been included, and in each case, (x) the Company has not availed itself of Section 4.1(b) with respect to such Registration request or (y) the Company has availed itself of Section 4.1(b) and the withdrawal request is not made within 10 days after the termination of the suspension period occasioned by the Company's exercise of its rights under Section 4.1(b). If a Demanding Stockholder withdraws a Demand but the Company nevertheless determines to complete, within 30 days after such withdrawal, the Registration so requested as to securities other than the Applicable Securities, such Demanding Stockholder shall be entitled to participate in such Registration pursuant to Section 4.2, but in such case the Intended Offering Notice shall be required to be given to such Demanding Stockholder at least five business days prior to the anticipated filing date of the Registration Statement, or if such Registration Statement has already been filed, within 10 business days after receipt of the request to withdraw Demand from such Demanding Stockholder and such Demanding Stockholder shall be required to give the Piggy-back Notice no later than 3 business days after the Company's delivery of such Intended Offering Notice.
(f) In the event that any Registration pursuant to this Section 4.1 shall involve, in whole or in part, an underwritten offering, one co-lead managing underwriter shall be selected by the Company and shall be reasonably acceptable to the Demanding Stockholder, and the other co-lead underwriter limits shall be selected by the Demanding Stockholder, provided that, in the event of a joint Demand, the other co-lead underwriter shall be selected by a majority in interest (by reference to the number of Registrable Applicable Securities requested to be included in the offering to fewer than Registration) of the number that has been requested for RegistrationDemanding Stockholders, then each Holder's Registrable Securities and shall be included in reasonably acceptable to the underwriting pro rata, based on the total number of Registrable Securities held Company. Any additional co-managing underwriters shall be selected by the participating HoldersCompany.
2.3 Registrations under this Section 2 are subject to the following limitations: (i) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice within one hundred eighty (180) days after the effective date of any Registration Statement filed by the Company in which the Holders party to the Demand Notice could have included their Registrable Securities; (ii) the Company may delay the effectiveness of a Demand Notice for a period of not more than six months after receipt of a Demand Notice in any 12-month period if the Company furnishes a certificate signed by its president stating that in the good faith judgment of the Company's board of directors it would be detrimental to the Company for the Registration Statement to be effected at such time; and (iii) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice if it is then preparing a Registration Statement in connection with an underwritten public offering of Company securities, and the Company may delay the effectiveness of such Demand Notice until one hundred eighty (180) days after the effective date of such Registration Statement.
Appears in 1 contract
Demand Registration. 2.1 After the earlier of (a) (i) HEI shall have the first anniversary of right, on not more than four occasions in the date of this Agreementaggregate, and no more frequently than once during any six-month period, and (ii) the consummation of an IPO or Minority Stockholders as a group shall have the right (iii) a Spin-Off or Hostile Change in Control at any timethough such right need not be jointly exercised by the Minority Stockholders), Holders of at least fifty percent (50%) of all Registrable Securities then held by parties to this Agreement (or on not more than two occasions in the case aggregate (it being understood and agreed that two or more Minority Stockholders may make joint Demands hereunder or any Minority Stockholder may join in a Demand made by any other Minority Stockholder, and any such joint Demand or joining in of a SpinDemand shall be deemed to be a single Demand for all purposes hereof), and no more frequently than once during any six-Off the percentage of Registrable Securities equal month period, to the proportion which the majority of the number shares of Common acquired pursuant to the Subscription Agreement bears to all Registrable Securities at the time of the Spin-Off) may request require the Company to Register any register for offer and sale under the Securities Act (a "Demand") all or all a portion of their the Registrable Securities held by such Stockholder, subject to the restrictions set forth herein; provided that no Stockholder shall be entitled to make a Demand hereunder unless the Registrable Securities subject to such Demand represent at least 7% of the aggregate shares of Company Common Stock then issued and outstanding. As promptly as practicable after the Company receives from a Stockholder (the "Demanding Stockholder") a notice pursuant to this Section 4.1(a) (a "Demand Notice"). Demand Notices , a copy of which shall be made in writing have also been delivered to each other Minority Stockholder at the same time as to the Company, demanding that the Company register for offer and shall specify sale under the Holders making the Demand NoticeSecurities Act Registrable Securities, subject to Section 4.1(b), the number and type of Registrable Securities that each requests Company shall (i) use all reasonable efforts to be Registered, whether file as promptly as reasonably practicable with the Registrable Securities will be sold through an underwriter, and if so, the underwriters name, address, telephone number and contact person. The Company will prepare and file Commission a Registration Statement in accordance with Section 4 for relating to the Registrable offer and sale of the Applicable Securities to be Registered pursuant to a valid Demand Notice; on such form as the Company may reasonably deem appropriate (provided that the Company shall not be required to prepare or file a Registration Statement under this Section 2 more than once in any twelve (12) month periodnot, more than twice after an IPO or more than three (3) times in total. Registrations pursuant to Demand Notices are subject to the further limitations set forth in Section 2.3.
2.2 Within ten (10) days from its receipt of a valid Demand Notice, the Company shall deliver written notice to all Holders that, pursuant to a Demand Notice, the Company will prepare and file a Registration Statement. Any Holder who was not a party to the Demand Notice may, within ten (10) days from receipt of unless the Company's notice, request the Company to include the Holder's Registrable Securities in the Registration Statement. If the Holders that initiated a Demand Notice specify therein that they intend to distribute their Registrable Securities through an underwriter, then each Holder that requests inclusion in the Registration Statement must participate in such underwriting, and become party to any required agreements, including, but not limited to, customary underwriting and indemnification agreements. The Company shall have the right to approve any underwriter, which approval shall not be unreasonably withheld. In the event that the underwriter limits the number of Registrable Securities to be included in the offering to fewer than the number that has been requested for Registration, then each Holder's Registrable Securities shall be included in the underwriting pro rata, based on the total number of Registrable Securities held by the participating Holders.
2.3 Registrations under this Section 2 are subject to the following limitations: (i) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice within one hundred eighty (180) days after the effective date of any Registration Statement filed by the Company in which the Holders party to the Demand Notice could have included their Registrable Securities; (ii) the Company may delay the effectiveness of a Demand Notice for a period of not more than six months after receipt of a Demand Notice in any 12-month period if the Company furnishes a certificate signed by its president stating that in the good faith judgment of the Company's board of directors it would be detrimental to the Company for the Registration Statement to be effected at such time; and (iii) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice if it is then preparing a Registration Statement in connection with an underwritten public offering of Company securities, and the Company may delay the effectiveness of such Demand Notice until one hundred eighty (180) days after the effective date of such Registration Statement.
Appears in 1 contract
Demand Registration. 2.1 After the earlier of (i) At any time after the first anniversary expiration of the date Lock-Up Period, any Holder shall have the option and right, exercisable by delivering a written notice to the Company (a “Demand Notice”), to require the Company to, pursuant to the terms of and subject to the limitations contained in this Agreement, (ii) prepare and file with the consummation Commission a Registration Statement registering the offering and sale of an IPO or (iii) a Spin-Off or Hostile Change in Control at any time, Holders of at least fifty percent (50%) of all Registrable Securities then held by parties to this Agreement (or in the case of a Spin-Off the percentage of Registrable Securities equal to the proportion which the majority of the number shares of Common acquired pursuant to the Subscription Agreement bears to all Registrable Securities at the time of the Spin-Off) may request the Company to Register any or all of their Registrable Securities (a "Demand Notice"). Demand Notices shall be made in writing and shall specify the Holders making the Demand Notice, the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice, which may include sales on a delayed or continuous basis pursuant to Rule 415 pursuant to a Shelf Registration Statement (a “Demand Registration”); provided that each requests the Company shall not (A) in the case of the WP Member, be obligated to effect more than two Demand Registrations on Form S-1 within any 12-month period and (B) in the case of all other Holders (other than the WP Member), be Registeredobligated to effect more than two Demand Registrations in the aggregate (whether on Form S-1 or any successor form or other appropriate form under the Securities Act, whether including Form S-3) within any 12-month period. The Demand Notice must include such information regarding the Holder, the number of Registrable Securities that the Initiating Holder intends to include in such Demand Registration and the intended methods of disposition thereof as shall be required to effect the registration of the sale of the Holder’s Registrable Securities. Notwithstanding anything to the contrary herein, in no event shall the Company be required to effectuate a Demand Registration unless the Registrable Securities will of the Holders and their respective Affiliates to be sold through included therein have an underwriteraggregate value, and based on the VWAP as of the date of the Demand Notice, of at least $30 million (the “Minimum Amount”).
(ii) Within 30 days after the receipt of the Demand Notice (except if sothe Company is not then eligible to register for resale the Registrable Securities on Form S-3, within 60 days thereof), the underwriters nameCompany shall, addresssubject to the limitations of this Section 2(a), telephone number and contact person. The Company will prepare and file a Registration Statement in accordance with Section 4 for the Registrable Securities to be Registered pursuant to a valid terms and conditions of the Demand Notice; provided that the Company shall not be required to prepare or file a Registration Statement under this Section 2 more than once in any twelve (12) month period, more than twice after an IPO or more than three (3) times in total. Registrations pursuant to Demand Notices are subject to the further limitations set forth in Section 2.3.
2.2 Within ten (10) days from its receipt of a valid Demand Notice, the Company shall deliver written notice to all Holders that, pursuant to a Demand Notice, the Company will prepare and file a Registration Statement. Any Holder who was not a party to the Demand Notice may, within ten (10) days from receipt of the Company's notice, request the Company to include the Holder's Registrable Securities in the Registration Statement. If the Holders that initiated a Demand Notice specify therein that they intend to distribute their Registrable Securities through an underwriter, then each Holder that requests inclusion in the Registration Statement must participate in such underwriting, and become party to any required agreements, including, but not limited to, customary underwriting and indemnification agreements. The Company shall have use all reasonable best efforts to cause such Registration Statement to become and remain effective under the right to approve any underwriter, which approval shall not be unreasonably withheld. In the event that the underwriter limits the number of Securities Act until all Registrable Securities to be included in covered by such Registration Statement have been sold (the offering to fewer than the number that has been requested for Registration, then each Holder's Registrable Securities shall be included in the underwriting pro rata, based on the total number of Registrable Securities held by the participating Holders“Effectiveness Period”).
2.3 Registrations under this Section 2 are subject (iii) Subject to the following limitations: (i) other limitations contained in this Agreement, the Company need is not prepare or file a Registration Statement pursuant obligated hereunder to effect (A) a Demand Notice Registration within one hundred eighty (180) 60 days after the effective date closing of any Underwritten Offering or (B) a subsequent Demand Registration Statement filed by the Company in which the Holders party to the Demand Notice could have included their Registrable Securities; (ii) the Company may delay the effectiveness of a Demand Notice for a period of not more than six months after receipt of a Demand Notice in any 12-month period if the Company furnishes a certificate signed by its president stating that in the good faith judgment of the Company's board of directors it would be detrimental to the Company for the Registration Statement to be effected at such time; and (iii) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice if it is then preparing 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.
(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 and such efforts shall count as an effected Demand Registration for purposes of Section 2(a)(i), unless such Holder (i) shall have paid or reimbursed the Company for such Holder’s pro rata share of all reasonable and documented out-of-pocket fees and expenses incurred by the Company in connection with the Demand Registration which included such withdrawn Registrable Securities (based on the number of securities such Holder sought to register, as compared to the total number of securities included in such Demand Registration) or (ii) has not previously withdrawn any prior Demand Registration pursuant to this Section 2(a)(iv).
(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 Sections 2(c), (d) and (e).
(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 underwritten public 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 Company securities, and all or part of the Company may delay the effectiveness of such Demand Notice until one hundred eighty (180) days after the effective date of 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 1 contract
Samples: Limited Liability Company Agreement (Calumet Specialty Products Partners, L.P.)
Demand Registration. 2.1 After (a) Subject to the conditions of this Section 2.2, if the Company shall receive a written request from (x) beginning on the earlier of (i) the first anniversary of five (5) years after the date of this AgreementAgreement and (ii) six (6) months after the Company’s Initial Offering, the Holders of at least sixty-five percent (65%) of the Registrable Securities then outstanding (the “Preferred Initiating Holders”) or (y) beginning six (6) months after the Company’s Initial Offering, Carlyle or any of its Affiliates holding Registrable Securities (the “Carlyle Initiating Holders” and, together with the Preferred Initiating Holders, the “Initiating Holders”), in each case, that the Company file a registration statement under the Securities Act for an underwritten public offering with an anticipated aggregate offering price in excess of $50,000,000, then the Company shall, within thirty (30) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 2.2, effect, as expeditiously as reasonably possible, the registration under the Securities Act of all Registrable Securities that all Holders request to be registered.
(b) All Holders proposing to distribute their securities pursuant to a registration under this Section 2.2 shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by (i) the Holders of a majority of the Registrable Securities held by all Preferred Initiating Holders or (ii) the consummation Carlyle Initiating Holders, as applicable (which underwriter or underwriters, in each case, shall be reasonably acceptable to the Company). The right of an IPO any Holder to include its Registrable Securities 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 (unless otherwise mutually agreed by such Holder and (x) the Holders of a majority of the Registrable Securities held by all Preferred Initiating Holders or (iiiy) the Carlyle Initiating Holders, as applicable, with respect to such participation and inclusion). If a Spin-Off person who has requested inclusion in such registration as provided in Section 2.2(a) does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or Hostile Change in Control at the applicable Initiating Holders. Notwithstanding any timeother provision of this Section 2.2 or Section 2.4, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities) then the Company shall so advise all Holders of at least fifty percent (50%) of all Registrable Securities then held by parties to this Agreement that would otherwise be underwritten pursuant hereto, and (or A) in the case of a Spin-Off registration requested by the percentage Preferred Initiating Holders, the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities equal to held by all such Holders (including the Initiating Holders) or in such other proportion which the majority as shall be agreed by all holders of the number shares of Common acquired pursuant to the Subscription Agreement bears to all Registrable Securities at participating in the time underwriting and (B) in the case of a registration requested by the Spin-Off) may request the Company to Register any or all of their Registrable Securities (a "Demand Notice"). Demand Notices shall be made in writing and shall specify the Holders making the Demand NoticeCarlyle Initiating Holders, the number of shares that may be included in the underwriting shall be allocated first to the Carlyle Initiating Holders and type then to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities that each requests to held by all such Holders (excluding the Carlyle Initiating Holders) or in such other proportion as shall be Registered, whether agreed by the Carlyle Initiating Holders and all other holders of Registrable Securities will be sold through an underwriterparticipating in the underwriting; provided, and if sohowever, that the underwriters name, address, telephone number and contact person. The Company will prepare and file a Registration Statement in accordance with Section 4 for the of shares of Registrable Securities to be Registered pursuant included in such underwriting and registration shall not be reduced unless all other securities of the Company not included in the request by the Initiating Holders are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration. For purposes of the provision in this Section 2.2(b) concerning apportionment as it relates to demand registrations under Section 2.2 or Underwritten Shelf Takedowns under Section 2.4, for any Holder that is a valid Demand Notice; provided that partnership, limited liability company, or corporation, the partners, retired partners, members, retired members, stockholders, and Affiliates of such Holder, or the estates and immediate family members of any such partners, retired partners, members, and retired members and any trusts for the benefit of any of the foregoing Persons, shall be deemed to be a single “Holder”, and any pro rata reduction with respect to such “Holder” shall be based upon the aggregate number of Registrable Securities owned by all Persons included in such “Holder”, as defined in this sentence.
(c) The Company shall not be required to prepare effect a registration pursuant to this Section 2.2:
(i) after the Company has effected (x) two (2) registrations pursuant to this Section 2.2 at the request of the Preferred Initiating Holders and (y) two (2) registrations pursuant to this Section 2.2 at the request of the Carlyle Initiating Holders, and such registrations have been declared or ordered effective and pursuant to which securities have been sold (other than if the Holders elected not to sell securities pursuant to such registration);
(ii) during the period starting with the date of filing of, and ending on the date one hundred eighty (180) days following the effective date of a registration statement pertaining to a public offering subject to Section 2.3, other than pursuant to a Special Registration Statement; provided that the Company makes reasonable good faith efforts to cause such registration statement to become effective;
(iii) if within fifteen (15) days of receipt of a written request from Initiating Holders pursuant to Section 2.2(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for a public offering subject to Section 2.3, other than pursuant to a Special Registration Statement under Statement, within sixty (60) days of the Company’s giving such notice; provided that the Company makes reasonable good faith efforts to cause such registration statement to become effective;
(iv) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 2 2.2 a certificate signed by the Chairman of the Board stating that, in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than one hundred twenty (120) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than once in any twelve (12) month period; and provided, more than twice after an IPO or more than three (3) times in total. Registrations pursuant to Demand Notices are subject to the further limitations set forth in Section 2.3.
2.2 Within ten (10) days from its receipt of a valid Demand Notice, that the Company shall deliver written notice to all Holders that, not register any securities for the account of itself or any other stockholder during such one hundred twenty (120) day period (other than pursuant to a Demand Notice, the Company will prepare and file a Special Registration Statement. Any Holder who was not a party );
(v) if the Initiating Holders propose to the Demand Notice may, within ten (10) days from receipt dispose of the Company's notice, request the Company to include the Holder's Registrable Securities in the Registration Statement. If the Holders that initiated a Demand Notice specify therein that they intend to distribute their Registrable Securities through an underwriter, then each Holder that requests inclusion in the Registration Statement must participate in such underwriting, and become party to any required agreements, including, but not limited to, customary underwriting and indemnification agreements. The Company shall have the right to approve any underwriter, which approval shall not be unreasonably withheld. In the event that the underwriter limits the number shares of Registrable Securities to that may be immediately registered on Form S-3 or that have been included in the offering to fewer than the number that has been requested for Registrationon a registration statement on Form S-3, then each Holder's Registrable Securities shall be included in the underwriting pro rata, based on the total number of Registrable Securities held by the participating Holders.
2.3 Registrations under this Section 2 are subject to the following limitations: (i) the Company need not prepare or file a Registration Statement including pursuant to a Demand Notice within one hundred eighty request made pursuant to Section 2.4 below; or
(180vi) days after the effective date of in any Registration Statement filed by the Company particular jurisdiction in which the Holders party to the Demand Notice could have included their Registrable Securities; (ii) the Company may delay the effectiveness of a Demand Notice for a period of not more than six months after receipt of a Demand Notice in any 12-month period if the Company furnishes a certificate signed by its president stating that in the good faith judgment of the Company's board of directors it would be detrimental required to the Company for the Registration Statement qualify to be effected at do business or to execute a general consent to service of process in effecting such time; and (iii) the Company need not prepare registration, qualification or file a Registration Statement pursuant to a Demand Notice if it is then preparing a Registration Statement in connection with an underwritten public offering of Company securities, and the Company may delay the effectiveness of such Demand Notice until one hundred eighty (180) days after the effective date of such Registration Statementcompliance.
Appears in 1 contract
Demand Registration. 2.1 After the earlier of (i) the first anniversary Investors holding not less than one-half of the date shares of this Agreement, (ii) the consummation of an IPO or (iii) a Spin-Off or Hostile Change in Control at any time, Holders of at least fifty percent (50%) of all Registrable Securities Restricted Stock then held by parties to this Agreement (or in the case of a Spin-Off the percentage of Registrable Securities equal to the proportion which the majority of the number shares of Common acquired pursuant to the Subscription Agreement bears to all Registrable Securities at the time of the Spin-Off) Investors, may request the Company to Register register under the Securities Act not less than one-half of all shares of Restricted Stock then held by the Investors as a group for sale in the manner specified in such notice (shares of Restricted Stock issuable upon exercise of any option, warrant, or all right which is then immediately exercisable and shares of their Registrable Securities (a "Demand Notice"Restricted Stock issuable upon conversion of any convertible security which is then immediately convertible, shall be deemed held by such Investor for the purposes of this Section 5.1). Demand Notices shall Notwithstanding anything to the contrary contained herein, no request may be made in writing and shall specify the Holders making the Demand Notice, the number and type of Registrable Securities that each requests to be Registered, whether the Registrable Securities will be sold through an underwriter, and if so, the underwriters name, address, telephone number and contact person. The Company will prepare and file a Registration Statement in accordance with Section 4 for the Registrable Securities to be Registered pursuant to a valid Demand Notice; provided that the Company shall not be required to prepare or file a Registration Statement under this Section 2 more than once 5.1 within six months after the effective date of a registration statement filed by the Company covering a firm commitment underwritten public offering in any twelve (12) month period, more than twice after an IPO or more than three (3) times in total. Registrations which the Investors shall have been entitled to join pursuant to Demand Notices Sections 5.2 or 5.3 hereof, and in which there shall have been effectively registered all shares of Restricted Stock as to which registration shall have been requested by such Investors. If the Company receives a notice from an Investor or Investors that imposes on the Company the registration obligations of this Section 5.1, and if, in the reasonable opinion of the Board of Directors of the Company the general market conditions are subject to not appropriate at the further limitations set forth in Section 2.3.
2.2 Within ten (10) days from its receipt of a valid Demand Noticetime for an offering, the Company shall deliver written notice to all Holders that, pursuant to a Demand Notice, the Company will prepare and file a Registration Statement. Any Holder who was not a party to the Demand Notice may, within ten (10) days from receipt at its option, delay the commencement of the performance of the Company's obligation pursuant to this Section 5.1 for up to one hundred twenty (120) days. If an Investor specifies in the notice, request that the Company method of disposition of the Restricted Stock shall be an underwritten public offering, the Investor may designate the managing underwriter of such offering, subject to include the Holder's Registrable Securities in approval of the Registration Statement. If the Holders that initiated a Demand Notice specify therein that they intend to distribute their Registrable Securities through an underwriter, then each Holder that requests inclusion in the Registration Statement must participate in such underwriting, and become party to any required agreements, including, but not limited to, customary underwriting and indemnification agreements. The Company shall have the right to approve any underwriterCompany, which approval shall not be unreasonably withheldwithheld or delayed. In the event that the underwriter limits The Company shall be obligated to register Restricted Stock pursuant to this Section 5.1 on two occasions only (irrespective of the number of Registrable Securities Investors requesting such registration), PROVIDED, HOWEVER, that such obligation shall be deemed satisfied only when a registration statement covering shares of Restricted Stock, for sale in accordance with the method of disposition specified by the requesting Investor, shall have become effective and, if such method of disposition is a firm commitment underwritten public offering, such shares shall have been sold pursuant thereto. The Company shall be entitled to include in any registration statement referred to in this Section 5.1 for sale in accordance with the method of disposition specified by the requesting Investor, shares of Common Stock to be included in the offering to fewer than the number that has been requested for Registration, then each Holder's Registrable Securities shall be included in the underwriting pro rata, based on the total number of Registrable Securities held by the participating Holders.
2.3 Registrations under this Section 2 are subject to the following limitations: (i) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice within one hundred eighty (180) days after the effective date of any Registration Statement filed sold by the Company in which the Holders party for its own account, except as and to the Demand Notice could have included their Registrable Securities; extent that in the opinion of the managing underwriter (ii) if such method of disposition shall be an underwritten public offering), such inclusion would adversely affect the marketing of the Restricted Stock to be sold. Except for registration statements on Forms S-4 or S-8, or any successor thereto, the Company may delay will not file with the effectiveness Commission any other registration statement with respect to its Common Stock, whether for its own account or that of a Demand Notice for a period other stockholders, from the date of not more than six months after receipt of a Demand Notice in any 12-month period if notice from the Company furnishes a certificate signed by its president stating that in requesting Investor pursuant to this Section 5.1 until the good faith judgment completion of the Company's board period of directors it would be detrimental to distribution of the Company for the Registration Statement to be effected at such time; and (iii) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice if it is then preparing a Registration Statement in connection with an underwritten public offering of Company securities, and the Company may delay the effectiveness of such Demand Notice until one hundred eighty (180) days after the effective date of such Registration Statementregistration contemplated thereby.
Appears in 1 contract
Samples: Series a Redeemable Preferred Stock and Warrant Purchase Agreement (Transeastern Properties Inc)
Demand Registration. 2.1 After (a) If the earlier of Company receives, at any time beginning six (i6) months after the first anniversary effective date of the date IPO, from the Holders of this Agreementa majority in interest of the Registrable Securities (calculated on an as converted basis) then outstanding, (ii) a request in writing that all or part of the consummation of Registrable Securities held by them having an IPO or (iii) a Spin-Off or Hostile Change in Control at any time, Holders aggregate value of at least fifty percent $5,000,000 shall be registered for trading under the Securities Act, then, within seven (50%7) days after receipt of any such request, the Company shall give written notice of such request to the other Holders, and shall include in such registration all Registrable Securities held by all such Holders who wish to participate in such demand registration and provide the Company with written requests for inclusion therein within fifteen (15) days after the receipt of the Company's notice. Thereupon, the Company shall use its best efforts to effect the registration of all Registrable Securities, as to which it has received requests for registration under the Securities Act.
(b) Notwithstanding any other provision of Section 1.3(a), if the managing underwriter, if any, advises the Company in writing that marketing factors require an Underwriters Cutback, then there shall be excluded from such registration and underwriting, to the extent necessary to satisfy such limitation, first, securities of the Company not held by parties to this Agreement (or in the case of a Spin-Off the percentage of Registrable Securities equal Holders, to the proportion which extent necessary, and second, Registrable Securities, to the majority extent necessary (on a pro rata basis according to the respective holdings of the number shares Holders of Common acquired pursuant to the Subscription Agreement bears to all Registrable Securities at the time of the Spin-Off) may request the Company to Register such registration); provided however, that in any or event all of their Registrable Securities (a "Demand Notice"). Demand Notices shall must be made included in writing and shall specify such registration prior to any other shares of the Holders making the Demand Notice, the number and type of Registrable Securities that each requests to be Registered, whether the Registrable Securities will be sold through an underwriter, and if so, the underwriters name, address, telephone number and contact personCompany. The Company will prepare and file Holders shall not be entitled to request a Registration Statement in accordance with registration under Section 4 for the Registrable Securities to be Registered pursuant to a valid Demand Notice; provided that 1.3(a) if the Company shall not furnish to the Holders a certificate signed by the CEO of the Company confirming that in the good faith judgment of the Board of Directors of the Company it would be required seriously detrimental to prepare the Company or file its shareholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer the filing of the registration statement for a Registration Statement under this Section 2 period of no more than once ninety (90) days after the receipt of the request of the Holders under Section 1.3(a); provided, however, the Company may not make more than one (1) such deferral in any twelve (12) month period, more than twice after an IPO or more than three (3) times in total. Registrations pursuant to Demand Notices are subject to the further limitations set forth in Section 2.3.
2.2 Within ten (10c) days from its receipt of a valid Demand NoticeIn addition, the Company shall deliver written notice not be obligated to all Holders thateffect, or to take any action to effect, any registration pursuant to a Demand Notice, the Company will prepare and file a Registration Statement. Any Holder who was not a party to the Demand Notice may, within ten (10) days from receipt of the Company's notice, request the Company to include the Holder's Registrable Securities in the Registration Statement. If the Holders that initiated a Demand Notice specify therein that they intend to distribute their Registrable Securities through an underwriter, then each Holder that requests inclusion in the Registration Statement must participate in such underwriting, and become party to any required agreements, including, but not limited to, customary underwriting and indemnification agreements. The Company shall have the right to approve any underwriter, which approval shall not be unreasonably withheld. In the event that the underwriter limits the number of Registrable Securities to be included in the offering to fewer than the number that has been requested for Registration, then each Holder's Registrable Securities shall be included in the underwriting pro rata, based on the total number of Registrable Securities held by the participating Holders.Section 1.3(a):
2.3 Registrations under this Section 2 are subject to the following limitations: (i) after the Company need not prepare or file a Registration Statement has effected two (2) registrations pursuant to Section 1.3(a);
(ii) during the period ending (A) six (6) months after the effective date of a Demand Notice within one hundred eighty registration subject to Section 1.3(a) hereof or (180B) days six (6) months after the effective date of any Registration Statement filed by other registration statement pertaining to Ordinary Shares of the Company Company, or such shorter periods if such shorter periods are acceptable to the underwriters of such offering;
(iii) in any jurisdiction in which the Holders party Company would be required to the Demand Notice could have included their Registrable Securities; (ii) execute a general consent to service of process in effecting such registration, qualification or compliance, unless the Company is already subject to service in such jurisdiction and except as may delay be required by the effectiveness Securities Act or applicable rules or regulations thereunder; or
(iv) if such request does not cover shares representing a market value at the time of a Demand Notice for a period of not more than six months after receipt of a Demand Notice in any 12-month period if the Company furnishes a certificate signed by its president stating that in the good faith judgment of the Company's board of directors it would be detrimental to the Company for the Registration Statement to be effected at such time; and (iii) the Company need not prepare or file a Registration Statement pursuant request equal to a Demand Notice if it is then preparing a Registration Statement in connection with an underwritten public offering minimum of Company securities, and the Company may delay the effectiveness of such Demand Notice until one hundred eighty (180) days after the effective date of such Registration Statement$5,000,000.
Appears in 1 contract
Demand Registration. 2.1 After (a) If on any two occasions after the earlier date of the Company's first Qualified Public Offering, the Company shall receive from any of (x) the Investors, (y) X. Xxxxx or (z) X. Xxxxx a written request (in any such case, the Holder(s) providing such request is hereinafter sometimes referred to as an "Initiating Holder(s)") that the Company effect the registration of Registrable Securities or Other Registrable Securities, as the case may be, representing at least twenty-five percent (25%) of the Registrable Securities or Other Registrable Securities, as the case may be, then held by and issuable to (1) the Investors (or their successors or assignees) if the Initiating Holder is an Investor (or a successor or assignee of an Investor), (2) X. Xxxxx (or his successors or assignees) if the Initiating Holder is X. Xxxxx (or his successors or assignees), or (3) X. Xxxxx (or his successors or assignees) if the Initiating Holder is X. Xxxxx (or his successors or assignees) (or any lesser percentage if the reasonably anticipated aggregate price to the public of the Registrable Securities or Other Registrable Securities, as applicable, to be included in such registration by such Holder would exceed $5,000,000) in connection with a firm commitment underwriting by a nationally recognized Underwriter selected by such Initiating Holder(s) and reasonably acceptable to the Company, the Company shall:
(i) promptly (and in no event less than 30 days before the first anniversary anticipated filing date of such registration statement) give written notice of the date of this Agreement, proposed registration to all other Holders; and
(ii) as soon as practicable, use all of its commercially reasonable best efforts to effect such registration as may be so requested and as would permit or facilitate the consummation sale and distribution of an IPO or (iii) a Spin-Off or Hostile Change in Control at any time, Holders such portion of at least fifty percent (50%) of all such Registrable Securities then held or Other Registrable Securities, as applicable, as are specified in such request, together with such portion of the Registrable Securities and Other Registrable Securities of Holders joining in such request as are specified in a written request by parties such Holder(s) given within 30 days after receipt of such written notice from the Company.
(b) The right of any Holder to registration pursuant to this Agreement (Section 2 shall be conditioned upon such Holder's participation, and the inclusion of such Holder's Registrable Securities or Other Registrable Securities, in the case underwriting (unless otherwise mutually agreed by such Holder, the Underwriter and a majority in interest of the Initiating Holder(s) to the extent provided herein. A Holder may elect to include in such underwriting all or a Spin-Off part of the percentage Registrable Securities or Other Registrable Securities it holds.
(c) The Company shall, together with all Holders of Registrable Securities equal to the proportion which the majority and of the number shares of Common acquired pursuant to the Subscription Agreement bears to all Other Registrable Securities at proposing to distribute their securities through such underwriting, enter into an underwriting agreement in customary form with the time Underwriter.
(d) Notwithstanding any other provision of this Section 2, if the Spin-OffUnderwriter advises the Initiating Holder(s) may request the Company to Register any or all of their Registrable Securities (a "Demand Notice"). Demand Notices shall be made in writing and shall specify that the Holders making inclusion in the Demand Notice, the number and type subject registration statement of Registrable Securities that each requests or Other Registrable Securities held by Holders other than Initiating Holder(s) would limit the number of Registrable Securities or Other Registrable Securities sought to be Registeredincluded by the Initiating Holder(s) or reduce the offering price thereof, whether then the Registrable Securities will and Other Registrable Securities held by Holders other than Initiating Holder(s) shall be sold through an underwriterexcluded from such registration to the extent so required by such limitation (such exclusion to be in the order of priority specified in Section 3(d). No Registrable Securities or Other Registrable Securities so excluded from the underwriting by reason of the Underwriter's above marketing limitation shall be included in such registration. If any Holder of Registrable Securities or Other Registrable Securities disapproves of the terms of the underwriting, and if sosuch person may elect to withdraw therefrom by written notice to the Company, the underwriters name, address, telephone Underwriter and the Initiating Holder(s) The securities so withdrawn shall also be withdrawn from registration. If the Underwriter has not limited the number of Registrable Securities and contact person. The Company will prepare and file a Registration Statement in accordance with Section 4 for the Other Registrable Securities to be Registered pursuant underwritten, the Company may include its securities for its own account in such registration if the Underwriter so agrees and if the number of Registrable Securities and Other Registrable Securities which would otherwise have been included in such registration and underwriting will not thereby be limited.
(e) No registration initiated by any of the Initiating Holders hereunder shall count as a registration under this Section 2 unless and until the Company has incurred expenses equal to a valid Demand Notice; provided that at least $20,000 related to the preparation of such registration.
(f) The Company shall not be required to prepare or file a Registration Statement effect any registration under this Section 2 more than once in any twelve (12) month period, more than twice after an IPO or more than three (3) times in total. Registrations pursuant to Demand Notices are subject to the further limitations set forth in Section 2.3.
2.2 Within ten (10) days from its receipt of a valid Demand Notice, the Company shall deliver written notice to all Holders that, pursuant to a Demand Notice, the Company will prepare and file a Registration Statement. Any Holder who was not a party to the Demand Notice may, within ten (10) days from receipt of the Company's notice, request the Company to include the Holder's Registrable Securities in the Registration Statement. If the Holders that initiated a Demand Notice specify therein that they intend to distribute their Registrable Securities through an underwriter, then each Holder that requests inclusion in the Registration Statement must participate in such underwriting, and become party to any required agreements, including, but not limited to, customary underwriting and indemnification agreements. The Company shall have the right to approve any underwriter, which approval shall not be unreasonably withheld. In the event that the underwriter limits the number of Registrable Securities to be included in the offering to fewer than the number that has been requested for Registration, then each Holder's Registrable Securities shall be included in the underwriting pro rata, based on the total number of Registrable Securities held by the participating Holders.
2.3 Registrations under this Section 2 are subject to the following limitations: if (i) the Company need not prepare or file a Registration Statement pursuant is, at the time at which it receives any such request by an Initiating Holder, conducting or, has before receipt of such request, notified the Holders that it had planned, within 60 days of receipt by the Company of such request, to a Demand Notice conduct an offering of its securities and the Company reasonably believes that such offering would be adversely affected by the requested registration, (ii) such request is received by the Company within one hundred eighty six months after the effective date of the registration statement relating to the Company's first Qualified Public Offering, (180iii) days such request is received by the Company within three months after the effective date of any Registration Statement filed by the Company in which the Holders party other registration statement relating to the Demand Notice could have included their Registrable Securities; (ii) the Company may delay the effectiveness of a Demand Notice for a period of not more than six months after receipt of a Demand Notice in any 12-month period if the Company furnishes a certificate signed by its president stating that in the good faith judgment of the Company's board securities, (iv) the filing of directors it the registration statement would be detrimental to require the Company for to furnish audited financial statements customarily prepared at the Registration Statement to be effected at end of its fiscal year other than in respect of such time; and fiscal year, or (iiiv) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice if it is then preparing a Registration Statement in connection with an underwritten public offering filing of Company securities, and the registration statement would require the Company may delay to furnish unaudited financial statements customarily prepared at the effectiveness end of such Demand Notice until one hundred eighty (180) days after the effective date its fiscal quarters other than in respect of such Registration Statementits regularly reported interim quarterly periods.
Appears in 1 contract
Samples: Registration Rights Agreement (Opnet Technologies Inc)
Demand Registration. 2.1 After (a) Commencing 30 days following the earlier of (i) the first anniversary of the date of this AgreementEffective Date, (ii) the consummation of an IPO or (iii) a Spin-Off or Hostile Change in Control at any time, Holders of at least fifty percent (50%) of all Registrable Securities then held by parties to this Agreement (or in the case of a Spin-Off the percentage Holder of Registrable Securities equal to may make a written request substantially in the proportion which form of Annex A hereto for registration under the majority Securities Act of the number shares all or part of Common acquired pursuant to the Subscription Agreement bears to all Registrable Securities at the time of the Spin-Off) may request the Company to Register any its or all of their Registrable Securities (a "Demand NoticeRegistration"). Demand Notices shall be made in writing and shall specify the Holders making the Demand Notice, the number and type of Registrable Securities that each requests to be Registered, whether the Registrable Securities will be sold through an underwriter, and if so, the underwriters name, address, telephone number and contact person. The Company will prepare and file a Registration Statement in accordance with Section 4 for the Registrable Securities to be Registered pursuant to a valid Demand Notice; provided that the Company Issuer shall not be required obligated to prepare effect (i) any Demand Registration, except for the first Demand Registration hereunder, unless the aggregate market value of the Registrable Securities covered by such written requests (calculated as of a recent date as determined by the Issuer) is at least $50,000,000; provided that in the case of a Demand Registration which may only be requested by Angelo Gordon, Bank of America or file Naugatuck (as provided in clause (xxx) xxxxx) xhe aggregate market value of the Registrable Securities covered by such written requests (calculated as of a Registration Statement under this Section 2 recent date as determined by the Issuer) is at least $25,000,000, (ii) more than once one Demand Registration in any twelve (12) 6-month period, (iii) more than twice after an IPO or more than three five Demand Registrations in total (3of which, one such Demand Registration may only be requested by Angelo Gordon, one such Demand Registration may only be requested by Xxxx xx Xxxxica and one such Demand Registration may only be requested by Naugatuck), (iv) times any Demand Registration within 3 months of a previous registration in total. Registrations which the holders of Registrable Securities were given piggyback rights pursuant to Section 2.3 and in which there was no reduction in the number of Registrable Securities requested to be included or (v) any Demand Notices are subject Registration at a time when doing so would be in violation of Section 5.3(b) of the Common Registration Rights Agreement. Each such request will specify the number of Registrable Securities proposed to be sold and will also specify the further limitations set forth intended method of disposition thereof and may specify the book-running managing Underwriter and any additional investment bankers and managers to be used in Section 2.3.
2.2 Within ten connection with an underwritten offering. Promptly after receipt of requests for the registration of Registrable Securities with an aggregate market value of at least $50,000,000 (10or $25,000,000 for a Demand Registration which may only be requested by Angelo Gordon, Bank of America or Naugatuck, as provided in clause (xxx) days from its xxxxx), in each case, determined as aforesaid or, in the case of the first Demand Registration hereunder, promptly after the receipt of a valid Demand Noticerequest for the registration of Registrable Securities, the Company shall deliver Issuer will give written notice of such registration request to all other Holders that, pursuant to a Demand Notice, the Company will prepare and file a Registration Statement. Any Holder who was not a party to the Demand Notice may, within ten (10) days from receipt of the Company's notice, request the Company to include the Holder's Registrable Securities and include in the Registration Statement. If the Holders that initiated a Demand Notice specify therein that they intend to distribute their such registration all such Registrable Securities through an underwriter, then each Holder that requests with respect to which the Issuer has received a written request for inclusion in the Registration Statement must participate in therein within 30 calendar days after written notice has been mailed. Each such underwriting, and become party to any required agreements, including, but not limited to, customary underwriting and indemnification agreements. The Company shall have the right to approve any underwriter, which approval shall not be unreasonably withheld. In the event that the underwriter limits request will also specify the number of Registrable Securities to be included in registered and the offering intended method of disposition thereof. The registration statement to fewer than the number that has been requested for Registration, then each Holder's Registrable Securities shall be included in the underwriting pro rata, based on the total number of Registrable Securities held by the participating Holders.
