Demand Registration. (i) At any time after the expiration of the 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, prepare and file with the Commission a Registration Statement registering the offering and sale of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice, which may include sales on a delayed or continuous basis pursuant to Rule 415 pursuant to a Shelf Registration Statement (a “Demand Registration”). The Demand Notice must set forth the number of Registrable Securities that the Initiating Holder intends to include in such Demand Registration and the intended methods of disposition thereof. Notwithstanding anything to the contrary herein, in no event shall the Company be required to effectuate a Demand Registration unless the Registrable Securities to be included therein have an aggregate value, based on the VWAP as of the date of the Demand Notice, of at least $25 million (the “Minimum Amount”). (ii) Within fifteen Business Days after the receipt of the Demand Notice (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, within forty-five days thereof), the Company shall, subject to the limitations of this Section 2(a), file a Registration Statement in accordance with the terms and conditions of the Demand Notice. The Company shall use all commercially reasonable efforts to cause such Registration Statement to become and remain effective under the Securities Act until all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”). (iii) Subject to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect (A) a Demand Registration within 90 days after the closing of any Requested Underwritten Offering or (B) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of the Registrable Securities held by the Initiating Holder shall have become and remains effective under the Securities Act and is sufficient to permit offers and sales of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice in accordance with the intended timing and method or methods of distribution thereof specified in the Demand Notice. (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 a Holder to the effect that the Holder is withdrawing an amount of its Registrable Shares from the Demand Registration such that the remaining amount of Registrable Shares to be included in the Demand Registration is below the Minimum Amount, the Company shall cease all efforts to secure effectiveness of the applicable Registration Statement. (v) The Company may include in any such Demand Registration other Company Securities for sale for its own account or for the account of any other Person, subject to Section 2(c)(iii). (vi) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration on such appropriate registration form of the Commission (A) as shall be selected by the Company and (B) as shall permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the Demand Notice; provided that if the Company becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to the Company). If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Company that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, the Company will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place. (vii) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), the Company shall (A) promptly prepare and file or cause to be prepared and filed (1) such additional forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents, as may be necessary or advisable to register or qualify the securities subject to such Demand Registration, including under the securities laws of such jurisdictions as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, the Company would become subject to general service of process or to taxation or qualification to do business in such jurisdiction solely as a result of registration and (2) such forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents as may be necessary to apply for listing or to list the Registrable Securities subject to such Demand Registration on the Trading Market and (B) do any and all other acts and things that may be reasonably necessary or appropriate or reasonably requested by the Holders to enable the Holders to consummate a public sale of such Registrable Securities in accordance with the intended timing and method or methods of distribution thereof. (viii) In the event a Holder transfers Registrable Securities included on a Registration Statement and such Registrable Securities remain Registrable Securities following such transfer, at the request of such Holder, the Company shall amend or supplement such Registration Statement as may be necessary in order to enable such transferee to offer and sell such Registrable Securities pursuant to such Registration Statement; provided that in no event shall the Company be required to file a post-effective amendment to the Registration Statement unless (A) such Registration Statement includes only Registrable Securities held by the Holder, Affiliates of the Holder or transferees of the Holder or (B) the Company has received written consent therefor from a Person for whom Registrable Securities have been registered on (but not yet sold under) such Registration Statement, other than the Holder, Affiliates of the Holder or transferees of the Holder.
Appears in 2 contracts
Samples: Registration Rights Agreement (Ranger Energy Services, Inc.), Registration Rights Agreement (Ranger Energy Services, Inc.)