2.3 Registrations under this Section 2 are subject to the following limitations: (i) the Company need not prepare or file a Registration Statement filed pursuant to a Demand Notice within one hundred eighty Registration shall not include securities being sold for the account of other persons and entities (180other than securities being sold for the account of other persons and entities pursuant to the piggy-back registration rights provisions of the Common Registration Rights Agreement) or for the account of the Issuer, unless the Holders of a majority of the Registrable Securities to be included in such Demand Registration consent in writing thereto.
(b) A registration will not count as a Demand Registration until it has become effective and remains effective for not less than 90 days after or such shorter period as is required for all of the Registrable Securities so registered to be sold unless such Demand Registration has not become effective date due solely to the fault of, or is terminated at the request of, the requesting Holders.
(c) If the Holders of any a majority of the Registrable Securities to be registered in a Demand Registration Statement filed so elect, the offering of such Registrable Securities pursuant to such Demand Registration shall be in the form of an underwritten offering. Unless otherwise specified by the Company Holders of a majority of the Registrable Securities to be included in which the Holders party such Demand Registration, and subject to the Demand Notice could have included their Registrable Securities; (ii) approval of such Holders, which shall not be unreasonably withheld, the Company may delay Issuer shall select the effectiveness of a Demand Notice for a period of not more than six months after receipt of a Demand Notice in any 12book-month period if the Company furnishes a certificate signed by its president stating that in the good faith judgment of the Company's board of directors it would be detrimental to the Company for the Registration Statement to be effected at such time; and (iii) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice if it is then preparing a Registration Statement running managing Underwriter in connection with an underwritten public such offering and any additional investment bankers and managers to be used in connection with the offering. Any book-running managing Underwriter or additional investment bankers and managers specified by the Holders shall be subject to the approval of Company securitiesthe Issuer, and which shall not be unreasonably withheld. To the Company may delay extent 25% or more of the effectiveness Registrable Securities so requested to be registered are excluded from the offering in accordance with Section 2.4, the registration of such offering will not count as a Demand Notice until one hundred eighty (180) days after the effective date of such Registration StatementRegistration.
Appears in 1 contract
Demand Registration. 2.1 After (a) If at any time after the earlier 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 first anniversary date such request is given, give notice to all Holders other than the Initiating Holder, and (ii) as soon as practicable, and in any event within sixty (60) days after the date such request is given, file a Form S-3 registration statement under the Securities Act (except if the Company is then ineligible to register for resale of the Additional Registrable Securities on Form S-3, in which case such registration shall be on such other form available to the Company to register for resale of the Additional Registrable Securities as a secondary offering) subject to the provisions of Section 3(d) covering all Additional Registrable Securities requested to be included in such registration by the Initiating Holder and any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the notice pursuant to clause (i) above is given, and in each case, subject to the limitations of Sections 3(b) and (c). Upon the request of any Holder that Additional Registrable Securities be registered pursuant to this Section 3(a), all such Additional Registrable Securities shall thereafter be Registrable Securities for all purposes under this Agreement.
(b) Notwithstanding the foregoing obligations, if the Company furnishes to Holders requesting a registration pursuant to this Section 3 a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Company’s Board of Directors it would be materially detrimental to the Company and its stockholders for such Registration Statement to either become effective or remain effective for as long as such Registration Statement otherwise would be required to remain effective, because such action would (i) materially interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company; (ii) require premature disclosure of material information that the consummation of an IPO Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act, then the Company shall have the right to defer taking action with respect to such filing, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for a Spin-Off or Hostile Change in Control at any time, Holders period of at least fifty percent not more than ninety (50%90) of all Registrable Securities then held by parties to this Agreement (or in days after the case of a Spin-Off the percentage of Registrable Securities equal to the proportion which the majority request of the number shares of Common acquired pursuant to the Subscription Agreement bears to all Registrable Securities at the time of the Spin-Off) may request the Company to Register any or all of their Registrable Securities (a "Demand Notice"). Demand Notices shall be made in writing and shall specify the Holders making the Demand NoticeInitiating Holder is given; provided, the number and type of Registrable Securities that each requests to be Registeredhowever, whether the Registrable Securities will be sold through an underwriter, and if so, the underwriters name, address, telephone number and contact person. The Company will prepare and file a Registration Statement in accordance with Section 4 for the Registrable Securities to be Registered pursuant to a valid Demand Notice; provided that the Company shall may not be required to prepare or file a Registration Statement under invoke this Section 2 right more than once in any twelve (12) month period, more than twice after an IPO or more than three ; and provided further that (3x) times in total. Registrations pursuant to Demand Notices are subject to the further limitations set forth in Section 2.3.
2.2 Within ten (10) days from its receipt of a valid Demand Notice, the Company shall deliver written notice to all Holders that, not register any securities for its own account or that of any other stockholder during such ninety (90) day period other than pursuant to a Demand Notice, registration relating to the sale of securities to employees of the Company will prepare and file or a Registration Statement. Any Holder who was subsidiary pursuant to a stock option, stock purchase, or similar plan; (y) a registration on any form that does not a party to include substantially the Demand Notice may, within ten (10) days from receipt of the Company's notice, request the Company to include the Holder's Registrable Securities in the Registration Statement. If the Holders that initiated a Demand Notice specify therein that they intend to distribute their Registrable Securities through an underwriter, then each Holder that requests inclusion in the Registration Statement must participate in such underwriting, and become party to any same information as would be required agreements, including, but not limited to, customary underwriting and indemnification agreements. The Company shall have the right to approve any underwriter, which approval shall not be unreasonably withheld. In the event that the underwriter limits the number of Registrable Securities to be included in a registration statement covering the offering to fewer than sale of the number that has been requested for Registration, then each Holder's Additional Registrable Securities shall be included in the underwriting pro rata, based on the total number of Registrable Securities held by the participating Holders.
2.3 Registrations under this Section 2 are subject to the following limitations: Securities; or (iz) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice within one hundred eighty (180) days after the effective date of any Registration Statement filed by the Company registration in which the Holders party only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered.
(c) The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 3(a) during the Demand Notice could have included their Registrable Securities; period that is thirty (ii30) days before the Company may delay the effectiveness of a Demand Notice for a period of not more than six months after receipt of a Demand Notice in any 12-month period if the Company furnishes a certificate signed by its president stating that in the Company’s good faith judgment estimate of the Company's board date of directors it would be detrimental to the Company for the Registration Statement to be effected at such time; and (iii) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice if it is then preparing a Registration Statement in connection with an underwritten public offering of Company securitiesfiling of, and the Company may delay the effectiveness of such Demand Notice until one hundred eighty (180) days after the effective ending on a date of such Registration Statement.that is ninety
Appears in 1 contract
Demand Registration. 2.1 After (a) At any time after June 1, 1998, the earlier Holders shall have the right to request (each such request, a "Registration Demand") that the Company file a registration statement under the Securities Act in respect of all or any portion of such Holder's Eligible Securities; provided that if any Holders shall request that a portion, but not all, of its Eligible Securities be registered in accordance with this Section 7.1 (iincluding a requested Takedown pursuant to subsection (c)(ii) the first anniversary below), such portion shall include not less than two hundred and fifty thousand (250,000) shares of Eligible Common Stock (or such lesser number of such shares having a market valuation of at least $5,000,000 as of the date the Registration Demand is made, based on the Closing Price on such date). A Registration Demand shall specify the number of this Agreementshares of Eligible Common Stock (and, (ii) the consummation of an IPO or (iii) a Spin-Off or Hostile Change in Control at any time, Holders of at least fifty percent (50%) of all Registrable Securities then held by parties to this Agreement (or in the case of a Spin-Off Registration Demand by the percentage of Registrable Securities equal to the proportion which the majority of the number shares of Common acquired pursuant to the Subscription Agreement bears to all Registrable Securities at the time of the Spin-Off) may request the Company to Register any or all of their Registrable Securities (a "Demand Notice"). Demand Notices shall be made in writing and shall specify the Holders making the Demand NoticeInitial Holder, the number and type of Registrable Securities Warrants) that each requests such Holder proposes to sell in the offering. If no Shelf Registration Statement shall be Registered, whether effective as of the Registrable Securities will be sold through an underwriter, and if sodate of the Registration Demand, the underwriters namedemanding Holders may elect to register such Eligible Securities in accordance with either Section 7.1(c)(i) or Section 7.1(d). If a Shelf Registration Statement shall be effective as of the date of the Registration Demand, address, telephone number and contact personthen all demanding Holders shall be deemed to have elected to register their Eligible Securities pursuant to Section 7.1(c)(ii). The Holders may make in the aggregate two (2) Registration Demands pursuant to Sections 7.1(c)(i) and 7.1(d) and four (4) Registration Demands per year pursuant to an existing Shelf Registration Statement pursuant to Section 7.1(c)(ii) for which the Company will prepare pay and file a Registration Statement bear all costs and expenses in accordance with Section 4 8.3 and thereafter the Holders may make an unlimited number of Registration Demands for which such requesting Holders shall pay and bear all costs and expenses.
(b) Upon receipt of a Registration Demand (other than a Takedown), the Registrable Securities Company shall give written notice thereof to be Registered pursuant all of the other Holders at least thirty (30) days prior to the initial filing of a valid Demand Notice; provided Registration Statement relating to such Registration Demand. Each of the other Holders shall have the right, within twenty (20) days after the delivery of such notice, to request that the Company shall not be required to prepare include all or file a portion of such Holder's Eligible Securities in such Registration Statement. Upon receipt of a Registration Statement under this Section 2 more than once in any twelve (12) month periodDemand that is a Takedown, more than twice after an IPO or more than a representative of the selling holders shall give written notice thereof to all of the other Holders at least three (3) times Business Days prior to the initial filing of a prospectus relating to such Registration Demand. Each of the other Holders shall have the right, within one (1) Business Day after the delivery of such notice, to request that the Company include all or a portion of such Holder's Eligible Securities in total. Registrations such Registration Statement.
(i) As promptly as practicable and in no event later than sixty (60) days after the Company receives a Registration Demand electing to register Eligible Securities pursuant to Demand Notices are subject to the further limitations set forth in Section 2.3.
2.2 Within ten this paragraph (10) days from its receipt of a valid Demand Noticec), the Company shall deliver written notice to file under the Securities Act a "shelf" registration statement (the "Shelf Registration Statement") providing for the registration and the sale on a continuous or delayed basis of all Holders thatthe Eligible Securities, pursuant to Rule 415 under the Securities Act and/or any similar rule that may be adopted by the SEC (the "Shelf Registration"). The Company agrees to use its reasonable best efforts to cause such Shelf Registration Statement to become or be declared effective as soon as practicable but no later than 75 calendar days after the filing (the "75 Day Effective Date") and to keep such Shelf Registration continuously effective for a period ending on the occurrence of the earlier of: (x) the third anniversary of such Registration Demand Noticeand (y) notification by all of the requesting Holders that such Holders have sold all of the Eligible Securities owned by them. The Company further agrees to supplement or make amendments to the Shelf Registration Statement and the prospectus included therein (x) as may be necessary to effect and maintain the effectiveness of such Shelf Registration Statement for the period set forth in the previous sentence and (y) as may be required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration or by the Securities Act or rules and regulations thereunder for shelf registration. The Company agrees to furnish to the Holders of the securities registered thereby copies of any such supplement or amendment (but excluding any periodic reports required to be filed with the SEC under the Exchange Act of 1934) so that the Initial Holder, or if the Initial Holder is no longer a Holder, the Holders, through the Representative(s), have a reasonable opportunity to comment thereon prior to its being used and/or filed with the SEC.
(ii) As promptly as practicable after the Company receives a Registration Demand from a Holder or Holders pursuant to which a Holder is deemed to have elected to register Eligible Securities pursuant to an existing Shelf Registration Statement (a "Takedown"), the Company will prepare and shall, subject to the Takedown Blackout Period described below, file a Registration Statement. Any Holder who was not a party Prospectus with the SEC and otherwise comply with the Securities Act and all rules, regulations and instructions thereunder applicable to the Demand Notice may, within ten (10) days from receipt of the Company's notice, request the Company to include the Holder's Registrable Securities in the Registration Statement. If the Holders that initiated a Demand Notice specify therein that they intend to distribute their Registrable Securities through an underwriter, then each Holder that requests inclusion in the Registration Statement must participate in such underwriting, and become party to any required agreements, including, but not limited to, customary underwriting and indemnification agreements. The Company shall have the right to approve any underwriter, which approval shall not be unreasonably withheldTakedown. In the event that no Prospectus or other filing is required nor any other action necessitating the underwriter limits Company's participation is required to effect a sale of Eligible Securities pursuant to an effective Shelf Registration Statement filed pursuant to Section 7.1(c)(i), each selling Holder agrees to provide the number Company with at least three (3) Business Days' notice of Registrable the proposed sale (which may or may not include the amount of Eligible Securities to be included in registered) pursuant to the offering to fewer than effective Shelf Registration Statement; provided, however, that the number that has been requested for RegistrationCompany shall, then each Holder's Registrable Securities shall be included in the underwriting pro rata, based on the total number of Registrable Securities held by the participating Holders.
2.3 Registrations under this Section 2 are subject to Section 7.3(g), have the following limitationsright to postpone any such sale whether before or after the filing of the applicable Prospectus or Shelf Registration Statement for a reasonable period of time not to exceed ninety (90) days (a "Takedown Blackout Period") if: (i) the Company need determines in its good faith judgment that it would, in connection with such sale, be required to disclose in such Registration Statement (or any prospectus supplement to be used in connection therewith) information not prepare otherwise then required by law to be publicly disclosed and (ii) either (x) in the good faith judgment of the Board of Directors of the Company, such disclosure would adversely affect any material corporate development or file business transaction contemplated by the Company or (y) the Company has a bona fide purpose for preserving as confidential such information; provided further that the Takedown Blackout Period shall earlier terminate upon the completion or abandonment of the relevant corporate development or business transaction or upon public disclosure by the Company or public disclosure by the Company or public admission by the Company of such information specified in (i) above.
(d) As promptly as practicable and in no event later than sixty (60) days after the Company receives a Registration Statement Demand electing to register Eligible Securities pursuant to this Section 7.1(d), the Company shall file with the SEC a Demand Notice within Registration Statement, on any form that shall be available and appropriate for the sale of the Eligible Securities in accordance with the intended method of distribution thereof. The Company shall include in such Registration Statement all of the Eligible Securities of such requesting Holders that such Holders have requested to be included therein pursuant to Sections 7.1(a) and 7.1(b); provided, however, that, if the requested registration involves an underwritten offering, the Eligible Securities to be registered may be reduced if the managing underwriter delivers a notice (a "Cutback Notice") pursuant to Section 7.1(g). The Company shall use its reasonable best efforts to cause each such Registration Statement to be declared effective (and to obtain acceleration of such effectiveness) as soon as practicable but no later than 75 days after filing such Registration Statement and to keep such Registration Statement continuously effective and usable for resale of such Eligible Securities, for a period of one hundred eighty (180) days after from the date on which the SEC declares such Registration Statement effective date or such shorter period as is necessary to complete the distribution of the securities registered thereunder.
(e) The Initial Holder or, if the Initial Holder is not a selling holder, the Representative(s) shall determine the method of distribution of Eligible Securities pursuant to a Registration Demand.
(f) If a Registration Demand involves an underwritten offering, the investment banker or investment bankers and manager or managers that will administer such offering will be selected by the Initial Holder or, if the Initial Holder is not a selling holder, the Representative(s); provided that the Persons so selected shall be reasonably satisfactory to the Company.
(g) In the event that the proposed offering is an underwritten offering and includes securities to be offered for the account of the Company (the "Company Shares"), the provisions of this Section 7.1(g) shall be applicable if the managing underwriter delivers a Cutback Notice stating that, in its opinion, the aggregate number of shares of Eligible Common Stock, plus the Company Shares proposed to be sold therein, exceeds the maximum number of shares specified by the managing underwriter in such Cutback Notice that may be distributed without adversely affecting the price, timing or distribution of the Common Stock being distributed. If the managing underwriter delivers such Cutback Notice, the number of shares of Eligible Common Stock requested to be registered and Company Shares shall be reduced in the following order until the number of shares to be offered has been reduced to the maximum number of shares specified by the managing underwriter in the Cutback Notice: first, the Company Shares and second, the Eligible Common Stock in proportion to the respective number of shares of Eligible Common Stock that each Holder has requested to be registered.
(h) The Company will pay all Registration Expenses (as set forth in Section 8.3) in connection with a registration under this Section 7.1.
(i) No Registration Demand (other than a Takedown) may be made until the expiration of six (6) months following the completion of the distribution of the securities registered under any Registration Statement that has been filed by and has become effective pursuant to a prior Registration Demand.
(j) A Registration Demand will not be deemed satisfied (and will not count for purposes of the Company limitations in which the Holders party to the Demand Notice could have included their Registrable Securities; Section 7.1(a)) (iii) the Company may delay the effectiveness of unless a Demand Notice registration statement with respect thereto has become effective and has been kept continuously effective for a period of not more than six months at least 180 days (or such shorter period which shall terminate when all Eligible Securities covered by such registration statement have been sold), (ii) if, after receipt of a Demand Notice in it has become effective, such registration is interfered with by any 12-month period if the Company furnishes a certificate signed by its president stating that in the good faith judgment stop order, injunction or other order or requirement of the Company's board of directors it would be detrimental SEC or other governmental agency or court for any reason not attributable to the Company for the Registration Statement to be effected at selling holders participating in such time; registration and has not thereafter become effective, or (iii) if the Company need not prepare conditions to closing specified in the relevant underwriting or file a Registration Statement pursuant to a Demand Notice if it is then preparing a Registration Statement agency agreement entered into in connection with an underwritten public such offering are not satisfied or waived, other than by reason of Company securities, and the Company may delay the effectiveness a breach of such Demand Notice until one hundred eighty (180) days after agreement by the effective date selling holders participating in such offering or wilful failure on the part of the selling holders participating in such Registration Statementoffering.
Appears in 1 contract
Demand Registration. 2.1 After Subject to the earlier of (i) the first anniversary of the date of conditions set forth in this Agreement, (ii) the consummation of an IPO or (iii) a Spin-Off or Hostile Change in Control at any time, Holders of at least fifty percent (50%) of all Registrable Securities then held by parties to this Agreement (or in the case of a Spin-Off the percentage of Registrable Securities equal to the proportion which the majority of the number shares of Common acquired pursuant to the Subscription Agreement bears to all Registrable Securities at the time of the Spin-Off) may request the Company to Register any or all of their Registrable Securities (a "Demand Notice"). Demand Notices shall be made in writing and shall specify the Holders making the Demand Notice, the number and type of Registrable Securities that each requests to be Registered, whether the Registrable Securities will be sold through an underwriter, and if so, the underwriters name, address, telephone number and contact person. The Company will prepare and file a Registration Statement in accordance with Section 4 for the Registrable Securities to be Registered pursuant to a valid Demand Notice; provided that the Company shall not be required to prepare or file a Registration Statement under this Section 2 more than once in any twelve (12) month period, more than twice after an IPO or more than three (3) times in total. Registrations pursuant to Demand Notices are subject to the further limitations set forth in Section 2.3.
2.2 Within ten (10) days from its receipt of a valid Demand Notice, the Company shall deliver written notice to all Holders that, pursuant to a Demand Notice, the Company will prepare and file a Registration Statement. Any Holder who was not a party to the Demand Notice may, within ten (10) days from receipt of the Company's notice, request the Company to include the Holder's Registrable Securities in the Registration Statement. If the Holders that initiated a Demand Notice specify therein that they intend to distribute their Registrable Securities through an underwriter, then each Holder that requests inclusion in the Registration Statement must participate in such underwriting, and become party to any required agreements, including, but not limited to, customary underwriting and indemnification agreements. The Company shall have the right to approve any underwriter, which approval shall not be unreasonably withheld. In the event that the underwriter limits the number of Registrable Securities to be included in the offering to fewer than the number that has been requested for Registration, then each Holder's Registrable Securities shall be included in the underwriting pro rata, based on the total number of Registrable Securities held by the participating Holders.
2.3 Registrations under this Section 2 are subject to the following limitations: (i) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice within one hundred eighty (180) days from the date of the closing of the Acquisition Agreement, the Company shall, at the written request of a Holder who is unable to sell its Registrable Shares pursuant to Rule 144(k) under the Securities Act, cause to be filed as soon as practicable after the effective date of any such request by such Holder a Registration Statement filed under Rule 415 under the Securities Act relating to the sale by the Company in which the Holders party to the Demand Notice could have included their Registrable Securities; (ii) the Company may delay the effectiveness Holder of all or a Demand Notice for a period of not more than six months after receipt of a Demand Notice in any 12-month period if the Company furnishes a certificate signed by its president stating that in the good faith judgment portion of the Company's board of directors it would be detrimental Registrable Shares held by such Holder in accordance with the terms hereof, and shall use reasonable efforts to the Company for the cause such Registration Statement to be effected declared effective by the SEC as soon as practicable thereafter. If the Holder chooses to register less than all of the Registrable Shares at one time, then (i) it must seek to register a minimum of 10,000 Shares (or if such timeHolder owns less than 10,000 Registrable Shares, the total number of Registrable Shares then owned), (ii) no Holder (including the Holder making the request) has made a request to register any Registrable Shares during the one (1) year period ending on the date of such request; and (iii) the total number of requests which may be made by Holders in the aggregate under this Section 3(a) shall not exceed three (3). The Company need not prepare or may, in its sole discretion, elect to file a Registration Statement pursuant with respect to a Demand Notice if it is then preparing any or all of the Shares before receipt of notice from any Holder. The Company agrees to use reasonable efforts to keep the Registration Statement continuously effective until the earlier of (i) six (6) months thereafter, or (ii) the date on which such Holder no longer holds any Registrable Shares. Notwithstanding the foregoing provisions of this Section 3(a), during any period of time which the Company has a Registration Statement in effect under the provisions of Rule 415 of the Securities Act relating to the original issuance by the Company of shares of Common Stock in connection with an underwritten public offering the redemption of Company securitiesHolders' Units, and or in the Company may delay alternative, if the effectiveness registration of such Demand Notice until one hundred eighty (180) days after original issuance is not practicable, the effective date sale by Holders of Registrable Shares in the form of the Common Stock to be received in connection with the redemption of Holders' Units then, such Registration StatementHolders will not have the right to request the registration of Registrable Shares under the provisions of this Section 3(a).
Appears in 1 contract
Samples: Registration Rights and Lock Up Agreement (Summit Properties Inc)
Demand Registration. 2.1 After the earlier of (i) the first anniversary of At any time after the date of this Agreementthat is 180 days after the Closing, (ii) the consummation of an IPO or (iii) a Spin-Off or Hostile Change in Control at any time, Holders of at least fifty percent (50%) Investor may request registration under the Securities Act of all of its Registrable Securities then held by parties on a Form S-1 or Form S-3 registration statement (or any successor to each such form) (or, if Form S-1 or Form S-3 is not then available, on such form of registration statement as is then available to effect a registration of the Registrable Securities pursuant to this Agreement subsection (or in b)(i)) (each a “Demand Registration”). Each request for a Demand Registration shall specify the case of a Spin-Off the percentage approximate number of Registrable Securities equal required to the proportion which the majority be registered. Upon receipt of the number shares of Common acquired pursuant to the Subscription Agreement bears to all Registrable Securities at the time of the Spin-Off) may request a Demand Registration request, the Company to Register any or all of their Registrable Securities (a "Demand Notice"). Demand Notices shall be made in writing and shall specify the Holders making the Demand Notice, the number and type of Registrable Securities that each requests to be Registered, whether the Registrable Securities will be sold through an underwriter, and if so, the underwriters name, address, telephone number and contact person. The Company will prepare and file cause a Registration Statement in accordance with Section 4 for the Registrable Securities to be Registered pursuant to a valid Demand Notice; provided that filed within forty-five (45) days after the date on which such request was received by the Company. The Company shall not be required to prepare or file effect a Demand Registration (A) more than two (2) times for the Investor; provided, however, that a Registration Statement shall not count as a Demand Registration requested under this Section 2 more than once in any twelve subsection (12b)(i)(A) month periodunless and until it has become effective, more than twice after an IPO or more than three (3B) times in total. Registrations pursuant to Demand Notices are subject if the Company furnishes to the further limitations set forth in Section 2.3.
2.2 Within ten Investor a certificate signed by an authorized officer of the Company stating that (10a) within sixty (60) days from its of receipt of a valid the Demand NoticeRegistration request under this subsection (b)(i), the Company shall deliver written notice expects to all Holders thatfile a registration statement for the public offering of securities for the account of the Company (other than a registration of securities (x) issuable pursuant to an employee stock option, stock purchase or similar plan, (y) issuable pursuant to a Demand Noticemerger, exchange offer or a transaction of the type specified in Rule 145(a) under the Securities Act or (z) in which the only securities being registered are securities issuable upon conversion of debt securities which are also being registered), provided, that the Company will prepare and file a Registration Statement. Any Holder who was not a party is actively employing good faith efforts to the Demand Notice maycause such registration statement to become effective, within ten or (10b) days from receipt of the Company's notice, request the Company is engaged in a material transaction or has an undisclosed material corporate development, in either case, which would be required to include the Holder's Registrable Securities be disclosed in the Registration Statement. If the Holders that initiated a Demand Notice specify therein that they intend to distribute their Registrable Securities through an underwriter, then each Holder that requests inclusion in the Registration Statement must participate in such underwriting, and become party to any required agreements, including, but not limited to, customary underwriting and indemnification agreements. The Company shall have the right to approve any underwriter, which approval shall not be unreasonably withheld. In the event that the underwriter limits the number of Registrable Securities to be included in the offering to fewer than the number that has been requested for Registration, then each Holder's Registrable Securities shall be included in the underwriting pro rata, based on the total number of Registrable Securities held by the participating Holders.
2.3 Registrations under this Section 2 are subject to the following limitations: (i) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice within one hundred eighty (180) days after the effective date of any Registration Statement filed by the Company in which the Holders party to the Demand Notice could have included their Registrable Securities; (ii) the Company may delay the effectiveness of a Demand Notice for a period of not more than six months after receipt of a Demand Notice in any 12-month period if the Company furnishes a certificate signed by its president stating that in the good faith judgment of the Company's board ’s Board of directors it Directors, such disclosure would be materially detrimental to the Company for and its stockholders at such time (in which case, the Company shall disclose the matter as promptly as reasonably practicable and thereafter file the Registration Statement Statement, and the Investor agrees not to be effected at disclose any information about such time; and (iii) material transaction to third parties until such disclosure has occurred or such information has entered the public domain other than through breach of this provision by the Investor), provided, however, that the Company need not prepare or file a shall have the right to defer the filing of the Registration Statement pursuant to this subsection twice in any twelve (12) month period and any such deferral may not exceed a period of more than sixty (60) days in the aggregate during such twelve-month period.
(ii) If the Investor requests a Demand Notice if it is then preparing Registration and elects to distribute the Registrable Securities covered by its request in an underwritten offering, the Investor shall so advise the Company as a Registration Statement part of its request made pursuant to subsection (b)(i). The Company shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with an underwritten public offering such offering; provided, however, that such selection shall be subject to the consent of Company securitiesthe Investor, and the Company may delay the effectiveness of such Demand Notice until one hundred eighty (180) days after the effective date of such Registration Statementwhich consent shall not be unreasonably withheld, delayed or conditioned.
Appears in 1 contract
Samples: Share Purchase Agreement (Trevi Therapeutics, Inc.)
Demand Registration. 2.1 After (a) Request for Registration on Form Other than Form S-3. Subject to the terms of this Agreement, in the event that the Company shall receive from Initiating Holder(s) at any time after the earlier of (i) the first anniversary of the date of this AgreementSeptember 13, 2000, or (ii) three (3) months after the consummation effective date of a Qualified Public Offering (provided that, if so required in writing by the underwriter(s) of the Qualified Public Offering, such three-month period may be extended to a period not to exceed the greater of (I) the length of the lock-up period imposed on members of senior management of the Company in connection with the Qualified Public Offering and (II) six (6) months, provided further that if such three-month period is so extended, the Company shall use its reasonable best efforts to arrange for the Registration provided for in this Section 2.1(a) to be effective at or before the end of such extended period), a written request that the Company effect a Registration with respect to all or a part of the Registrable Securities of such Initiating Holder(s) on a form other than Form S-3 for an IPO offering of (x) in the case of a request delivered by Initiating Holder(s), other than a Significant Holder of at least twenty-five percent (25%) of the then outstanding Series E Registrable Securities, at least twenty-five percent (25%) of the then outstanding Series F Registrable Securities or at least twenty-five percent (25%) of the then outstanding Series G Registrable Securities, or (iiiy) in the case of a Spin-Off or Hostile Change in Control at any timerequest from an Initiating Holder who is a single Significant Holder, Holders of at least fifty percent (50%) of all the then outstanding Registrable Securities then held represented by parties to this Agreement Convertible Securities owned by such Significant Holder, the Company shall (or in the case of a Spin-Off the percentage of Registrable Securities equal to the proportion which the majority A) promptly give written notice of the number shares of Common acquired pursuant to the Subscription Agreement bears proposed Registration to all Registrable Securities at the time other Holders and (B) as soon as practicable, use its best efforts to effect Registration of the Spin-Off) may request the Company to Register any or all of their Registrable Securities (a "Demand Notice"). Demand Notices shall be made in writing and shall specify the Holders making the Demand Notice, the number and type of Registrable Securities that each requests to be Registered, whether the Registrable Securities will be sold through an underwriterspecified in such request of the Initiating Holder(s), and if so, together with any Registrable Securities of any Holder joining in such request as are specified in a written request given within twenty (20) business days after written notice from the underwriters name, address, telephone number and contact personCompany. The Company will prepare and file a Registration Statement in accordance with Section 4 for the Registrable Securities to be Registered pursuant to a valid Demand Notice; provided that the Company shall not be required obligated to prepare or file a take any action to effect any such Registration Statement under pursuant to this Section 2 more than once in any twelve 2.1(a) (12i) month periodexcept as provided above, more than twice after an IPO or more than within the three (3) times to six (6) months period referred to in total. the first sentence of this Section 2.1(a) or (ii) after the Company has effected two (2) such Registrations pursuant to Demand Notices are subject to the further limitations set forth this Section 2.1(a) in Section 2.3.
2.2 Within ten (10) days from its receipt of a valid Demand Notice, which the Company shall deliver written notice to all Holders that, pursuant to a Demand Notice, the Company will prepare has not Registered securities for its own account and file a Registration Statement. Any Holder who was not a party to the Demand Notice may, within ten (10) days from receipt of the Company's notice, request the Company to include the Holder's Registrable Securities in the Registration Statementsuch Registrations have been declared effective. If the Holders that initiated a Demand Notice specify therein that they intend to distribute their Registrable Securities through an underwriter, then each Holder that requests inclusion in the Registration Statement must participate in such underwriting, and become party to any required agreements, including, but not limited to, customary underwriting and indemnification agreements. The Company shall have the right to approve any underwriter, which approval shall not be unreasonably withheld. In the event that the underwriter limits the number of Registrable Securities proposed to be included Registered by the Initiating Holder(s) is reduced pursuant to Section 2.1(e)(iii), such Registration shall not count toward the limit of two (2) Registrations referred to in the offering preceding sentence.
(b) Right of Deferral of Registration on Form Other than Form S-3. If the Company shall furnish to fewer than the number that has been requested for Registration, then each Holder's Registrable Securities shall be included all such Holders who joined in the underwriting pro rata, based on the total number of Registrable Securities held by the participating Holders.
2.3 Registrations under this Section 2 are subject to the following limitations: (i) the Company need not prepare or file a request for any Registration Statement pursuant to a Demand Notice within one hundred eighty (180Section 2.1(a) days after the effective date of any Registration Statement filed by the Company in which the Holders party to the Demand Notice could have included their Registrable Securities; (ii) the Company may delay the effectiveness of a Demand Notice for a period of not more than six months after receipt of a Demand Notice in any 12-month period if the Company furnishes a certificate signed by its president the President of the Company stating that that, in the good faith judgment of the Company's board of directors Board, it would be detrimental to the Company for the any Registration Statement to be effected at such time; and (iii) as requested under Section 2.1(a), the Company need not prepare or file shall have the right to defer the filing of a Registration Statement pursuant with respect to such requested Registration for a Demand Notice if it is then preparing a Registration Statement in connection with an underwritten public offering period of Company securitiesnot more than one hundred twenty (120) days from delivery of the request of the Initiating Holders; provided, and however, that the Company may delay not utilize this right more than once in any twelve-month period.
(c) Request for Registration on Form S-3. Subject to the effectiveness terms of this Agreement, in the event that the Company receives from one or more Initiating Holders a written request that the Company effect any Registration on Form S-3 (or any successor form to Form S-3 regardless of its designation) at a time when the Company is eligible to Register securities on Form S-3 (or any successor form to Form S-3 regardless of its designation) for an offering of Registrable Securities, the Company will promptly give written notice of the proposed Registration to all other Holders and will as soon as practicable use its best efforts to effect Registration of the Registrable Securities specified in such request, together with all of such Demand Notice until one hundred eighty Registrable Securities of any Holder joining in such request as are specified in a written request delivered to the Company within twenty (18020) business days after written notice from the effective date Company of the proposed Registration on Form S-3. There shall be no limit to the number of occasions on which the Company shall be obligated to effect Registration under this Section 2.1(c), but the Company shall not be required to effect more than two (2) such Registration StatementRegistrations in any calendar year.
Appears in 1 contract
Samples: Senior Registration Rights Agreement (Airnet Communications Corp)
Demand Registration. 2.1 After (a) If the earlier Company receives at any time six (6) months after the closing of the Company's Initial Public Offering, a written request from the Holders of at least twenty-five percent (25%) of the Registrable Securities then outstanding that the Company file a registration on Form S-l (or similar successor forms) under the Securities Act covering the registration of the Registrable Securities for a public offering price of the Registrable Securities that would involve a reasonably anticipated aggregate price to the public of $5,000,000 or more (before underwriting fees, expenses, commissions and discounts), then the Company shall within ten (10) business days after the receipt thereof, give written notice of such request to all Holders, and use its best efforts to effect, as soon as practicable, the registration under the Securities Act of all Registrable Securities that the Holders request to be registered and included in such registration, subject only to the limitations of this Section 1.4; provided, that (i) the first anniversary Company may, if its Board of Directors so determines in the date exercise of its reasonable good faith judgment that due to a pending or contemplated acquisition or disposition or public offering or other similar transaction involving the Company it would be inadvisable to effect such registration pursuant to this AgreementSection 1.4 at such time, defer such registration for a single period not to exceed ninety (90) calendar days in any six (6) month period, and (ii) if the consummation of an IPO or (iii) a Spin-Off or Hostile Change in Control at any time, Holders of at least fifty percent (50%) of all Registrable Securities then held by parties Company elects to this Agreement (or in defer the case of a Spin-Off the percentage of Registrable Securities equal to the proportion which the majority of the number shares of Common acquired registration pursuant to the Subscription Agreement bears to all Registrable Securities at the time terms of the Spin-Off) may request the Company to Register any or all of their Registrable Securities (a "Demand Notice"). Demand Notices this sentence, it shall be made in writing and shall specify notify the Holders making the Demand Notice, registration request in writing of such deferral and no registration shall be deemed to have occurred for purposes of this Agreement.
(b) If the number and type of Registrable Securities that each requests Holders initiating the registration under this Section 1.4 (the "Initiating Holders") intend to be Registered, whether distribute the Registrable Securities will covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.4 and the Company shall include such information in the written notice referred to in Section 1.4(a) hereof In such event, the right of any Holder to include such Holder's Registrable Securities in such registration shall be sold conditioned upon Holder's participation in such underwriting and the inclusion of such Holder's Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall enter into an underwriterunderwriting agreement in customary form with the managing underwriter or underwriters selected by the Company for such underwriting.
(c) The Company is obligated to effect only one (1) such registration pursuant to this Section 1.4.
(d) All expenses incurred in connection with the registrations effected pursuant to this Section 1.4 and one of the registrations pursuant to Section 4 hereof, including, without limitation all federal and "blue sky" registration and qualification fees, printers' and accounting fees and disbursements of counsel for the Company (but excluding underwriters. Fees, expenses, commissions, and if sodiscounts which shall be borne pro rata by the participating Holders) and with respect to a registration pursuant to this Section 1.4, the underwriters name, address, telephone number and contact person. The Company will prepare and file a Registration Statement in accordance with Section 4 up to Twenty-Five Thousand Dollars ($25,000.00) for the Registrable Securities to reasonable legal expenses of a single legal counsel for the participating Holders (together the "Registration Expenses") shall be Registered pursuant to a valid Demand Noticeborne by the Company; provided provided, however that the Company shall not be required to prepare or file a Registration Statement pay the expenses of any registration under this Section 2 more than once in any twelve (12) month period1.4, more than twice after an IPO or more than three (3) times in total. Registrations the request for which has been subsequently withdrawn by the Initiating Holders unless such Initiating Holders elect to treat such withdrawn registration request as a completed, effective registration for purposes of determining the number of registrations the Company may be required to effect pursuant to Demand Notices are subject to the further limitations set forth this Section 1.4, in Section 2.3.
2.2 Within ten (10) days from its receipt of a valid Demand Notice, the Company shall deliver written notice to all Holders that, pursuant to a Demand Notice, the Company will prepare and file a Registration Statement. Any Holder who was not a party to the Demand Notice may, within ten (10) days from receipt of the Company's notice, request the Company to include the Holder's Registrable Securities in the Registration Statement. If which case the Holders that initiated a Demand Notice specify therein that they intend to distribute their Registrable Securities through an underwriter, then each Holder that requests inclusion in the Registration Statement must participate in such underwriting, and become party to any required agreements, including, but not limited to, customary underwriting and indemnification agreements. The Company shall have the right to approve any underwriter, which approval shall not be unreasonably withheld. In the event that the underwriter limits the number of Registrable Securities to be included in have been registered shall bear all such Registration Expenses pro rata on the offering to fewer than basis of the number that has of shares to have been requested for Registration, then each registered. Each Holder participating in a registration pursuant to this Section 1.4 shall bear such Holder's Registrable Securities shall be included proportionate share of all discounts, commissions or other amounts payable to underwriters in the underwriting pro rata, based on the total number of Registrable Securities held by the participating Holdersconnection with such offering.
2.3 Registrations (e) The Holders' rights under this Section 2 are subject to the following limitations: (i) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice within one hundred eighty (180) days after the effective date of any Registration Statement filed by the Company in which 1.4 shall terminate when the Holders party are permitted to the Demand Notice could have included sell their Registrable Securities; (ii) Securities under Rule 144 under the Company may delay the effectiveness of a Demand Notice for a period of not more than six months after receipt of a Demand Notice in any 12-month period if the Company furnishes a certificate signed by its president stating that in the good faith judgment of the Company's board of directors it would be detrimental Securities Act without regard to the Company for the Registration Statement to be effected at such time; and (iii) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice if it is then preparing a Registration Statement in connection with an underwritten public offering of Company securities, and the Company may delay the effectiveness of such Demand Notice until one hundred eighty (180) days after the effective date of such Registration Statementvolume limitations set forth therein.
Appears in 1 contract
Demand Registration. 2.1 After the earlier of (i) If the first anniversary Corporation receives at any time after six (6) months after the closing of the date Corporation's first underwritten public offering of this Agreementshares pursuant to a registration statement, a written request from (iiA) the consummation of an IPO or (iii) a Spin-Off or Hostile Change in Control at any time, Holders of at least fifty percent (50%) of all shares of the Investor Registrable Securities then held by parties to this Agreement outstanding excluding Holders described in clause (B) hereof, or in the case of a Spin-Off the percentage of Registrable Securities equal to the proportion which the majority of the number (B) any Holder who purchased more than 650,000 shares of Common acquired Series D Preferred Stock issued pursuant to the Subscription Purchase Agreement bears to all Registrable Securities at the time of the Spin-Off) may request the Company to Register any or all of their Registrable Securities (a "Demand NoticeSeries D Holder"). Demand Notices shall be made in writing and shall specify , that the Holders making Corporation file a registration statement on Form S-1 (or similar successor forms) under the Demand Notice, Securities Act covering the number and type registration of the Investor Registrable Securities that each requests to be Registeredhaving an aggregate offering price, whether before deduction of underwriter discounts and commissions, of at least $5,000,000, then the Registrable Securities will be sold through an underwriter, and if so, the underwriters name, address, telephone number and contact person. The Company will prepare and file a Registration Statement in accordance with Section 4 for the Registrable Securities to be Registered pursuant to a valid Demand Notice; provided that the Company shall not be required to prepare or file a Registration Statement under this Section 2 more than once in any twelve (12) month period, more than twice after an IPO or more than three (3) times in total. Registrations pursuant to Demand Notices are subject to the further limitations set forth in Section 2.3.
2.2 Within ten (10) days from its receipt of a valid Demand Notice, the Company shall deliver written notice to all Holders that, pursuant to a Demand Notice, the Company will prepare and file a Registration Statement. Any Holder who was not a party to the Demand Notice mayCorporation shall, within ten (10) business days from after the receipt thereof, give written notice of such request to all Holders, and use its best efforts to effect, as soon as practicable, the Company's notice, request registration under the Company to include the Holder's Securities Act of all Investor Registrable Securities which the Holders request to be registered and included in such registration, subject only to the Registration Statement. limitations of this Section 6(d).
(ii) If the Holders that initiated a Demand Notice specify therein that they initiating the registration request under this Section 6(d) ("Initiating Holders") intend to distribute their the Investor Registrable Securities through covered by their request by means of an underwriterunderwriting, then each Holder that requests inclusion they shall so advise the Corporation as a part of their request made pursuant to this Section 6(d) and the Corporation shall include such information in the Registration Statement must participate in such underwriting, and become party to any required agreements, including, but not limited to, customary underwriting and indemnification agreements. written notice
(iii) The Company shall have the right to approve any underwriter, which approval Corporation shall not be unreasonably withheld. obligated to effect, or take any action to effect, any such registration pursuant to this Section 6(d):
(A) In any particular jurisdiction in which the event that Corporation would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance except as may be required by the underwriter limits Securities Act;
(B) After the number Corporation has initiated four (4) such registrations pursuant to this Section 6(d) two of which may only be initiated by a Series D Holder and two of which may only be initiated by Holders of Registrable Securities to be included in who are not Series D Holders;
(C) During the offering to fewer than period starting with the number that has been requested for Registration, then each Holder's Registrable Securities shall be included in the underwriting pro rata, based on the total number of Registrable Securities held by the participating Holders.
2.3 Registrations under this Section 2 are subject date sixty (60) days prior to the following limitations: (i) Corporation's good faith estimate of the Company need not prepare or file date of filing of, and ending on a Registration Statement pursuant to a Demand Notice within date one hundred eighty (180) days after the effective date of, a Corporation-initiated registration; provided that the Corporation is actively employing in good faith all reasonable efforts to cause such registration statement to become effective;
(D) If the Initiating Holders propose to dispose of any Registration Statement filed by shares of Investor Registrable Securities which may be immediately registered on Form S-3 pursuant to a request made under Section 6(f) hereof;
(E) If, (1) in the Company in which good faith judgement of the Board of Directors of the Corporation such registration would be seriously detrimental to the Corporation and the Board of Directors of the Corporation concludes, as a result, that it is essential to defer the filing of such registration statement at such time, and (2) the Corporation shall furnish to the Holders party to the Demand Notice could have included their Registrable Securities; (ii) the Company may delay the effectiveness of a Demand Notice for a period of not more than six months after receipt of a Demand Notice in any 12-month period if the Company furnishes a certificate signed by its president the President of the Corporation stating that in the good faith judgment judgement of the Company's board Board of directors Directors of the Corporation, it would be seriously detrimental to the Company Corporation for the Registration Statement such registration statement to be effected at filed in the near future and that it is, therefore, essential to defer the filing of such time; and registration statement, then the
(iiiiv) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice if it is then preparing a Registration Statement All expenses incurred in connection with an underwritten public offering of Company securitiesany demand registration effected pursuant to this Section 6(d), including without limitation all federal and "blue sky" registration and qualification fees, printers' and accounting fees, and fees and disbursements of counsel for the Company may delay Corporation (but excluding underwriters' discounts and commissions and expenses of special counsel of selling Holders)(the "Registration Expenses") shall be borne by the effectiveness Corporation. In addition, each Holder participating in a registration pursuant to this Section 6(d) shall bear its proportionate share of all discounts, commissions or other amounts payable to underwriters in connection with such Demand Notice until one hundred eighty (180) days after the effective date of such Registration Statementoffering.
Appears in 1 contract
Demand Registration. 2.1 After (a) One or more Stockholders which shall have maintained continuous beneficial ownership, individually or in the earlier of (i) aggregate, following the first anniversary of the date of this Agreement, (ii) the consummation of an IPO or (iii) a Spin-Off or Hostile Change in Control at any time, Holders Closing of at least fifty percent 10% of the Fully-Diluted Shares (50%excluding any Fully- Diluted Shares sold or otherwise disposed of by any Stockholder after the Closing, if even subsequently reacquired) shall have the right, at any time after the 90th day following successful launch and commercially viable operation, for a period of all 60 consecutive days, of QuickBird 1, or any successor to such satellite, to request that the Company register, in an underwritten public offering or otherwise, under the 1933 Act, Registrable Securities then with an aggregate fair market value of at least $5,000,000 held by parties it or them (any registration resulting from such a request a "Demand Registration," with such Stockholder or Stockholders making such request the "Demanding Stockholder"); provided, however, that the Other Holders shall have no right to this Agreement (or in request a Demand Registration prior to 180 days following an Initial Public Offering. A request for a Demand Registration shall specify the case number of a Spin-Off the percentage shares of Registrable Securities equal proposed to the proportion which the majority of the number shares of Common acquired be sold. A registration made pursuant to such a request shall not qualify as a Demand Registration hereunder until (a) the Subscription Agreement bears registration statement relating thereto has been declared effective by the SEC and (b) the Demanding Stockholder is able to all Registrable Securities register and sell at the time least 75% of the Spin-Off) may request the Company to Register any or all of their Registrable Securities (a "Demand Notice"). Demand Notices shall be made in writing and shall specify the Holders making the Demand Notice, the number and type of Registrable Securities that each requests to be Registered, whether the Registrable Securities will requested to be sold through an underwriter, and if so, the underwriters name, address, telephone number and contact personincluded in such registration. The Company will prepare and file a Registration Statement in accordance with Section 4 for the Registrable Securities to be Registered pursuant to a valid Demand Notice; provided that the Company shall not be required to prepare or file a Registration Statement effect, and each of ITT, the B Holders and the Other Holders shall not be entitled to request, more than three registrations each per ITT, the B Holders and the Other Holders under this Section 2 5.2.
(b) Promptly (but in no event more than once in any twelve (12ten days) month period, more than twice after an IPO or more than three (3) times in total. Registrations pursuant to Demand Notices are subject to the further limitations set forth in Section 2.3.
2.2 Within ten (10) days from its receipt of a valid request for a Demand NoticeRegistration, the Company shall deliver provide notice of such request to the non-Demanding Stockholders, and such non-Demanding Stockholder shall have the right, within 10 days after the date of receipt of such notice from the Company, to request that the Company include in the offering to which the Demand Registration relates all or a portion of such non-Demanding Stockholders' Registrable Securities.
(c) The Company shall not include in any Demand Registration any securities that are not Registrable Securities without the prior written notice to all Holders consent of the Demanding Stockholder. If a Demand Registration is an underwritten offering and the managing underwriters advise the Company in writing that, pursuant in their opinion, the number or class of Registrable Securities and, if permitted hereunder, other securities requested to a Demand Noticebe included in such offering, exceeds the number or class of Registrable Securities and other securities, if any, which can be sold therein without adversely affecting the marketability of the offering, the Company will prepare and file a shall include in such Demand Registration Statement. Any Holder who was not a party (A) first, the number of Registrable Securities requested to be included in such registration by any Stockholders pro rata, if necessary, among such Stockholders based on the Demand Notice maynumber of Registrable Securities owned by each such Stockholder, within ten (10B) days from receipt second, the number of equity securities to be registered for the account of the Company's notice, request and (C) third, any other securities of the Company requested to include be included in such registration pro rata, if necessary, on the Holder's Registrable Securities basis of the number of such other securities owned by each holder of such other securities.
(d) Notwithstanding the foregoing, if the Company shall furnish to the Demanding Stockholder a certificate signed by an officer of the Company stating that, in the Registration Statement. If reasonable good faith judgment of the Holders that initiated a Demand Notice specify therein that they intend Board, it would not be in the best interests of the Company and its stockholders for such registration to distribute their Registrable Securities through be effected (because the Company is engaging in or intends to engage in an underwriteracquisition, divestiture or other material transaction or due to other extraordinary events relating to the Company, but, in any case, not including for purposes of the Company avoiding its obligations hereunder), then each Holder that requests inclusion in the Registration Statement must participate in such underwriting, and become party to any required agreements, including, but not limited to, customary underwriting and indemnification agreements. The Company shall have the right to approve any underwriter, which approval shall not be unreasonably withheld. In the event that the underwriter limits the number of Registrable Securities to be included in the offering to fewer than the number that has been requested for Registration, then each Holder's Registrable Securities shall be included in the underwriting pro rata, based on the total number of Registrable Securities held by the participating Holders.
2.3 Registrations under this Section 2 are subject to the following limitations: (i) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice within one hundred eighty (180) days after the effective date of any Registration Statement filed by the Company in which the Holders party to the Demand Notice could have included their Registrable Securities; (ii) the Company may delay the effectiveness of a Demand Notice defer such registration for a period of not more than six months 90 days after receipt of a Demand Notice in any 12-month period if the request of the Demanding Stockholder; provided, however, that (i) the Company furnishes shall not be entitled to defer its obligation to effect a certificate signed by registration for an aggregate of more than 180 days within any 365-day period and (ii) the Company shall make and communicate to the selling Stockholders its president stating that determinations under this paragraph in the good faith judgment respect of a registration under this Section 5.2 within 15 days of the Company's board receipt of directors it would be detrimental the Demand Registration notice in respect of such registration or, to the Company for extent reasonably practicable, promptly after becoming aware of such transaction.
(e) The Demanding Stockholder shall select the Registration Statement to be effected at such time; book-running and (iii) the Company need not prepare or file a Registration Statement other managing underwriters in connection with an offering pursuant to a Demand Notice if it is then preparing a Registration Statement Registration, and any additional investment bankers and managers to be used in connection with an underwritten public offering of Company securitiesthe offering, and in each case which shall be reasonably satisfactory to the Company may delay the effectiveness of such Demand Notice until one hundred eighty (180) days after the effective date of such Registration StatementCompany.
Appears in 1 contract
Demand Registration. 2.1 After (a) At any time after the earlier of (i) the first anniversary of 180th day following the date of this Agreement, initial Public Offering by the Company and (ii) the consummation fourth anniversary of an IPO the Closing Date (so long as such fourth anniversary is not within 180 days of the initial Public Offering by the Company), upon the written request of (x) any Registration Rights Holder or (iii) a Spin-Off or Hostile Change Registration Rights Holders holding, in Control at any timethe aggregate, Holders the equivalent of at least fifty percent 20% of the aggregate outstanding Ordinary Shares and Non-Voting Ordinary Shares held by Shareholders (50%the Registration Rights Holder or Registration Rights Holders making such request, a "20% Demand Party") or (y) any single Registration Rights Holder holding the equivalent of at least 10% of the aggregate outstanding Ordinary Shares and Non-Voting Ordinary Shares held by Shareholders (such Registration Rights Holder making such request, a "10% Demand Party") requesting that the Company effect the registration under the Securities Act of all or part of such Demand Party's Registrable Securities then held by parties and specifying the amount and intended method of disposition thereof, the Company will promptly give written notice of such requested registration to this Agreement (or in the case of a Spin-Off the percentage other holders of Registrable Securities equal and other holders of securities entitled to notice of such registration and thereupon will, as expeditiously as possible, file a registration statement to effect the registration under the Securities Act of:
(i) such Registrable Securities which the Company has been so requested to register by the Registration Rights Holders; and
(ii) the Registrable Securities of other holders which the Company has been requested to register by written request given to the proportion which Company within 15 days after the majority giving of the number shares of Common acquired pursuant to the Subscription Agreement bears to all Registrable Securities at the time of the Spin-Off) may request such written notice by the Company to Register any or all of their Registrable Securities (a "Demand Notice"). Demand Notices shall be made in writing and which request shall specify the Holders making amount and intended method of disposition of such securities); all to the Demand Notice, extent necessary to permit the number and type disposition (in accordance with the intended method thereof as aforesaid) of Registrable Securities that each requests to be Registered, whether the Registrable Securities will be sold through an underwriter, and if so, the underwriters name, address, telephone number and contact person. The Company will prepare and file a Registration Statement in accordance with Section 4 for the Registrable Securities such other securities so to be Registered pursuant to a valid Demand Noticeregistered; provided that the Company shall not be required to prepare or file effect the registration of Registrable Securities (i) at the request of a Registration Statement 20% Demand Party under this Section 2 more than once in any twelve (123.2(a) month period, more than twice after an IPO or on more than three occasions, and (3ii) times in total. Registrations pursuant to Demand Notices are subject to at the further limitations set forth in Section 2.3.
2.2 Within ten (10) days from its receipt request of a valid 10% Demand NoticeParty under this Section 3.2(a) on more than one occasion with respect to each such 10% Demand Party; provided, that the Company shall deliver written notice not be obligated to all Holders that, pursuant to a Demand Notice, the Company will prepare and file a Registration Statement. Any Holder who was not a party to the Demand Notice may, within ten (10) days from receipt of the Company's notice, request the Company to include the Holder's Registrable Securities in the Registration Statement. If the Holders that initiated a Demand Notice specify therein that they intend to distribute their Registrable Securities through an underwriter, then each Holder that requests inclusion in the Registration Statement must participate in such underwriting, and become party registration statement relating to any required agreements, including, but not limited to, customary underwriting and indemnification agreements. The Company shall have the right to approve any underwriter, which approval shall not be unreasonably withheld. In the event that the underwriter limits the number of Registrable Securities to be included in the offering to fewer than the number that has been requested for Registration, then each Holder's Registrable Securities shall be included in the underwriting pro rata, based on the total number of Registrable Securities held by the participating Holders.
2.3 Registrations registration request under this Section 2 are subject to the following limitations: (i) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice within one hundred eighty (180) days after the effective date of any Registration Statement filed by the Company in which the Holders party to the Demand Notice could have included their Registrable Securities; (ii) the Company may delay the effectiveness of a Demand Notice for a period of not more than six months after receipt of a Demand Notice in any 12-month period if the Company furnishes a certificate signed by its president stating that in the good faith judgment of the Company's board of directors it would be detrimental to the Company for the Registration Statement to be effected at such time; and (iii) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice if it is then preparing a Registration Statement in connection with an underwritten public offering of Company securities, and the Company may delay the effectiveness of such Demand Notice until one hundred eighty (180) days after the effective date of such Registration Statement.3.2(a):
Appears in 1 contract
Samples: Shareholder Agreement (Seagate Technology Malaysia Holding Co Cayman Islands)
Demand Registration. 2.1 After (a) If the earlier Company shall receive from any member of the Snow Xxxxxx Group or the TOBI Group (each, a “Requesting Equity Holder”) a written request that the Company effect a registration with respect to all or a part of the Registrable Shares held by such Requesting Equity Holder (a “Demand Registration”, which term shall include any Marketed Underwritten Demand Registration and demands for a Marketed Underwritten Takedown Offering), then the Company will:
(i) the first anniversary of within ten (10) days after the date of this Agreementsuch request, give written notice of the proposed registration to all Equity Holders (other than the Requesting Equity Holder) and the holders of Other Shares; and
(ii) use its reasonable best efforts to, as soon as practicable and in any event within ninety (90) days, in the consummation case of an IPO or (iii) any registration of shares conducted on a Spin-Off or Hostile Change in Control at any time, Holders of at least fifty percent (50%) of all Registrable registration statement on Form S-1 under the Securities then held by parties to this Agreement Act (or any comparable or successor form or forms thereto) or within forty-five (45) days, in the case of a Spinregistration of shares conducted on a registration statement on Form S-3 under the Securities Act (or any comparable or successor form or forms thereto, a “Form S-3”), effect such registration (which shall, in the case of a secondary offering, be on Form S-3 if the Company is qualified for registration on Form S-3 at such time) (including, without limitation, the execution of an undertaking to file post-Off effective amendments, appropriate qualifications under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the percentage Securities Act) as may be so requested and as would permit or facilitate the sale and distribution of all of such Registrable Securities equal Shares as are specified in such request, together with all or such portion of (A) the other Registrable Shares joining in such request as are specified in a written request from any Equity Holder received by the Company, (B) any Other Shares entitled to participate therein as are specified in a written request from the proportion which holders of such Other Shares received by the majority of Company, and/or (C) any Primary Shares proposed to be included in such registration by the number shares of Common acquired pursuant to the Subscription Agreement bears to all Registrable Securities at the time of the Spin-Off) may request Company by notice from the Company to Register any or all of their Registrable Securities the Requesting Equity Holder, in each case within twenty (a "Demand Notice"). Demand Notices shall be made in writing and shall specify 20) days after written notice from the Holders making the Demand Notice, the number and type of Registrable Securities that each requests to be Registered, whether the Registrable Securities will be sold through an underwriter, and if so, the underwriters name, address, telephone number and contact person. The Company will prepare and file a Registration Statement in accordance with is given under Section 4 for the Registrable Securities to be Registered pursuant to a valid Demand Notice2(a)(i) above; provided that the Company shall not be obligated to effect, or take any action to effect, any such registration pursuant to this Section 2(a):
(1) In any particular jurisdiction in which the Company would be required to prepare execute a general consent to service of process in effecting such registration, qualification or file a Registration Statement under this Section 2 more than once in any twelve (12) month periodcompliance, more than twice after an IPO or more than three (3) times in total. Registrations pursuant to Demand Notices are unless the Company is already subject to service in such jurisdiction and except as may be required by the further limitations set forth in Section 2.3.Securities Act or applicable rules or regulations thereunder;
2.2 Within ten (102) days from its receipt of a valid Demand Notice, If the Company shall deliver written notice furnish to all Holders that, pursuant to the Requesting Equity Holder a Demand Notice, certificate signed by the Chief Executive Officer (or other authorized officer) of the Company will prepare and file a Registration Statement. Any Holder who was not a party to stating that in the Demand Notice may, within ten (10) days from receipt reasonable discretion of the Company's notice, request Company the registration statement (i) would require the Company to include the Holder's Registrable Securities in the Registration Statement. If the Holders that initiated a Demand Notice specify therein that they intend to distribute their Registrable Securities through make an underwriter, then each Holder that requests inclusion in the Registration Statement must participate in such underwriting, and become party to any required agreements, including, but not limited to, customary underwriting and indemnification agreements. The Company shall have the right to approve any underwriter, which approval shall Adverse Disclosure or (ii) could not be unreasonably withheld. In the event that the underwriter limits the number of Registrable Securities to be included in the offering to fewer than the number that has been requested for Registration, then each Holder's Registrable Securities shall be included in the underwriting pro rata, based on the total number of Registrable Securities held by the participating Holders.
2.3 Registrations under this Section 2 are subject to the following limitations: (i) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice within one hundred eighty (180) days after the effective date of any Registration Statement filed effected by the Company in which compliance with the Holders party applicable financial statement requirements under applicable securities laws, the Company’s obligation to use its reasonable best efforts to comply with this Section 2(a), and its related obligations under Section 5, shall be deferred (provided that the Company shall only be permitted two deferrals pursuant to this Section 2(a)(ii)(2) and Section 2(d)(iv), in the aggregate, in any twelve-month period, with such deferrals not to exceed an aggregate of 90 days);
(3) If the Requesting Equity Holder and its Group propose to register Registrable Shares at an expected offering price, net of underwriter discounts and commissions, of less than $10,000,000 (net of Registration Expenses) in the aggregate; provided that this clause (4) shall not apply to a Shelf Registration covering an unspecified number of shares in accordance with Section 2(b);
(4) With respect to an aggregate of more than four (4) Demand Registrations and/or Takedown Demands (as defined herein) initiated by the Snow Xxxxxx Group in any calendar year, excluding any Demand Registrations and Takedown Demands that are terminated by the Snow Xxxxxx Group in accordance with Section 2(b) below; or
(5) With respect to an aggregate of more than one (1) Demand Registration or Takedown Demand (as defined herein) initiated by the TOBI Group, excluding any Demand Registrations and Takedown Demands that are terminated by the TOBI Group in accordance with Section 2(d)(ii) below. Subject to the Demand Notice could have included their Registrable Securities; (iiprovisions of Section 2(e) below, the Company may delay the effectiveness of a Demand Notice for a period of not more than six months after receipt of a Demand Notice may, in any 12-month period if the Company furnishes a certificate signed by its president stating that sole discretion, include Other Shares in the good faith judgment registration statement filed pursuant to the request of the Company's board of directors it would be detrimental to the Company for the Registration Statement to be effected at such time; and (iii) the Company need not prepare or file a Registration Statement Requesting Equity Holders pursuant to a Demand Notice if it is then preparing a Registration Statement in connection with an underwritten public offering of Company securities, and the Company may delay the effectiveness of such Demand Notice until one hundred eighty (180) days after the effective date of such Registration Statementthis Section 2(a).
Appears in 1 contract
Samples: Registration Rights Agreement (Velocity Financial, LLC)
Demand Registration. 2.1 After As --------------------- ------------------- provided for in Section 2.2, the earlier of (i) Company may include in a Demand Registration Equity Shares for the first anniversary account of the date of this Agreement, (ii) the consummation of an IPO or (iii) a Spin-Off or Hostile Change in Control at any time, Holders of at least fifty percent (50%) of all Registrable Securities then held by parties to this Agreement (or in the case of a Spin-Off the percentage of Registrable Securities equal to the proportion which the majority of the number shares of Common acquired pursuant to the Subscription Agreement bears to all Registrable Securities at the time of the Spin-Off) may request the Company to Register any or all of their Registrable Securities (a "Demand Notice"). Demand Notices shall be made in writing and shall specify the Holders making the Demand NoticeCompany, the number other Holders or other holders thereof exercising contractual piggy back or demand rights, on the same terms and type of Registrable Securities that each requests to be Registered, whether the Registrable Securities will be sold through an underwriter, and if so, the underwriters name, address, telephone number and contact person. The Company will prepare and file a Registration Statement in accordance with Section 4 for conditions as the Registrable Securities to be Registered pursuant to a valid included therein for the account of the Holder commencing the Demand NoticeRegistration; provided provided, however, that (i) if the managing Underwriter or Underwriters of any underwritten offering described in Section 2.1 have informed the Company in writing that it is their opinion that the Company shall not be required to prepare or file a Registration Statement under this Section 2 more than once in any twelve (12) month period, more than twice after an IPO or more than three (3) times in total. Registrations pursuant to Demand Notices are subject to the further limitations set forth in Section 2.3.
2.2 Within ten (10) days from its receipt total number of a valid Demand Notice, Equity Shares which the Company shall deliver written notice to all and the Holders that, pursuant to a Demand Notice, the Company will prepare and file a Registration Statement. Any Holder who was not a party to the Demand Notice may, within ten (10) days from receipt of the Company's notice, request the Company any other holders participating therein intend to include in such offering is such as to materially and adversely affect the Holder's Registrable Securities in the Registration Statement. If the Holders that initiated a Demand Notice specify therein that they intend to distribute their Registrable Securities through an underwritersuccess of such offering, then each Holder that requests inclusion in the Registration Statement must participate in such underwriting, and become party to any required agreements, including, but not limited to, customary underwriting and indemnification agreements. The Company shall have the right to approve any underwriter, which approval shall not be unreasonably withheld. In the event that the underwriter limits (x) the number of Registrable Securities Equity Shares to be offered for the account of such other holders (if any) shall be reduced (to zero, if necessary), in the case of this clause (x) pro rata in proportion to the respective number of Equity Shares requested to be registered, (y) thereafter, if necessary, the number of Equity Shares to be offered for the account of the Company (if any) shall be reduced (to zero, if necessary) and (z) thereafter, if necessary, the number of Equity Shares to be offered for the account of the Holders (including the Holder commencing the Demand Registration) shall be reduced pro rata in proportion to the respective number of Equity Shares requested to be registered to the extent necessary to reduce the total number of Equity Shares requested to be included in the such offering to fewer than the number that has been requested for Registrationof Equity Shares, then each Holder's Registrable Securities shall be included in the underwriting pro rataif any, based on the total number of Registrable Securities held recommended by the participating Holders.
2.3 Registrations under this Section 2 are subject to the following limitations: (i) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice within one hundred eighty (180) days after the effective date of any Registration Statement filed by the Company in which the Holders party to the Demand Notice could have included their Registrable Securities; such managing Underwriters and (ii) the Company may delay the effectiveness of a Demand Notice for a period of not more than six months after receipt of a Demand Notice in any 12-month period if the Company furnishes a certificate signed by its president stating that in the good faith judgment of offering is not underwritten, no other party, including the Company's board of directors it would , shall be detrimental permitted to offer securities under any such Demand Registration unless the Holder commencing the Demand Registration consents to the Company for the Registration Statement inclusion of such Equity Shares therein, such consent not to be effected at such time; and (iii) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice if it is then preparing a Registration Statement in connection with an underwritten public offering of Company securities, and the Company may delay the effectiveness of such Demand Notice until one hundred eighty (180) days after the effective date of such Registration Statementunreasonably withheld.
Appears in 1 contract
Demand Registration. 2.1 After (a) At any time and from time to time, Investor may make written requests on the earlier of (i) Company for the first anniversary registration under the Securities Act of the date shares of this Agreement, Company common stock (iithe "COMMON STOCK") issuable upon conversion of the consummation Series A Stock (the "CONVERSION SHARES") having an anticipated aggregate offering price (net of an IPO or (iiidiscounts and commissions) a Spin-Off or Hostile Change in Control at any time, Holders of at least fifty percent (50%) of all Registrable Securities then held by parties to this Agreement (or in the case of a Spin-Off the percentage of Registrable Securities equal to the proportion which the majority of the number shares of Common acquired pursuant to the Subscription Agreement bears to all Registrable Securities at the time of the Spin-Off) may request the Company to Register any or all of their Registrable Securities (a "Demand Notice"). Demand Notices shall be made in writing and shall specify the Holders making the Demand Notice, the number and type of Registrable Securities that each requests to be Registered, whether the Registrable Securities will be sold through an underwriter, and if so, the underwriters name, address, telephone number and contact person. The Company will prepare and file a Registration Statement in accordance with Section 4 for the Registrable Securities to be Registered pursuant to a valid Demand Notice; provided that the Company shall not be required to prepare or file a Registration Statement under this Section 2 more than once in any twelve (12) month period, more than twice after an IPO or more than three (3) times in total. Registrations pursuant to Demand Notices are subject to the further limitations set forth in Section 2.3.
2.2 Within ten (10) days from its receipt of a valid Demand Notice, the Company shall deliver written notice to all Holders that, pursuant to a Demand Notice, the Company will prepare and file a Registration Statement. Any Holder who was not a party to the Demand Notice may, within ten (10) days from receipt of the Company's notice, request the Company to include the Holder's Registrable Securities in the Registration Statement. If the Holders that initiated a Demand Notice specify therein that they intend to distribute their Registrable Securities through an underwriter, then each Holder that requests inclusion in the Registration Statement must participate in such underwriting, and become party to any required agreements, including, but not limited to, customary underwriting and indemnification agreements$5,000,000. The Company shall have no obligation to file more than two (2) registration statements under the right Securities Act with respect to approve such requests; provided, however, that if the Conversion Shares may be registered on Form S-3 (or any underwritersuccessor form with similar "short form" disclosure requirements), which approval the Investor shall not have unlimited rights to request registration of its Conversion Shares on Form S-3 (or such successor form), provided, however, that each such registration of Conversion Shares shall have an anticipated aggregate offering price (net of discounts and commissions) of at least $500,000. Each such request described in the preceding two sentences shall be unreasonably withheld. In the event that the underwriter limits hereinafter referred to as a "DEMAND REGISTRATION." Any Demand Registration will specify the number of Registrable Securities Conversion Shares proposed to be included sold and will also specify the intended method of disposition thereof.
(b) A registration will not be deemed to have been effected as a Demand Registration unless it has been declared effective by the Securities and Exchange Commission (the "Commission") and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, the offering of shares of Common Stock pursuant to fewer than such registration is or becomes the number that has been requested for Registrationsubject of any stop order, then each Holder's Registrable Securities shall be included in injunction or other order or requirement of the underwriting pro rataCommission or any other governmental or administrative agency, based on or if any court prevents or otherwise limits the total number sale of Registrable Securities held by the participating Holders.
2.3 Registrations under this Section 2 are subject shares of Common Stock pursuant to the following limitations: (i) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice registration at any time within one hundred eighty (180) days after the effective date of any Registration Statement filed by the Company in which the Holders party registration statement, such registration will be deemed not to the Demand Notice could have included their Registrable Securities; been effected. If (i) a registration requested pursuant to this Section 4.1 is deemed not to have been effected or (ii) the Company may delay the effectiveness of a Demand Notice registration requested pursuant to this Section 4.1 does not remain effective for a period of not more than six months after receipt of a Demand Notice in any 12-month period if the Company furnishes a certificate signed by its president stating that in the good faith judgment of the Company's board of directors it would be detrimental to the Company for the Registration Statement to be effected at such time; and (iii) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice if it is then preparing a Registration Statement in connection with an underwritten public offering of Company securities, and the Company may delay the effectiveness of such Demand Notice until least one hundred eighty (180) days beyond the effective date thereof or, with respect to an underwritten offering of Conversion Shares, until ninety (90) days after the commencement of the distribution by the Investor of the Conversion Shares included in such registration statement, then the Company shall continue to be obligated to effect such registration pursuant to this Section 4.1. The Investor shall be permitted to withdraw all or any part of the Conversion Shares from a Demand Registration at any time prior to the effective date of such Demand Registration.
(c) If the Investor so elects, the offering of Conversion Shares pursuant to Demand Registration Statementshall be in the form of an underwritten offering. The Investor shall select one or more nationally recognized firms of investment bankers reasonably acceptable to the Company to act as the lead managing underwriter (the "Underwriter") in connection with such offering and shall select any additional investment bankers and managers to be used in connection with the offering.
Appears in 1 contract
Demand Registration. 2.1 After (a) Subject to the earlier conditions of this Section 2.1, if the Company shall receive a written request from Series A Holders (ithe “Initiating Series A Holders”) who in the first anniversary aggregate hold more than fifty percent (50%) of the date Series A Registrable Securities that the Company file a registration statement under the Securities Act covering the registration with an anticipated aggregate offering price, net of underwriting discounts and commissions, exceeding $5,000,000, then the Company shall, within thirty (30) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this AgreementSection 2.1, use its reasonable best efforts to effect the registration under the Securities Act of all Series A Registrable Securities that the Series A Holders request to be registered.
(iib) Subject to the consummation conditions of this Section 2.1, if the Company shall receive a written request from Series B Holders (the “Initiating Series B Holders”) who in the aggregate hold more than fifty percent (50%) of the Series B Registrable Securities that the Company file a registration statement under the Securities Act covering the registration with an IPO anticipated aggregate offering price, net of underwriting discounts and commissions, exceeding $5,000,000, then the Company shall, within thirty (30) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 2.1, use its reasonable best efforts to effect the registration under the Securities Act of all Series B Registrable Securities that the Series B Holders request to be registered.
(c) For purposes of determining whether a sufficient number of Initiating Series A Holders and Initiating Series B Holders have exercised their rights to demand registration under Sections 2.1(a) or (iii) a Spin-Off 2.1(b), above, respectively, the number of Series A Registrable Securities and Series B Registrable Securities may, at the request of the Initiating Series A Holders or Hostile Change the Initiating Series B Holders be aggregated to determine whether Initiating Series A Holders or Initiating Series B Holders holding in Control at any time, Holders of the aggregate at least fifty percent (50%) of all Series A Registrable Securities then held and Series B Registrable Securities have exercised rights under Sections 2.1(a) or 2.1(b), above. For purposes hereof, Initiating Series A Holders and Initiating Series B Holders shall be referred to collectively herein as the “Initiating Holders.”
(d) If the Initiating Holders intend to distribute the Registrable Securities covered by parties their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Agreement (Section 2.1 or any request pursuant to Section 2.3 and the Company shall include such information in the case written notice referred to in Sections 2.1(a) or 2.1(b), or Section 2.3(a), as applicable. In such event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by a Spin-Off majority in interest of the percentage Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 2.1 or Section 2.3, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities), then the Company shall so advise all Holders of Registrable Securities equal which would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the proportion which the majority Holders of the number shares of Common acquired pursuant to the Subscription Agreement bears to all Registrable Securities at on a pro rata basis based on the time number of the Spin-Off) may request the Company to Register any or all of their Registrable Securities (a "Demand Notice"). Demand Notices shall be made in writing and shall specify the Holders making the Demand Noticeheld by all such Holders; provided, however, that the number and type of Registrable Securities that each requests to be Registered, whether the Registrable Securities will be sold through an underwriter, and if so, the underwriters name, address, telephone number and contact person. The Company will prepare and file a Registration Statement in accordance with Section 4 for the shares of Registrable Securities to be Registered pursuant included in such underwriting and registration shall not be reduced unless all other securities of the Company proposed to a valid Demand Notice; provided that be included in such underwriting and registration are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(e) The Company shall not be required to prepare or file a Registration Statement under registration statement pursuant to this Section 2 2.1:
(1) prior to the earlier of (i) 180 days following the effective date of the registration statement pertaining to the Initial Offering; or (ii) October 10, 2013;
(2) with respect to requests under Section 2.1(a), after the Company has effected two (2) registrations pursuant to Section 2.1(a) and such registrations have been declared or ordered effective by the SEC, and with respect to requests under Section 2.1(b), after the Company has effected two (2) registrations pursuant to Section 2.1(b) and such registrations have been declared or ordered effective by the SEC;
(3) during the period starting with the date sixty (60) days prior to the Company’s estimated date of filing, and ending on the date six (6) months following the effective date of the registration statement pertaining to a public offering (other than a registration of securities in a Rule 145 transaction or with respect to an employee benefit plan); provided that the Company uses its reasonable best efforts to cause such registration statement to become effective; and provided, further that the Holders of the Registrable Securities were afforded the right to include their Registrable Securities in such public offering (subject the cutback provisions in Section 2.2(a));
(4) if within thirty (30) days of receipt of a written request from the Initiating Series A Holders pursuant to Section 2.1(a) and/or the Initiating Series B Holders pursuant to Section 2.1(b), the Company delivers to the Holders a certificate signed by the Chairman of the Board stating that the Company is engaged, or its Board of Directors has authorized management to pursue within thirty (30) days of the time of such request, in a firm commitment underwritten public offering of shares of Common Stock in which the holders of Registrable Securities may include their Registrable Securities pursuant to Section 2.2 (subject the cutback provisions in Section 2.2(a)); provided, that such right to delay a request shall be exercised by the Company not more than once in any twelve (12) month period, more than twice after an IPO or more than three ;
(35) times in total. Registrations pursuant to Demand Notices are subject to the further limitations set forth in Section 2.3.
2.2 Within ten (10) days from its receipt of a valid Demand Notice, if the Company shall deliver written notice furnish to all Holders requesting a registration statement pursuant to this Section 2.1 a certificate signed by the Chairman of the Board stating that, pursuant to a Demand Notice, in the Company will prepare and file a Registration Statement. Any Holder who was not a party to good faith judgment of the Demand Notice may, within ten (10) days from receipt Board of Directors of the Company's notice, request it would be materially detrimental to the Company or it would materially interfere with any material transaction involving the Company (including a potential merger, sale of control or sale of substantially all of the Company’s assets) for such registration statement to include be effected at such time, in which event the Holder's Registrable Securities in the Registration Statement. If the Holders that initiated a Demand Notice specify therein that they intend to distribute their Registrable Securities through an underwriter, then each Holder that requests inclusion in the Registration Statement must participate in such underwriting, and become party to any required agreements, including, but not limited to, customary underwriting and indemnification agreements. The Company shall have the right to approve any underwriter, which approval shall defer such filing for a period of not be unreasonably withheld. In the event that the underwriter limits the number of Registrable Securities to be included in the offering to fewer more than the number that has been requested for Registration, then each Holder's Registrable Securities shall be included in the underwriting pro rata, based on the total number of Registrable Securities held by the participating Holders.
2.3 Registrations under this Section 2 are subject to the following limitations: (i) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice within one hundred eighty (180) days after receipt of the effective date request of any Registration Statement filed the Initiating Holders; provided that such right to delay a request shall be exercised by the Company in which the Holders party to the Demand Notice could have included their Registrable Securities; (ii) the Company may delay the effectiveness of a Demand Notice for a period of not more than six months after receipt of a Demand Notice once in any twelve (12-) month period period; or
(6) if the Company furnishes a certificate signed by its president stating Initiating Series A Holders or the Initiating Series B Holders propose to dispose of shares of Registrable Securities that in the good faith judgment of the Company's board of directors it would may be detrimental to the Company for the Registration Statement to be effected at such time; and (iii) the Company need not prepare or file a Registration Statement immediately registered on Form S-3 pursuant to a Demand Notice if it is then preparing a Registration Statement in connection with an underwritten public offering of Company securities, and the Company may delay the effectiveness of such Demand Notice until one hundred eighty (180) days after the effective date of such Registration Statementrequest made pursuant to Section 2.3 below.
Appears in 1 contract
Samples: Registration Rights Agreement (Cellular Dynamics International, Inc.)
Demand Registration. 2.1 After At any time following the earlier of (i) the first anniversary closing of the date Company’s IPO, the Initiating Holders may request in writing (such request in writing, a “Demand”) that all or part of this Agreementthe Series E2 Shares or Series E Shares held by the Initiating Holders shall be registered for trading on the securities exchange on which the securities of the Company were offered in the IPO, or otherwise under the Securities Act (ii“Demand Registration”). Within 20 days after receipt of any Demand, the Company shall give written notice of such Demand to the other Holders, and shall include in such registration all Registrable Shares held by all such Holders who wish to participate in such Demand Registration and who provide the Company with written requests (each a “Demand”) for inclusion therein within 15 days after the consummation receipt of an IPO or (iii) a Spin-Off or Hostile Change in Control at any timethe Company’s notice. Thereupon, Holders of at least fifty percent (50%) the Company shall use its best efforts to effect the registration of all Registrable Securities then held by parties Shares as to which it has received Demands from the Initiating Holders and the other Holders. The Company shall not be required to effect more than two Demand Registrations under this Agreement Section 2.1 at the request of the Initiating Holders.
(or a) Subject to and in the case of a Spin-Off the percentage of Registrable Securities equal addition to the proportion which above Section 2.1, at any time following a Demand made by the Initiating Holders pursuant to Section 2.1 hereof the Holders holding a majority of the number shares of Common acquired pursuant to the Subscription Agreement bears to all Registrable Securities at the time of the Spin-Off) Series D Shares may request require the Company to Register any or all of their Registrable Securities (make a "Demand Notice"). Demand Notices shall be made in writing and shall specify the Holders making the Demand Notice, the number and type of Registrable Securities that each requests to be Registered, whether the Registrable Securities will be sold through an underwriter, and if so, the underwriters name, address, telephone number and contact personRegistration. The Company will prepare and file a Registration Statement in accordance with Section 4 for the holders of Series D Shares that are Registrable Securities Shares may make up to be Registered pursuant to a valid Demand Notice; two (2) Demands, provided that the Company shall not be required to prepare effect a Demand Registration within 180 days, from the effective date of a prior Demand, F-3 Registration or file Company Registration (each as defined below) or the IPO.