Demand Registration. (ia) At Commencing on August 1, 2019 and from time to time so long as there are any time after the expiration of the Lock-Up PeriodRegistrable Securities outstanding, any Holder shall have the option and right, exercisable by delivering a written notice to if the Company (is not eligible to file a “Demand Notice”)Shelf Registration Statement, to require if the Company to, pursuant to the terms of and subject to the limitations contained in this Agreement, prepare and file with the Commission a Registration Statement registering the offering and sale of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice, which may include sales on a delayed or continuous basis pursuant to Rule 415 pursuant to has not caused a Shelf Registration Statement to be declared effective by the Commission in accordance with Section 2.2 or if the Shelf Registration Statement shall cease to be effective, subject to the minimum size limitations in Section 2.3(a), the Holder(s) holding a majority of Registrable Securities then outstanding may collectively make one or more written requests to the Company for registration under the Securities Act of all or part of its or their Registrable Securities (a “Demand Registration”). The Holders submitting the request for a Demand Notice must set forth Registration shall concurrently provide written notice of the proposed registration to all other Holders. The Company shall prepare and file with the Commission, within thirty (30) days after such request for a Demand Registration, a registration statement on an appropriate form which the Company is then eligible to use with respect to any Demand Registration (a “Demand Registration Statement”) as selected by the Company, and shall use its reasonable best efforts to cause any such Demand Registration Statement to be declared effective by the Commission as promptly as reasonably practicable after the filing thereof. Any request for a Demand Registration will specify the number of shares of Registrable Securities proposed to be sold in the offering thereof; provided that the requesting Holder(s) may change the number of Registrable Securities that the Initiating Holder intends to include in such Demand Registration and the intended methods of disposition thereof. Notwithstanding anything to the contrary herein, in no event shall the Company be required to effectuate a Demand Registration unless the Registrable Securities proposed to be included therein have an aggregate value, based on the VWAP as of the date of the Demand Notice, of at least $25 million (the “Minimum Amount”).
(ii) Within fifteen Business Days after the receipt of the Demand Notice (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, within forty-five days thereof), the Company shall, subject to the limitations of this Section 2(a), file a Registration Statement in accordance with the terms and conditions of the Demand Notice. The Company shall use all commercially reasonable efforts to cause such Registration Statement to become and remain effective under the Securities Act until all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect (A) a Demand Registration within 90 days after the closing of any Requested Underwritten Offering or (B) a subsequent Demand Registration offered pursuant to a Demand Notice if a Registration Statement covering all of the Registrable Securities held by the Initiating Holder shall have become and remains effective under the Securities Act and is sufficient to permit offers and sales of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice in accordance with the intended timing and method or methods of distribution thereof specified in the Demand Notice.
(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 Demand Registration Statement. Upon receipt of a notice from a Holder Statement with respect to the effect that the Holder is withdrawing an amount of its Registrable Shares from the Demand Registration such that being declared effective by the remaining amount of Registrable Shares Commission, in each case subject to be included the minimum size limitations in Section 2.3(a). Without the Demand Registration is below the Minimum Amount, the Company shall cease all efforts to secure effectiveness prior written consent of the applicable Registration Statement.
(v) The Company may include in any such Demand Registration other Company Securities for sale for its own account or for the account of any other Person, subject to Section 2(c)(iii).
(vi) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration on such appropriate registration form of the Commission (A) as shall be selected by the Company and (B) as shall permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the Demand Notice; provided that if the Company becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to the Company). If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Company that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, the Company will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(vii) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), the Company shall (A) promptly prepare and file or cause to be prepared and filed (1) such additional forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents, as may be necessary or advisable to register or qualify the securities subject to Holders requesting 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, neither the Company would become subject to general service nor any shareholder 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 HolderHolders) may include securities in any offering requested under this Section 2.1.