(b) Subject to and in addition to the above Section 2.1 and 2.2(a), at any time following one (1) Demand made by each of the Initiating Holders pursuant to Section 2.1 hereof and the Holders of Series D Shares pursuant to Section 2.2(a) hereof, the Holders holding a majority of the Series C Shares may require the Company to make a Demand Registration. The holders of Series C Shares may make up to two (2) Demands, provided that the Company shall not be required to effect a Demand Registration Statement under (i) unless the aggregate anticipated offering price of the Registrable Shares to be sold in such Demand Registration equals at least US$4,000,000 or (ii) within 180 days, from the effective date of a prior Demand, F-3 Registration or Company Registration (each as defined below) or the IPO. Within 10 days after receipt of a Demand pursuant to this Section 2.2, the Company shall give written notice of such Demand to all Holders, and shall include in such Demand Registration all Registrable Shares held by all Holders who wish to participate in such Demand Registration and provide the Company with written requests for inclusion therein within 15 days after the receipt of the Company’s notice. Thereupon, the Company shall use its best efforts to effect the registration of all Registrable Shares as to which it has received Demands pursuant to this Section 2.2. A Demand which has not culminated in the registration of the requested Registrable Shares shall not be counted as a Demand for the purposes of this Section 2. It is hereby clarified that no other Holder may exercise its right to any Demand Registration prior to completion of the first Demand Registration effected at the request of the Initiating Holders.
2.3 Notwithstanding the provisions of Section 2.1 and 2.2 above, if the Company advises the Holders in writing that, based on the managing underwriter’s or underwriters’ written opinion, the number of securities requested to be included in such registration exceeds the number that can be sold in such offering without adversely affecting the underwriter’s ability to effect an orderly distribution of such securities at the price per share in such offering (“Cutback”), the Company will include in such registration the number of Registrable Shares requested to be included that, in the opinion of such underwriters, can be sold, divided pro rata, among the holders of such securities on the basis of the number of Registrable Shares held by such Holders immediately prior to the registration. Notwithstanding the foregoing, it is hereby clarified that in the event of a Cutback with respect to a registration pursuant to a Demand made in accordance with Section 2.1 hereof, the Company will include in such registration the number of Registrable Shares requested to be included that, in the opinion of the underwriters, can be sold, in the following order: First, all of the Series E2 Shares and Series E Shares requested by the Holders thereof to be included in such registration; then, all the Series D Shares and Series D2 Shares requested by the Holders thereof to be included in such registration, divided pro-rata, among the holders of Series D Shares and Series D2 Shares held by such Holders immediately prior to the registration; and then, all of the Series C Shares requested by the Holders thereof to be included in such registration. In the event of Cutback which precludes the registration of all of the shares requested by the Holders of a particular series of shares, each Holder in such series will be Cutback pro rata to their holdings in such series. The Company shall be entitled to register securities for sale for its own account in any registration requested pursuant to this Section 2, provided, however, that in any event of a Cutback, then such securities shall be excluded from such registration and underwriting to the extent necessary to satisfy such limitation, prior to any exclusion of Registrable Shares.
2.4 The Company may not cause any other registration of securities for sale for its own account (other than a registration effected solely with respect to an employee benefit plan or pursuant to a registration on Form F-4 or S-4) to be initiated after a registration requested pursuant to this Section 2 and to become effective less than 90 days after the effective date of any registration requested pursuant to this Section 2, unless permitted to do so by the written consent of Holders who hold at least 50% of the Registrable Shares as at such time.
2.5 If the Company shall furnish to Holders a certificate signed by the Chief Executive Officer of the Company stating that in the good faith judgment of the Board of Directors of the Company it would be seriously detrimental to the Company or its shareholders for a registration to be effected at such time, the Company shall have the right to defer the filing for a period of not more than ninety (90) days after a Demand request by the Holders pursuant to this Section 2; provided, however, that the Company shall not utilize this right more than once in any twelve (12) month period, more than twice after an IPO or more than three (3) times in total. Registrations pursuant to Demand Notices are subject to the further limitations set forth in Section 2.3.
2.2 Within ten (10) days from its receipt of a valid Demand Notice, period and the Company shall deliver written notice not register any other of its securities during such ninety-day period (other than a registration effected solely with respect to all Holders that, pursuant to a Demand Notice, the Company will prepare and file a Registration Statement. Any Holder who was not a party to the Demand Notice may, within ten (10) days from receipt of the Company's notice, request the Company to include the Holder's Registrable Securities in the Registration Statement. If the Holders that initiated a Demand Notice specify therein that they intend to distribute their Registrable Securities through an underwriter, then each Holder that requests inclusion in the Registration Statement must participate in such underwriting, and become party to any required agreements, including, but not limited to, customary underwriting and indemnification agreements. The Company shall have the right to approve any underwriter, which approval shall not be unreasonably withheld. In the event that the underwriter limits the number of Registrable Securities to be included in the offering to fewer than the number that has been requested for Registration, then each Holder's Registrable Securities shall be included in the underwriting pro rata, based on the total number of Registrable Securities held by the participating Holdersemployee benefit plan).
2.3 Registrations under this Section 2 are subject to the following limitations: (i) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice within one hundred eighty (180) days after the effective date of any Registration Statement filed by the Company in which the Holders party to the Demand Notice could have included their Registrable Securities; (ii) the Company may delay the effectiveness of a Demand Notice for a period of not more than six months after receipt of a Demand Notice in any 12-month period if the Company furnishes a certificate signed by its president stating that in the good faith judgment of the Company's board of directors it would be detrimental to the Company for the Registration Statement to be effected at such time; and (iii) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice if it is then preparing a Registration Statement in connection with an underwritten public offering of Company securities, and the Company may delay the effectiveness of such Demand Notice until one hundred eighty (180) days after the effective date of such Registration Statement.
Appears in 1 contract
Demand Registration. 2.1 After (a) At any time after the earlier sooner of (ix) the first anniversary closing of an Initial Public Offering (but not within 180 days after the effective date of the date Registration Statement filed in respect of this Agreementthat Initial Public Offering) and (y) March 29, (ii) the consummation 2012, by delivery of an IPO or (iii) a Spin-Off or Hostile Change in Control at any time, Holders of at least fifty percent (50%) of all Registrable Securities then held by parties to this Agreement (or in the case of a Spin-Off the percentage of Registrable Securities equal written notice to the proportion which the majority of the number shares of Common acquired pursuant to the Subscription Agreement bears to all Registrable Securities at the time of the Spin-Off) may request the Company to Register any or all of their Registrable Securities (a "Demand Notice"). Demand Notices shall be made in writing and shall specify ):
(i) the Requisite Series C Holders making may require the Demand Notice, Company to register for sale under the number and type Securities Act all or any portion of Registrable Securities that each requests to be Registered, whether the Registrable Securities will be sold through an underwriter, and if so, held by the underwriters name, address, telephone number and contact personSeries C Holders for sale in the manner specified in such Demand Notice (a "Series C Demand Registration"). The Company will prepare and file Requisite Series C Holders shall be entitled to only two (2) Series C Demand Registrations pursuant to this Section 2.1(a)(i); provided, that, they may only make demand for one such Series C Demand Registration in any twelve month period, unless any of them shall have had any Registrable Securities excluded from a Registration Statement that was filed during such twelve month period; and
(ii) the Requisite Series AB Holders may require the Company to register for sale under the Securities Act all or any portion of the Registrable Securities held by the Series AB Holders for sale in the manner specified in such Demand Notice; provided, that (i) the portion of the Registrable Securities required to be so registered equals at least 25% of the shares of Common Stock issuable upon conversion of the shares of Series A Preferred Stock and Series B Preferred Stock then outstanding and (ii) the aggregate proceeds from the sale of the shares so registered is reasonably expected to exceed $30,000,000 (a "Series AB Demand Registration"). The Requisite Series AB Holders shall be entitled to only two (2) Series AB Demand Registrations pursuant to this Section 2.1(a)(ii); provided, that, they may only make demand for one such Series AB Demand Registration in any twelve month period, unless any of them shall have had any Registrable Securities excluded from a Registration Statement that was filed during such twelve month period; and
(iii) following a change in the "Series C Conversion Price" (as that term is defined in the Articles of Amendment), such that additional shares of Common Stock become issuable upon conversion of the outstanding Series C Preferred Stock, the Requisite Series C Holders may require the Company to register for sale under the Securities Act such additional shares of Common Stock (the "Additional Shares"), but only to the extent the Additional Shares are not at the time covered by an effective Registration Statement or such Additional Shares cannot be added by pre-effective amendment to an existing Registration Statement. Such Registration Statement shall include the plan of distribution specified in the Demand Notice delivered by the Requisite Series C Holders pursuant to this Section 2.1(a)(iii). Such Registration Statement also shall cover, to the extent allowable under the Securities Act (including without limitation Rule 416), such indeterminate number of additional shares of Common Stock resulting from stock splits, stock dividends or similar transactions with respect to the Additional Shares. The Registration Statement (and each amendment or supplement thereto, and each request for acceleration of effectiveness thereof) shall be furnished for review in accordance with Section 4 2.4(a) prior to its filing or other submission. Notwithstanding anything in this Agreement to the contrary, no demand made pursuant to this Section 2.1(a)(iii) shall be deemed a Series C Demand Registration that reduces the number of such Series C Demand Registrations to which the Series C Holders are entitled hereunder; and
(iv) if the Company is then a registrant entitled to use Form S-3 or any successor form thereto to effect the distribution of such Registrable Securities for public sale or re-sale (as the case may be), (aa) the Requisite Series C Holders may require the Company to register for sale or re-sale under the Securities Act by filing a Registration Statement on Form S-3 or any comparable or successor form thereto for a public offering of all or any portion of the Registrable Securities to be Registered pursuant to a valid Demand Notice; provided that held by them, or (bb) the Requisite Series AB Holders may require the Company shall not be required to prepare register for sale or file re-sale under the Securities Act by filing a Registration Statement under this Section 2 more than once in on Form S-3 or any twelve (12) month period, more than twice after an IPO comparable or more than three (3) times in total. Registrations pursuant to Demand Notices are subject to the further limitations set forth in Section 2.3.
2.2 Within ten (10) days from its receipt successor form thereto for a public offering of a valid Demand Notice, the Company shall deliver written notice to all Holders that, pursuant to a Demand Notice, the Company will prepare and file a Registration Statement. Any Holder who was not a party to the Demand Notice may, within ten (10) days from receipt or any portion of the Company's notice, request the Company to include the Holder's Registrable Securities in the Registration Statement. If the Holders that initiated a Demand Notice specify therein that they intend to distribute their Registrable Securities through an underwriter, then each Holder that requests inclusion in the Registration Statement must participate in such underwriting, and become party to any required agreements, including, but not limited to, customary underwriting and indemnification agreements. The Company shall have the right to approve any underwriter, which approval shall not be unreasonably withheld. In the event that the underwriter limits the number of Registrable Securities to be included in the offering to fewer than the number that has been requested for Registration, then each Holder's Registrable Securities shall be included in the underwriting pro rata, based on the total number of Registrable Securities held by them, in each case, in accordance with the participating Holders.
2.3 Registrations under method of disposition specified in the Demand Notice. Whenever the Company is required by this Section 2 are subject 2.1(a)(iv) to effect the following limitations: (i) registration of Registrable Securities, each of the procedures and requirements of Sections 2.1 and 2.4 shall apply to such registration, and the Company need not prepare or file a shall cause such Registration Statement pursuant to a Demand Notice be declared effective within one hundred eighty (180) days after the effective date Company's receipt of the request for such registration. There shall be no limitation on the number of registrations on Form S-3 which may be requested and obtained under this Section 2.1, and such requests and registrations shall not reduce the number of Series C Demand Registrations or Series AB Demand Registrations, as the case may be, to which the Series C Holders or Series AB Holders, as the case may be, are entitled hereunder.
(b) Following receipt of any Registration Statement filed by Demand Notice under this Section 2.1, the Company in which the Holders party to the Demand Notice could have included their Registrable Securities; (ii) the Company may delay the effectiveness of a Demand Notice for a period of not more than six months after receipt of a Demand Notice in any 12-month period if the Company furnishes a certificate signed by its president stating that in the good faith judgment of the Company's board of directors it would be detrimental to the Company for the Registration Statement to be effected at such time; and (iii) the Company need not prepare or shall file a Registration Statement pursuant to a including the securities covered by such Demand Notice if it is then preparing a Registration Statement in connection with an underwritten public offering within thirty (30) days after receipt of Company securitiessuch Demand Notice (the "Filing Deadline"), and the Company may delay shall use its best efforts to effect the effectiveness of such Demand Notice until registration under the Securities Act as soon as practicable, and in any event within one hundred eighty (180) days after receipt of such Demand Notice (the "Effectiveness Deadline"), for public sale or re-sale in accordance with the method of disposition specified in such Demand Notice of the number of Registrable Securities specified in such Demand Notice. If a Registration Statement including the Registrable Securities referenced in the Demand Notice is not (i) filed with the Commission on or prior to the applicable Filing Deadline, or (ii) declared effective date of by the applicable Effectiveness Deadline, then the Company shall make pro rata payments to each Investor whose securities are to be included in such Registration Statement, as liquidated damages (and not as a penalty, as damages are impossible to forecast or predict and these amounts are deemed reasonable in all respects), in an amount equal to 1.5% of the aggregate Market Price (as defined in the Articles of Amendment) (as of the Filing Deadline) of the Investor's securities to be included in such Registration Statement for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been filed or declared effective, as the case may be, for which no Registration Statement is filed or has not been declared effective, as the case may be, with respect to the Registrable Securities. Such payments shall be in partial compensation to the Investors, and shall not constitute the Investors' exclusive remedy for such events. Such payments shall be made to each Investor in cash. The amounts payable as liquidated damages pursuant to this Section 2.1(b) shall be payable in lawful money of the United States, and amounts payable as liquidated damages shall be paid within two (2) Business Days of the last day of each such 30-day period during which the Registration Statement should have been filed or been declared effective, as the case may be, for which no Registration Statement was filed or had not yet been declared effective, as the case may be, with respect to the Registrable Securities.
(c) If the Initiating Stockholders intend to distribute the Registrable Securities covered by their Demand Notice by means of an underwriting, the Initiating Stockholders shall so advise the Company in their Demand Notice. If the method of disposition is an underwritten public offering, the Initiating Stockholders may designate the managing underwriter of such offering, which designation shall be subject to the Company's approval, not to be unreasonably withheld. The Initiating Stockholders may elect to include in such underwriting all or any part of the Registrable Securities it holds, subject to the limitations required by the managing underwriter as provided for in Section 2.1(d).
Appears in 1 contract
Samples: Registration Rights Agreement (Molecular Insight Pharmaceuticals, Inc.)
Demand Registration. 2.1 After the earlier of (i) At such time that the first anniversary of Shelf Registration Statement required pursuant to Section 2(a) is not available and subject to the date terms and conditions of this Agreement, (ii) the consummation of an IPO or (iii) a Spin-Off or Hostile Change in Control at any time, Holders of at least fifty percent time and from time to time commencing 180 days after the Closing Date upon written notice to the Company (50%a ”Demand Notice”) delivered by a Qualified Holder(s) requesting that the Company effect the registration (a “Demand Registration”) under the Securities Act (other than pursuant to a registration statement on Form S-4 or Form S-8 or any similar or successor form under the Securities Act) of all Registrable Securities then held by parties to this Agreement (or in the case of a Spin-Off the percentage of Registrable Securities equal to the proportion which the majority of the number shares of Common acquired pursuant to the Subscription Agreement bears to all Registrable Securities at the time of the Spin-Off) may request the Company to Register any or all of their the Registrable Securities held by such Qualified Holder(s) (which offering is expected to yield aggregate gross proceeds of at least $40 million), the Company shall promptly (but in any event, not later than five (5) Business Days following the Company’s receipt of such Demand Notice) give written notice of the receipt of such Demand Notice to all other Holders that, to its knowledge, hold Registrable Securities (each, a "“Demand Notice"Eligible Holder”). The Company shall within fifteen (15) Business Days of its receipt of such Demand Notices shall be made Notice file the appropriate Registration Statement (the “Demand Registration Statement”) subject to Section 2(b)(ii) and use its commercially reasonable efforts to effect, at the earliest practicable date, the registration under the Securities Act and under the applicable state securities laws of (A) the Registrable Securities which the Company has been so requested to register by the Qualified Holder(s) in writing and shall specify the Holders making the Demand Notice, the number and type of (B) all other Registrable Securities that each requests of the same class or series as those requested to be Registeredregistered by the Qualified Holder(s) which the Company has been requested to register by the Demand Eligible Holders by written request (the “Demand Eligible Holder Request”) given to the Company within ten (10) Business Days after the giving of such written notice by the Company, whether the and (C) any Registrable Securities will to be offered and sold through an underwriterby the Company, and if soin each case subject to Section 2(b)(ii), all to the underwriters name, address, telephone number and contact person. The Company will prepare and file a Registration Statement extent required to permit the disposition (in accordance with Section 4 for the intended methods of disposition) of the Registrable Securities to be Registered pursuant so registered. The Holders’ rights to request a valid Demand Notice; provided that the Company Registration set forth in this Section 2(b) shall not be required to prepare or file a Registration Statement under this Section 2 more than once in exercisable at any twelve (12) month period, more than twice after an IPO or more than three (3) times in total. Registrations pursuant to Demand Notices are subject to the further limitations set forth in Section 2.3.
2.2 Within ten (10) days from its receipt of a valid Demand Notice, time if the Company shall deliver written notice to all Holders that, pursuant to a Demand Notice, the Company will prepare and file a Registration Statement. Any Holder who was not a party to the Demand Notice may, within ten (10) days from receipt of the Company's notice, request the Company to include the Holder's Registrable Securities in the Registration Statement. If the Holders that initiated a Demand Notice specify therein that they intend to distribute their Registrable Securities through an underwriter, then each Holder that requests inclusion in the Registration Statement must participate in such underwriting, and become party to any required agreements, including, but not limited to, customary underwriting and indemnification agreements. The Company shall have the right to approve any underwriter, which approval shall not be unreasonably withheld. In the event that the underwriter limits the number of Registrable Securities to be included in the offering to fewer than the number that has been requested for Registration, then each Holder's Registrable Securities shall be included in the underwriting pro rata, based on the total number of Registrable Securities held by the participating Holders.
2.3 Registrations under this Section 2 are subject to the following limitations: (i) the Company need (x) is not prepare or in violation of its obligations to file a Shelf Registration Statement pursuant to Section 2(a) or (y) has a Demand Notice within one hundred eighty (180) days after the currently effective date of any Shelf Registration Statement filed by the Company covering all Registrable Securities in which the Holders party to the Demand Notice could have included their Registrable Securities; accordance with Section 2(a), and (ii) the Company may delay the effectiveness of a Demand Notice for a period of not more than six months after receipt of a Demand Notice in any 12-month period if the Company furnishes a certificate signed by has otherwise complied with its president stating that in the good faith judgment of the Company's board of directors it would be detrimental to the Company for the Registration Statement to be effected at such time; and (iii) the Company need not prepare or file a Registration Statement obligations pursuant to a Demand Notice if it is then preparing a Registration Statement in connection with an underwritten public offering of Company securities, and the Company may delay the effectiveness of such Demand Notice until one hundred eighty (180) days after the effective date of such Registration Statementthis Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Neothetics, Inc.)
Demand Registration. 2.1 After As provided for in Section 3.2, the earlier of (i) Company may include in a Demand Registration Equity Shares for the first anniversary account of the date of this Agreement, (ii) the consummation of an IPO or (iii) a Spin-Off or Hostile Change in Control at any time, Holders of at least fifty percent (50%) of all Registrable Securities then held by parties to this Agreement (or in the case of a Spin-Off the percentage of Registrable Securities equal to the proportion which the majority of the number shares of Common acquired pursuant to the Subscription Agreement bears to all Registrable Securities at the time of the Spin-Off) may request the Company to Register any or all of their Registrable Securities (a "Demand Notice"). Demand Notices shall be made in writing and shall specify the Holders making the Demand NoticeCompany, the number other Holders or other holders thereof exercising contractual piggy-back or demand rights, on the same terms and type of Registrable Securities that each requests to be Registered, whether the Registrable Securities will be sold through an underwriter, and if so, the underwriters name, address, telephone number and contact person. The Company will prepare and file a Registration Statement in accordance with Section 4 for conditions as the Registrable Securities to be Registered pursuant to a valid included therein for the account of the Holder commencing the Demand NoticeRegistration; provided PROVIDED, HOWEVER, that (i) if the managing Underwriter or Underwriters of any underwritten offering described in Section 3.1 have informed the Company in writing that it is their opinion that the Company shall not be required to prepare or file a Registration Statement under this Section 2 more than once in any twelve (12) month period, more than twice after an IPO or more than three (3) times in total. Registrations pursuant to Demand Notices are subject to the further limitations set forth in Section 2.3.
2.2 Within ten (10) days from its receipt total number of a valid Demand Notice, Equity Shares which the Company shall deliver written notice to all and the Holders that, pursuant to a Demand Notice, the Company will prepare and file a Registration Statement. Any Holder who was not a party to the Demand Notice may, within ten (10) days from receipt of the Company's notice, request the Company any other holders participating therein intend to include in such offering is such as to materially and adversely affect the Holder's Registrable Securities in the Registration Statement. If the Holders that initiated a Demand Notice specify therein that they intend to distribute their Registrable Securities through an underwritersuccess of such offering, then each Holder that requests inclusion in the Registration Statement must participate in such underwriting, and become party to any required agreements, including, but not limited to, customary underwriting and indemnification agreements. The Company shall have the right to approve any underwriter, which approval shall not be unreasonably withheld. In the event that the underwriter limits (x) the number of Registrable Securities Equity Shares to be offered for the account of such other holders (if any) shall be reduced (to zero, if necessary), in the case of this clause (x) PRO RATA in proportion to the respective number of Equity Shares requested to be registered, (y) thereafter, if necessary, the number of Equity Shares to be offered for the account of the Company (if any) shall be reduced (to zero, if necessary) and (z) thereafter, if necessary, the number of Equity Shares to be offered for the account of the Holders (including the Holder commencing the Demand Registration) shall be reduced PRO RATA in proportion to the respective number of Equity Shares requested to be registered to the extent necessary to reduce the total number of Equity Shares requested to be included in the such offering to fewer than the number that has been requested for Registrationof Equity Shares, then each Holder's Registrable Securities shall be included in the underwriting pro rataif any, based on the total number of Registrable Securities held recommended by the participating Holders.
2.3 Registrations under this Section 2 are subject to the following limitations: (i) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice within one hundred eighty (180) days after the effective date of any Registration Statement filed by the Company in which the Holders party to the Demand Notice could have included their Registrable Securities; such managing Underwriters and (ii) the Company may delay the effectiveness of a Demand Notice for a period of not more than six months after receipt of a Demand Notice in any 12-month period if the Company furnishes a certificate signed by its president stating that in the good faith judgment of offering is not underwritten, no other party, including the Company's board of directors it would , shall be detrimental permitted to offer securities under any such Demand Registration unless the Holder commencing the Demand Registration consents to the Company for the Registration Statement inclusion of such Equity Shares therein, such consent not to be effected at such time; and (iii) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice if it is then preparing a Registration Statement in connection with an underwritten public offering of Company securities, and the Company may delay the effectiveness of such Demand Notice until one hundred eighty (180) days after the effective date of such Registration Statementunreasonably withheld.
Appears in 1 contract
Demand Registration. 2.1 After the earlier of (i) Each Holder may make, until the first fifth anniversary of the date of this Agreement, one or more written requests for a Demand Registration of all or any part of the Registrable Securities held by such Holder; provided, that (iiA) the consummation Company shall in no event be required to effect more than two Demand Registrations for the Holders in total in any 12-month period, (B) each such Demand Registration must be in respect of an IPO or (iii) Registrable Securities with a Spin-Off or Hostile Change in Control at any time, Holders fair market value of at least fifty percent (50%) $25 million or all of all the Registrable Securities then held by parties to this Agreement (or in the case requesting Holder if the aggregate fair market value of a Spin-Off the percentage all of such Registrable Securities equal is less than $25 million and (C) such Holder shall not be entitled to a Demand Registration if, during the proportion which the majority of the number shares of Common acquired pursuant to the Subscription Agreement bears to all Registrable Securities at the time of the Spin-Off) may request 120 days preceding such request, any Holder has requested a Demand Registration unless the Company to Register any or all of their Registrable Securities (a "preempted such Demand Notice"). Demand Notices shall be made in writing and shall specify the Holders making the Demand Notice, the number and type of Registrable Securities that each requests to be Registered, whether the Registrable Securities will be sold through an underwriter, and if so, the underwriters name, address, telephone number and contact person. The Company will prepare and file a Registration Statement in accordance with Section 4 2.1(d) or the Company postponed the filing thereof in accordance with Section 3.1(a) and the requesting Holders withdrew the request for such Demand Registration.
(ii) Any request for a Demand Registration will specify the aggregate number of shares of Registrable Securities proposed to be sold by the Requesting Holders and will also specify the intended method of disposition thereof. A registration will not count as a Demand Registration until it has become effective. Should a Demand Registration not become effective due to the failure of a Holder to perform its obligations under this Agreement or the inability of the Requesting Holders to reach agreement with the Underwriters for the proposed sale on price or other customary terms for such transaction, or in the event the Requesting Holders withdraw or do not pursue the request for the Demand Registration (in each of the foregoing cases, provided that at such time the Company is in compliance in all material respects with its obligations under this Agreement), then such Demand Registration shall be deemed to have been effected (provided that (A) if, the Demand Registration does not become effective because a material adverse change has occurred, or is reasonably likely to occur, in the condition (financial or otherwise), business, assets or results of operations of the Company and its subsidiaries taken as a whole subsequent to the date of the written request made by the Requesting Holders, or (B) if the Company withdraws the Demand Registration for any reason or preempts the request for the Demand Registration, or (C) if, after the Demand Registration has become effective, an offering of Registrable Securities to be Registered pursuant to a valid registration is interfered with by any stop order, injunction, or other order or requirement of the Commission or other governmental agency or court or (D) if the Demand Notice; provided that Registration is withdrawn at the Company request of the Requesting Holders pursuant to Section 2.1(e) or Section 3.1(a), then the Demand Registration shall not be required deemed to prepare or file have been effected and will not count as a Registration Statement under this Section 2 more than once in any twelve (12) month period, more than twice after an IPO or more than three (3) times in total. Registrations pursuant to Demand Notices are subject to the further limitations set forth in Section 2.3Registration).
2.2 Within ten (10iii) days from its Upon receipt of any request for a valid Demand NoticeRegistration by a Holder, the Company shall deliver written notice to all Holders that, pursuant to a Demand Notice, the Company will prepare and file a Registration Statement. Any Holder who was not a party to the Demand Notice may, promptly (but in any event within ten (10) days) give written notice of such proposed Demand Registration to the other Holders, and all such other Holders shall have the right, exercisable by written notice to the Company within twenty (20) days from of their receipt of the Company's notice, request to elect to include in such Demand Registration such portion of their Registrable Securities as they may request. All such Holders requesting to have their Registrable Securities included in a Demand Registration in accordance with the preceding sentence shall be deemed to be "Requesting Holders" for purposes of this Section 2.1.
(b) If the Requesting Holders so elect, the offering of such Registrable Securities pursuant to such Demand Registration shall be in the form of a "firm commitment" underwritten offering. With respect to any such underwritten offering, the Company shall select an investment banking firm or firms of national standing to include manage the Holder's underwritten offering, subject to the consent of a majority in interest of the Requesting Holders, which consent shall not be unreasonably withheld; provided, however, that if a majority of the Registrable Securities of the Requesting Holders are held by Xxxxxx Brothers Inc. or any Affiliate thereof, then the Company shall select Xxxxxx Brothers Inc. or one of its Affiliates to manage the underwritten offering.
(c) The Requesting Holders will inform the Company of the time and manner of any disposition of Registrable Common Stock, and agree to reasonably cooperate with the Company in effecting the disposition of the Registrable Common Stock in a manner that does not unreasonably disrupt the public trading market for the Common Stock; provided, however, that the Holders' only right to a shelf registration statement shall be pursuant to Section 2.3.
(d) The Company will have the right to preempt any Demand Registration Statementwith a primary registration by delivering written notice (within seven business days after the Company has received a request for such Demand Registration) of such intention to the Requesting Holders indicating that the Company has identified a specific business need and use for the proceeds of the sale of such securities and had contemplated such sale of securities prior to receiving the Requesting Holders' notice, and the Company shall use commercially reasonable efforts to effect a primary registration within 90 days of such notice. In the ensuing primary registration, the Holders will have such piggyback registration rights as are set forth in Section 2.2 hereof. Upon the Company's preemption of a requested Demand Registration, such requested registration will not count as the Holders' Demand Registration. If the Holders that initiated a Demand Notice specify therein that they intend Company thereafter decides to distribute their Registrable Securities through an underwriterabandon its intention to pursue such sale of securities, then each Holder that requests inclusion in the Registration Statement must participate in such underwriting, and become party it shall give notice thereof to any required agreements, including, but not limited to, customary underwriting and indemnification agreementspreempted Holders within five business days following the Company's decision. The Company may exercise the right to preempt a Demand Registration only once in any 360-day period; provided, that during any 360-day period the Company shall use its reasonable best efforts to permit a period of at least 180 consecutive days during which the Selling Holders may effect a Demand Registration.
(e) Securities to be sold for the account of any Person (including the Company) other than a Requesting Holder shall not be included in a Demand Registration if the managing Underwriter or Underwriters shall advise the Company and the Requesting Holders in writing that the inclusion of such securities will materially and adversely affect the price of the offering
(a MATERIAL ADVERSE EFFECT"). Furthermore, in the event the managing Underwriter or Underwriters shall advise the Company or the Requesting Holders that even after exclusion of all securities of other Persons (including the Company) pursuant to the immediately preceding sentence, the amount of Registrable Securities proposed to be included in such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effect, the Registrable Securities of the Requesting Holders to be included in such Demand Registration shall equal the number of shares which the Company and the Requesting Holders are so advised can be sold in such offering without a Material Adverse Effect and such shares shall be allocated pro rata among the Requesting Holders on the basis of the number of Registrable Securities requested to be included in such registration by each such Requesting Holder; provided, however, that if any Registrable Securities requested to be registered pursuant to a Demand Registration under Section 2.1 are excluded from registration hereunder, then the Holder(s) having shares excluded ("EXCLUDED HOLDERS") shall have the right to approve withdraw all, or any underwriterpart, which approval of their shares from such registration and if withdrawn in full such Demand Registration shall not be unreasonably withheld. In the event that the underwriter limits the number of Registrable Securities deemed to be included in the offering to fewer than the number that has have been requested for effected and will not count as a Demand Registration, then each Holder's Registrable Securities shall be included in the underwriting pro rata, based on the total number of Registrable Securities held by the participating Holders.
2.3 Registrations (f) If any Holder is exercising a demand registration right under this Section 2 are subject to any other agreement with the following limitations: (i) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice within one hundred eighty (180) days after the effective date of any Registration Statement filed by the Company in which the Company, such Holder shall notify all other Holders party to the Demand Notice could have included their Registrable Securities; (ii) the Company may delay the effectiveness of a Demand Notice for a period of not more than six months after receipt of a Demand Notice in any 12-month period if the Company furnishes a certificate signed by its president stating that in the good faith judgment of the Company's board of directors it would be detrimental to the Company for the Registration Statement to be effected at such time; and (iii) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice if it is then preparing a Registration Statement in connection with an underwritten public offering of Company securities, and the Company may delay the effectiveness exercise of such Demand Notice until one hundred eighty (180) days after the effective date of such Registration Statementdemand.
Appears in 1 contract
Demand Registration. 2.1 After The Company may include in a Demand ------------------- Registration Shares for the earlier account of the Company and Shares for the account of other holders thereof exercising contractual piggyback rights, on the same terms and conditions as the Registrable Securities to be included therein for the account of the Demanding Holder(s); provided, however, that (i) if the first anniversary managing -------- Underwriter or Underwriters of any underwritten offering described in Section 2.1 have informed the Company in writing that it is their opinion that the total number of Shares which the Demanding Holder(s), the Company, and any such other holders intend to include in such offering is such as to materially and adversely affect the success of such offering, then (x) the number of Shares to be offered for the account of such other holders shall be reduced (to zero, if necessary), in the case of this clause (x) pro rata in proportion to the --- ---- respective number of Shares requested to be registered and (y) thereafter, if necessary, the number of Shares to be offered for the account of the date Company (if any) shall be reduced (to zero, if necessary), to the extent necessary to reduce the total number of this AgreementShares requested to be included in such offering to the number of Shares, if any, recommended by such managing Underwriters (iiand if the number of Shares to be offered for the account of each such Person has been reduced to zero, and the number of Shares requested to be registered by the Demanding Holder(s) exceeds the consummation number of an IPO or (iiiShares recommended by such managing Underwriters, then the number of Shares to be offered for the account of the Demanding Holder(s) a Spin-Off or Hostile Change shall be reduced to the extent necessary to reduce the total number of Shares requested to be included in Control at any timesuch offering to the number of Shares, Holders of at least fifty percent (50%) of all Registrable Securities then held if any, recommended by parties to this Agreement (or such managing Underwriters, and in the case of a Spin-Off the percentage of Registrable Securities equal reduction where both Demand Registrations have been exercised, such reduction shall be pro rata in proportion to the proportion which respective number of Shares requested to be registered by the Demanding Holders), and (ii) if the offering is not underwritten, no other party (other than Piggy-Back Holders and any other holders exercising contractual piggyback rights), including the Company, shall be permitted to offer securities under any such Demand Registration unless a majority of the number shares of Common acquired pursuant to the Subscription Agreement bears to all Registrable Securities at the time of the Spin-Off) may request the Company to Register any or all of their Registrable Securities (a "Demand Notice"). Demand Notices shall be made in writing and shall specify the Holders making the Demand Notice, the number and type of Registrable Securities that each requests to be Registered, whether the Registrable Securities will be sold through an underwriter, and if so, the underwriters name, address, telephone number and contact person. The Company will prepare and file a Registration Statement in accordance with Section 4 for the Registrable Securities to be Registered pursuant to a valid Demand Notice; provided that the Company shall not be required to prepare or file a Registration Statement under this Section 2 more than once in any twelve (12) month period, more than twice after an IPO or more than three (3) times in total. Registrations pursuant to Demand Notices are subject to the further limitations set forth in Section 2.3.
2.2 Within ten (10) days from its receipt of a valid Demand Notice, the Company shall deliver written notice to all Holders that, pursuant to a Demand Notice, the Company will prepare and file a Registration Statement. Any Holder who was not a party to the Demand Notice may, within ten (10) days from receipt of the Company's notice, request the Company to include the Holder's Registrable Securities in the Registration Statement. If the Holders that initiated a Demand Notice specify therein that they intend to distribute their Registrable Securities through an underwriter, then each Holder that requests inclusion in the Registration Statement must participate in such underwriting, and become party to any required agreements, including, but not limited to, customary underwriting and indemnification agreements. The Company shall have the right to approve any underwriter, which approval shall not be unreasonably withheld. In the event that the underwriter limits the number of Registrable Securities to be included in the offering to fewer than the number that has been requested for Registration, then each Holder's Registrable Securities shall be included in the underwriting pro rata, based on the total number of Registrable Securities Shares held by the participating Holders.
2.3 Registrations under this Section 2 are subject Demanding Holder(s) consent to the following limitations: (i) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice within one hundred eighty (180) days after the effective date of any Registration Statement filed by the Company in which the Holders party to the Demand Notice could have included their Registrable Securities; (ii) the Company may delay the effectiveness of a Demand Notice for a period of not more than six months after receipt of a Demand Notice in any 12-month period if the Company furnishes a certificate signed by its president stating that in the good faith judgment of the Company's board of directors it would be detrimental to the Company for the Registration Statement to be effected at such time; and (iii) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice if it is then preparing a Registration Statement in connection with an underwritten public offering of Company securities, and the Company may delay the effectiveness inclusion of such Demand Notice until one hundred eighty (180) days after the effective date of such Registration Statementshares therein.
Appears in 1 contract
Samples: Registration Rights Agreement (Mariner Post Acute Network Inc)
Demand Registration. 2.1 After the earlier of (i) the first anniversary of the date of this Agreement, (ii) the consummation of an IPO or (iii) The Company may include in a Spin-Off or Hostile Change in Control at any time, Holders of at least fifty percent (50%) of all Registrable Securities then held by parties to this Agreement (or in the case of a Spin-Off the percentage of Registrable Securities equal to the proportion which the majority of the number Demand Registration shares of Common acquired pursuant to Stock for the Subscription Agreement bears to all account of the Company and Registrable Securities at for the time account of the SpinPiggy-Off) may request Back Holders and Shares for the Company to Register any or all account of their Registrable Securities (a "Demand Notice"). Demand Notices shall be made in writing other holders thereof exercising contractual piggy-back rights, on the same terms and shall specify the Holders making the Demand Notice, the number and type of Registrable Securities that each requests to be Registered, whether the Registrable Securities will be sold through an underwriter, and if so, the underwriters name, address, telephone number and contact person. The Company will prepare and file a Registration Statement in accordance with Section 4 for conditions as the Registrable Securities to be Registered pursuant to a valid Demand Noticeincluded therein for the account of the Demanding Holders; provided provided, however, that (i) if the managing Underwriter or Underwriters of any underwritten offering described in Section 2.1 have informed the Company in writing that it is their opinion that the Company shall not be required to prepare or file a Registration Statement under this Section 2 more than once in any twelve (12) month period, more than twice after an IPO or more than three (3) times in total. Registrations pursuant to Demand Notices are subject to total number of shares which the further limitations set forth in Section 2.3.
2.2 Within ten (10) days from its receipt of a valid Demand NoticeDemanding Holders, the Company shall deliver written notice to all Company, any Piggy-Back Holders that, pursuant to a Demand Notice, the Company will prepare and file a Registration Statement. Any Holder who was not a party to the Demand Notice may, within ten (10) days from receipt of the Company's notice, request the Company any such other holders intend to include in such offering is such as to materially and adversely affect the Holder's Registrable Securities in the Registration Statement. If the Holders that initiated a Demand Notice specify therein that they intend to distribute their Registrable Securities through an underwritersuccess of such offering, then each Holder that requests inclusion in the Registration Statement must participate in such underwriting, and become party to any required agreements, including, but not limited to, customary underwriting and indemnification agreements. The Company shall have the right to approve any underwriter, which approval shall not be unreasonably withheld. In the event that the underwriter limits (x) the number of Registrable Securities Shares to be offered for the account of the Company (if any) shall be reduced (to zero, if necessary) and (y) thereafter, if necessary, the number of Shares to be offered for the account of such Piggy-Back Holders and such other holders shall be reduced (to zero, if necessary), in the case of this clause (y) pro rata in proportion to the respective number of Shares requested to be registered, to the extent necessary to reduce the total number of Shares requested to be included in such offering to the number of Shares, if any, recommended by such managing Underwriters (and if the number of Shares to be offered for the account of each such Person has been reduced to zero, and the number of Shares requested to be registered by the Demanding Holders exceeds the number of Shares recommended by such managing Underwriters, then the number of Shares to be offered for the account of the Demanding Holders shall be reduced pro rata in proportion to the respective number of Shares requested to be registered by the Demanding Holders) and (ii) if the offering to fewer is not underwritten, no other party (other than the number that has been requested for Registration, then each Holder's Registrable Securities shall be included in the underwriting pro rata, based on the total number of Registrable Securities held by the participating Holders.
2.3 Registrations under this Section 2 are Piggy-Back Holders and any other holders exercising contractual piggy-back rights not subject to the following limitations: (i) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice within one hundred eighty (180) days after the effective date of any Registration Statement filed reduction contemplated by the Company in which the Holders party to the Demand Notice could have included their Registrable Securities; this clause (ii) the Company may delay the effectiveness of a Demand Notice for a period of not more than six months after receipt of a Demand Notice in any 12-month period if the Company furnishes a certificate signed by its president stating that in the good faith judgment of )), including the Company's board of directors it would , shall be detrimental permitted to the Company for the Registration Statement to be effected at such time; and (iii) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice if it is then preparing a Registration Statement in connection with an underwritten public offering of Company securities, and the Company may delay the effectiveness of such Demand Notice until one hundred eighty (180) days after the effective date of such Registration Statement.offer
Appears in 1 contract
Samples: Registration Rights Agreement (Dominicks Supermarkets Inc)
Demand Registration. 2.1 After (a) At any time after the earlier of (i) the first anniversary of the date of this AgreementClosing Date, (ii) the consummation of an IPO or (iii) a Spin-Off or Hostile Change any Avista Holder may request, in Control at any time, Holders of at least fifty percent (50%) of all Registrable Securities then held by parties to this Agreement (or in the case of a Spin-Off the percentage of Registrable Securities equal to the proportion which the majority of the number shares of Common acquired pursuant to the Subscription Agreement bears to all Registrable Securities at the time of the Spin-Off) may request the Company to Register any or all of their Registrable Securities writing (a "Demand NoticeDEMAND REQUEST"), that the Company effect the registration under the Securities Act of all or part of its or their Registrable Shares (a "DEMAND REGISTRATION"). Notwithstanding the foregoing, no Demand Notices Request will be effective hereunder unless the Registrable Shares proposed to be sold by the Avista Holders requesting the Demand Registration (the "REQUESTING HOLDERS," which term shall be made include parties deemed "Requesting Holders" pursuant to Section 2.1(f) hereof) represent, in writing and the aggregate, more than 25% of the total number of Registrable Shares held by all Avista Holders.
(b) Each Demand Request shall specify the Holders making number of Registrable Shares proposed to be sold and the intended method of disposition of the Registrable Shares (including an Underwritten Offering pursuant to Section 2.1(d) or a Shelf Registration pursuant to Section 2.1(f)). Subject to Section 2.1(h), the Company shall file the Demand Notice, Registration within 90 days after receiving a Demand Request (the number "REQUIRED FILING DATE") and type of Registrable Securities that each requests shall use all commercially reasonable efforts to cause the same to be Registereddeclared effective by the SEC as promptly as practicable after such filing; provided, whether the Registrable Securities will be sold through an underwriterhowever, and if so, the underwriters name, address, telephone number and contact person. The Company will prepare and file a Registration Statement in accordance with Section 4 for the Registrable Securities to be Registered pursuant to a valid Demand Notice; provided that the Company shall not be required to prepare or file a Registration Statement under this Section 2 more than once in any twelve (12) month period, more than twice after an IPO or more than need effect only three (3) times in total. Demand Registrations pursuant to Demand Notices are subject Requests made by Avista Holders of Registrable Shares pursuant to the further limitations set forth in Section 2.3.
2.2 Within ten (10) days from its receipt of a valid Demand Notice2.1(a); provided, the Company shall deliver written notice further, that if any Registrable Shares requested to all Holders that, be registered pursuant to a Demand NoticeRequest are excluded from the applicable Demand Registration pursuant to Section 2.1(e) below, the Avista Holders shall have the right, with respect to each such exclusion, to request one additional Demand Registration.
(c) A registration will not count as a Demand Registration until it has become effective (unless the Requesting Holders withdraw all their Registrable Shares and the Company has performed its obligations hereunder in all material respects, in which case such demand will prepare count as a Demand Registration unless the Requesting Holders pay all Registration Expenses, as hereinafter defined, in connection with such withdrawn registration); provided, however, that if, after it has become effective, an offering of Registrable Shares pursuant to a registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court, such registration will be deemed not to have been effected and file will not count as a Demand Registration.
(d) The Requesting Holders may provide in the Demand Request that the offering of Registrable Shares pursuant to a Demand Registration Statementshall be in the form of a "firm commitment" underwritten offering (an "UNDERWRITTEN OFFERING"). Any Holder who was not The Requesting Holders of a party majority of the Registrable Shares to be registered in a Demand Registration shall select the investment banking firm or firms to manage the Underwritten Offering, provided that such selection shall be subject to the Demand Notice may, within ten (10) days from receipt consent of the Company's notice, request the Company to include the Holder's Registrable Securities in the Registration Statement. If the Holders that initiated a Demand Notice specify therein that they intend to distribute their Registrable Securities through an underwriter, then each Holder that requests inclusion in the Registration Statement must participate in such underwriting, and become party to any required agreements, including, but not limited to, customary underwriting and indemnification agreements. The Company shall have the right to approve any underwriter, which approval consent shall not be unreasonably withheld. In No Person may participate in any registration pursuant to Section 2.1(a) unless such Person (i) agrees to sell such Person's Registrable Shares on the basis provided in any underwriting arrangements described above and (ii) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents reasonably required under the terms of such underwriting arrangements; provided, however, that no such Person shall be required to make any representations or warranties in connection with any such registration other than representations and warranties as to (A) such Person's ownership of his or its Registrable Shares to be transferred free and clear of all liens, claims and encumbrances, (B) such Person's power and authority to effect such transfer and (C) such matters pertaining to compliance with securities laws as may be reasonably requested; provided, further, however, that the obligation of such Person to indemnify pursuant to any such underwriting arrangements shall be several, not joint and several, among such Persons selling Registrable Shares, and the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Shares pursuant to such registration.
(e) No securities to be sold for the account of any Person (including the Company) other than a Requesting Holder shall be included in a Demand Registration for an Underwritten Offering unless the managing underwriter or underwriters shall advise the Company or the Requesting Holders in writing that the inclusion of such securities will not materially and adversely affect the price or success of the Underwritten Offering (a "MATERIAL ADVERSE EFFECT"). Furthermore, in the event the managing underwriter or underwriters shall advise the Company or the Requesting Holders that even after exclusion of all securities of other Persons pursuant to the underwriter limits immediately preceding sentence, the amount of Registrable Shares proposed to be included in such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effect, the Registrable Shares of the Requesting Holders to be included in such Demand Registration shall equal the number of shares which the Company is so advised can be sold in such offering without a Material Adverse Effect and such shares shall be allocated pro rata among the Requesting Holders on the basis of the number of Registrable Securities Shares requested to be included in such registration by each such Requesting Holder.
(f) The Requesting Holders may provide in the Demand Request that the offering to fewer than the number that has been requested for Registration, then each Holder's Registrable Securities shall be included in the underwriting pro rata, based on the total number of Registrable Securities held by the participating Holders.
2.3 Registrations under this Section 2 are subject to the following limitations: (i) the Company need not prepare or file a Registration Statement Shares pursuant to a Demand Notice within one hundred eighty (180) days after Registration shall be in the effective date of any Registration Statement filed by the Company in which the Holders party to the Demand Notice could have included their Registrable Securities; (ii) the Company may delay the effectiveness form of a Demand Notice for "shelf offering" under the Securities Act to be made on a period of not more than six months after receipt of continuous basis pursuant to Rule 415 (a Demand Notice in any 12-month period "SHELF OFFERING"). The Shelf Offering shall be on Form S-1 (or on Form S-3, if the Company furnishes a certificate signed is eligible to utilize such Form to register its shares). Subject to the terms of this Agreement, the Company shall use its best efforts to cause the Shelf Offering to be declared effective under the Securities Act as promptly as possible after the filing thereof and shall use its best efforts to keep such Shelf Offering continuously effective under the Securities Act until all Registrable Securities covered by its president stating that in such Shelf Offering have been sold or may be sold without volume restrictions pursuant to Rule 144(k) as determined by the good faith judgment of the Company's board of directors it would be detrimental counsel to the Company for the Registration Statement to be effected at such time; and (iii) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice if it is then preparing a Registration Statement in connection with an underwritten public offering of Company securities, and the Company may delay the effectiveness of such Demand Notice until one hundred eighty (180) days after the effective date of such Registration Statement.to
Appears in 1 contract
Samples: Registration Rights Agreement (Avista Capital Partners, L.P.)
Demand Registration. 2.1 After (a) At any time and from time to time on or following the date that is 180 days after the Closing Date, any Holder or group of Holders that beneficially owns at least 51% (calculated on an as converted basis) of all such Registrable Securities may request in writing that the Company effect the registration of all or part of such Holder’s or Holders’ Registrable Securities with the Commission under and in accordance with the provisions of the Securities Act (which written request will specify (i) the then-current name and address of such Holder or Holders, (ii) the aggregate number of shares of Registrable Securities requested to be registered, (iii) the total number of Registrable Securities then beneficially owned by such Holder or Holders and (iv) the intended means of distribution). The Company will file a Registration Statement covering such Holder’s or Holders’ Registrable Securities requested to be registered as promptly as practicable (and, in any event, within 90 days) after receipt of such request; provided, however, that the Company will not be required to take any action pursuant to this Section 3:
(A) if prior to the date of such request, the Company has effected one registration pursuant to this Section 3;
(B) if the Registrable Securities are not already covered by an existing and effective Registration Statement or if a Registration Statement is effective at the time such request is made and such Registration Statement may be utilized for the offering and sale of the Registrable Securities requested to be registered;
(C) in the case of an Underwritten Offering, unless the Registrable Securities requested to be registered (1) have an aggregate then-current market value of $50 million or more or aggregate liquidation preference of $50 million or more (before deducting underwriting discounts and commission) or (2) constitute all of the then-outstanding Registrable Securities held by the Holders; or
(D) during the pendency of any Grace Period. If a Holder or Holders request that the Company effect a registration pursuant to this Section 3(a) and the Company is at such time eligible to use Form S-3, the Holder or Holders making such request may specify that the requested registration be a “shelf registration” for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act.
(b) The Company may satisfy its obligations under Section 3(a) hereof by amending (to the extent permitted by applicable law) any registration statement previously filed by the Company under the Securities Act so that such amended registration statement will permit the disposition (in accordance with the intended methods of disposition specified as aforesaid) of all of the Registrable Securities for which a demand for registration has been properly made under Section 3(a) hereof. If the Company so amends a previously filed registration statement, it will be deemed to have effected a registration for purposes of Section 3(a) hereof; provided that the date such registration statement is amended pursuant to this Section 3(b) shall be the “the first day of effectiveness” of such registration statement for purposes of determining the Required Period with respect to such registration statement. A registration requested pursuant to Section 3(a) hereof will not be deemed to be effected by the Company for purposes of Section 3(a) hereof if it has not been declared effective by the Commission or become effective in accordance with the Securities Act and kept effective as contemplated by Section 3(c) hereof.
(c) The Company will use its reasonable efforts to keep a Registration Statement that has become effective as contemplated by this Section 3 continuously effective, and not subject to any stop order, injunction or other similar order or requirement of the SEC, until the earlier of (i) the first anniversary expiration of the date of this Agreement, Required Period and (ii) the consummation of an IPO or (iii) a Spin-Off or Hostile Change in Control at any time, Holders of at least fifty percent (50%) of date on which all Registrable Securities then held covered by parties such Registration Statement (x) have been disposed of pursuant to this Agreement such Registration Statement or (or y) cease to be Registrable Securities; provided, however, that in the case of a Spin-Off the percentage of Registrable Securities equal no event will such period expire prior to the proportion which the majority expiration of the number shares of Common acquired pursuant applicable period referred to the Subscription Agreement bears to all Registrable Securities at the time in Section 4(3) of the Spin-Off) may request Securities Act and Rule 174 promulgated thereunder. For purposes of this Section 3, “Required Period” shall mean, with respect to a “shelf registration,” two years following the Company to Register any or all first day of their Registrable Securities (a "Demand Notice"). Demand Notices shall be made in writing and shall specify the Holders making the Demand Notice, the number and type of Registrable Securities that each requests to be Registered, whether the Registrable Securities will be sold through an underwritereffectiveness, and if so, the underwriters name, address, telephone number and contact person. The Company will prepare and file a Registration Statement in accordance with Section 4 for the Registrable Securities respect to be Registered pursuant to a valid Demand Notice; provided that the Company shall not be required to prepare or file a Registration Statement under this Section 2 more than once in any twelve (12) month period, more than twice after an IPO or more than three (3) times in total. Registrations pursuant to Demand Notices are subject to the further limitations set forth in Section 2.3.
2.2 Within ten (10) days from its receipt of a valid Demand Notice, the Company shall deliver written notice to all Holders that, pursuant to a Demand Notice, the Company will prepare and file a other Registration Statement. Any Holder who was not a party to , 90 days following the Demand Notice may, within ten (10) days from receipt first day of the Company's notice, request the Company to include the Holder's Registrable Securities in the effectiveness of such Registration Statement. If the Holders that initiated a Demand Notice specify therein that they intend to distribute their Registrable Securities through an underwriter, then each Holder that requests inclusion in the Registration Statement must participate in such underwriting, and become party to any required agreements, including, but not limited to, customary underwriting and indemnification agreements. The Company shall have the right to approve any underwriter, which approval shall not be unreasonably withheld. In the event that of any stop order, injunction or other similar order or requirement of the underwriter limits Commission relating to any Registration Statement, the Required Period for such Registration Statement will be extended by the number of Registrable Securities to be included days during which such stop order, injunction or similar order or requirement is in the offering to fewer than the number that has been requested for Registration, then each Holder's Registrable Securities shall be included in the underwriting pro rata, based on the total number of Registrable Securities held by the participating Holderseffect.
2.3 Registrations under this Section 2 are subject to the following limitations: (i) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice within one hundred eighty (180) days after the effective date of any Registration Statement filed by the Company in which the Holders party to the Demand Notice could have included their Registrable Securities; (ii) the Company may delay the effectiveness of a Demand Notice for a period of not more than six months after receipt of a Demand Notice in any 12-month period if the Company furnishes a certificate signed by its president stating that in the good faith judgment of the Company's board of directors it would be detrimental to the Company for the Registration Statement to be effected at such time; and (iii) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice if it is then preparing a Registration Statement in connection with an underwritten public offering of Company securities, and the Company may delay the effectiveness of such Demand Notice until one hundred eighty (180) days after the effective date of such Registration Statement.
Appears in 1 contract
Samples: Registration Rights Agreement (Ocwen Financial Corp)
Demand Registration. 2.1 After (a) At any time after 180 days after the earlier IPO each of (i1) the first anniversary Riverwood Entities (acting as a group), (2) the FTV Entities (acting as a group), (3) WPP and (4) the Founders (acting as a group) (such Shareholders identified in clauses (1) through (4), the “Registration Rights Holders”) may each notify the Company that they intend to offer or cause to be offered for public sale all or any portion of their Registrable Securities in the manner specified in such request (the “Demand Request”). In addition, any two of the date Registration Rights Holders, acting together, may notify the Company of this Agreementone additional Demand Request. No later than twenty (20) days after receipt of such Demand Request, the Company shall promptly deliver notice of such request to all other Shareholders holding Registrable Securities who shall then have thirty (ii30) days to notify the Company in writing of their desire to be included in such registration. If the Demand Request contemplates an underwritten public offering, the Company shall state such in the written notice and in such event the right of any Person to participate in such registration shall be conditioned upon such Person’s participation in such underwritten public offering and the inclusion of such Person’s Registrable Securities in the underwritten public offering to the extent provided herein. The Company will use its commercially reasonable efforts to expeditiously effect (but in any event no later than 180 days after the receipt of the Demand Request) the consummation of an IPO or (iii) a Spin-Off or Hostile Change in Control at any time, Holders of at least fifty percent (50%) registration of all Registrable Securities then held by parties to this Agreement (or whose holders request participation in such registration under the case of a Spin-Off the percentage of Registrable Securities equal Act, but only to the proportion which the majority of the number shares of Common acquired pursuant to the Subscription Agreement bears to all Registrable Securities at the time of the Spin-Off) may request the Company to Register any or all of their Registrable Securities (a "Demand Notice"). Demand Notices shall be made extent provided for in writing and shall specify the Holders making the Demand Noticethis Section 2.1; provided, the number and type of Registrable Securities that each requests to be Registeredhowever, whether the Registrable Securities will be sold through an underwriter, and if so, the underwriters name, address, telephone number and contact person. The Company will prepare and file a Registration Statement in accordance with Section 4 for the Registrable Securities to be Registered pursuant to a valid Demand Notice; provided that the Company shall not be required to prepare or file effect registrations pursuant to a Registration Statement request under this Section 2.1 more than five times, one by each of (1) the Riverwood Entities (acting as a group), (2) the FTV Entities (acting as a group), (3) WPP and (4) the Founders (acting as a group) and one by any two of (1) the Riverwood Entities (acting as a group), (2) the FTV Entities (acting as a group), (3) WPP and (4) the Founders (acting as a group). Notwithstanding anything to the contrary contained herein, no request may be made under this Section 2 more than once in any twelve (12) month period, more than twice after an IPO or more than three (3) times in total. Registrations pursuant to Demand Notices are subject to the further limitations set forth in Section 2.3.
2.2 Within ten (10) days from its receipt of a valid Demand Notice, the Company shall deliver written notice to all Holders that, pursuant to a Demand Notice, the Company will prepare and file a Registration Statement. Any Holder who was not a party to the Demand Notice may, within ten (10) days from receipt of the Company's notice, request the Company to include the Holder's Registrable Securities in the Registration Statement. If the Holders that initiated a Demand Notice specify therein that they intend to distribute their Registrable Securities through an underwriter, then each Holder that requests inclusion in the Registration Statement must participate in such underwriting, and become party to any required agreements, including, but not limited to, customary underwriting and indemnification agreements. The Company shall have the right to approve any underwriter, which approval shall not be unreasonably withheld. In the event that the underwriter limits the number of Registrable Securities to be included in the offering to fewer than the number that has been requested for Registration, then each Holder's Registrable Securities shall be included in the underwriting pro rata, based on the total number of Registrable Securities held by the participating Holders.
2.3 Registrations under this Section 2 are subject to the following limitations: (i) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice within one hundred eighty and twenty (180120) days after the effective date of any Registration Statement a registration statement filed by the Company covering a firm commitment underwritten public offering (subsequent to the IPO) in which the holders of Registrable Securities shall have been entitled to join and in which there shall have been effectively registered a majority of the Registrable Securities as to which registration shall have been requested. A registration will not count as a requested registration under this Section 2.1(a) unless and until the registration statement relating to such registration has been declared effective by the Commission at the request of the initiating Shareholders; provided, however, that a majority in interest of the participating holders of Registrable Securities may request, in writing, that the Company withdraw a registration statement which has been filed under this Section 2.1(a) but has not yet been declared effective, and a majority in interest of such holders may thereafter request the Company to reinstate such registration statement, if permitted under the Securities Act, or to file another registration statement, in accordance with the procedures set forth herein and without reduction in the number of demand registrations permitted under this Section 2.1(a).
(b) If a requested registration involves an underwritten public offering and the managing underwriter of such offering 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 be reduced to a number deemed satisfactory by such managing underwriter; provided, that the shares to be excluded shall be determined in the following order of priority: (i) securities to be registered by the Company pursuant to such registration statement shall be the first to be reduced or excluded, (ii) Registrable Securities of Shareholders requesting to have their securities included in the demand registration statement filed by the Company in which compliance with the Holders party Demand Request shall be the second to be reduced or excluded, and (iii) Registrable Securities of the Shareholders initiating the Demand Request shall be the last to be reduced or excluded. If there is a reduction of the number of Registrable Securities pursuant to clause (iii), such reduction shall be made in proportion (as nearly as practicable) to the number of Registrable Securities owned by the Shareholders initiating the Demand Notice could have Request, and, if such reduction exceeds 25% of the Registrable Securities of Shareholders requested to be included their Registrable Securities; in such offering, then the registration shall not cause a reduction in the number of demand registrations permitted under Section 2.1(a).
(c) With respect to a request for registration pursuant to Section 2.1(a) which is for an underwritten public offering, the managing underwriter shall be chosen by the majority of the Registration Rights Holder(s) that made the Demand Request. The Company may not cause any other registration of securities for sale for its own account (other than a registration effected solely to implement an employee benefit plan or a transaction to which Rule 145 of the Securities Act is applicable) to become effective within one hundred and twenty (120) days following the effective date of any registration required pursuant to this Section 2.1.
(d) The Company will not be obliged to effect any demand registration when (i) the request for registration does not cover that number of common shares with an anticipated gross offering price of at least $10,000,000, or (ii) the Company may delay the effectiveness amount of a Demand Notice for a period of not common shares to be sold in such registration represents more than six months after receipt of a Demand Notice in any 12-month period if the Company furnishes a certificate signed by its president stating that in the good faith judgment 15% of the Company's board of directors it would be detrimental to the Company for the Registration Statement to be effected at such time; and (iii) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice if it is then preparing a Registration Statement in connection with an underwritten public offering of Company securities, and the Company may delay the effectiveness of such Demand Notice until one hundred eighty (180) days after the effective date of such Registration Statement’s share capital.
Appears in 1 contract
Demand Registration. 2.1 After (a) At any time after June 1, 1998, the earlier Holders shall have the right to request (each such request, a "Registration Demand") that the Company file a registration statement under the Securities Act in respect of all or any portion of such Holder's Eligible Securities; provided that if any Holders shall request that a portion, but not all, of its Eligible Securities be registered in accordance with this Section 7.1 (iincluding a requested Takedown pursuant to subsection (c)(ii) the first anniversary below), such portion shall include not less than two hundred and fifty thousand (250,000) shares of Eligible Common Stock (or such lesser number of such shares having a market valuation of at least $5,000,000 as of the date the Registration Demand is made, based on the Closing Price on such date). A Registration Demand shall specify the number of this Agreementshares of Eligible Common Stock (and, (ii) the consummation of an IPO or (iii) a Spin-Off or Hostile Change in Control at any time, Holders of at least fifty percent (50%) of all Registrable Securities then held by parties to this Agreement (or in the case of a Spin-Off Registration Demand by the percentage of Registrable Securities equal to the proportion which the majority of the number shares of Common acquired pursuant to the Subscription Agreement bears to all Registrable Securities at the time of the Spin-Off) may request the Company to Register any or all of their Registrable Securities (a "Demand Notice"). Demand Notices shall be made in writing and shall specify the Holders making the Demand NoticeInitial Holder, the number and type of Registrable Securities Warrants) that each requests such Holder proposes to sell in the offering. If no Shelf Registration Statement shall be Registered, whether effective as of the Registrable Securities will be sold through an underwriter, and if sodate of the Registration Demand, the underwriters namedemanding Holders may elect to register such Eligible Securities in accordance with either Section 7.1(c)(i) or Section 7.1(d). If a Shelf Registration Statement shall be effective as of the date of the Registration Demand, address, telephone number and contact personthen all demanding Holders shall be deemed to have elected to register their Eligible Securities pursuant to Section 7.1(c)(ii). The Holders may make in the aggregate two (2) Registration Demands pursuant to Sections 7.1(c)(i) and 7.1(d) and four (4) Registration Demands per year pursuant to an existing Shelf Registration Statement pursuant to Section 7.1(c)(ii) for which the Company will prepare pay and file a Registration Statement bear all costs and expenses in accordance with Section 4 8.3 and thereafter the Holders may make an unlimited number of Registration Demands for which such requesting Holders shall pay and bear all costs and expenses.
(b) Upon receipt of a Registration Demand (other than a Takedown), the Registrable Securities Company shall give written notice thereof to be Registered pursuant all of the other Holders at least thirty (30) days prior to the initial filing of a valid Demand Notice; provided Registration Statement relating to such Registration Demand. Each of the other Holders shall have the right, within twenty (20) days after the delivery of such notice, to request that the Company shall not be required to prepare include all or file a portion of such Holder's Eligible Securities in such Registration Statement. Upon receipt of a Registration Statement under this Section 2 more than once in any twelve (12) month periodDemand that is a Takedown, more than twice after an IPO or more than a representative of the selling holders shall give written notice thereof to all of the other Holders at least three (3) times Business Days prior to the initial filing of a prospectus relating to such Registration Demand. Each of the other Holders shall have the right, within one (1) Business Day after the delivery of such notice, to request that the Company include all or a portion of such Holder's Eligible Securities in total. Registrations such Registration Statement.
a. As promptly as practicable and in no event later than sixty (60) days after the Company receives a Registration Demand electing to register Eligible Securities pursuant to Demand Notices are subject to the further limitations set forth in Section 2.3.
2.2 Within ten this paragraph (10) days from its receipt of a valid Demand Noticec), the Company shall deliver written notice to file under the Securities Act a "shelf" registration statement (the "Shelf Registration Statement") providing for the registration and the sale on a continuous or delayed basis of all Holders thatthe Eligible Securities, pursuant to Rule 415 under the Securities Act and/or any similar rule that may be adopted by the SEC (the "Shelf Registration"). The Company agrees to use its reasonable best efforts to cause such Shelf Registration Statement to become or be declared effective as soon as practicable but no later than 75 calendar days after the filing (the "75 Day Effective Date") and to keep such Shelf Registration continuously effective for a period ending on the occurrence of the earlier of: (x) the third anniversary of such Registration Demand Noticeand (y) notification by all of the requesting Holders that such Holders have sold all of the Eligible Securities owned by them. The Company further agrees to supplement or make amendments to the Shelf Registration Statement and the prospectus included therein (x) as may be necessary to effect and maintain the effectiveness of such Shelf Registration Statement for the period set forth in the previous sentence and (y) as may be required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration or by the Securities Act or rules and regulations thereunder for shelf registration. The Company agrees to furnish to the Holders of the securities registered thereby copies of any such supplement or amendment (but excluding any periodic reports required to be filed with the SEC under the Exchange Act of 1934) so that the Initial Holder, or if the Initial Holder is no longer a Holder, the Holders, through the Representative(s), have a reasonable opportunity to comment thereon prior to its being used and/or filed with the SEC.
b. As promptly as practicable after the Company receives a Registration Demand from a Holder or Holders pursuant to which a Holder is deemed to have elected to register Eligible Securities pursuant to an existing Shelf Registration Statement (a "Takedown"), the Company will prepare and shall, subject to the Takedown Blackout Period described below, file a Registration Statement. Any Holder who was not a party Prospectus with the SEC and otherwise comply with the Securities Act and all rules, regulations and instructions thereunder applicable to the Demand Notice may, within ten (10) days from receipt of the Company's notice, request the Company to include the Holder's Registrable Securities in the Registration Statement. If the Holders that initiated a Demand Notice specify therein that they intend to distribute their Registrable Securities through an underwriter, then each Holder that requests inclusion in the Registration Statement must participate in such underwriting, and become party to any required agreements, including, but not limited to, customary underwriting and indemnification agreements. The Company shall have the right to approve any underwriter, which approval shall not be unreasonably withheldTakedown. In the event that no Prospectus or other filing is required nor any other action necessitating the underwriter limits Company's participation is required to effect a sale of Eligible Securities pursuant to an effective Shelf Registration Statement filed pursuant to Section 7.1(c)(i), each selling Holder agrees to provide the number Company with at least three (3) Business Days' notice of Registrable the proposed sale (which may or may not include the amount of Eligible Securities to be included in registered) pursuant to the offering to fewer than effective Shelf Registration Statement; provided, however, that the number that has been requested for RegistrationCompany shall, then each Holder's Registrable Securities shall be included in the underwriting pro rata, based on the total number of Registrable Securities held by the participating Holders.
2.3 Registrations under this Section 2 are subject to Section 7.3(g), have the following limitationsright to postpone any such sale whether before or after the filing of the applicable Prospectus or Shelf Registration Statement for a reasonable period of time not to exceed ninety (90) days (a "Takedown Blackout Period") if: (i) the Company need determines in its good faith judgment that it would, in connection with such sale, be required to disclose in such Registration Statement (or any prospectus supplement to be used in connection therewith) information not prepare otherwise then required by law to be publicly disclosed and (ii) either (x) in the good faith judgment of the Board of Directors of the Company, such disclosure would adversely affect any material corporate development or file business transaction contemplated by the Company or (y) the Company has a bona fide purpose for preserving as confidential such information; provided further that the Takedown Blackout Period shall earlier terminate upon the completion or abandonment of the relevant corporate development or business transaction or upon public disclosure by the Company or public disclosure by the Company or public admission by the Company of such information specified in (i) above.
(d) As promptly as practicable and in no event later than sixty (60) days after the Company receives a Registration Statement Demand electing to register Eligible Securities pursuant to this Section 7.1(d), the Company shall file with the SEC a Demand Notice within Registration Statement, on any form that shall be available and appropriate for the sale of the Eligible Securities in accordance with the intended method of distribution thereof. The Company shall include in such Registration Statement all of the Eligible Securities of such requesting Holders that such Holders have requested to be included therein pursuant to Sections 7.1(a) and 7.1(b); provided, however, that, if the requested registration involves an underwritten offering, the Eligible Securities to be registered may be reduced if the managing underwriter delivers a notice (a "Cutback Notice") pursuant to Section 7.1(g). The Com- pany shall use its reasonable best efforts to cause each such Registration Statement to be declared effective (and to obtain acceleration of such effectiveness) as soon as practicable but no later than 75 days after filing such Registration Statement and to keep such Registration Statement continu- ously effective and usable for resale of such Eligible Securities, for a period of one hundred eighty (180) days after from the date on which the SEC declares such Registration Statement effective date or such shorter period as is necessary to complete the distribution of the securities registered thereunder.
(e) The Initial Holder or, if the Initial Holder is not a selling holder, the Representative(s) shall determine the method of distribution of Eligible Securities pursuant to a Registration Demand.
(f) If a Registration Demand involves an underwritten offering, the investment banker or investment bankers and manager or managers that will administer such offering will be selected by the Initial Holder or, if the Initial Holder is not a selling holder, the Representative(s); provided that the Persons so selected shall be reasonably satisfactory to the Company.
(g) In the event that the proposed offering is an underwritten offering and includes securities to be offered for the account of the Company (the "Company Shares"), the provisions of this Section 7.1(g) shall be applicable if the managing underwriter delivers a Cutback Notice stating that, in its opinion, the aggregate number of shares of Eligible Common Stock, plus the Company Shares proposed to be sold therein, exceeds the maximum number of shares specified by the managing underwriter in such Cutback Notice that may be distributed without adversely affecting the price, timing or distribution of the Common Stock being distributed. If the managing underwriter delivers such Cutback Notice, the number of shares of Eligible Common Stock requested to be registered and Company Shares shall be reduced in the following order until the number of shares to be offered has been reduced to the maximum number of shares specified by the managing underwriter in the Cutback Notice: first, the Company Shares and second, the Eligible Common Stock in proportion to the respective number of shares of Eligible Common Stock that each Holder has requested to be registered.
(h) The Company will pay all Registration Expenses (as set forth in Section 8.3) in connection with a registration under this Section 7.1.
(i) No Registration Demand (other than a Takedown) may be made until the expiration of six (6) months following the completion of the distribution of the securities registered under any Registration Statement that has been filed by and has become effective pursuant to a prior Registration Demand.
(j) A Registration Demand will not be deemed satisfied (and will not count for purposes of the Company limitations in which the Holders party to the Demand Notice could have included their Registrable Securities; Section 7.1(a)) (iii) the Company may delay the effectiveness of unless a Demand Notice registration statement with respect thereto has become effective and has been kept continuously effective for a period of not more than six months at least 180 days (or such shorter period which shall terminate when all Eligible Securities covered by such registration statement have been sold), (ii) if, after receipt of a Demand Notice in it has become effective, such registration is interfered with by any 12-month period if the Company furnishes a certificate signed by its president stating that in the good faith judgment stop order, injunction or other order or requirement of the Company's board of directors it would be detrimental SEC or other governmental agency or court for any reason not attributable to the Company for the Registration Statement to be effected at selling holders participating in such time; registration and has not thereafter become effective, or (iii) if the Company need not prepare conditions to closing specified in the relevant underwriting or file a Registration Statement pursuant to a Demand Notice if it is then preparing a Registration Statement agency agreement entered into in connection with an underwritten public such offering are not satisfied or waived, other than by reason of Company securities, and the Company may delay the effectiveness a breach of such Demand Notice until one hundred eighty (180) days after agreement by the effective date selling holders participating in such offering or wilful failure on the part of the selling holders participating in such Registration Statementoffering.
Appears in 1 contract
Demand Registration. 2.1 After (a) Until the earlier of (i) the first anniversary expiration of the date Warrant Exercise Term, the Majority of this AgreementHolders (as defined below) shall have the right, (ii) the consummation of an IPO or (iii) a Spin-Off or Hostile Change in Control at any time, Holders of at least fifty percent (50%) of all Registrable Securities then held by parties to this Agreement (or in the case of a Spin-Off the percentage of Registrable Securities equal written notices to the proportion which the majority of the number shares of Common acquired pursuant to the Subscription Agreement bears to all Registrable Securities at the time of the Spin-Off) may request the Company to Register any or all of their Registrable Securities (a collectively, "Demand Notice"). , to demand that, subject to Section 5.1(d) hereof, the Company prepare and file with the U.S. Securities and Exchange Commission (the "Commission"), on not more than two separate occasions, a registration statement and such other documents, including a prospectus, as may be necessary to permit a public offering and sale of the shares of Common Stock issuable upon conversion of their respective shares of Preferred Stock (including the shares of Preferred Stock underlying the Agent's Units, and the shares of Common Stock underlying the Agent's Warrants contained in the Agent's Securities (hereinafter, the "Registrable Securities")) in the manner set forth in the Demand Notices Notice; provided, that the second of these two requests shall not be made within 180 days of the first such request.
(b) In addition, if the Company is a registrant entitled to use Form S-3, or any successor thereto, then, until the expiration of the Warrant Exercise Term, a Majority of Holders shall have the right, by written notices to the Company (also, collectively, "Demand Notice"), to demand that the Company prepare and file with the Commission, on not more than two separate occasions, a registration statement on Form S-3, or any successor thereto, and such other documents as may be necessary to permit a public offering of the Registrable Securities in writing and the manner set forth in the Demand Notice; provided, that the second of these two requests shall specify not be made within 180 days of the Holders making the first such request.
(c) Following receipt of any Demand Notice, the Company shall immediately notify all Holders from whom a Demand Notice has not been received of its receipt thereof, the number of shares of Common Stock specified in the Demand Notice and type in all Demand Notices received by the Company from other Holders within 30 days after the giving of Registrable Securities that each requests to such notice by the Company. If the method of disposition shall be Registeredan underwritten public offering, whether the Holders of a majority of the Registrable Securities will (exclusive of shares of Common Stock included pursuant to Section 5.3(d) hereof) to be sold through an underwriterin such offering may designate the managing underwriter of such offering, and if sosubject to the approval of the Company, which approval shall not be unreasonably withheld or delayed.
(d) Notwithstanding anything to the underwriters namecontrary in Section 5.1(a), address, telephone number and contact person. The Company will prepare and file a Registration Statement in accordance with Section 4 for the Registrable Securities to be Registered pursuant to a valid Demand Notice; provided that the Company shall not be required to prepare or file a Registration Statement under this Section 2 more than once in any twelve (12) month period, more than twice after an IPO or more than three (3) times in total. Registrations registration statement pursuant to Section 5.1(a) unless within the 60-day period immediately preceding the delivery of the applicable Demand Notices are subject to the further limitations set forth in Section 2.3.
2.2 Within ten (10) days from its receipt of a valid Demand Notice, Notice the Company shall deliver written notice to all has received cash proceeds from the exercise of Agent's Warrants of at least $25,000 or Holders that, pursuant to a Demand Notice, the Company will prepare and file a Registration Statement. Any Holder who was not a party to the Demand Notice may, within ten (10) days from receipt of the Company's notice, request the Company to include the Holder's Registrable Securities in the Registration Statement. If the Holders that initiated a Demand Notice specify therein that they intend to distribute their Registrable Securities through an underwriter, then each Holder that requests inclusion in the Registration Statement must participate in such underwriting, and become party to any required agreements, including, but not limited to, customary underwriting and indemnification agreements. The Company shall have the right to approve any underwriter, which approval shall not be unreasonably withheld. In the event that the underwriter limits the number of Registrable Securities to be included in such registration statement agree in writing with the offering Company to fewer than the number that has been requested for Registration, then each Holder's Registrable Securities shall be included in the underwriting pro rata, based on the total exercise a number of Registrable Securities held by Agent's Warrants within 90 days of the participating Holders.
2.3 Registrations under this Section 2 are subject to the following limitations: (i) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice within one hundred eighty (180) days after the effective date of any Registration Statement filed by the Company in which the Holders party to the Demand Notice could have included their Registrable Securities; (ii) the Company may delay the effectiveness of a Demand Notice for a period of not more than six months after receipt of a Demand Notice in any 12-month period if the Company furnishes a certificate signed such registration statement by its president stating that in the good faith judgment cash payment of the Company's board of directors it would be detrimental exercise price that will generate cash proceeds to the Company for the Registration Statement to be effected of at such time; and (iii) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice if it is then preparing a Registration Statement in connection with an underwritten public offering of Company securities, and the Company may delay the effectiveness of such Demand Notice until one hundred eighty (180) days after the effective date of such Registration Statementleast $25,000.
Appears in 1 contract
Demand Registration. 2.1 After (a) At any time by delivery of written notice to the earlier of Company (a “Demand Notice”):
(i) the first anniversary Requisite Series C Holders may require the Company to register for sale under the Securities Act all or any portion of the date Registrable Securities held by the Series C Holders for sale in the manner specified in such Demand Notice (a “Series C Demand Registration”). The Requisite Series C Holders shall be entitled to only two (2) Series C Demand Registrations pursuant to this Section 2.1(a)(i); provided, that, they may only make demand for one such Series C Demand Registration in any twelve month period, unless any of this Agreement, them shall have had any Registrable Securities excluded from a Registration Statement that was filed during such twelve month period; and
(ii) the consummation Requisite Series AB Holders may require the Company to register for sale under the Securities Act all or any portion of an IPO or the Registrable Securities held by the Series AB Holders for sale in the manner specified in such Demand Notice; provided, that (i) the portion of the Registrable Securities required to be so registered equals at least 25% of the shares of Common Stock issuable upon conversion of the shares of Series A Preferred Stock and Series B Preferred Stock then outstanding and (ii) the aggregate proceeds from the sale of the shares so registered is reasonably expected to exceed $30,000,000 (a “Series AB Demand Registration”). The Requisite Series AB Holders shall be entitled to only two (2) Series AB Demand Registrations pursuant to this Section 2.1(a)(ii); provided, that, they may only make demand for one such Series AB Demand Registration in any twelve month period, unless any of them shall have had any Registrable Securities excluded from a Registration Statement that was filed during such twelve month period; and
(iii) a Spin-Off or Hostile Change in Control at any time, The Requisite Note Holders of at least fifty percent (50%) of all Registrable Securities then held by parties to this Agreement (or in the case of a Spin-Off the percentage of Registrable Securities equal to the proportion which the majority of the number shares of Common acquired pursuant to the Subscription Agreement bears to all Registrable Securities at the time of the Spin-Off) may request require the Company to Register register for sale under the Securities Act all or any or all portion of their Registrable Securities (a "Demand Notice"). Demand Notices shall be made in writing and shall specify the Holders making the Demand Notice, the number and type of Registrable Securities that each requests to be Registered, whether the Registrable Securities will be sold through an underwriter, and if so, held by the underwriters name, address, telephone number and contact personNote Holders for sale in the manner specified in such Demand Notice (a “Note Demand Registration”). The Company will prepare and file Requisite Note Holders shall be entitled to only two (2) Note Demand Registrations pursuant to this Section 2.1(a)(iii); provided, that, they may only make demand for one such Note Demand Registration in any twelve month period, unless any of them shall have had any Registrable Securities excluded from a Registration Statement in accordance with Section 4 that was filed during such twelve month period;
(iv) The Requisite Bond Warrant Holders may require the Company to register for sale under the Securities Act all or any portion of the Registrable Securities held by the Bond Warrant Holders for sale in the manner specified in such Demand Notice (a “Bond Warrant Demand Registration”); provided, however, that a Bond Warrant Demand Registration may not be made within 180 days after the date hereof. The Requisite Bond Warrant Holders shall be entitled to be Registered only two (2) Bond Warrant Demand Registrations pursuant to a valid this Section 2.1(a)(iv), except as provided in Section 2.1(a)(v); provided, that, they may only make demand for one such Bond Warrant Demand Notice; provided that the Company Registration in any twelve month period, unless any of them shall not be required to prepare or file have had any Registrable Securities excluded from a Registration Statement under this Section 2 more than once in any that was filed during such twelve (12) month period, more than twice after an IPO or more than three ; and
(3v) times in total. Registrations pursuant to Demand Notices are subject to the further limitations set forth in Section 2.3.