Appears in 2 contracts
Samples: Registration Rights Agreement (Spirit MTA REIT), Registration Rights Agreement (Spirit MTA REIT)
Demand Registration. Subject to Sections 2.2(c) and 3 hereof, at any time after 14 months after the closing date of the IPO, if the Company (i) At any time after is not eligible to use Form S-3 (or similar or successor form) or (ii) has failed to file the expiration of Shelf Registration Statement, each Holder may deliver to the Lock-Up Period, any Holder shall have the option and right, exercisable by delivering Company a written notice to the Company (a “Demand Registration Notice”), to require ) informing the Company to, pursuant of such Holder’s desire to the terms have some or all of and subject to the limitations contained in this Agreement, prepare and file with the Commission a Registration Statement registering the offering and sale of the number and type of their Registrable Securities on registered for sale by 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 Company (a “Demand Registration”). The Each Demand Registration Notice must set forth shall specify the number of Registrable Securities that to be registered by the Initiating Holder intends to include in such Demand Registration and the intended methods Company. Upon receipt of disposition thereof. Notwithstanding anything to the contrary herein, in no event shall the Company be required to effectuate a Demand Registration unless Notice from the Holders of at least 25% of the Registrable Securities, if the Company has not already caused such Registrable Securities to be included therein have as part of an aggregate valueexisting Registration Statement and related prospectus that the Company then has on file with, based on and has been declared effective by, the VWAP as Commission and which remains in effect and not subject to any stop order, injunction or other order or requirement of the date Commission (in which event the Company shall be deemed to have satisfied its registration obligation under this Section 2), then the Company will cause to be filed with the Commission as soon as reasonably practicable after receiving the Demand Registration Notice, but in no event more than ninety (90) days following receipt of such notice, a new Registration Statement and related prospectus that complies as to form in all material respects with applicable Commission rules providing for the sale by such Holder or group of Holders of the Registrable Securities (the “Demand Registration Statement”), and agrees (subject to Section 3 hereof) to use commercially reasonable efforts to cause the Demand Registration Statement to be declared effective by the Commission as soon as practicable following the filing thereof (if it is not an automatically effective Registration Statement). The Company shall give written notice of the proposed filing of the Demand NoticeRegistration Statement to all Holders of Registrable Securities as soon as practicable, and each Holder of at least $25 million Registrable Securities who wishes to participate in such Demand Registration Statement shall notify the Company in writing within five (the “Minimum Amount”).
(ii5) Within fifteen Business Days after the receipt by the Holder of the Demand Notice (except if notice from the Company is not then eligible to register for resale the Registrable Securities on Form S-3Company, within forty-five days thereof), the Company shall, subject to the limitations of this Section 2(a), file a Registration Statement and shall specify in accordance with the terms and conditions of the Demand Notice. The Company shall use all commercially reasonable efforts to cause such Registration Statement to become and remain effective under the Securities Act until all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect (A) a Demand Registration within 90 days after the closing of any Requested Underwritten Offering or (B) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of the Registrable Securities held by the Initiating Holder shall have become and remains effective under the Securities Act and is sufficient to permit offers and sales of notice 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 a Holder to the effect that the Holder is withdrawing an amount of its Registrable Shares from the Demand Registration such that the remaining amount of Registrable Shares to be included in the Demand Registration is below the Minimum AmountStatement. Subject to Section 3 hereof, the Company shall cease all agrees to use commercially reasonable efforts to secure keep the Demand Registration Statement continuously effective (including the preparation and filing of any amendments and supplements necessary for that purpose) until the earlier of (i) the date that is two (2) years after the date of effectiveness of the applicable Demand Registration Statement.
, (vii) The Company may include in any such Demand Registration other Company Securities for sale for its own account or for the account of any other Person, subject to Section 2(c)(iii).
(vi) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration date on such appropriate registration form of the Commission (A) as shall be selected by the Company and (B) as shall permit the disposition which all of the Registrable Securities in accordance with covered by such Demand Registration Statement are eligible for sale without registration pursuant to Rule 144 (or any successor provision) under the intended method Securities Act without volume limitations or methods of disposition specified in other restrictions on transfer thereunder, or (iii) the date on which all Registrable Securities covered by such Demand Notice; provided that if Registration Statement are no longer Registrable Securities. Notwithstanding the foregoing, the Company becomesmay at any time, in its sole discretion and is at the time of its receipt of prior to or after receiving a Demand NoticeRegistration Notice from any Holder, a WKSI, the Demand Registration for include all of any offering and selling of Holder’s Registrable Securities shall be effected pursuant to an Automatic Shelf or any portion thereof in any Registration Statement, which shall be on Form S-3 or any equivalent or successor form including by virtue of adding such Registrable Securities as additional securities to an existing Registration Statement pursuant to Rule 462(b) under the Securities Act (if available in which event the Company shall be deemed to the Company). If at any time a have satisfied its registration obligation under this Section 2.2(a) so long as such Registration Statement on Form S-3 is remains effective and a Holder provides written notice to not the Company that it intends to effect an offering subject of all any stop order, injunction or part other order of the Registrable Securities included on Commission) (any such Registration Statement, an “Other Registration Statement”). Furthermore, notwithstanding any provision of this Section 2.2(a) to the contrary, 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 3shall have the option, in connection with its sole discretion, to register pursuant to any Demand Registration pursuant Statement or Other Registration Statement, along with Registrable Securities that Holders have requested to and be included in such Demand Registration Statement in accordance with this Section 2(a2.2(a), the Company shall (A) promptly prepare and file any or cause to be prepared and filed (1) such all 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 thereofare outstanding.