2.2 Within ten (10) days from its receipt of a valid Demand Notice, if the Company shall deliver written notice is then a registrant entitled to all use Form S-3 or any successor form thereto to effect the distribution of such Registrable Securities for public sale or re-sale (as the case may be), (aa) the Requisite Series C Holders that, pursuant to a Demand Notice, the Company will prepare and file a Registration Statement. Any Holder who was not a party to the Demand Notice may, within ten (10) days from receipt of the Company's notice, request may require the Company to include register for sale or re-sale under the Holder's Securities Act by filing a Registration Statement on Form S-3 or any comparable or successor form thereto for a public offering of all or any portion of the Registrable Securities in held by them, (bb) the Registration Statement. If Requisite Series AB Holders may require the Holders that initiated Company to register for sale or re-sale under the Securities Act by filing a Demand Notice specify therein that they intend to distribute their Registrable Securities through an underwriter, then each Holder that requests inclusion in the Registration Statement must participate in such underwriting, and become party to on Form S-3 or any required agreements, including, but not limited to, customary underwriting and indemnification agreements. The Company shall have comparable or successor form thereto for a public offering of all or any portion of the right to approve any underwriter, which approval shall not be unreasonably withheld. In the event that the underwriter limits the number of Registrable Securities to be included in the offering to fewer than the number that has been requested for Registration, then each Holder's Registrable Securities shall be included in the underwriting pro rata, based on the total number of Registrable Securities held by the participating Holders.
2.3 Registrations under this Section 2 are subject to the following limitations: them, (icc) the Requisite Note Holders may require the Company need not prepare to register for sale or file re-sale under the Securities Act by filing a Registration Statement pursuant to on Form S-3 or any comparable or successor form thereto for a public offering of all or any portion of the Registrable Securities held by them, in each case, in accordance with the method of disposition specified in the Demand Notice and (dd) the Requisite Bond Warrant Holders may require the Company to register for sale or re-sale under the Securities Act by filing a Registration Statement on Form S-3 or any comparable or successor form thereto for a public offering of all or any portion of the Registrable Securities held by them, in each case, in accordance with the method of disposition specified in the Demand Notice. Whenever the Company is required by this Section 2.1(a)(v) to effect the registration of Registrable Securities, each of the procedures and requirements of Sections 2.1 and 2.4 shall apply to such registration, and the Company shall cause such Registration Statement to be declared effective within one hundred eighty (180) days after the effective date Company’s receipt of the request for such registration. There shall be no limitation on the number of registrations on Form S-3 which may be requested and obtained under this Section 2.1, and such requests and registrations shall not reduce the number of Series C Demand Registrations, Series AB Demand Registrations, Note Demand Registrations, or Bond Warrant Demand Registrations, as the case may be, to which the Series C Holders, Series AB Holders, Note Holders or Bond Warrant Holders, as the case may be, are entitled hereunder.
(b) Following receipt of any Registration Statement filed by Demand Notice under this Section 2.1, the Company in which the Holders party to the Demand Notice could have included their Registrable Securities; (ii) the Company may delay the effectiveness of a Demand Notice for a period of not more than six months after receipt of a Demand Notice in any 12-month period if the Company furnishes a certificate signed by its president stating that in the good faith judgment of the Company's board of directors it would be detrimental to the Company for the Registration Statement to be effected at such time; and (iii) the Company need not prepare or shall file a Registration Statement pursuant to a including the securities covered by such Demand Notice if it is then preparing a Registration Statement in connection with an underwritten public offering within thirty (30) days after receipt of Company securitiessuch Demand Notice (the “Filing Deadline”), and the Company may delay shall use its best efforts to effect the effectiveness of such Demand Notice until registration under the Securities Act as soon as practicable, and in any event within one hundred eighty (180) days after receipt of such Demand Notice (the “Effectiveness Deadline”), for public sale or re-sale in accordance with the method of disposition specified in such Demand Notice of the number of Registrable Securities specified in such Demand Notice. If a Registration Statement including the Registrable Securities referenced in the Demand Notice is not (i) filed with the Commission on or prior to the applicable Filing Deadline, or (ii) declared effective by the applicable Effectiveness Deadline, then the Company shall make pro rata payments to each Investor whose securities are to be included in such Registration Statement, as liquidated damages (and not as a penalty, as damages are impossible to forecast or predict and these amounts are deemed reasonable in all respects), in an amount equal to 1.5% of the aggregate Market Price (as defined in the Articles of Organization) (as of the Filing Deadline) of the Investor’s securities to be included in such Registration Statement for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been filed or declared effective, as the case may be, for which no Registration Statement is filed or has not been declared effective, as the case may be, with respect to the Registrable Securities. Such payments shall be in partial compensation to the Investors, and shall not constitute the Investors’ exclusive remedy for such events. Such payments shall be made to each Investor in cash. The amounts payable as liquidated damages pursuant to this Section 2.1(b) shall be payable in lawful money of the United States, and amounts payable as liquidated damages shall be paid within two (2) Business Days of the last day of each such 30-day period (or portion thereof if less than a full 30-day period) during which the Registration Statement should have been filed or been declared effective, as the case may be, for which no Registration Statement was filed or had not yet been declared effective, as the case may be, with respect to the Registrable Securities. In the event the Company fails to make such payments in a timely manner, such payments shall bear interest at the rate of 1.5% per 30-day period (prorated for partial periods) until paid in full.
(c) If the Initiating Stockholders intend to distribute the Registrable Securities covered by their Demand Notice by means of an underwriting, the Initiating Stockholders shall so advise the Company in their Demand Notice. If the method of disposition is an underwritten public offering, the Initiating Stockholders may designate the managing underwriter of such offering, which designation shall be subject to the Company’s approval, not to be unreasonably withheld. The Initiating Stockholders may elect to include in such underwriting all or any part of the Registrable Securities it holds, subject to the limitations required by the managing underwriter as provided for in Section 2.1(d).
(d) A Registration Statement filed pursuant to this Section 2.1 may, subject to the following provisions and in addition to the Registrable Securities, include (i) shares of Common Stock for sale by the Company for its own account; (ii) shares of Common Stock held by the Requisite Series C Holders, the Requisite Note Holders and Requisite Bond Warrant Holders who are not Initiating Stockholders (the “Non-Initiating Stockholders”); and (iii) shares of Common Stock held by persons other than the Company, the Preferred Holders, the Note Holders and Bond Warrant Holders (the “Other Stockholders”), in each case for sale in accordance with the method of disposition specified by the Initiating Stockholders and subject to the exclusions provided herein. If such registration shall be underwritten, the Company, the Preferred Holders, the Note Holders, the Bond Warrant Holders and the Other Stockholders proposing to distribute their shares through such underwriting shall enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting (the terms of which shall not be more favorable to the Company, the Non-Initiating Stockholders, and such Other Stockholders than the terms afforded therein to the Initiating Stockholders); provided, however, that no Registering Stockholder shall be required to make any representations or warranties, or provide any indemnity, in connection with any such Registration other than representations and warranties (or indemnities with respect thereto) as to (A) such Registering Stockholder’s ownership of its securities to be transferred pursuant to such underwriting agreement free and clear of all liens, claims and encumbrances, (B) such Registering Stockholder’s power and authority to effect the sale of such securities pursuant to such underwriting agreement, (C) such matters pertaining to compliance with securities laws by such Registering Stockholder as may be reasonably requested by the representative of the underwriter or underwriters and (D) such matters relating to written information furnished to the Company by such Registering Stockholder specifically for use in the registration statement and prospectus (and any related documents) to be used by the Company in connection with such Registration; provided further, however, that the obligation of such Registering Stockholder to indemnify any Person pursuant to any such underwriting agreement shall be several, not joint and several, among the Registering Stockholders selling securities in such Registration, and the liability of each such Registering Stockholder will be in proportion thereto; and provided further, however, that such liability will be limited to the net amount (after giving effect to underwriters discounts and commissions) received by such Registering Stockholder from the sale of its securities pursuant to such Registration. If and to the extent that the managing underwriter determines that marketing factors require a limitation on the number of shares to be included in such registration, then the shares of Common Stock sought to be registered by the Preferred Holders, the Note Holders, the Bond Warrant Holders and the Other Stockholders and shares of Common Stock to be sold by the Company for its own account shall be excluded from such registration to the extent so required by such managing underwriter in the following order of priority: (1st) and unless the Other Stockholders and the Company have otherwise agreed in writing, such exclusion shall be applied first to the shares sought to be registered by the Other Stockholders to the extent any such reduction is required by the managing underwriter; (2nd) then to the shares of Common Stock of the Company to be included for its own account to the extent any such reduction is required by the managing underwriter; (3rd) then to the shares sought to be registered by the Non-Initiating Stockholders; (4th) then to the shares sought to be registered by the Series AB Holders who are Initiating Stockholders and to the extent any such reduction is required by the managing underwriter; (5th) then to the shares sought to be registered by the Series C Holders who are Initiating Stockholders and the Note Holders who are Initiating Stockholders, ratably between them treating them as one class for the purpose of this clause (d), to the extent any such reduction is required by the managing underwriter; and (6th) then to the shares sought to be registered by the Bond Warrant Holders who are Initiating Stockholders, to the extent any such reduction is required by the managing underwriter. In any event, all securities to be sold other than Registrable Securities of the Series C Holders, the Note Holders and Bond Warrant Holders shall be excluded prior to any exclusion of Registrable Securities of the Series C Holders, the Note Holders and Bond Warrant Holders, if they are participating in such registration, whether or not they are the Initiating Stockholders with respect to such registration. No Registrable Securities or other securities, in either case, excluded from the underwriting by reason of the underwriter’s marketing limitation shall be included in such registration. If any of the Preferred Holders, Note Holders, Bond Warrant Holders or any of the Other Stockholders who has requested inclusion in such registration as provided above, disapproves of the terms of the underwriting, then such Preferred Holder(s), Note Holder(s), Bond Warrant Holder(s) or such Other Stockholder(s) may elect to withdraw therefrom by written notice to the Company and the managing underwriter. The securities so withdrawn shall thereupon be withdrawn from registration. If the Initiating Stockholder elects to withdraw from such Registration, the initiation of such Registration Statementshall not count as a demand registration by such Initiating Stockholder for purposes hereof.
(e) The Company may delay or postpone for up to 45 consecutive days effecting a Series AB, Series C Demand Registration, Note Demand Registration or Bond Warrant Demand Registration if the Company has delivered a written certificate to each Investor stating that the Board, acting in good faith, has resolved that pursuit of such demand registration during such 45-day period would have a material adverse effect on the Company and its shareholders; provided, however, that in the event of any such postponement, the Initiating Stockholders shall be entitled to withdraw the request for such demand registration and, if such request is withdrawn, such request shall not count as a demand registration hereunder; and provided, further, that the Company may not exercise its rights under this Section 2.1(e) for more than a total of 60 days in any eighteen month period.
Appears in 1 contract
Samples: Registration Rights Agreement (Molecular Insight Pharmaceuticals, Inc.)
Demand Registration. 2.1 After the earlier of (a) (i) the first anniversary of the date of this Agreement, (ii) the consummation of an IPO or (iii) a Spin-Off or Hostile Change in Control at At any time, Holders upon the written request the holders of at least fifty percent 20% of the Term B Notes and Term B Share Equivalents on an as converted basis or the holders of the Term B Notes with a face value of at least $1,000,000 (50%) such holders and their Affiliates holding Term B Notes or Share Equivalents, the "Lender Initiating Holders"), the Company shall use its best efforts to effect the registration of all or part of such Lender Initiating Holders' Registrable Securities then held by parties to this Agreement (or in under the case of a Spin-Off the percentage of Registrable Securities equal to the proportion which the majority Act as described below; PROVIDED, that each request of the number shares of Common acquired pursuant to the Subscription Agreement bears to all Registrable Securities at the time Lender Initiating Holders shall cover 20% or more of the Spin-Off) may Term B Notes and Term B Share Equivalents on as converted basis. Such request shall state the Company to Register any or all intended method of their Registrable Securities (a "Demand Notice"). Demand Notices shall be made in writing and shall specify the Holders making the Demand Notice, the number and type disposition by such Holder of Registrable Securities that each requests to be Registered, whether the Registrable Securities and the Company will be sold through an underwriter, and if so, promptly give written notice of such requested registration to all Holders of the underwriters name, address, telephone number and contact personRegistrable Securities. The Company will prepare and file a Registration Statement use its best efforts to effect such registration of (A) the Registrable Securities which the Company has been so requested to register for disposition in accordance with Section 4 the intended method of disposition stated in such request and (B) except as set forth in the next succeeding sentence, all other Registrable Securities the Holders of which shall have, within 30 days after the receipt of such written notice from the Company, made written request (stating the intended method of disposition of such securities by such Holders) to the Company for registration thereof, all to the extent required to permit the disposition (in accordance with the intended method thereof as aforesaid) by all such Holders of the Registrable Securities so to be Registered pursuant registered; PROVIDED, HOWEVER, that the Lender Initiating Holders shall not be deemed to have made a valid Demand Noticedemand request unless a registration statement shall have become effective with respect to 100% of the shares requested to be included therein by the Lender Initiating Holders; provided PROVIDED, FURTHER, HOWEVER, that the Company shall not be required to prepare or file a Registration Statement under effect any registration pursuant this Section 2 more than once in 2.01 at any twelve (12) month periodtime after the second such registration which shall not have been interfered with by any order or requirement of the Commission or any other governmental agency or any court. The Company, more than twice after an IPO or more than three (3) times in total. Registrations consultation with the Lender Initiating Holders requesting any registration pursuant to Demand Notices are subject this paragraph, shall select the underwriter or underwriters of recognized standing to be used in connection with any public offering of securities registered pursuant to this paragraph.
(b) If a requested registration pursuant to this Section 2.01 involves an underwritten offering, and the managing underwriter shall advise the Company in writing (with a copy to each Holder of Registrable Securities requesting registration) that, in its opinion, the number of securities requested to be included in such registration exceeds the number which can be sold in such offering within a price range acceptable to the further limitations set forth in Section 2.3.
2.2 Within ten (10) days from its receipt of a valid Demand Notice, the Company shall deliver written notice to all Holders that, pursuant to a Demand NoticeLender Initiating Holders, the Company will prepare and file a Registration Statement. Any Holder who was not a party exclude from such registration, to the Demand Notice may, within ten (10) days from receipt extent of the Company's notice, request the Company to include the Holder's Registrable Securities in the Registration Statement. If the Holders that initiated a Demand Notice specify therein that they intend to distribute their Registrable Securities through an underwriter, then each Holder that requests inclusion in the Registration Statement must participate in such underwriting, and become party to any required agreements, including, but not limited to, customary underwriting and indemnification agreements. The Company shall have the right to approve any underwriter, which approval shall not be unreasonably withheld. In the event that the underwriter limits the number of securities which the Company is so advised cannot be sold in such offering, first, on a pro rata basis in accordance with the amount of Fully Diluted Common Stock held beneficially or of record, the Registrable Securities requested to be included in registered for the offering to fewer account of any Person (including the Company) other than the number that has been requested for RegistrationLender Initiating Holders and Holders of Term B Notes or Share Equivalents and second, then each Holder's on a pro rata basis in accordance with the amount of Fully Diluted Common Stock held beneficially or of record, the Registrable Securities shall requested to be included in registered for the underwriting pro rata, based on the total number of Registrable Securities held by the participating Holders.
2.3 Registrations under this Section 2 are subject to the following limitations: (i) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice within one hundred eighty (180) days after the effective date of any Registration Statement filed by the Company in which the Holders party to the Demand Notice could have included their Registrable Securities; (ii) the Company may delay the effectiveness of a Demand Notice for a period of not more than six months after receipt of a Demand Notice in any 12-month period if the Company furnishes a certificate signed by its president stating that in the good faith judgment account of the Company's board of directors it would be detrimental to the Company for the Registration Statement to be effected at such time; and (iii) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice if it is then preparing a Registration Statement in connection with an underwritten public offering of Company securities, and the Company may delay the effectiveness of such Demand Notice until one hundred eighty (180) days after the effective date of such Registration Statement.Lender Initiating
Appears in 1 contract
Samples: Registration Rights Agreement (Viasource Communications Inc)
Demand Registration. 2.1 After If, on or after the earlier to occur of December 31, 1995, or the expiration of 180 days after the Company shall have first offered its securities pursuant to a registration under the Securities Act of 1933, as amended (the 111933 Act”), Initiating Holders shall notify the Company in writing that such Holders intend to offer or cause to be offered for sale to the public all or any portion of the Registrable securities under such circumstances as would require registration thereof under the 1933 Act or qualification thereof under one or more state securities laws of jurisdictions in which the offer is to be made, the Company will, as expeditiously as possible, (i) notify Holders other than the first anniversary of Initiating Holders that it has been requested to register Registrable Securities under the date of 1933 Act pursuant to this AgreementSection 8.1, and (ii) use its best efforts to cause such securities as may be requested by any Holder thereof to be registered under the consummation 1933 Act, if applicable, and registered or qualified under any state securities laws to the extent required (in the opinion of an IPO counsel referred to in this Section 8.1) to permit the sale or (iii) other disposition thereof in the manner described by the person requesting such registration. The Holders shall have a Spintotal of four such rights to demand registration of Registrable Securities under this Section 8.1. In addition to the above-Off described demand registration rights, the holders of Preferred Stock of the Company shall have a total of two rights to demand registration of Registrable Securities held by them under this Section 8.1. In the event such holders of Preferred Stock of the Company exercise such rights, for purposes of this Section 8, the term “Holder” shall mean any holder of Class A Preferred Stock, any Investor who is a holder of Preferred Stock or Hostile Change in Control at any time, Holders Permitted Transferee or Qualified Buyer who has acquired all or a portion of the holder’s rights under this Section 8 provided that any Qualified Buyer or Permitted Transferee must hold at least 25,000 shares of Registrable Securities (as adjusted for stock splits, stock dividends, etc.), and the term “Initiating Holder,” shall mean any Holder or Holders who in the aggregate are holders of fifty percent (50%) or more of all Registrable Securities then held the Preferred Stock of the Company. If holders of securities of the Company other than Holders who are entitled, by parties contract with the Company, to have such securities included in such a registration (the “Other Holders”) request such inclusion, the Initiating Holders shall offer to include the securities of such other Holders in any registration pursuant to this Agreement (or in the case of a Spin-Off the percentage of Registrable Securities equal to the proportion which the majority of the number shares of Common acquired pursuant to the Subscription Agreement bears to all Registrable Securities at the time of the Spin-Off) may request the Company to Register any or all of their Registrable Securities (a "Demand Notice"). Demand Notices shall be made in writing and shall specify the Holders making the Demand Notice, the number and type of Registrable Securities that each requests to be Registered, whether the Registrable Securities will be sold through an underwriter, and if so, the underwriters name, address, telephone number and contact personSection 8.1. The Company will prepare (together with all Holders and file Other Holders proposing to include their securities in such registration) shall enter into an underwriting agreement in customary form with the underwriter or representative of the underwriters (the “Underwriter”) selected to underwrite such offering by a Registration Statement majority in accordance with Section 4 for interest of the Registrable Securities to be Registered pursuant to a valid Demand Notice; provided that the Company shall not be required to prepare or file a Registration Statement under this Section 2 more than once in any twelve (12) month periodInitiating Holders, more than twice after an IPO or more than three (3) times in total. Registrations pursuant to Demand Notices are subject to the further limitations set forth in Section 2.3.
2.2 Within ten (10) days from its receipt of a valid Demand Notice, the Company shall deliver written notice to all Holders that, pursuant to a Demand Notice, the Company will prepare and file a Registration Statement. Any Holder who was not a party to the Demand Notice may, within ten (10) days from receipt approval of the Company's notice, request the Company to include the Holder's Registrable Securities in the Registration Statement. If the Holders that initiated a Demand Notice specify therein that they intend to distribute their Registrable Securities through an underwriter, then each Holder that requests inclusion in the Registration Statement must participate in such underwriting, and become party to any required agreements, including, but not limited to, customary underwriting and indemnification agreements. The Company shall have the right to approve any underwriter, which approval shall not be unreasonably withheld. In the event that Notwithstanding any other provision of this Section 8.1, if the underwriter limits advises the Initiating Holders in writing that marketing factors require a limitation on the number of shares to be underwritten, the Initiating Holders shall so advise all Holders and other Holders whose securities would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the registration and underwriting shall be allocated among all Holders in proportion, as nearly as practicable, to the Respective amounts of Registrable Securities which they had requested to be included in such registration and underwriting at the time of filing the registration statement, and to the extent that additional shares may be included in the underwriting, among all Other Holders requesting such inclusion in proportion, as nearly as practicable, to the respective amount of securities which they had requested to be included in such registration and underwriting. No Registrable Securities or other securities excluded from the underwriting by reason of the Underwriter’s marketing limitations shall be included in such registration. If any Holder or Other Holder who has requested inclusion in such registration as provided herein disapproves of the terms of the underwriting, such person may elect to withdraw therefrom by written notice to the Company, the Underwriter and the Initiating Holders. The securities so withdrawn shall also be withdrawn from registration. If the Underwriter has not limited the number of Registrable Securities or other securities to be included underwritten, the Company may include its securities for its own account in such registration if the offering to fewer than Underwriter so agrees and if the number that has been requested for Registration, then each Holder's Registrable Securities shall be included in the underwriting pro rata, based on the total number of Registrable Securities held by the participating Holders.
2.3 Registrations which would otherwise have been included in such registration and underwriting will not thereby be limited. The registration of Registrable Securities under this Section 2 are subject 8.1 shall be at the Company’s expense, except that Holders and Other Holders participating in a registration pursuant hereto shall pay their pro rata brokerage or underwriting commissions or discounts relating to the following limitations: (i) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice within one hundred eighty (180) days after the effective date of any Registration Statement filed sale owned by the Company in which the Holders party to the Demand Notice could have included their Registrable Securitiesthem; (ii) the Company may delay the effectiveness of a Demand Notice for a period of not more than six months after receipt of a Demand Notice in any 12-month period if the Company furnishes a certificate signed by its president stating that in the good faith judgment of the Company's board of directors it would be detrimental to the Company for the Registration Statement to be effected at such time; and (iii) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice if it is then preparing a Registration Statement in connection with an underwritten public offering of Company securities, and the Company shall also pay the fees and expenses of any one special counsel retained by such Holders or other Holders and except that after the second demand registration under this Section 8.1 demand registrations shall be at the expense of the Holders participating in the registration. Initiating Holders who exercise a right to demand registration under this Section 8.1 may delay withdraw the exercise and cause the Company either not to file or to withdraw the filing of the registration statement at anytime prior to the effectiveness of such Demand Notice until one hundred eighty (180) days after the effective date of such Registration Statement.statement, provided that:
Appears in 1 contract
Samples: Series B Preferred Stock and Warrant Purchase Agreement (Exa Corp)
Demand Registration. 2.1 After (1) If, on the earlier of (i) the first six month anniversary of the date of this Agreement, uniView has not effected a registration of Registrable Securities pursuant to Section 2 hereof pursuant to which all of the Registrable Securities were sold, then (i) at any time from the six month anniversary of the date of this Agreement until all of the Registrable Securities have been sold pursuant to a registration effected under the terms of this Agreement or have become Rule 144 Resale Eligible (and if such Registrable Securities ever cease to be Rule 144 Resale Eligible, then until such time as they again become Rule 144 Resale Eligible), and (ii) the consummation of an IPO upon written notice from a Holder or (iii) a Spin-Off or Hostile Change in Control at any time, Holders of at least fifty percent (more than 50%) % of all the Registrable Securities then (the "Initiating Holders") in the manner set forth in Section 11(h) hereof requesting that uniView effect the registration under the Securities Act of any or all of the Registrable Securities held by parties such Holders (which notice shall specify the intended method or methods of disposition of such Registrable Securities), uniView shall use its best efforts to effect, in the manner set forth in Section 5, the registration under the Securities Act of such Registrable Securities for disposition in accordance with the intended method or methods of disposition stated in such request; provided that uniView shall not be obligated to file more than one (1) registration statement under the Securities Act relating to a registration request pursuant to this Section 3(a).
(2) Notwithstanding any other provision of this Agreement (or in the case of a Spin-Off the percentage of Registrable Securities equal to the proportion which the majority of the number shares of Common acquired contrary, a registration requested by a Holder pursuant to this Section 3 shall not be deemed to have been effected (and, therefore, not requested for purposes of Section 3(a)): (A) if it is withdrawn based upon material adverse information relating to uniView that is different from the Subscription Agreement bears information (x) known to all Registrable Securities the Holders requesting registration at the time of their request for registration, or (y) promptly disclosed by uniView to the Spin-Off) may request Holder at the Company to Register any or all time of their Registrable Securities request for registration; (a "Demand Notice"). Demand Notices shall be made in writing and shall specify the Holders making the Demand NoticeB) if, when effective, it includes fewer than ninety (90%) percent of the number and type of shares of Registrable Securities that each requests to be Registeredwhich were the subject matter of the request; (C) if after it has become effective such registration is interfered with by uniView invoking its rights under subsection 6(e) or any stop order, whether 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 Holder and, as a result thereof, less than ninety (90%) percent of the Registrable Securities will requested to be sold through an underwriter, and if so, the underwriters name, address, telephone number and contact person. The Company will prepare and file a Registration Statement registered can be completely distributed in accordance with Section 4 for the Registrable Securities to be Registered pursuant to a valid Demand Notice; provided that plan of distribution set forth in the Company shall not be required to prepare or file a Registration Statement under this Section 2 more than once in any twelve (12) month period, more than twice after an IPO or more than three related registration statement.
(3) times in total. Registrations In the event that any registration pursuant to Demand Notices are subject to the further limitations set forth this Section 3 shall involve, in Section 2.3.
2.2 Within ten (10) days from its receipt of a valid Demand Noticewhole or in part, the Company shall deliver written notice to all Holders thatan underwritten offering, pursuant to a Demand Notice, the Company will prepare and file a Registration Statement. Any Holder who was not a party to the Demand Notice may, within ten (10) days from receipt of the Company's notice, request the Company to include the Holder's Registrable Securities in the Registration Statement. If the Holders that initiated a Demand Notice specify therein that they intend to distribute their Registrable Securities through an underwriter, then each Holder that requests inclusion in the Registration Statement must participate in such underwriting, and become party to any required agreements, including, but not limited to, customary underwriting and indemnification agreements. The Company uniView shall have the right to approve designate the underwriter or underwriters, including the lead managing underwriter of such underwritten offering.
(4) Upon receipt of written notice from the Initiating Holders under Section 3(a) hereto, uniView shall, within five (5) days, give prompt written notice to all other Holders of Registrable Securities of such notice and of its intent to effect the registration of Registrable Securities pursuant to this Agreement. Such notice shall offer each such Holder the opportunity to include in such registration statement such number of Registrable Securities as each such Holder may request.
(5) Holders other than the Initiating Holders and holders of other registrable securities with the right to participate in a uniView registration statement shall have the right to include their shares of Registrable Securities or other registrable securities, as the case may be, in any underwriter, which approval shall not be unreasonably withheldregistration pursuant to Section 3(a). In connection with those registrations in which multiple Holders or holders of other registrable securities with the right to participate in such registration ("piggy-back rights holders") participate, in the event the facilitating broker/dealer or, in an underwritten offering, the lead managing underwriter advises that marketing factors require a limitation on the underwriter limits number of shares to be sold, the number of shares to be included in the sale or underwriting and registration shall be allocated (i) first, to the Holders, and, if less than the full number of Registrable Securities of such Holders, then pro rata on the basis of the number of Registrable Securities requested to be included in the offering to fewer than the number that has been requested for Registration, then registered by each Holder's Registrable Securities shall be included in the underwriting pro rata, based on the total number of Registrable Securities held by the participating Holders.
2.3 Registrations under this Section 2 are subject to the following limitations: (i) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice within one hundred eighty (180) days after the effective date of any Registration Statement filed by the Company in which the Holders party to the Demand Notice could have included their Registrable Securities; and (ii) second, to the Company may delay holders seeking registration pursuant to piggy-back registration rights otherwise granted by uniView pro rata on the effectiveness of a Demand Notice for a period of not more than six months after receipt of a Demand Notice in any 12-month period if the Company furnishes a certificate signed by its president stating that in the good faith judgment basis of the Company's board number of directors it would be detrimental to the Company for the Registration Statement securities requested to be effected at registered by each such time; and (iii) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice if it is then preparing a Registration Statement holder in connection with an underwritten public offering of Company securities, and the Company may delay the effectiveness of such Demand Notice until one hundred eighty (180) days after the effective date of such Registration Statementregistration.
Appears in 1 contract
Samples: Registration Rights Agreement (Uniview Technologies Corp)
Demand Registration. 2.1 After (a) Liberty Media or its designee, on behalf of the earlier Liberty Holders, shall be entitled to make written requests from time to time for Demand Registration of all or any part of the Registrable Securities held by the Liberty Holders, provided that each such Demand Registration must be in respect of Registrable Securities representing not less than the lower of (iA) 10% of the first anniversary Initial Amount or, with respect to Registrable Securities other than shares of Class A Stock, a number of such other securities having a fair market value (based on the average of the closing prices of such securities on the principal stock exchange or interdealer quotation system on which such securities are traded for the five consecutive trading days immediately preceding the date of this Agreementthe written request for such Demand Registration or, if such securities are not publicly traded, as determined in good faith by the Company's Board of Directors) equal to at least 10% of the product of (iix) the consummation Initial Amount, multiplied by (y) the average of an IPO the closing prices of the Class A Stock on the principal stock exchange or interdealer quotation system on which the Class A Stock is traded for the same five trading day period or (iiiB) a Spin-Off or Hostile Change in Control at any time, Holders of at least fifty percent (50%) of all Registrable Securities then held by parties to this Agreement (or in the case of a Spin-Off the percentage of Registrable Securities equal to the proportion which the majority of the number shares of Common acquired pursuant to the Subscription Agreement bears to all Registrable Securities at the time of the Spin-Off) may request the Company to Register any or all of their Registrable Securities (a "Demand Notice"). Demand Notices shall be made in writing and shall specify the Holders making the Demand Notice, the number and type of Registrable Securities that each requests to be Registered, whether the Registrable Securities will be sold through an underwriterheld by the Liberty Holders. Notwithstanding the foregoing, and if so, the underwriters name, address, telephone number and contact person. The Company will prepare and file a Registration Statement in accordance with Section 4 for the Registrable Securities to be Registered pursuant to a valid Demand Notice; provided that the Company shall not be required obligated to prepare or file a Registration Statement under this Section 2 effect more than once a total of five (5) Demand Registrations and Liberty Media and any designee of Liberty Media may make no more than two requests for a Demand Registration in any twelve (12) -month period, more than twice after an IPO or more than three (3) times in total. Registrations pursuant to Demand Notices are subject to the further limitations set forth in Section 2.3.
2.2 Within ten (10c) days from its Upon receipt of any request for a valid Demand NoticeRegistration by Liberty Media or its designee, the Company shall deliver promptly (but in any event within ten days) give written notice of such proposed Demand Registration to each of the Liberty Holders that, according to the stock transfer book of the Company, holds Registrable Securities, and all such Liberty Holders (including their respective direct or indirect transferees) shall have the right, exercisable by written notice to all Holders that, pursuant to a Demand Notice, the Company will prepare and file a Registration Statement. Any Holder who was not a party to the Demand Notice may, within ten (10) 20 days from of their receipt of the Company's notice, request the Company to elect to include the Holder's Registrable Securities in the such Demand Registration Statement. If the Holders that initiated a Demand Notice specify therein that they intend to distribute such portion of their Registrable Securities through an underwriteras they may request. All such Persons requesting to have their Registrable Securities included in a Demand Registration in accordance with the preceding sentence shall be deemed to be "Requesting Holders" for purposes of this Section 2.1.
(d) If Liberty Media or its designee so elects, then each Holder that requests inclusion the offering of such Registrable Securities pursuant to such Demand Registration shall be in the Registration Statement must participate in such underwriting, and become party to any required agreements, including, but not limited to, customary underwriting and indemnification agreementsform of a "firm commitment" underwritten offering. The Company shall have the right to approve select the Underwriters to be used in connection with any underwriteroffering under this Section 2.1, which approval provided that such Underwriters, including the managing Underwriters, shall not be unreasonably withheldreasonably satisfactory to the Requesting Holders that hold a majority of the Registrable Securities requested to be included in such Demand Registration. Any request for Demand Registration may specify that Registrable Securities are to be sold pursuant to a Shelf Registration.
(e) The Company will have the right to preempt any Demand Registration with a primary registration by giving written notice, within ten Business Days after the request for such Demand Registration was given, of such intention to Liberty Media indicating that the Company has identified a specific business need and use for the proceeds of the sale of such securities and had contemplated such sale of securities prior to the date such written request was given, and the Company shall use commercially reasonable efforts to effect a primary registration within 90 days of such notice. In the event ensuing primary registration, the Liberty Holders will have the Piggyback Registration rights set forth in Section 2.2 hereof. If the Company thereafter decides to abandon its intention to pursue such sale of securities, it shall give notice thereof to Liberty Media within two Business Days following the Company's decision. The Company may exercise the right to preempt a Demand Registration only once in each 360-day period; provided, that during each 360-day period the underwriter limits Company shall use its reasonable best efforts to permit a period of at least 180 consecutive days during which the Liberty Holders may effect a Demand Registration.
(f) If a Demand Registration involves an underwritten offering and the managing Underwriter(s) advise the Company and the Requesting Holders in writing that, in its opinion, the number of securities requested to be included in such registration (including securities of the Company that are not Registrable Securities) exceeds the number that can be sold in such offering without adversely affecting the price of the offering, the Company will include in such registration the Registrable Securities requested to be included in such registration. If the number of Registrable Securities requested to be included in such registration exceeds the number that, in the opinion of such managing underwriter, can be sold in such offering, the number of such Registrable Securities to be included in the offering to fewer than the number that has been requested for Registration, then each Holder's Registrable Securities such Demand Registration shall be included in the underwriting allocated pro rata, based rata among all Requesting Holders on the total basis of the relative number of Registrable Securities then held by each such Requesting Holder (provided that the participating Holders.
2.3 Registrations under this Section 2 are subject number of Registrable Securities thereby allocated to any Requesting Holder for inclusion in such Demand Registration that exceeds such Requesting Holder's request shall be reallocated among the remaining Requesting Holders in like manner) or in such other manner as the Requesting Holders may agree. If the number of Registrable Securities requested to be included in such Demand Registration is less than the number that, in the opinion of the managing Underwriter(s), can be sold in such offering without adversely affecting the price of the offering, the Company may include in such registration the securities the Company proposes to sell up to the following limitations: (i) number of securities that, in the opinion of the managing Underwriter(s), can be so sold in such offering. If the number of Registrable Securities requested to be included in such Demand Registration plus the number of securities proposed to be included in such Demand Registration by the Company need not prepare or file a is less than the number that, in the opinion of the managing Underwriter(s), can be sold in such offering without adversely affecting the price of the offering, the securities requested to be included in such Demand Registration Statement by other Persons whose requests have been approved by the Company may be included in such Demand Registration up to the number of securities that, in the opinion of the managing Underwriter(s), can be so sold. If any Registrable Securities requested to be registered pursuant to a Demand Notice within one hundred eighty (180Registration under this Section 2.1 are excluded from registration hereunder, then the Liberty Holder(s) days after having Registrable Securities excluded shall have the effective date right to withdraw all, or any part, of any Registration Statement filed by the Company in which the Holders party to the Demand Notice could have included their Registrable Securities; (ii) the Company may delay the effectiveness of a Demand Notice for a period of not more than six months after receipt of a Demand Notice in any 12-month period if the Company furnishes a certificate signed by Securities from such registration prior to its president stating that in the good faith judgment of the Company's board of directors it would be detrimental to the Company for the Registration Statement to be effected at such time; and (iii) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice if it is then preparing a Registration Statement in connection with an underwritten public offering of Company securities, and the Company may delay the effectiveness of such Demand Notice until one hundred eighty (180) days after the effective date of such Registration Statementeffectiveness.
Appears in 1 contract
Samples: Registration Rights Agreement (New Unitedglobalcom Inc)
Demand Registration. 2.1 After If the earlier Corporation shall, at any time after one year following the date hereof be requested by the holders of at least 50% of the Restricted Shares issued and sold by the Corporation pursuant to the Stock Purchase Agreement and then outstanding (on a Common Stock equivalent basis) to effect a single registration under the Securities Act of Registrable Shares constituting at least 25% of the Registrable Securities, the Corporation shall, within 120 days of such request, effect the registration under the Securities Act of the Registrable Shares which the Corporation has been so requested to register; PROVIDED, HOWEVER, that the Corporation shall not be obligated to effect any registration under the Securities Act except in accordance with the following provisions:
(a) The Corporation may delay the filing or effectiveness of any registration statement for a period of up to 120 days after the date of a request for registration pursuant to this SECTION 2 if at the time of such request (i) the first anniversary of Corporation is engaged, or has fixed plans to engage within 120 days after the date of this Agreementsuch request, in a firm commitment underwritten public offering of Primary Shares in which the holders of Registrable Shares may include Registrable Shares pursuant to SECTION 3 or (ii) the consummation of an IPO or (iii) a Spin-Off or Hostile Change in Control at any timeMaterial Transaction exists, Holders of at least fifty percent (50%) of all Registrable Securities then held by parties to this Agreement (or in the case of a Spin-Off the percentage of Registrable Securities equal to the proportion which the majority of the number shares of Common acquired pursuant to the Subscription Agreement bears to all Registrable Securities at the time of the Spin-Off) may request the Company to Register any or all of their Registrable Securities (a "Demand Notice"). Demand Notices shall be made in writing and shall specify the Holders making the Demand Notice, the number and type of Registrable Securities that each requests to be Registered, whether the Registrable Securities will be sold through an underwriter, and if so, the underwriters name, address, telephone number and contact person. The Company will prepare and file a Registration Statement in accordance with Section 4 for the Registrable Securities to be Registered pursuant to a valid Demand Notice; provided PROVIDED that the Company shall not be required to prepare or file a Registration Statement under this Section 2 more than once in any twelve (12) month period, more than twice after an IPO or more than three (3) times in total. Registrations pursuant to Demand Notices are subject to the further limitations set forth in Section 2.3.
2.2 Within ten (10) days from its receipt of a valid Demand Notice, the Company shall deliver written notice to all Holders that, pursuant to a Demand Notice, the Company will prepare and file a Registration Statement. Any Holder who was not a party to the Demand Notice may, within ten (10) days from receipt of the Company's notice, request the Company to include the Holder's Registrable Securities in the Registration Statement. If the Holders that initiated a Demand Notice specify therein that they intend to distribute their Registrable Securities through an underwriter, then each Holder that requests inclusion in the Registration Statement must participate in such underwriting, and become party to any required agreements, including, but not limited to, customary underwriting and indemnification agreements. The Company shall have the right to approve any underwriter, which approval shall not be unreasonably withheld. In the event that the underwriter limits the number of Registrable Securities to be included in the offering to fewer than the number that has been requested for Registration, then each Holder's Registrable Securities shall be included in the underwriting pro rata, based on the total number of Registrable Securities held by the participating Holders.
2.3 Registrations under this Section 2 are subject to the following limitations: (i) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice within one hundred eighty (180) days after the effective date of any Registration Statement filed by the Company in which the Holders party to the Demand Notice could have included their Registrable Securities; (ii) the Company Corporation may only so delay the filing or effectiveness of a Demand Notice for a period of not more than six months after receipt of a Demand Notice its registration statements (if any) once in any 12-month period pursuant to this SECTION 2(a).
(b) With respect to any registration pursuant to this SECTION 2, the Corporation may include in such registration any Primary Shares or Other Shares; PROVIDED, HOWEVER, that, if the Company furnishes a certificate signed by its president stating managing underwriter advises the Corporation that the inclusion of all Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration would interfere with the successful marketing (including pricing) of the Registrable Shares proposed to be included in such registration, then the number of Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration shall be included in the good faith judgment of following order:
(i) FIRST, the Company's board of directors it would be detrimental to the Company for the Registration Statement Registrable Shares requested to be effected at included in such timeregistration (or, if necessary, such Registrable Shares PRO RATA among the holders thereof based upon the number of Registrable Shares requested to be registered by each such holder);
(ii) SECOND, the Primary Shares; and and
(iii) THIRD, the Company need Other Shares.
(c) At any time before the registration statement covering Registrable Shares becomes effective, either Investors holding a majority of the Registrable Shares requested to be registered (the "MAJORITY INVESTORS") may request the Corporation to withdraw or not prepare to file the registration statement or the Corporation may withdraw or not file the registration if in the reasonable judgement of the Corporation's Board of Directors such withdraw or failure to file is reasonably required to comply with applicable laws or the interpretation of the Staff of the Commission or to avoid a Registration Statement substantial liability (other than expenses of such registration) which would have a material adverse effect on the Corporation's financial condition; provided, however, that the Corporation shall refile such registration statement within 180 days of the Corporation's withdraw or determination not to file. In that event, if such request of withdrawal by the Majority Investors shall not have been caused by the Corporation or its financial condition, the holders shall have used their demand registration rights under this SECTION 2 and the Corporation shall no longer be obligated to register Registrable Shares pursuant to the exercise of such registration right pursuant to this SECTION 2 and the expenses incurred by the Corporation through the date of such request shall be reimbursed. In the event the Corporation shall withdraw or fail to file the registration statement, the holders shall not have used their demand registration rights under this SECTION 2 and shall be entitled to reimbursement of their expenses through the date of such withdrawal or failure to file. A registration shall not count as
(d) Notwithstanding anything in Section 2, 3 or 4 provided to the contrary, the Corporation's obligation to register shares of Common Stock under the Securities Act hereunder shall be suspended during any time (i) such shares of Common Stock are registered pursuant to a Demand Notice if it is then preparing a Registration Statement in connection with an underwritten public offering of Company securities, and effective registration statement under the Company may delay Act or (ii) the effectiveness of such Demand Notice until one hundred eighty (180) days after the effective date of such Registration StatementRegistrable Securities become eligible for sale pursuant to Rule 144(k).
Appears in 1 contract
Samples: Registration Rights Agreement (Omni Nutraceuticals)
Demand Registration. 2.1 After (a) At the request of Sponsors, ------------------- the Company shall use reasonable efforts to effect the registration under the Securities Act pursuant to the terms of this Section 4.1(a) of the shares of Common Stock held by Sponsors; provided that upon the Public Sale of all of -------- Sponsors' Common Stock, Sponsors will no longer be entitled to any registration rights pursuant to this Section 4.
1. At the request of Cendant, the Company shall use reasonable efforts to effect a registration under the Securities Act pursuant to this Section 4.1(a) of the shares of Common Stock or Convertible Preferred Stock held by Cendant. Sponsors jointly and Cendant shall each be entitled to four underwritten registrations pursuant to this Section 4.1 and Sponsors jointly and Cendant shall each be entitled to one "shelf" registration pursuant to this Section 4.
1. Until the earlier of (i) the first third anniversary of the date hereof or (ii) the date on which Sponsors own less than 5% of the Common Stock, in any such registration requested by Sponsors or Cendant, and in any additional underwritten registrations of Common Stock held by Sponsors or Cendant which the Company elects to effect (other than as required pursuant to this AgreementSection 4.1(a)), Sponsors shall be entitled to register up to the greater of (i) 80% of the total number of shares to be registered in the secondary offering by Sponsors and Cendant (including any shares to be sold by Sponsors and Cendant pursuant to the underwriters' over-allotment option, if exercised) or (ii) such percentage of the total number of shares to be registered in the secondary offering by Sponsors and Cendant such that Sponsors will have sold at least 70% of all shares sold by Sponsors and Cendant following the Company's initial public offering. After the third anniversary of the date hereof, in any registration requested by Sponsors or Cendant, and in any additional underwritten registrations of Common Stock held by Sponsors or Cendant which the Company elects to effect (other than as required pursuant to this Section 4.1(a)), each of Sponsors and Cendant shall be entitled to register a number of shares equal to 50% of the total number of shares to be registered in the secondary offering by Sponsors and Cendant (including any shares to be sold by Sponsors and Cendant pursuant to the underwriters' over-allotment option, if exercised). Notwithstanding the foregoing, once Sponsors own less than 5% of the Common Stock, in any registration requested by Cendant or Sponsors, Cendant shall be entitled to register 100% of the total number of shares to be registered in a secondary offering (including any shares to be sold pursuant to the underwriters' overallotment option, if exercised), subject to Sponsors' right to include shares in such registration pursuant to Section 4.2 (subject to the limitations set forth in Section 4.2(b)). In any registration hereunder, Cendant shall be entitled, at its election, to (i) register the number of shares permitted to be registered by Cendant hereunder or (ii) cause the Company to register on its own behalf the number of shares set forth in clause (i) and use the proceeds from the sale of such shares to redeem, at Cendant's election, the Convertible Preferred Stock or Senior Preferred Stock, if permitted by applicable law. If the proceeds of any sale under this Section 4.1 are not permitted under applicable law to be used to redeem the Convertible Preferred Stock or Senior Preferred Stock, then such proceeds shall be held by the Company to be paid in respect of such shares when and to the extent permitted by law.
(b) Registrations under this Section 4.1 shall be on such appropriate registration form of the Commission (i) as shall be selected by the Company and (ii) as shall permit the disposition of the Common Stock in accordance with the intended method or methods of disposition.
(c) The Company will pay all Registration Expenses in connection with any registration pursuant to this Section 4.1.
(d) If a registration pursuant to this Section 4.1 involves an underwritten offering, the underwriter or underwriters thereof shall be selected, after consultation with the Company, jointly by Sponsors and Cendant, and shall be reasonably acceptable to the Company.
(e) A registration requested pursuant to this Section 4.1 shall not be deemed to have been effected (i) if a registration statement with respect thereto has not become effective, provided that a registration which does not become effective after the Company has filed a registration statement with respect thereto solely by reason of the refusal of Sponsors or Cendant to proceed shall be deemed to have been effected by the Company at the request of Sponsors or Cendant, as the case may be, (ii) if, after it has become effective, such registration becomes subject to, for longer than 90 days, any stop order, injunction or other order of the consummation of an IPO Commission or other governmental agency or court for any reason 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, other than by reason of some act or omission by Sponsors. If a Spin-Off or Hostile Change in Control at any time, Holders of at least fifty percent (50%) of all Registrable Securities then held by parties registration requested pursuant to this Agreement (or in the case of Section 4.1 is to be a Spin-Off the percentage of Registrable Securities equal to the proportion which the majority of the number shares of Common acquired pursuant to the Subscription Agreement bears to all Registrable Securities at the time of the Spin-Off) may request "shelf" registration, the Company shall use reasonable efforts to Register any or all of their Registrable Securities (a "Demand Notice"). Demand Notices shall be made in writing and shall specify keep such registration statement effective for one year after the Holders making the Demand Noticeeffective date thereof, the number and type of Registrable Securities that each requests to be Registered, whether the Registrable Securities will be sold through an underwriter, and if so, the underwriters name, address, telephone number and contact person. The Company will prepare and file a Registration Statement in accordance with Section 4 for the Registrable Securities to be Registered pursuant to a valid Demand Notice; provided that the Company shall not be required to prepare keep the registration statement effective if the continued effectiveness of the registration statement would require the Company to disclose a material financing, acquisition or file a Registration Statement under this Section 2 more than once in any twelve (12) month period, more than twice after an IPO or more than three (3) times in total. Registrations pursuant to Demand Notices are subject to the further limitations set forth in Section 2.3.
2.2 Within ten (10) days from its receipt of a valid Demand Notice, other corporate development and the Company shall deliver written notice have determined that such disclosure is not in the best interests of the Company for such period not to all Holders exceed 180 days; and provided further that the requirement to use reasonable efforts to keep the registration statement effective shall be extended one day for each day that the Company allows the effectiveness of the registration statement to lapse in reliance on the preceding proviso.
(f) If a registration pursuant to this Section 4.1 involves an underwritten offering, and the managing underwriter shall advise the Company in writing (with a copy to each holder of Common Stock being registered) that, pursuant in its opinion, the number of shares of Common Stock requested to be included in such registration exceeds the number which can be sold in such offering within a Demand Noticeprice range acceptable to the Stockholders requesting such registration, the Company will prepare and file a Registration Statement. Any Holder who was not a party include in such registration, to the Demand Notice may, within ten (10) days from receipt extent of the Company's notice, request number which the Company to include the Holder's Registrable Securities in the Registration Statement. If the Holders that initiated a Demand Notice specify therein that they intend to distribute their Registrable Securities through an underwriter, then each Holder that requests inclusion in the Registration Statement must participate is so advised can be sold in such underwritingoffering, and become party to any required agreements, including, but not limited to, customary underwriting and indemnification agreements. The Company shall have the right to approve any underwriter, which approval shall not be unreasonably withheld. In the event that the underwriter limits the number of Registrable Securities Common Stock to be included in such registration by Sponsors and Cendant (or, if Cendant makes the offering to fewer than election described in Section 4.1(a), the Company) pro rata --- ---- among such holders on the basis of the number that has been of shares of Common Stock requested for Registration, then each Holder's Registrable Securities shall to be included in the underwriting pro rata, based on the total number of Registrable Securities held by the participating Holderssuch holders.
2.3 Registrations under this Section 2 are subject to the following limitations: (i) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice within one hundred eighty (180) days after the effective date of any Registration Statement filed by the Company in which the Holders party to the Demand Notice could have included their Registrable Securities; (ii) the Company may delay the effectiveness of a Demand Notice for a period of not more than six months after receipt of a Demand Notice in any 12-month period if the Company furnishes a certificate signed by its president stating that in the good faith judgment of the Company's board of directors it would be detrimental to the Company for the Registration Statement to be effected at such time; and (iii) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice if it is then preparing a Registration Statement in connection with an underwritten public offering of Company securities, and the Company may delay the effectiveness of such Demand Notice until one hundred eighty (180) days after the effective date of such Registration Statement.
Appears in 1 contract
Samples: Stockholders Agreement (NRT Inc)
Demand Registration. 2.1 After (a) Subject to Section 10, if the earlier of (i) Company shall receive from the first anniversary of Investor a written request that the date of this AgreementCompany effect any registration with respect to any outstanding Registrable Securities held by the Investor, (ii) the consummation of an IPO or (iii) a Spin-Off or Hostile Change in Control at any time, Holders of at least fifty percent (50%) of Company shall as soon as practicable use its best efforts to register all Registrable Securities then held by parties to this Agreement (or in the case of a Spin-Off the percentage of Registrable Securities equal to the proportion which the majority of the number shares of Common acquired pursuant to the Subscription Agreement bears to all Registrable Securities at the time of the Spin-Off) may request the Company to Register any or all of their Registrable Securities (a "Demand Notice"). Demand Notices shall be made in writing and shall specify the Holders making the Demand Notice, the number and type of Registrable Securities that each Investor requests to be Registeredregistered; provided, whether the Registrable Securities will be sold through an underwriter, and if so, the underwriters name, address, telephone number and contact person. The Company will prepare and file a Registration Statement in accordance with Section 4 for the Registrable Securities to be Registered pursuant to a valid Demand Notice; provided that the Company shall not be required obligated to prepare or file a Registration Statement under registration statement pursuant to this Section 2:
(A) prior to the twelve-month anniversary of the Initial Public Offering;
(B) which would result in the registration of a greater number of the 10% Option Shares than the Investor would then be able to sell within a three-month period pursuant to Rule 144;
(C) within 90 days following the effective date of any registered offering of the Company's securities to the general public;
(D) if, at the time of such request, the Investor is able to immediately dispose of all of its Registrable Securities pursuant to the provisions of Rule 144;
(E) if the Company has effected such a registration within the previous nine-month period; or
(F) after the Company has effected five such registrations pursuant to this Section 2 more than once in any twelve (12) month period, more than twice after an IPO and such registrations have been declared or more than three (3) times in totalordered effective. Registrations pursuant to Demand Notices are subject Subject to the further limitations set forth in Section 2.3.
2.2 Within ten foregoing clauses (10A) days from its receipt of a valid Demand Noticethrough (F), the Company shall deliver written notice file a registration statement covering the Registrable Securities so requested to be registered as soon as practical, but in any event within thirty (30) days (ninety (90) days in the event the Company is not eligible to use Form S-3 or any successor form thereto) after receipt of the request of the Investor and shall use reasonable best efforts to have such registration statement declared effective by the Commission within thirty (30) days (ninety (90) days in the event the Company is not eligible to use Form S-3 or any successor form thereto) after filing whether or not all Holders thatRegistrable Securities requested to be registered can be included; provided, pursuant however, that if the Company shall furnish to the Investor a Demand Noticecertificate signed by the President of the Company stating that in the good- faith judgment of the Board of Directors it would be seriously detrimental to the Company and its shareholders for such registration statement to be filed within such thirty-day (30-day) or ninety-day (90-day) period, as applicable, and it is therefore essential to defer the filing of such registration statement, the Company will prepare and shall have an additional period of not more than ninety (90) days after the expiration of the initial period within which to file such registration statement; provided, that during such time the Company may not file a Registration Statementregistration statement for securities to be issued and sold for its own account.
(b) If the Investor intends to distribute the Registrable Securities covered by its request by means of an underwriting, it shall so advise the Company as a part of its request. Any Holder who was In such event or if an underwriting is required by subsection 2(c), if so requested in writing by the Company, the Investor shall negotiate with an underwriter selected by the Investor with the consent of the Company (such consent not a party to be unreasonably withheld) with regard to the Demand Notice may, within ten (10) days from receipt underwriting of the Company's notice, request the Company to include the Holder's Registrable Securities in the Registration Statement. If the Holders that initiated a Demand Notice specify therein that they intend to distribute their Registrable Securities through an underwriter, then each Holder that requests inclusion in the Registration Statement must participate in such underwriting, and become party to any required agreements, including, but not limited to, customary underwriting and indemnification agreementsrequested registration. The Company and the Investor shall have the right to approve any underwriter, which approval shall not be unreasonably withheld. In the event that enter into an underwriting agreement in customary form with the underwriter limits or underwriters selected for such underwriting. Notwithstanding any other provision of this Section 2, if the managing underwriter advises the Company in writing that marketing factors require a limitation of the number of shares to be underwritten, the Company shall so advise the Investor, and the number of shares of Registrable Securities that may be included in the registration and underwriting shall be reduced accordingly; provided, however, -------- that securities of other holders to be included in such registration statement as a result of piggyback registration rights as well as any securities to be offered by the offering to fewer than the number that has been requested for RegistrationCompany, then each Holder's Registrable Securities its officers and employees shall be included in excluded from the underwriting pro rata, based on registration statement prior to the total number exclusion of any Registrable Securities held by the participating Holders.
2.3 Registrations under this Section 2 Investor. Any Registrable Securities which are subject to excluded from the following limitations: (i) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice within one hundred eighty (180) days after the effective date of any Registration Statement filed underwriting by the Company in which the Holders party to the Demand Notice could have included their Registrable Securities; (ii) the Company may delay the effectiveness of a Demand Notice for a period of not more than six months after receipt of a Demand Notice in any 12-month period if the Company furnishes a certificate signed by its president stating that in the good faith judgment reason of the Companyunderwriter's board of directors it would marketing limitation shall be detrimental to the Company for the Registration Statement to be effected at withdrawn from such time; and (iii) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice if it is then preparing a Registration Statement in connection with an underwritten public offering of Company securities, and the Company may delay the effectiveness of such Demand Notice until one hundred eighty (180) days after the effective date of such Registration Statementregistration.
Appears in 1 contract
Demand Registration. 2.1 After the earlier of (a) (i) HEI shall have the first anniversary of right, on not more than four occasions in the date of this Agreementaggregate, and no more frequently than once during any six-month period, and (ii) the consummation of an IPO or Minority Stockholders as a group shall have the right (iii) a Spin-Off or Hostile Change in Control at any timethough such right need not be jointly exercised by the Minority Stockholders), Holders of at least fifty percent (50%) of all Registrable Securities then held by parties to this Agreement (or on not more than two occasions in the case aggregate (it being understood and agreed that two or more Minority Stockholders may make joint Demands hereunder or any Minority Stockholder may join in a Demand made by any other Minority Stockholder, and any such joint Demand or joining in of a SpinDemand shall be deemed to be a single Demand for all purposes hereof), and no more frequently than once during any six-Off the percentage of Registrable Securities equal month period, to the proportion which the majority of the number shares of Common acquired pursuant to the Subscription Agreement bears to all Registrable Securities at the time of the Spin-Off) may request require the Company to Register any register for offer and sale under the Securities Act (a "Demand") all or all a portion of their the Registrable Securities held by such Stockholder, subject to the restrictions set forth herein; PROVIDED that no Stockholder shall be entitled to make a Demand hereunder unless the Registrable Securities subject to such Demand represent at least 7% of the aggregate shares of Company Common Stock then issued and outstanding. As promptly as practicable after the Company receives from a Stockholder (the "Demanding Stockholder") a notice pursuant to this Section 4.1(a) (a "Demand Notice"). Demand Notices , a copy of which shall be made in writing have also been delivered to each other Minority Stockholder at the same time as to the Company, demanding that the Company register for offer and shall specify sale under the Holders making the Demand NoticeSecurities Act Registrable Securities, subject to Section 4.1(b), the number and type of Registrable Securities that each requests Company shall (i) use all reasonable efforts to be Registered, whether file as promptly as reasonably practicable with the Registrable Securities will be sold through an underwriter, and if so, the underwriters name, address, telephone number and contact person. The Company will prepare and file Commission a Registration Statement in accordance with Section 4 for relating to the Registrable offer and sale of the Applicable Securities to be Registered pursuant to a valid Demand Notice; provided on such form as the Company may reasonably deem appropriate (PROVIDED that the Company shall not not, unless the Company otherwise determines, be required obligated to prepare register any securities on a "shelf" registration statement or file otherwise to register securities for offer or sale on a continuous or delayed basis) and, thereafter, (ii) after the filing of an initial version of the Registration Statement, use reasonable efforts to cause such Registration Statement to be declared effective under this the Securities Act as promptly as practicable after the date of filing of such Registration Statement; PROVIDED, HOWEVER, that no Demanding Stockholder shall be entitled to be named as a selling securityholder in the Registration Statement or to use the Prospectus forming a part thereof for resales of Registrable Securities unless such Demanding Stockholder has made an Election. Subject to Section 2 more than once in any twelve (12) month period, more than twice after an IPO or more than three (3) times in total. Registrations pursuant to Demand Notices are subject to the further limitations set forth in Section 2.3.
2.2 Within ten (10) days from its receipt of a valid Demand Notice4.1(b), the Company shall deliver written notice use reasonable efforts to all Holders that, pursuant keep each Registration Statement continuously effective in order to permit the Prospectus forming a Demand Notice, part thereof to be usable by such Demanding Stockholder for resales of Registrable Securities for an Effectiveness Period ending on the Company will prepare and file a Registration Statement. Any Holder who was not a party to the Demand Notice may, within ten earlier of (10i) 30 days from receipt the Effective Time of the Company's notice, request the Company to include the Holder's Registrable Securities in the Registration Statement. If the Holders that initiated a Demand Notice specify therein that they intend to distribute their Registrable Securities through an underwriter, then each Holder that requests inclusion in the such Registration Statement must participate in and (ii) such underwriting, and become party to any required agreements, including, but not limited to, customary underwriting and indemnification agreements. time as all of such securities have been disposed of by the selling securityholders.
(b) The Company shall have the right to approve 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 the Company determines based upon the advice of counsel that it would be advisable to not disclose in the Registration Statement a planned or proposed financing, acquisition or other corporate transaction or other material information, and the Company shall have determined in good faith that such disclosure is not in the best interests of the Company and its stockholders; PROVIDED that no one such postponement shall exceed 90 days in any underwriter, which approval six-month period and all such postponements shall not exceed 180 days in the aggregate. The Company shall advise the Demanding Stockholder of any such determination as promptly as practicable after such determination.
(c) In connection with an underwritten offering, if the managing underwriter or underwriters advise the Company that in its or their opinion the number of Applicable Securities subject to a Demand exceeds the number which can be unreasonably withheldsold in such offering, the Company shall include in such Registration the number of Applicable Securities that, in the opinion of such managing underwriter or underwriters, can be sold in such offering (PROVIDED that, in the event of a joint Demand, the Applicable Securities included shall be allocated pro rata among the Demanding Stockholders on the basis of the relative number of Applicable Securities each such Demanding Stockholder has requested to be included in such Registration).
(d) The Company may include in any registration requested pursuant to Section 4.1(a) hereof other securities for sale for its own account or for the account of another Person, subject to the following sentence. In connection with an underwritten offering, if the managing underwriter or underwriters advise the Company that in its or their opinion the number of Applicable Securities requested by the Demanding Stockholder, together with other securities for sale for the account of the Company or any other Person, to be registered exceeds the number which can be sold in such offering, the Company shall include in such Registration the number of Applicable Securities and other securities that, in the opinion of such managing underwriter or underwriters, can be sold in such offering as follows: (i) first, the Applicable Securities requested to be registered by the Demanding Stockholder and (ii) second, any other securities requested to be included in such Registration.
(e) A Demanding Stockholder shall have the right to withdraw any Demand (i) prior to the time the Registration Statement in respect of such Demand has been declared effective, (ii) upon the issuance by the Commission or any other governmental agency of a stop order, injunction or other order which interferes with such Registration, (iii) upon the Company's availing itself of Section 4.1(b), or (iv) if such Demanding Stockholder is prevented pursuant to Section 4.1(c) or (d) from selling all of the Applicable Securities it requested to be registered. Notwithstanding such request to withdraw the Demand, the Registration requested by such Demanding Stockholder shall nonetheless be deemed to have been effected (and, therefore, requested) for purposes of Section 4.1(a) hereof if such Demanding Stockholder withdraws any Demand (A) pursuant to clause (i) of the preceding sentence after the Commission filing fee is paid with respect thereto or (B) pursuant to clause (iv) of the preceding sentence in circumstances where at least 50% of the Applicable Securities requested to be included in such Registration by such Demanding Stockholder could have been included, and in each case, (x) the Company has not availed itself of Section 4.1(b) with respect to such Registration request or (y) the Company has availed itself of Section 4.1(b) and the withdrawal request is not made within 10 days after the termination of the suspension period occasioned by the Company's exercise of its rights under Section 4.1(b). If a Demanding Stockholder withdraws a Demand but the Company nevertheless determines to complete, within 30 days after such withdrawal, the Registration so requested as to securities other than the Applicable Securities, such Demanding Stockholder shall be entitled to participate in such Registration pursuant to Section 4.2, but in such case the Intended Offering Notice shall be required to be given to such Demanding Stockholder at least five business days prior to the anticipated filing date of the Registration Statement, or if such Registration Statement has already been filed, within 10 business days after receipt of the request to withdraw Demand from such Demanding Stockholder and such Demanding Stockholder shall be required to give the Piggy-back Notice no later than 3 business days after the Company's delivery of such Intended Offering Notice.
(f) In the event that any Registration pursuant to this Section 4.1 shall involve, in whole or in part, an underwritten offering, one co-lead managing underwriter shall be selected by the Company and shall be reasonably acceptable to the Demanding Stockholder, and the other co-lead underwriter limits shall be selected by the Demanding Stockholder, PROVIDED that, in the event of a joint Demand, the other co-lead underwriter shall be selected by a majority in interest (by reference to the number of Registrable Applicable Securities requested to be included in the offering to fewer than Registration) of the number that has been requested for RegistrationDemanding Stockholders, then each Holder's Registrable Securities and shall be included in reasonably acceptable to the underwriting pro rata, based on the total number of Registrable Securities held Company. Any additional co-managing underwriters shall be selected by the participating HoldersCompany.
2.3 Registrations under this Section 2 are subject to the following limitations: (i) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice within one hundred eighty (180) days after the effective date of any Registration Statement filed by the Company in which the Holders party to the Demand Notice could have included their Registrable Securities; (ii) the Company may delay the effectiveness of a Demand Notice for a period of not more than six months after receipt of a Demand Notice in any 12-month period if the Company furnishes a certificate signed by its president stating that in the good faith judgment of the Company's board of directors it would be detrimental to the Company for the Registration Statement to be effected at such time; and (iii) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice if it is then preparing a Registration Statement in connection with an underwritten public offering of Company securities, and the Company may delay the effectiveness of such Demand Notice until one hundred eighty (180) days after the effective date of such Registration Statement.
Appears in 1 contract
Demand Registration. 2.1 After (a) At any time from and after 180 days following the earlier Effective Date and subject to Sections 2(c) and 2(d) hereof, after receipt of a written request from a Holder (ithe "INITIATING DEMAND HOLDER") requesting that the first anniversary Company effect a registration (a "DEMAND REGISTRATION") under the Securities Act covering all or part of the Registrable Securities held by such Holder, which specifies the intended method or methods of disposition thereof, the Company shall promptly notify all Holders in writing of the receipt of such request and each such Holder, in lieu of exercising its rights under Section 3 hereof, may elect (by written notice sent to the Company within twenty (20) days from the date of this Agreement, (iisuch Holder's receipt of the aforementioned Company's notice) the consummation to have all or part of an IPO or (iii) a Spin-Off or Hostile Change in Control at any time, Holders of at least fifty percent (50%) of all such Holder's Registrable Securities then held by parties included in such registration thereof pursuant to this Agreement (or Section 2, and such Holder shall specify in the case of a Spin-Off the percentage of Registrable Securities equal to the proportion which the majority of such notice the number shares of Common acquired pursuant to the Subscription Agreement bears to all Registrable Securities at the time of the Spin-Off) may request the Company to Register any or all of their Registrable Securities (a "Demand Notice"). Demand Notices shall be made in writing and shall specify the Holders making the Demand Notice, the number and type of Registrable Securities that each requests such Holder elects to include in such registration. Thereupon the Company shall, as expeditiously as is reasonably possible, file with the SEC and use commercially reasonable efforts to cause to be Registereddeclared effective, whether a registration statement (a "DEMAND REGISTRATION STATEMENT") relating (subject to Section 2(b) hereof) to all of the Registrable Securities will 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 number of Registrable Securities requested to be registered by all Participating Demand Holders shall be, subject to Section 2(b) below, at least the greater of (a) five percent (5%) of the Common Shares issued and outstanding on the Effective Date, and (b) an aggregate value of $100,000,000, based on the closing trading price of the Common Shares on the date the demand to file such Demand Registration Statement is made.
(b) If the Initiating Demand Holder so requests that the offering be underwritten with a managing underwriter (which shall be selected in the manner set forth in Section 12 below) and such managing underwriter of such Demand Registration advises the Company in writing that, in its opinion, the number of Securities to be included in such offering is greater than the total number of Securities which can be sold through an underwritertherein 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"), and if so, then the underwriters name, address, telephone 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 and contact personof such Registrable Securities does not exceed the Maximum Number of Securities. The Company will prepare shall include such Registrable Securities in a Demand Registration even if the Maximum Number of Securities is less than the threshold set forth in Section 2(a) above. If such amount exceeds the Maximum Number of Securities, the number of Registrable Securities included in such Demand Registration shall be allocated among all the Participating Demand Holders on a PRO RATA basis, unless any of the Participating Demand Holders otherwise agree between or among themselves and file notify the Company in writing of such agreement. If the amount of such Registrable Securities does not exceed the Maximum Number of Securities, the Company may include in such Registration any other Securities of the Company, and then other Securities held by other security holders of the Company, on a Registration Statement PRO RATA basis if necessary, in accordance an amount which together with Section 4 for the Registrable Securities included in such Demand Registration shall not exceed the Maximum Number of Securities.
(c) The following Shareholders shall be entitled to be Registered the following number of registrations of Registrable Securities pursuant to this Section 2: the Xxxxxxxx Shareholders collectively - 3, Xxxx Atlantic - 6, KIN - 2, Marubeni - 1, and AIF - 1. All Holders who are assignees or transferees of one of such Shareholders, or assignees or transferees of an assignee or transferee of one of such Shareholders shall collectively be entitled to such number of registrations pursuant to this Section 2 as the original Shareholder Holder of the relevant Registrable Securities was entitled pursuant to this Section 2(c), less any registrations demanded prior to the date such Person becomes a valid Holder hereunder. None of R Xxxxx, H Xxxxx, Spinconsult, GE or AT&T are entitled to any registrations of Registrable Securities pursuant to this Section 2. Each Shelf Registration pursuant to Section 4 hereof shall be deemed one Demand Notice; provided that Registration pursuant hereto.
(d) Notwithstanding anything to the contrary contained herein, the Company shall not be required to prepare or and file a (i) more than one (1) Demand Registration Statement under this Section 2 more than once Agreement in any twelve (12) six-month period, more or (ii) any Demand Registration Statement within ninety (90) days following the date of effectiveness of any Registration Statement (other than twice after an IPO or more than three a Shelf Registration Statement).
(3e) times in total. Registrations A Demand Registration requested pursuant to Section 2(a) hereof shall not be deemed to have been effected with respect to any Participating Demand Notices are subject Holder that is not able to register and sell at least 80% of the further limitations set forth amount of Registrable Securities requested to be included on behalf of such Holder in Section 2.3such registration.
2.2 Within ten (10f) days from A Participating Demand Holder may withdraw its receipt of a valid Demand Notice, the Company shall deliver written notice to all Holders that, pursuant request with respect to a Demand Notice, Registration at any time prior to the effective date of the Demand Registration Statement relating thereto by providing to the Company will prepare and file a written notice. Upon any such withdrawal, if the Company determines not to otherwise continue with such Registration Statement. Any Holder who was not a party to Statement for the Demand Notice may, within ten (10) days from receipt purpose of registering Common Shares of the Company's notice, request another Holder or another shareholder of the Company Company, the withdrawing Participating Demand Holder shall be obligated, pro rata with any other withdrawing Participating Demand Holder, to include reimburse the Holder's Registrable Securities Company, within 20 days of the date of the written notice of withdrawal, for all Expenses (as defined in Section 12 below) incurred by the Company, in connection with such withdrawn Demand Registration Statementthat would not otherwise have been incurred by the Company. If Any such withdrawn Demand Registration shall be counted with respect to such Holder for purposes of Section 2(c) hereof as a completed Demand Registration, unless such withdrawal was the Holders result of a change in market conditions that initiated a Demand Notice specify therein that they intend to distribute their Registrable Securities through an underwriter, then each Holder that requests inclusion in would materially adversely effect the Registration Statement must participate in such underwriting, and become party to any required agreements, including, but not limited to, customary underwriting and indemnification agreements. The Company shall have amount and/or price of the right to approve any underwriter, which approval shall not be unreasonably withheld. In the event that the underwriter limits the number of Registrable Securities to be included in the offering to fewer than the number that has been requested for Demand Registration, then each Holder's Registrable Securities shall be included in the underwriting pro rata, based on the total number of Registrable Securities held by the participating Holders.
2.3 Registrations under this Section 2 are subject to the following limitations: (i) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice within one hundred eighty (180) days after the effective date of any Registration Statement filed by the Company in which the Holders party to the Demand Notice could have included their Registrable Securities; (ii) the Company may delay the effectiveness of a Demand Notice for a period of not more than six months after receipt of a Demand Notice in any 12-month period if the Company furnishes a certificate signed by its president stating that in the good faith judgment of the Company's board of directors it would be detrimental to the Company for the Registration Statement to be effected at such time; and (iii) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice if it is then preparing a Registration Statement in connection with an underwritten public offering of Company securities, and the Company may delay the effectiveness of such Demand Notice until one hundred eighty (180) days after the effective date of such Registration Statement.
Appears in 1 contract
Samples: Registration Rights Agreement (Flag Telecom Holdings LTD)
Demand Registration. 2.1 After (a) If, at any time after July 21, 2006 and from time to time thereafter, any Holder(s) shall notify the earlier of Purchaser (i) the first anniversary that it, or any other person(s) who shall then hold any of the date Securities (any such other person(s) being hereinafter in this Section 2 of this AgreementSchedule called "Subsequent Holder(s)"), proposes to sell or transfer a number of such Securities, and (ii) that, in the consummation opinion of an IPO counsel for the Holder or such Subsequent Holder(s) (iiia copy of which opinion shall be furnished to the Purchaser), the Securities proposed to be so sold or transferred by the Holder(s) or such Subsequent Holder(s) are not Unrestricted Securities (as defined herein) and it is necessary or desirable in connection with the sale or transfer of such Securities to effect a Spin-Off registration thereof pursuant to the Securities Act, or Hostile Change in Control at to qualify any timethereof under the Securities or Blue Sky laws of any one or more states, then on each occasion when the Purchaser shall be requested by a Holder or Holders to effect a registration of any of the Common Stock under the Securities Act, to which request the Holders of at least fifty percent 66 2/3% of the Securities consent (50%) a Holder may consent but need not request registration of all Registrable any Securities then held by parties it). The Purchaser shall promptly give written notice of such request to this Agreement all other Holders and proceed to perform as provided in (b) below. The percentage of 66 2/3% as stated above shall be 66 2/3% so long as the Common Stock has not previously been the subject of any effective registration.
(b) The Purchaser (i) will upon such request as expeditiously as is reasonably possible use its best efforts to effect registration on Form S-1 (or any form adopted in lieu thereof) under the case Securities Act of a Spin-Off the percentage Securities which the Purchaser has been requested to register including any requests of Registrable Securities equal Holder(s) subsequent to notice from the Purchaser to the proportion which Holders as provided in (a) above; (ii) if the offering is pursuant to an underwriting agreement (the underwriter to be the person selected by the holders of the majority of the number shares Securities to be registered), enter into an underwriting agreement with underwriters selected by the Holder(s) requesting an offering of Common acquired pursuant securities, said agreement to be in such form as the Subscription Agreement bears underwriter shall customarily enter into and enter into indemnification as provided in Section 6 of this Schedule hereof; (iii) use its best efforts to all Registrable Securities at have such Registration Statement declared effective; (iv) notify the Holder(s) (which term includes "Subsequent Holders" throughout this Schedule unless expressly stated otherwise) promptly after it shall receive notice thereof, of the time when such Registration Statement has become effective or any supplement to any prospectus forming a part of such Registration Statement has been filed; (v) notify the Spin-OffHolder(s) may promptly of any request by the Company to Register any SEC for the amending or all supplementing of their Registrable Securities such Registration Statement or prospectus or of additional information; (a "Demand Notice"). Demand Notices shall be made in writing and shall specify the Holders making the Demand Notice, the number and type of Registrable Securities that each requests to be Registered, whether the Registrable Securities will be sold through an underwriter, and if so, the underwriters name, address, telephone number and contact person. The Company will vi) prepare and file a with the SEC, promptly upon any Holder's request, any amendment or supplement to such Registration Statement or prospectus which, in accordance with Section 4 the opinion of counsel for the Registrable Holder(s), may be necessary or advisable in connection with the distribution of the Securities by the Holder(s); (vii) prepare and promptly file with the SEC and promptly notify the Holder(s) of the filing of such amendment or supplement to such Registration Statement or prospectus as may be necessary to correct any statement or omission, if at any time when a prospectus relating to the Securities is required to be Registered pursuant delivered under the Securities Act, any event shall have occurred as a result of which any such prospectus or any other prospectus as then in effect would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading; (viii) in case any Holder(s) or any underwriter(s) for any Holder(s) is (are) required to deliver a valid Demand Noticeprospectus, at a time when the prospectus then in effect may no longer be used under the Securities Act, prepare promptly upon request such amendment or amendments to such Registration Statement and such prospectus or prospectuses as may be necessary to permit compliance with the requirements of Section 10 of the Securities Act subject to clause (xiii) below; provided (ix) not file any amendment or supplement to the Registration Statement or prospectus to which any Holder(s) shall reasonably object after having been furnished a copy at a reasonable time prior to the filing thereof; (x) advise each Holder promptly after it shall receive notice or obtain knowledge thereof of the issuance of any stop order by the SEC suspending the effectiveness of any such Registration Statement or the initiation or threatening of any proceeding for that purpose and promptly use its best efforts to prevent the Company issuance of any stop order or to obtain its withdrawal if such stop order should be issued; (xi) use its best efforts to qualify the Securities for sale under the securities laws of such states as such Holder(s) may reasonably request except that it shall not be required in connection therewith or a condition thereof to prepare execute a general consent to service or file a qualify to do business in any such states or otherwise to subject itself to taxation therein; and (xii) furnish to each Holder as soon as available copies of any such Registration Statement under and each preliminary or final prospectus, or supplement required to be prepared pursuant to this Schedule, all in such quantities as each Holder may from time to time reasonably request; (xiii) provided, however, that in no event shall the Purchaser be obligated to keep such Registration Statement effective for a period longer than 120 days plus a number of days equal to the number of days, if any, during which such Holder's right to offer and sell such Securities shall have been suspended pursuant to the provisions of subsection (c) of Section 3 of this Schedule and the Purchaser may after such period deregister any Securities remaining unsold if the Commission or its staff so requests; and (xiv) if any of the Securities are then listed on any securities exchange, the Purchaser will cause all shares covered by such Registration Statement to be listed on such exchange(s). No Holder of any Securities shall have a right to participate in any Registration pursuant to Section 2 more than once in any twelve (12) month period, more than twice after an IPO or more than three (3) times in total. Registrations pursuant of this Schedule unless such Holder shall agree to Demand Notices are subject to the further limitations set forth in Section 2.3.
2.2 Within ten (10) days from its receipt of a valid Demand Notice, the Company shall deliver written notice to all Holders that, pursuant to a Demand Notice, the Company will prepare and file a Registration Statement. Any Holder who was not sell such Securities as a party to the Demand Notice may, within ten (10) days from receipt underwriting arrangement selected by the holders of a majority of the Company's notice, request the Company to include the Holder's Registrable Securities in the Registration Statement. If the Holders that initiated a Demand Notice specify therein that they intend to distribute their Registrable Securities through an underwriter, then each Holder that requests inclusion in the Registration Statement must participate in such underwriting, and become party to any required agreements, including, but not limited to, customary underwriting and indemnification agreements. The Company shall have the right to approve any underwriter, which approval shall not be unreasonably withheld. In the event that the underwriter limits the number of Registrable Securities to be included in the offering to fewer than the number that has been requested for Registration, then each Holder's Registrable Securities shall be included in the underwriting pro rata, based on the total number of Registrable Securities held by the participating Holdersbeing registered.
2.3 Registrations under this Section 2 are subject to the following limitations: (i) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice within one hundred eighty (180) days after the effective date of any Registration Statement filed by the Company in which the Holders party to the Demand Notice could have included their Registrable Securities; (ii) the Company may delay the effectiveness of a Demand Notice for a period of not more than six months after receipt of a Demand Notice in any 12-month period if the Company furnishes a certificate signed by its president stating that in the good faith judgment of the Company's board of directors it would be detrimental to the Company for the Registration Statement to be effected at such time; and (iii) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice if it is then preparing a Registration Statement in connection with an underwritten public offering of Company securities, and the Company may delay the effectiveness of such Demand Notice until one hundred eighty (180) days after the effective date of such Registration Statement.
Appears in 1 contract
Demand Registration. 2.1 After (a) If at any time the earlier Company receives a request to file a Registration Statement, a completed Questionnaire and the other information required under this Agreement from Holders holding a majority of the Registrable Securities then outstanding (the “Initiating Holders”), then the Company shall (i) within 10 Business Days give written notice thereof (the “Demand Notice”) to all Holders other than the Initiating Holders, (ii) as soon as practicable, and in any event within 75 days after the date such request is given by the Initiating Holders, file a Registration Statement with the SEC covering all Registrable Securities that the Initiating Holders requested to be registered and any additional Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such other Holder delivered to the Company within 20 days of the date the Demand Notice is given, and in each case, subject to the limitations of Section 2.2(b), and (iii) at its own cost, use its reasonable best efforts to cause such Registration Statement to become effective as soon as practicable.