(viii) In the event a Holder transfers Registrable Securities included on a Registration Statement and such Registrable Securities remain Registrable Securities following such transfer, at the request of such Holder, the Company shall amend or supplement such Registration Statement as may be necessary in order to enable such transferee to offer and sell such Registrable Securities pursuant to such Registration Statement; provided that in no event shall the Company be required to file a post-effective amendment to the Registration Statement unless (A) such Registration Statement includes only Registrable Securities held by the Holder, Affiliates of the Holder or transferees of the Holder or (B) the Company has received written consent therefor from a Person for whom Registrable Securities have been registered on (but not yet sold under) such Registration Statement, other than the Holder, Affiliates of the Holder or transferees of the Holder.
Appears in 2 contracts
Samples: Contribution Agreement (Schottenstein Realty Trust, Inc.), Registration Rights Agreement (Schottenstein Realty Trust, Inc.)
Demand Registration. (ia) At If at any time after the expiration of the Lock-Up Period, any Holder shall have the option and right, exercisable by delivering a written notice to request the Company (a “Demand Notice”), to require the Company to, pursuant to the terms of and subject to the limitations contained in this Agreement, prepare and file with the Commission a Registration Statement registering the offering and sale of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice, which may include sales on a delayed or continuous basis pursuant to Rule 415 pursuant to a Shelf Registration Statement (a “Demand Registration”). The Demand Notice must set forth the number of Registrable Securities that the Initiating Holder intends to include in such Demand Registration and the intended methods of disposition thereof. Notwithstanding anything to the contrary herein, in no event shall the Company be required to effectuate a Demand Registration unless the Registrable Securities to be included therein have an aggregate value, based on the VWAP as of the date of the Demand Notice, of at least $25 million (the “Minimum Amount”).
(ii) Within fifteen Business Days after the receipt of the Demand Notice (except if the Company is not then eligible writing to register for resale the Registrable Securities on Form S-3, within forty-five days thereof), the Company shall, subject to the limitations of this Section 2(a), file a Registration Statement in accordance with the terms and conditions of the Demand Notice. The Company shall use all commercially reasonable efforts to cause such Registration Statement to become and remain effective under the Securities Act until all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect (A) or a Demand Registration within 90 days after the closing of any Requested Underwritten Offering or (B) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all part of the Registrable Securities held by the Initiating such 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 (a "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 a Holder to the effect that the Holder is withdrawing an amount of its Registrable Shares from the Demand Registration such that the remaining amount of Registrable Shares to be included in the Demand Registration is below the Minimum Amount, the Company shall cease all efforts to secure effectiveness of the applicable Registration Statement.
(v) The Company may include in any such Demand Registration other Company Securities for sale for its own account or for the account of any other Person, subject to Section 2(c)(iii).
(vi) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration on such appropriate registration form of the Commission (A) as shall be selected by the Company and (B) as shall permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the Demand Notice; provided that if the Company becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to the Company). If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Company that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, the Company will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(vii) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(aRegistration"), the Company shall (A) promptly prepare and file or use all reasonable efforts to cause to be prepared filed and filed declared effective as soon as reasonably practicable (1but in no event later than the 45th day after such Holder's request is made) a registration statement providing for the sale of all 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 be registered by 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 Holder, including, but not limited to, a public sale of such Registrable Securities in accordance connection with the intended timing and method issuance of any securities convertible into or methods of distribution thereof.
(viii) In the event a Holder transfers exchangeable or exercisable for Registrable Securities or the sale of Registrable Securities upon conversion, exercise or exchange thereof. The Company agrees to use its reasonable efforts to keep any such registration statement continuously effective and usable for resale of Registrable Securities for so long as the Holder whose Registrable Securities are included therein shall request. The Company shall be obligated to file registration statements pursuant to this Section 2(a) until all Registrable Securities have ceased to be Registrable Securities. Each registration statement filed pursuant to this Section 2(a) is hereinafter referred to as a "Demand Registration Statement." The Company may, if permitted by law, effect any registration pursuant to this Section 2(a) by the filing of a registration statement on Form S-3. However, if such registration involves an underwritten public offering and the managing underwriter(s) at any time shall notify the Company in writing that, in the sole judgment of such managing underwriter(s), inclusion of some or all of the information required in a Registration Statement and more detailed form specified in such notice is of material importance to the success of the public offering of such Registrable Securities remain Registrable Securities following such transfer, at the request of such HolderSecurities, the Company shall use all reasonable efforts to supplement or amend the registration statement to include such information.
(b) The Company agrees (i) not to effect any public or supplement private sale, distribution or purchase of any of its securities which are the same as or similar to the Registrable Securities, including a sale pursuant to Regulation D under the Securities Act, during the 15-day period prior to, and during the 45-day period beginning on, the closing date of each underwritten offering under any Demand Registration Statement, and (ii) to use reasonable efforts to cause each holder of its securities purchased from the Company, at any time on or after the date of this Agreement (other than in a registered public offering), to agree not to effect any public sale or distribution of any such securities during such period, including a sale pursuant to Rule 144 under the Securities Act.
(c) The Company may postpone for a reasonable period of time, not to exceed 30 days, the filing or the effectiveness of any Demand 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 if (i) the Board of Directors of the Company be required to file a post-effective amendment to the Registration Statement unless in good faith determines that (A) such Registration Statement includes only Registrable Securities held registration would have a material adverse effect on any plan or proposal by the HolderCompany with respect to any financing, Affiliates of the Holder acquisition, recapitalization, reorganization or transferees of the Holder other material transaction, or (B) the Company has received written consent therefor from is in possession of material non-public information that, if publicly disclosed, would result in a Person for whom Registrable Securities have been registered on material disruption of a major corporate development or transaction then pending or in progress or in other material adverse consequences to the Company, and (but not yet sold underii) the Company so notifies the Holder(s) within five days after the Holder(s) requests such Registration Statement, other than registration. The Company's right to defer the Holder, Affiliates filing of a registration statement pursuant to the provisions of the preceding sentence may not be exercised more than once during any 12 month period.
(d) If at any time any Holder or transferees notifies the Company in writing of the Holder's desire that the Registrable Securities to be covered by a Demand Registration Statement be sold in an underwritten offering, such Holder shall have the right to select any nationally recognized investment banking firm(s) to administer the offering, subject to the approval of the Company, which approval shall not be unreasonably withheld, and the Company shall enter into underwriting agreements with the underwriter(s) of such offering, which agreements shall contain such representations and warranties by the Company, and such other terms, conditions and indemnities as are at the time customarily contained in underwriting agreements for similar offerings and the Company shall take or cause to be taken all such other actions, in addition to the registration procedures set forth in Section 4 hereof, as are reasonably requested by the managing underwriter(s) in order to expedite or facilitate the registration and disposition of the Registrable Securities, including, without limitation, causing management to participate in "road show" presentations.
Appears in 2 contracts
Samples: Registration Rights Agreement (M & F Worldwide Corp), Registration Rights Agreement (Mafco Holdings Inc)
Demand Registration. (ia) At any time after the expiration The Holders of not less than 25% of the Lock-Up PeriodRegistrable Shares shall have, any Holder shall have as a group, the option and right, exercisable at any time following the date that is 15 months following the date of this Agreement and from time to time thereafter, by delivering a written notice to the Company (a “Demand Notice”)) given to the REIT, to require request the Company toREIT forthwith to register, pursuant to and the REIT shall register, under and in accordance with the provisions of the Securities Act and the terms of and subject to the limitations contained in this Agreement, prepare and file with the Commission a Registration Statement registering the offering and sale of the such number and type of Registrable Securities on the terms and conditions Shares as may be specified in the Demand Notice. The Holders, which may include sales on as a delayed or continuous basis group, shall be entitled to two Demand Registrations pursuant to Rule 415 pursuant to a Shelf Registration Statement this Section 2 (a “Demand Registration”including Section 2(c)). The Demand Notice must set forth Notwithstanding the number of Registrable Securities that foregoing, the Initiating Holder intends to include in such Demand Registration and the intended methods of disposition thereof. Notwithstanding anything to the contrary herein, in no event REIT shall the Company not be required to effectuate file a Demand Registration Statement covering Registrable Shares with anticipated gross proceeds of less than $25,000,000 unless the Registrable Securities to be included therein have an aggregate value, based on the VWAP as it covers all of the date of the Demand Notice, of at least $25 million (the “Minimum Amount”)remaining Registrable Shares.