(b) Notwithstanding the foregoing obligations, the Company may suspend the use of any Prospectus for a period not to exceed 75 days in any 90-day period or an aggregate of 120 days in any 12-month period (each, a “Suspension Period”), if the Company shall have determined in good faith that, because of valid business reasons (not including avoidance of the Company’s obligations hereunder), including, without limitation, plans for a registered public offering, an acquisition or other proposed or pending corporate developments and similar events because of filings with the SEC or any events described in Section 3(h), it is in the best interests of the Company to suspend such use; provided, that (i) the first anniversary Company may not suspend such use more than once in any 12-month period, and (ii) prior to suspending such use the Company provides Holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension (and each Holder agrees not to sell any Registrable Securities pursuant to the Registration Statement until such Holder is advised in writing that the Prospectus may be used, which notice the Company agrees to provide promptly following the lapse of the event or circumstances giving rise to such suspension). Each Holder shall keep confidential any communications received by it from the Company regarding the suspension of the use of the Prospectus (including, without limitation, the fact of the suspension), except as required by applicable law.
(c) The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.2(a) (i) during the period that is 30 days before the Company’s good faith estimate of the date of this Agreementfiling of, and ending on a date that is 90 days after the effective date of, a Company-initiated registration pursuant to which Holders had an opportunity to register Registrable Securities pursuant to Section 2.3; provided, that the Company is actively employing in good faith reasonable efforts to cause such registration statement to become effective, or (ii) if the consummation of an IPO or Company has effected two (iii2) a Spin-Off or Hostile Change registrations pursuant to Section 2.2(a). Notwithstanding anything in Control at any time, Holders of at least fifty percent (50%) of all Registrable Securities then held by parties to this Agreement (or in the case of a Spin-Off the percentage of Registrable Securities equal Section 2.2 to the proportion which the majority of the number shares of Common acquired pursuant to the Subscription Agreement bears to all Registrable Securities at the time of the Spin-Off) may request the Company to Register any or all of their Registrable Securities (a "Demand Notice"). Demand Notices shall be made in writing and shall specify the Holders making the Demand Noticecontrary, the number and type of Registrable Securities that each requests to be Registered, whether the Registrable Securities will be sold through an underwriter, and if so, the underwriters name, address, telephone number and contact person. The Company will prepare and file a Registration Statement in accordance with Section 4 for the Registrable Securities to be Registered pursuant to a valid Demand Notice; provided that the Company shall not be required to prepare or file effect more than one registration pursuant to Section 2.2(a) during the period from the date hereof through the one year anniversary of the date hereof. A registration shall not be counted as “effected” for purposes of this Section 2.2(c) until such time as the applicable registration statement has been declared effective by the SEC.
(d) It shall be a Registration Statement under condition precedent to the obligation of the Company to take any action pursuant to this Section 2 more than once in any twelve (12) month period, more than twice after an IPO or more than three (3) times in total. Registrations pursuant to Demand Notices are subject with respect to the further limitations set forth in Section 2.3.
2.2 Within ten (10) days from its receipt Registrable Securities of a valid Demand Noticeany selling Holder that such Holder shall furnish to the Company such information regarding itself, the Company shall deliver written notice to all Holders that, pursuant to a Demand Notice, the Company will prepare and file a Registration Statement. Any Holder who was not a party to the Demand Notice may, within ten (10) days from receipt of the Company's notice, request the Company to include the Holder's Registrable Securities in the Registration Statement. If the Holders that initiated a Demand Notice specify therein that they intend to distribute their Registrable Securities through an underwriter, then each Holder that requests inclusion in the Registration Statement must participate in such underwriting, and become party to any required agreements, including, but not limited to, customary underwriting and indemnification agreements. The Company shall have the right to approve any underwriter, which approval shall not be unreasonably withheld. In the event that the underwriter limits the number of Registrable Securities to be included in the offering to fewer than the number that has been requested for Registration, then each Holder's Registrable Securities shall be included in the underwriting pro rata, based on the total number of Registrable Securities held by it and the participating Holders.
2.3 Registrations under this Section 2 are subject intended method of disposition of such securities as is reasonably required to effect the following limitations: (i) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice within one hundred eighty (180) days after the effective date registration of any Registration Statement filed such Holder’s Registrable Securities and as may be reasonably requested by the Company in which the Holders party from time to the Demand Notice could have included their Registrable Securities; (ii) the Company may delay the effectiveness of a Demand Notice for a period of not more than six months after receipt of a Demand Notice in any 12-month period if the Company furnishes a certificate signed by its president stating that in the good faith judgment of the Company's board of directors it would be detrimental to the Company for the Registration Statement to be effected at such time; and (iii) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice if it is then preparing a Registration Statement in connection with an underwritten public offering of Company securities, and the Company may delay the effectiveness of such Demand Notice until one hundred eighty (180) days after the effective date of such Registration Statement.
Appears in 1 contract
Samples: Registration Rights Agreement (Powerwave Technologies Inc)
Demand Registration. 2.1 After the earlier of (i) the first anniversary of the date of this Agreement, (ii) the consummation of an IPO or (iii) a Spin-Off or Hostile Change in Control at At any time, Holders of at least fifty percent (50%) of all Registrable Securities then held by parties time and from time to this Agreement (or in the case of a Spin-Off the percentage of Registrable Securities equal to the proportion which the majority of the number shares of Common acquired pursuant to the Subscription Agreement bears to all Registrable Securities at the time of the Spin-Off) may request the Company to Register any or all of their Registrable Securities (a "Demand Notice"). Demand Notices shall be made in writing and shall specify the Holders making the Demand Notice, the number and type of Registrable Securities that each requests to be Registered, whether the Registrable Securities will be sold through an underwriter, and if so, the underwriters name, address, telephone number and contact person. The Company will prepare and file a Registration Statement in accordance with Section 4 for the Registrable Securities to be Registered pursuant to a valid Demand Notice; provided that the Company shall not be required to prepare or file a Registration Statement under this Section 2 more than once in any twelve (12) month period, more than twice after an IPO or more than three (3) times in total. Registrations pursuant to Demand Notices are subject to the further limitations set forth in Section 2.3.
2.2 Within ten (10) days from its receipt of a valid Demand Notice, the Company shall deliver written notice to all Holders that, pursuant to a Demand Notice, the Company will prepare and file a Registration Statement. Any Holder who was not a party to the Demand Notice may, within ten (10) days from receipt of the Company's notice, request the Company to include the Holder's Registrable Securities in the Registration Statement. If the Holders that initiated a Demand Notice specify therein that they intend to distribute their Registrable Securities through an underwriter, then each Holder that requests inclusion in the Registration Statement must participate in such underwriting, and become party to any required agreements, including, but not limited to, customary underwriting and indemnification agreements. The Company shall have the right to approve any underwriter, which approval shall not be unreasonably withheld. In the event that the underwriter limits the number of Registrable Securities to be included in the offering to fewer than the number that has been requested for Registration, then each Holder's Registrable Securities shall be included in the underwriting pro rata, based on the total number of Registrable Securities held by the participating Holders.
2.3 Registrations under this Section 2 are subject to the following limitations: (i) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice within commencing one hundred and eighty (180) days after the effective date consummation of an Initial Public Offering upon written notice to the Corporation (a “Demand Notice”) delivered by a Qualified Holder or Qualified Holders requesting that the Corporation effect the registration (a “Demand Registration”) under the Securities Act (other than pursuant to a Registration Statement on Form S-4 or Form S-8 or any similar or successor form under the Securities Act) of any or all of the Registrable Securities held by such Qualified Holder(s), the Corporation shall promptly (but in any event, not later than five (5) Business Days following the Corporation’s receipt of such Demand Notice) give written notice of the receipt of such Demand Notice to all other Holders that, to its knowledge, hold Registrable Securities (each, a “Demand Eligible Holder”). The Corporation shall use its commercially reasonable efforts to, within forty-five (45) days following the receipt of such Demand Notice (subject to compliance with any applicable covenants in any underwriting agreement for a previous registration effected under this Section 6(a) or under Section 6(b)), file the appropriate Registration Statement filed (the “Demand Registration Statement”) subject to Section 6(a)(ii) and use its commercially reasonable efforts to effect, at the earliest practicable date, the registration under the Securities Act and under the applicable state securities laws of (A) the Registrable Securities which the Corporation has been so requested to register by the Company Qualified Holder(s) in which the Demand Notice, (B) all other Registrable Securities of the same class or series as those requested to be registered by the Qualified Holder(s) that the Corporation has been requested to register by the Demand Eligible Holders party by written request (the “Demand Eligible Holder Request”) given to the Corporation within twenty (20) days following the receipt of the Corporation’s written notice of the receipt of the Demand Notice could have included their and (C) any Registrable Securities; Securities to be offered and sold by the Corporation, in each case subject to Section 6(a)(iv), all to the extent required to permit the disposition (iiin accordance with the intended methods of disposition) of the Company may delay Registrable Securities to be so registered. Notwithstanding anything in this Section 6 to the contrary, the Corporation shall not be obligated to (I) effect more than one (1) Demand Registrations in any six (6)-month period, (II) effect any Demand Registration within ninety (90) days from the date of effectiveness of a Demand Notice for a period of not more than six months after receipt of Registration Statement or (III) comply with a Demand Notice in any 12-month period if the Company furnishes a certificate signed by its president stating that in the good faith judgment of the Company's board of directors it would be detrimental to the Company for extent the Registration Statement to be effected at such time; and Corporation has already complied with five (iii5) the Company need not prepare or file a Registration Statement Demand Notices pursuant to a Demand Notice if it is then preparing a Registration Statement in connection with an underwritten public offering of Company securities, and the Company may delay the effectiveness of such Demand Notice until one hundred eighty (180) days after the effective date of such Registration Statementterms hereof.
Appears in 1 contract
Demand Registration. 2.1 After (a) Subject to the conditions of this Section 2.2, if at any time after the earlier of (i) the first anniversary of two (2) years after the date of this Agreement, Agreement or (ii) six (6) months following the consummation closing date of the Initial Offering, the Company shall receive a written request from the Initiating Holders or the Initiating Preferred F Holder(s) that the Company file a registration statement under the Securities Act covering the registration of all or a portion of the Registrable Securities having an IPO aggregate proposed offering price to the public (net of underwriters’ discounts or (iiicommissions) a Spin-Off or Hostile Change in Control at any time, Holders of at least fifty percent five million dollars (50%$5,000,000) (a “Qualified Public Offering”), then the Company shall, within ten (10) business days of the receipt thereof, give written notice of such request to all Holders, other than the Applicable Initiating Holders, and subject to the limitations of this Section 2.2, use commercially reasonable efforts to effect, as expeditiously as reasonably possible, the registration under the Securities Act of all Registrable Securities then held that all Applicable Initiating Holders request to be registered and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Applicable Initiating Holder’s or Applicable Initiating Holders’ Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holders joining in such request as are specified in a written request received by parties the Company within twenty (20) days of the mailing of the Company’s notice pursuant to this Agreement Section 2.2(a).
(b) If the Applicable Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.2 or any request pursuant to Section 2.4 and the Company shall include such information in the case written notice referred to in Section 2.2(a) or Section 2.4(a), as applicable. In such event, the right of a Spin-Off the percentage of any Holder to include its Registrable Securities equal to in such registration shall be conditioned upon such Holder’s participation in such underwriting and the proportion which inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by such Holder and the Applicable Initiating Holders holding a majority of the number shares of Common acquired pursuant Registrable Securities requested by such Applicable Initiating Holders to be registered) to the Subscription Agreement bears extent provided herein. All Holders proposing to all Registrable Securities at the time of the Spin-Off) may request the Company to Register any or all of distribute their Registrable Securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Holders of a majority of the Registrable Securities held by all Applicable Initiating Holders (a "Demand Notice"which underwriter or underwriters shall be reasonably acceptable to the Company). Demand Notices shall be made in writing and shall specify Notwithstanding any other provision of this Section 2.2 or Section 2.4, if the Holders making underwriter advises the Demand Notice, Company that marketing factors require a limitation of the number and type of securities to be underwritten (including Registrable Securities) then the Company shall so advise all Holders of Registrable Securities that each requests would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated first to such Holders of Preferred F Registrable Securities, on a pro rata basis based on the number of Preferred F Registrable Securities requested to be Registeredregistered by all such Holders (including the Initiating Preferred F Holder(s)) and, whether second to the Holders of such Registrable Securities will other than the Preferred F Registrable Securities, on a pro rata basis based on the number of Registrable Securities other than the Preferred F Registrable Securities requested to be sold through an underwriterregistered by all such Holders (including the Initiating Holders); provided, and if sohowever, that the underwriters name, address, telephone number and contact person. The Company will prepare and file a Registration Statement in accordance with Section 4 for the of shares of Registrable Securities to be Registered pursuant to a valid Demand Notice; provided that included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) Notwithstanding the forgoing, the Company shall not be required to prepare or file effect a Registration Statement under registration pursuant to this Section 2 more than once in any twelve 2.2:
(12i) month period, more than twice after an IPO or more than three (3) times in total. Registrations pursuant to Demand Notices are subject prior to the further limitations earliest of (A) the date that is six (6) months following the closing date of the Initial Offering, (B) the expiration of the restrictions on transfer set forth in Section 2.3.2.11 following the Initial Offering, and (C) the date that is two (2) years after the date hereof;
2.2 Within ten (10ii) with respect to a request by Initiating Holders, after the Company has effected one (1) registration pursuant to this Section 2.2, and such registration has been declared or ordered effective; provided, however, that all Registrable Securities requested to be registered were registered in the registration; and with respect to a request by Initiating Preferred F Holders, after the Company has effected two (2) registrations pursuant to this Section 2.2, and such registration has been declared or ordered effective; provided, however, that, with respect to each registration, all Registrable Securities requested to be registered were registered in the registration;
(iii) during the period starting with the date sixty (60) days from its receipt of a valid Demand Notice, the Company shall deliver written notice to all Holders that, pursuant to a Demand Notice, the Company will prepare and file a Registration Statement. Any Holder who was not a party prior to the Demand Notice may, within ten (10) days from receipt Company’s good faith estimate of the Company's notice, request the Company to include the Holder's Registrable Securities in the Registration Statement. If the Holders that initiated a Demand Notice specify therein that they intend to distribute their Registrable Securities through an underwriter, then each Holder that requests inclusion in the Registration Statement must participate in such underwritingdate of filing of, and become party to any required agreements, including, but not limited to, customary underwriting and indemnification agreements. The Company shall have the right to approve any underwriter, which approval shall not be unreasonably withheld. In the event that the underwriter limits the number of Registrable Securities to be included in the offering to fewer than the number that has been requested for Registration, then each Holder's Registrable Securities shall be included in the underwriting pro rata, based ending on the total number of Registrable Securities held by the participating Holders.
2.3 Registrations under this Section 2 are subject to the following limitations: (i) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice within date one hundred eighty (180) days after following the effective date of any Registration Statement filed the registration statement pertaining to the Initial Offering (or such longer period as may be determined pursuant to Section 2.11 hereof), if requested by the Company in which the Holders party to the Demand Notice could have included their Registrable Securities; (ii) managing underwriter; provided that the Company may delay the effectiveness of a Demand Notice for a period of not more than six months after receipt of a Demand Notice in any 12-month period if the Company furnishes a certificate signed by its president stating that in the makes commercially reasonable good faith judgment of the Company's board of directors it would be detrimental efforts to the Company for the Registration Statement cause such registration statement to be effected at such time; and (iii) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice if it is then preparing a Registration Statement in connection with an underwritten public offering of Company securities, and the Company may delay the effectiveness of such Demand Notice until one hundred eighty (180) days after the effective date of such Registration Statement.become effective;
Appears in 1 contract
Demand Registration. 2.1 After the earlier of (i) the first anniversary of On or after the date of this the closing of the sale of the First Tranche Purchased Shares (the “First Tranche Closing”), as provided in Section 1.3 of the Investment Agreement, subject to the lapse or termination of restrictions on transfer in Section 6.5(a) of the Investment Agreement, if the Company shall receive from a Holder a request (iithe requesting Holder shall be referred to herein as the “Requesting Holder”) that the consummation Company effect the registration under the Securities Act of an IPO all or any portion of the Requesting Holder’s Registrable Shares, and specifying the intended method of disposition thereof, then the Company shall promptly give notice of such requested registration (iiieach such request shall be referred to herein as a “Demand Registration”) a Spin-Off or Hostile Change in Control at any time, Holders of at least fifty percent ten (50%10) Business Days prior to the anticipated filing date of the registration statement relating to such Demand Registration to all other Holders and thereupon shall use its reasonable best efforts to effect, as expeditiously as possible, the registration under the Securities Act of:
(a) subject to the restrictions set forth in Section 2.01(v) hereof (and, during the first 18 months following the Third Tranche Closing, provided that the Registrable Shares may be transferred in accordance with the restrictions set forth in Section 6.5(a) of the Investment Agreement), all Registrable Securities then held by parties to Shares for which the Requesting Holder has requested registration under this Agreement Section 2.01, and
(or in the case of a Spin-Off the percentage of Registrable Securities equal b) subject to the proportion which the majority restrictions set forth in Sections 2.01(v) and 2.02 hereof, all other Registrable Shares of the number shares of Common acquired pursuant same class as those requested to be registered by the Subscription Agreement bears to Requesting Holder that any Holder or Holders (all Registrable Securities at such Holders, together with the time of Requesting Holder, the Spin-Off“Registering Holders”) may request have requested the Company to Register any or all register pursuant to Section 2.02, by request received by the Company within seven (7) Business Days after such Holders receive the Company’s notice of their Registrable Securities (a "Demand Notice"). Demand Notices shall be made in writing and shall specify the Holders making the Demand NoticeRegistration, all to the number and type of Registrable Securities that each requests extent necessary to be Registered, whether permit the Registrable Securities will be sold through an underwriter, and if so, the underwriters name, address, telephone number and contact person. The Company will prepare and file a Registration Statement disposition (in accordance with Section 4 for the intended methods thereof as aforesaid) of the Registrable Securities Shares so to be Registered pursuant to a valid Demand Noticeregistered; provided that provided, that, (x) the Company shall not be required obligated to prepare effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Registrable Shares requested to be included in such Demand Registration equals or file a Registration Statement under this Section 2 exceeds $5,000,000, (y) the Company shall not be obligated to effect more than once two (2) Demand Registrations, and (z) the Company shall not be obligated to effect a Demand Registration within less than ninety (90) days after (I) any other completed Demand Registration or (II) the effective date of a registration statement or the completion of a Piggyback Underwritten Offering pursuant to Section 2.02, in any twelve (12which the Requesting Holders in the Demand Registration had an opportunity to participate, other than a registration or Piggyback Underwritten Offering pursuant to the provisions of Section 2.02(ii) month period, from which more than twice after an IPO or more than three (3) times in total20% of the Registrable Shares of the Requesting Holders that were previously requested to be included were excluded. Registrations pursuant to Demand Notices are * Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the further limitations confidentiality request. Omissions are designated as [**]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.
(ii) Promptly after the expiration of the seven (7) Business-Day period referred to in Section 2.01(i)(b), the Company will notify all Registering Holders of the identities of the other Registering Holders and the number of Registrable Shares requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Holder may revoke such request, without liability to any of the other Registering Holders, by providing a notice to the Company revoking such request. A request, so revoked, shall be considered to be a Demand Registration unless (a) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request), or (b) the Requesting Holder reimburses the Company for all Registration Expenses of such revoked request.
(iii) The Company shall be liable for and pay all Registration Expenses in connection with any Demand Registration, regardless of whether such registration is effected, except as set forth in Section 2.32.01(ii)(b).
2.2 Within ten (10iv) A Demand Registration shall not be deemed to have occurred unless the registration statement relating thereto (I) has become effective under the Securities Act and (II) has remained effective for a period of at least 180 days from (or such shorter period in which all Registrable Shares of the Registering Holders included in such registration have actually been sold thereunder); provided, that, such registration statement shall not be considered a Demand Registration if, after such registration statement becomes effective, 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
(v) If a Demand Registration involves an Underwritten Offering and the managing underwriter advises the Company and the Requesting Holder that, in its receipt view, the number of a valid Demand NoticeRegistrable Shares requested to be included in such registration (including any securities that the Company proposes to be included that are not Registrable Shares) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall deliver written notice to all Holders thatinclude in such registration, pursuant to a Demand Noticein the priority listed below, the Company will prepare and file a Registration Statement. Any Holder who was not a party up to the Demand Notice mayMaximum Offering Size:
(a) first, within ten (10) days from receipt of the Company's notice, request the Company to include the Holder's all Registrable Securities in the Registration Statement. If the Holders that initiated a Demand Notice specify therein that they intend to distribute their Registrable Securities through an underwriter, then each Holder that requests inclusion in the Registration Statement must participate in such underwriting, and become party to any required agreements, including, but not limited to, customary underwriting and indemnification agreements. The Company shall have the right to approve any underwriter, which approval shall not be unreasonably withheld. In the event that the underwriter limits the number of Registrable Securities Shares requested to be included in such registration by all Registering Holders (allocated, if necessary for the offering not to fewer than exceed the Maximum Offering Size, pro rata among the Registering Holders on the basis of the relative number of Registrable Shares held by each such Holder); and
(b) second, any securities proposed to be registered by the Company (including for the benefit of any other Persons not party to this Agreement).
(vi) The Company shall only be obligated to include the applicable Registrable Shares of the Holder in a registration statement pursuant to this Section 2.01 to the extent the Holder has duly completed and delivered to the Company a selling shareholder questionnaire in the form reasonably satisfactory to the Company for such Registration Statement and delivered by the Company to the Holder reasonably in advance (the “Selling Holder Questionnaire”) as the date that is two (2) Business Days before the proposed filing date for such registration statement. * Confidential treatment has been requested for Registration, then each Holder's Registrable Securities shall be included in redacted portions of this exhibit. This copy omits the underwriting pro rata, based on the total number of Registrable Securities held by the participating Holders.
2.3 Registrations under this Section 2 are information subject to the following limitations: (i) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice within one hundred eighty (180) days after the effective date confidentiality request. Omissions are designated as [**]. A complete version of any Registration Statement filed by the Company in which the Holders party this exhibit has been provided separately to the Demand Notice could have included their Registrable Securities; (ii) the Company may delay the effectiveness of a Demand Notice for a period of not more than six months after receipt of a Demand Notice in any 12-month period if the Company furnishes a certificate signed by its president stating that in the good faith judgment of the Company's board of directors it would be detrimental to the Company for the Registration Statement to be effected at such time; Securities and (iii) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice if it is then preparing a Registration Statement in connection with an underwritten public offering of Company securities, and the Company may delay the effectiveness of such Demand Notice until one hundred eighty (180) days after the effective date of such Registration StatementExchange Commission.
Appears in 1 contract
Demand Registration. 2.1 After (1) If, on the earlier of (i) the first six month anniversary of the date of this Agreement, Uniview has not effected a registration of Registrable Securities pursuant to Section 2 hereof pursuant to which all of the Registrable Securities were sold, then (i) at any time from the six month anniversary of the date of this Agreement until all of the Registrable Securities have been sold pursuant to a registration effected under the terms of this Agreement or have become Rule 144 Resale Eligible (and if such Registrable Securities ever cease to be Rule 144 Resale Eligible, then until such time as they again become Rule 144 Resale Eligible), and (ii) the consummation of an IPO upon written notice from a Holder or (iii) a Spin-Off or Hostile Change in Control at any time, Holders of at least fifty percent (more than 50%) % of all the Registrable Securities then (the "Initiating Holders") in the manner set forth in Section 11(h) hereof requesting that Uniview effect the registration under the Securities Act of any or all of the Registrable Securities held by parties such Holders (which notice shall specify the intended method or methods of disposition of such Registrable Securities), Uniview shall use its best efforts to effect, in the manner set forth in Section 5, the registration under the Securities Act of such Registrable Securities for disposition in accordance with the intended method or methods of disposition stated in such request; provided that Uniview shall not be obligated to file more than one (1) registration statement under the Securities Act relating to a registration request pursuant to this Section 3(a).
(2) Notwithstanding any other provision of this Agreement (or in the case of a Spin-Off the percentage of Registrable Securities equal to the proportion which the majority of the number shares of Common acquired contrary, a registration requested by a Holder pursuant to this Section 3 shall not be deemed to have been effected (and, therefore, not requested for purposes of Section 3(a)):(A) if it is withdrawn based upon material adverse information relating to Uniview that is different from the Subscription Agreement bears information (x) known to all Registrable Securities the Holders requesting registration at the time of their request for registration, or (y) promptly disclosed by Uniview to the Spin-Off) may request Holder at the Company to Register any or all time of their Registrable Securities request for registration; (a "Demand Notice"). Demand Notices shall be made in writing and shall specify the Holders making the Demand NoticeB) if, when effective, it includes fewer than ninety (90%) percent of the number and type of shares of Registrable Securities that each requests to be Registeredwhich were the subject matter of the request; (C) if after it has become effective such registration is interfered with by Uniview invoking its rights under subsection 6(e) or any stop order, whether 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 Holder and, as a result thereof, less than ninety (90%) percent of the Registrable Securities will requested to be sold through an underwriter, and if so, the underwriters name, address, telephone number and contact person. The Company will prepare and file a Registration Statement registered can be completely distributed in accordance with Section 4 for the Registrable Securities to be Registered pursuant to a valid Demand Notice; provided that plan of distribution set forth in the Company shall not be required to prepare or file a Registration Statement under this Section 2 more than once in any twelve (12) month period, more than twice after an IPO or more than three related registration statement.
(3) times in total. Registrations In the event that any registration pursuant to Demand Notices are subject to the further limitations set forth this Section 3 shall involve, in Section 2.3.
2.2 Within ten (10) days from its receipt of a valid Demand Noticewhole or in part, the Company shall deliver written notice to all Holders thatan underwritten offering, pursuant to a Demand Notice, the Company will prepare and file a Registration Statement. Any Holder who was not a party to the Demand Notice may, within ten (10) days from receipt of the Company's notice, request the Company to include the Holder's Registrable Securities in the Registration Statement. If the Holders that initiated a Demand Notice specify therein that they intend to distribute their Registrable Securities through an underwriter, then each Holder that requests inclusion in the Registration Statement must participate in such underwriting, and become party to any required agreements, including, but not limited to, customary underwriting and indemnification agreements. The Company Uniview shall have the right to approve designate the underwriter or underwriters, including the lead managing underwriter of such underwritten offering.
(4) Upon receipt of written notice from the Initiating Holders under Section 3(a) hereto, Uniview shall, within five (5) days, give prompt written notice to all other Holders of Registrable Securities of such notice and of its intent to effect the registration of Registrable Securities pursuant to this Agreement. Such notice shall offer each such Holder the opportunity to include in such registration statement such number of Registrable Securities as each such Holder may request.
(5) Holders other than the Initiating Holders and holders of other registrable securities with the right to participate in a Uniview registration statement shall have the right to include their shares of Registrable Securities or other registrable securities, as the case may be, in any underwriter, which approval shall not be unreasonably withheldregistration pursuant to Section 3(a). In connection with those registrations in which multiple Holders or holders of other registrable securities with the right to participate in such registration ("piggy-back rights holders") participate, in the event the facilitating broker/dealer or, in an underwritten offering, the lead managing underwriter advises that marketing factors require a limitation on the underwriter limits number of shares to be sold, the number of shares to be included in the sale or underwriting and registration shall be allocated (i) first, to the Holders, and, if less than the full number of Registrable Securities of such Holders, then pro rata on the basis of the number of Registrable Securities requested to be included in the offering to fewer than the number that has been requested for Registration, then registered by each Holder's Registrable Securities shall be included in the underwriting pro rata, based on the total number of Registrable Securities held by the participating Holders.
2.3 Registrations under this Section 2 are subject to the following limitations: (i) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice within one hundred eighty (180) days after the effective date of any Registration Statement filed by the Company in which the Holders party to the Demand Notice could have included their Registrable Securities; and (ii) second, to the Company may delay holders seeking registration pursuant to piggy-back registration rights otherwise granted by Uniview pro rata on the effectiveness of a Demand Notice for a period of not more than six months after receipt of a Demand Notice in any 12-month period if the Company furnishes a certificate signed by its president stating that in the good faith judgment basis of the Company's board number of directors it would be detrimental to the Company for the Registration Statement securities requested to be effected at registered by each such time; and (iii) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice if it is then preparing a Registration Statement holder in connection with an underwritten public offering of Company securities, and the Company may delay the effectiveness of such Demand Notice until one hundred eighty (180) days after the effective date of such Registration Statementregistration.
Appears in 1 contract
Samples: Registration Rights Agreement (Uniview Technologies Corp)
Demand Registration. 2.1 After (a) Request for Registration on Form Other than Form S-3. Subject to the terms of this Agreement, in the event that the Company shall receive from Initiating Holder(s) at any time after the earlier of (i) the first anniversary of the date of this AgreementSeptember 13, 2000, or (ii) three (3) months after the consummation effective date of a Qualified Public Offering (provided that, if so required in writing by the underwriter(s) of the Qualified Public Offering, such three-month period may be extended to a period not to exceed the greater of (I) the length of the lock-up period imposed on members of senior management of the Company in connection with the Qualified Public Offering and (II) six (6) months, provided further that if such three-month period is so extended, the Company shall use its reasonable best efforts to arrange for the Registration provided for in this Section 2.1(a) to be effective at or before the end of such extended period), a written request that the Company effect a Registration with respect to all or a part of the Registrable Securities of such Initiating Holder(s) on a form other than Form S-3 for an IPO offering of (x) in the case of a request delivered by Initiating Holder(s), other than a Significant Holder of at least twenty-five percent (25%) of the then outstanding Series E Registrable Securities, at least twenty-five percent (25%) of the then outstanding Series F Registrable Securities or at least twenty-five percent (25%) of the then outstanding Series G Registrable Securities, or (iiiy) in the case of a Spin-Off or Hostile Change in Control at any timerequest from an Initiating Holder who is a single Significant Holder, Holders of at least fifty percent (50%) of all the then outstanding Registrable Securities then held represented by parties to this Agreement Convertible Securities owned by such Significant Holder, the Company shall (or in the case of a Spin-Off the percentage of Registrable Securities equal to the proportion which the majority A) promptly give written notice of the number shares of Common acquired pursuant to the Subscription Agreement bears proposed Registration to all Registrable Securities at the time other Holders and (B) as soon as practicable, use its best efforts to effect Registration of the Spin-Off) may request the Company to Register any or all of their Registrable Securities (a "Demand Notice"). Demand Notices shall be made in writing and shall specify the Holders making the Demand Notice, the number and type of Registrable Securities that each requests to be Registered, whether the Registrable Securities will be sold through an underwriterspecified in such request of the Initiating Holder(s), and if so, together with any Registrable Securities of any Holder joining in such request as are specified in a written request given within twenty (20) business days after written notice from the underwriters name, address, telephone number and contact personCompany. The Company will prepare and file a Registration Statement in accordance with Section 4 for the Registrable Securities to be Registered pursuant to a valid Demand Notice; provided that the Company shall not be required obligated to prepare or file a take any action to effect any such Registration Statement under pursuant to this Section 2 more than once in any twelve 2.1(a) (12i) month periodexcept as provided above, more than twice after an IPO or more than within the three (3) times to six (6) months period referred to in total. the first sentence of this Section 2.1(a) or (ii) after the Company has effected two (2) such Registrations pursuant to Demand Notices are subject to the further limitations set forth this Section 2.1(a) in Section 2.3.
2.2 Within ten (10) days from its receipt of a valid Demand Notice, which the Company shall deliver written notice to all Holders that, pursuant to a Demand Notice, the Company will prepare has not Registered securities for its own account and file a Registration Statement. Any Holder who was not a party to the Demand Notice may, within ten (10) days from receipt of the Company's notice, request the Company to include the Holder's Registrable Securities in the Registration Statementsuch Registrations have been declared effective. If the Holders that initiated a Demand Notice specify therein that they intend to distribute their Registrable Securities through an underwriter, then each Holder that requests inclusion in the Registration Statement must participate in such underwriting, and become party to any required agreements, including, but not limited to, customary underwriting and indemnification agreements. The Company shall have the right to approve any underwriter, which approval shall not be unreasonably withheld. In the event that the underwriter limits the number of Registrable Securities proposed to be included Registered by the Initiating Holder(s) is reduced pursuant to Section 2.1(e)(iii), such Registration shall not count toward the limit of two (2) Registrations referred to in the offering preceding sentence.
(b) Right of Deferral of Registration on Form Other than Form S-3. If the Company shall furnish to fewer than the number that has been requested for Registration, then each Holder's Registrable Securities shall be included all such Holders who joined in the underwriting pro rata, based on the total number of Registrable Securities held by the participating Holders.
2.3 Registrations under this Section 2 are subject to the following limitations: (i) the Company need not prepare or file a request for any Registration Statement pursuant to a Demand Notice within one hundred eighty (180Section 2.1(a) days after the effective date of any Registration Statement filed by the Company in which the Holders party to the Demand Notice could have included their Registrable Securities; (ii) the Company may delay the effectiveness of a Demand Notice for a period of not more than six months after receipt of a Demand Notice in any 12-month period if the Company furnishes a certificate signed by its president the President of the Company stating that that, in the good faith judgment of the Company's board of directors Board, it would be detrimental to the Company for the any Registration Statement to be effected at such time; and (iii) as requested under Section 2.1(a), the Company need not prepare or file shall have the right to defer the filing of a Registration Statement pursuant with respect to such requested Registration for a Demand Notice if it is then preparing a Registration Statement in connection with an underwritten public offering period of Company securitiesnot more than one hundred twenty (120) days from delivery of the request of the Initiating Holders; provided, and however, that the Company may delay not utilize this right more than once in any twelve-month period.
(c) Request for Registration on Form S-3. Subject to the effectiveness terms of this Agreement, in the event that the Company receives from one or more Initiating Holders a written request that the Company effect any Registration on Form S-3 (or any successor form to Form S-3 regardless of its designation) at a time when the Company is eligible to Register securities on Form S-3 (or any successor form to Form S-3 regardless of its designation) for an offering of Registrable Securities, the Company will promptly give written notice of the proposed Registration to all other Holders and will as soon as practicable use its best efforts to effect Registration of the Registrable Securities specified in such request, together with all of such Demand Notice until one hundred eighty Registrable Securities of any Holder joining in such request as are specified in a written request delivered to the Company within twenty (18020) business days after written notice from the effective date Company of the proposed Registration on Form S-3. There shall be no limit to the number of occasions on which the Company shall be obligated to effect Registration under this
Section 2.1 (c), but the Company shall not be required to effect more than two (2) such Registration StatementRegistrations in any calendar year.
Appears in 1 contract
Samples: Senior Registration Rights Agreement (Airnet Communications Corp)
Demand Registration. 2.1 After (a) Shareholders holding Registrable Securities may make an aggregate of up to three (3) written requests for registration under the earlier Securities Act (including the first request contained in subsection 2.1(d) hereof) of all or any part of the Registrable Securities held by such Shareholders (a "Demand Registration"); provided that (i) the first anniversary Demand Registration must be in respect of not less than 2,500,000 Registrable Securities (as adjusted for any stock dividends, combinations, splits, recapitalizations and the date of this Agreementlike), (ii) the consummation second and third Demand Registrations must each be in respect of an IPO not less than either (x) 1,500,000 Registrable Securities (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like) or (y) Registrable Securities representing the right to cast at least 6,500,000 votes at a meeting of stockholders of the Company (exclusive of cumulative voting rights) ("Votes"), (iii) the Shareholders shall not request a Spin-Off or Hostile Change in Control at any time, Holders Demand Registration within 150 days of at least fifty percent (50%) of all Registrable Securities then held by parties to this Agreement (or in the case effective date of a Spin-Off prior Demand Registration and (iv) the percentage of Registrable Securities equal to the proportion which the majority of the number shares of Common acquired pursuant to the Subscription Agreement bears to all Registrable Securities at the time of the Spin-Off) may request the Company to Register any or all of their Registrable Securities (a "Demand Notice"). Demand Notices Shareholders shall be made in writing and shall specify the Holders making the Demand Notice, the number and type of Registrable Securities that each requests to be Registered, whether the Registrable Securities will be sold through an underwriter, and if so, the underwriters name, address, telephone number and contact person. The Company will prepare and file a Registration Statement in accordance with Section 4 for indicate the Registrable Securities to be Registered pursuant registered (that is, Common Stock, Class B Common Stock or a combination of both). In addition, such request will specify the aggregate number of shares of Registrable Securities proposed to be sold by the Shareholders and will also specify the intended method of disposition thereof. A registration will not count as a valid Demand Notice; Registration until the distribution contemplated by such Demand Registration has been consummated. Should the distribution contemplated by a Demand Registration not be consummated due to the failure of the Participating Shareholders to perform their obligations under this Agreement or the inability of the Participating Shareholders to reach agreement with the Underwriters for the proposed sale on price or other customary terms for such transaction, or in the event the Participating Shareholders withdraw or do not pursue the request for the Demand Registration (in each of the foregoing cases, provided that at such time the Company is in compliance in all material respects with its obligations under this Agreement), then such Demand Registration shall not be required deemed to prepare or file a Registration Statement under this Section 2 more than once have been effected, but the Participating Shareholders shall pay those expenses incurred by the Company in any twelve (12) month period, more than twice after an IPO or more than three (3) times in total. Registrations pursuant to Demand Notices are subject to the further limitations connection with such request set forth in Section 2.33.2 hereof.
2.2 Within ten (10b) days from its receipt of a valid Demand NoticeIf the Shareholders so elect, the Company shall deliver written notice to all Holders that, offering of such Registrable Securities pursuant to a such Demand Notice, the Company will prepare and file a Registration Statement. Any Holder who was not a party to the Demand Notice may, within ten (10) days from receipt of the Company's notice, request the Company to include the Holder's Registrable Securities shall be in the Registration Statement. If the Holders that initiated a Demand Notice specify therein that they intend to distribute their Registrable Securities through form of an underwriter, then each Holder that requests inclusion in the Registration Statement must participate in such underwriting, and become party to any required agreements, including, but not limited to, customary underwriting and indemnification agreementsunderwritten offering. The Company Participating Shareholders shall have the right jointly to approve select the managing Underwriters and any underwriteradditional investment bankers and managers to be used in connection with such offering, subject to the Company's approval, which approval shall not be unreasonably withheld, conditioned or delayed.
(c) The Company will have the right to preempt any Demand Registration with a primary registration by delivering written notice (within five business days after the Company has received from the Participating Shareholders a request for such Demand Registration) of such intention to the Participating Shareholders indicating that the Company has identified a specific business need and use for the proceeds of the sale of such securities and the Company shall use all commercially reasonable efforts to effect a primary registration within 90 days of such notice. In the event that ensuing primary registration, the underwriter limits Shareholders will have such piggyback registration rights as are set forth in Section 2.2 hereof. Upon the number Company's preemption of a requested Demand Registration, such requested registration will not count as a Demand Registration. The Company shall not be entitled to exercise this right of preemption more than one (1) time in any 180 day period.
(d) Level 3 hereby requests the registration of a minimum of 2,500,000 Registrable Securities pursuant to subsection 2.1(a) above, and agrees to use commercially reasonable efforts to cause such Registrable Securities to be included sold in an underwritten offering on or before May 30, 2002, subject to the provisions of Section 2.1(a). The Company and Level 3 agree that the co-lead underwriters of the offering will be Morgan Stanley Dean Witter and Goldman, Sachs & Co. Level 3 acknowlxxxxx txxx xx xxxx xxx xxxe the xxxxx to xxxx less than 2,500,000 Registrable Securities in the offering to fewer than without the number that has been requested for Registration, then each Holder's Registrable Securities shall be included in the underwriting pro rata, based on the total number of Registrable Securities held by the participating Holders.
2.3 Registrations under this Section 2 are subject to the following limitations: (i) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice within one hundred eighty (180) days after the effective date of any Registration Statement filed by the Company in which the Holders party to the Demand Notice could have included their Registrable Securities; (ii) the Company may delay the effectiveness of a Demand Notice for a period of not more than six months after receipt of a Demand Notice in any 12-month period if the Company furnishes a certificate signed by its president stating that in the good faith judgment prior written consent of the Company's board of directors it would be detrimental to the Company for the Registration Statement to be effected at such time; and (iii) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice if it is then preparing a Registration Statement in connection with an underwritten public offering of Company securities, and the Company may delay the effectiveness of such Demand Notice until one hundred eighty (180) days after the effective date of such Registration Statement.
Appears in 1 contract
Samples: Registration Rights Agreement (Commonwealth Telephone Enterprises Inc /New/)