(iib) Within fifteen Business Days As promptly as reasonably practicable and in any event within 45 days after the receipt of date on which the REIT receives a Demand Notice (except if given by the Company is not then eligible to register for resale the Registrable Securities on Form S-3, within forty-five days thereof), the Company shall, subject to the limitations of this Holders in accordance with Section 2(a), if permitted under the Securities Act, the REIT shall file with the SEC a Registration Statement which is automatically effective upon filing. If such automatically effective filing is not so permitted, the REIT shall file a Registration Statement with the SEC as promptly as reasonably practical and in any event within 45 days after the date on which the REIT receives a Demand Notice given by the Holders in accordance with the terms Section 2(a) and conditions of the Demand Notice. The Company shall use all its commercially reasonable efforts to cause any such Registration Statement to become and remain effective under the Securities Act until all Registrable Securities covered by as promptly as reasonably practicable. Each such Registration Statement have been sold (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect (A) a Demand Registration within 90 days after the closing of any Requested Underwritten Offering or (B) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of the Registrable Securities held by the Initiating Holder shall have become and remains effective under the Securities Act and is sufficient to permit offers and sales of the number and type of Registrable Securities be 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 a Holder to the effect that the Holder is withdrawing an amount of its Registrable Shares from the Demand Registration such that the remaining amount of Registrable Shares to be included in the Demand Registration is below the Minimum Amount, the Company shall cease all efforts to secure effectiveness of the applicable Registration Statement.
(v) The Company may include in any such Demand Registration other Company Securities for sale for its own account or appropriate form for the account of any other Personregistration and sale, subject to Section 2(c)(iii).
(vi) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration on such appropriate registration form of the Commission (A) as shall be selected by the Company and (B) as shall permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition distribution, of the total number of Registrable Shares specified by the Holders in the Demand Notice, which may include a “shelf” registration (a “Shelf Registration”) pursuant to Rule 415 under the Securities Act.
(c) The REIT shall use commercially reasonable efforts to keep effective each Registration Statement filed pursuant to this Section 2, and a registration shall not count as a Demand Registration to which the Holders are entitled under Section 2(a) until it has become continuously effective and usable for the resale of the Registrable Shares covered thereby (i) in the case of a Registration that is not a Shelf Registration, for a period of 180 days from the date on which the Registration Statement becomes effective under the Securities Act and (ii) in the case of a Shelf Registration, for a period of one year from the date on which the Registration Statement becomes effective, in either case (x) until such earlier time by which all the Registrable Shares covered by such Registration Statement have been sold pursuant to such Registration Statement, and (y) as such period may be extended pursuant to this Section 2. Notwithstanding the foregoing, a registration shall not count as a Demand Registration under Section 2(a) if (A) after such Demand Registration has become effective, such registration or the related offer, sale or distribution of Registrable Shares thereunder is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court for any reason not attributable to the Holders initiating such Demand Registration and such interference is not thereafter eliminated or (B) the conditions specified in the underwriting agreement, if any, entered into in connection with such Demand Registration are not satisfied or waived, other than by reason of a failure by the Holders initiating such Demand Registration, and as a result of any such circumstances described in (A) or (B), no Registrable Shares are sold pursuant to such registration; provided provided, that if (1) the Company becomesoffer, sale or distribution covered by the Registration Statement filed pursuant to the Demand Registration is a continuous offering of Registrable Securities, (2) such continuous offering, after being commenced as described in the Registration Statement, has not been postponed or interrupted (other than by reason of the circumstances described in (A) or (B)) and is (3) at the time of such registration, the Common Shares are not listed on a national securities exchange or included on the Nasdaq Stock Market, then following such interference such registration shall not count as a Demand Registration unless all Registrable Securities requested to be included in such Demand Registration are sold pursuant to such Registration Statement.
(d) The REIT shall be entitled to postpone the filing of any Registration Statement otherwise required to be prepared and filed by the REIT pursuant to this Section 2, or to suspend the use of any effective Registration Statement under this Section 2, for a reasonable period of time, but not in excess of 45 days (a “Delay Period”), if:
(i) the Board of Directors of the REIT (the “Board of Directors”), acting through those directors who have no direct or indirect beneficial or pecuniary interest in any Registrable Shares, determines in good faith that the registration and distribution of the Registrable Shares covered or to be covered by the Registration Statement would materially adversely affect the REIT and its subsidiaries taken as a whole because it would materially interfere with any pending material financing, acquisition or corporate reorganization or other material corporate development involving the REIT or any of its subsidiaries and the REIT promptly gives the Holders written notice of such determination, containing a reasonably detailed statement of the reasons for such postponement or suspension and an approximation of the period of the anticipated delay; or
(ii) prior to the Registration Statement being declared effective by the SEC, the REIT proposes to file a registration statement on Form S-11 under the Securities Act providing for the first public offering of Common Shares concurrent with the listing or, approval for listing, of the Common Shares on a national securities exchange or inclusion or, approval for inclusion, of the Common Shares on the Nasdaq Stock Market (such registration statement, including pre- and post-effective amendments, all exhibits thereto and all material incorporated by reference or deemed to be incorporated by reference, if any, in such registration statement, the “IPO Registration Statement”), and the REIT promptly gives the Holders written notice (including notifying each Holder of the identity of the managing underwriters of such initial public offering), within five Business Days after such filing; Notwithstanding anything to the contrary contained herein, the aggregate number of days included in all Delay Periods during any consecutive 12 months shall not exceed a total of 90 days. If the REIT shall so postpone or suspend the filing of a Registration Statement, the Holders of a majority of the Registrable Shares to be registered shall have the right to withdraw the request for registration by giving written notice to the REIT within 45 days after receipt of the notice of postponement or suspension (and, in the event of such withdrawal, such request shall not be counted as a Demand Registration to which the Holders are entitled pursuant to this Section 2). The time period for which the REIT is required to maintain the effectiveness of any Registration Statement pursuant to this Section 2 shall be extended by the aggregate number of days of all Delay Periods, all Hold Back Periods and all Interruption Periods occurring during such Registration. The REIT shall not be entitled to initiate a Delay Period unless it shall concurrently (A) prohibit sales by other security holders under registration statements (other than Special Registration Statements, as defined below) filed by the REIT covering securities held by such other security holders and (B) in accordance with the REIT’s policies from time to time in effect, forbid purchases and sales in the open market by senior executives of the REIT, subject to permitted exceptions stated in a formal policy adopted by the Board of Directors. The REIT may not postpone or suspend a filing pursuant to this Section 2 more than three times in any 12 month period and a period of at least 45 days shall elapse between the termination of any Delay Period, Hold Back Period or Interruption Period and the commencement of the immediately succeeding Delay Period.
(e) Each of the Holders (other than the Holders initiating the relevant Demand Registration under Section 2(a)) may offer such Holder’s Registrable Shares under any such Demand Registration pursuant to this Section 2(e). The REIT shall (i) as promptly as practicable but in no event later than five days after the receipt of a Demand Notice, a WKSIgive written notice thereof to all of the Holders (other than the Holders initiating such Demand Registration), which notice shall specify the number of Registrable Shares subject to the Demand Notice, the names and notice information of the Holders initiating such Demand Registration, the intended method of disposition of such Registrable Shares and any other information that at the time would be appropriate to include in such notice and (ii) subject to Section 2(f), include in the Registration Statement filed pursuant to such Demand Registration all of the Registrable Shares requested by such Holders for any offering and selling inclusion in such Registration Statement from whom the REIT has received a written request for inclusion therein within ten days of the receipt by such Holders of such written notice referred to in clause (i) above. Each such request by such Holders shall specify the number of Registrable Securities Shares proposed to be registered and such Holder shall send a copy of such request to the Holders initiating such Demand Registration. The failure of any Holder to respond within such ten (10) day period referred to in clause (ii) above shall be effected pursuant deemed to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form a waiver of such Holder’s rights under the Securities Act (if available this Section 2(e) with respect to such Demand Registration. Any Holder may waive its rights under this Section 2(e) prior to the Company). If at any time a Registration Statement on Form S-3 is effective and a Holder provides expiration of such ten day period by giving written notice to the Company that it intends REIT, with a copy to effect an offering of all or part of the Registrable Securities included on such Registration Statement, the Company will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(vii) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), the Company shall (A) promptly prepare and file or cause to be prepared and filed (1) such additional forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents, as may be necessary or advisable to register or qualify the securities subject to Holders initiating such Demand Registration, including under . If a Holder sends the securities laws REIT a written request for inclusion of part or all of such jurisdictions as Holder’s Registrable Shares in a registration, such Holder shall not be entitled to withdraw or revoke such request without the Holders shall reasonably request; provided, however, that no such qualification shall be required prior written consent of the REIT in any jurisdiction whereits sole discretion unless, as a result thereof, of facts or circumstances arising after the Company would become subject date on which such request was made relating to general service of process the REIT or to taxation or qualification to do business market conditions, such Holder reasonably determines that participation in such jurisdiction solely as registration would have a result of registration and (2) material adverse effect on 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 thereofHolder.
(viiif) In Unless otherwise contractually required to do so, the event a Holder transfers REIT shall not include any securities that are not Registrable Securities included on a Shares in any Registration Statement filed pursuant to this Section 2 without the prior written consent of the Holders of a majority of the Registrable Shares outstanding, such consent not to be unreasonably withheld or delayed. If the offering is a firm commitment underwritten offering and the managing underwriter or underwriters participating in such offering advise the REIT that the total amount of securities requested to be included in such offering exceeds the amount which can be sold in such offering (the “Holder Target Amount”) without materially delaying or jeopardizing the success of the offering (including the price per share of the securities to be sold), then the number of Registrable Securities remain Shares to be included in the offering described in this Section 2(f) may be reduced to the extent required to ensure the aggregate size of the offering does not exceed the Holder Target Amount, based on the following priorities: the REIT shall include in such registration first, the Registrable Securities following such transferShares of the Holders requested to be included therein (whether pursuant to Section 2(a) or 2(e)), at and second (to the request extent the amount of such Holdersecurities to be sold by such other Persons is less than the Holder Target Amount), the Company shall amend Common Shares requested to be included in such registration by one or supplement more such Registration Statement as may be necessary in order to enable Persons, pro rata among such transferee to offer and sell such Registrable Securities pursuant to such Registration Statement; provided that in no event shall Persons on 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 basis of the number of Common Shares owned by each such Person. Notwithstanding the above, the REIT (i) shall not grant, or permit any Person to exercise, registration rights in respect of a Demand Registration initiated by one or more Holders if such Holder or transferees Holders advise the REIT when they request the Demand Registration that (x) the distribution that is the subject of the Holder or Demand Registration will be a continuous offering and (By) 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 distribution will be effected through one or more broker-dealers that is an Affiliate of the Holder or transferees Advisor Parent and (ii) represents and warrants that no Person has any such right of the Holdertype described in clause (i) as of the date hereof.
Appears in 2 contracts
Samples: Registration Rights Agreement (Dividend Capital Trust Inc), Registration Rights Agreement (DCT Industrial Trust Inc.)
Demand Registration. Notwithstanding any other provisions of this Section 3, in no event shall more than one (i1) At Demand Registration occur during any time six-month period (measured from the effective date of the Registration Statement to the date of the next Demand Notice) or within 180 days after the expiration effective date of a Registration Statement filed by the Lock-Up PeriodCompany. No Demand Registration shall be deemed to have occurred for purposes of this Section 3(a) if the Registration Statement relating thereto does not become effective or is not maintained effective for the period required pursuant to this Section 3(a), any in which case the Demanding Qualified Holder Group shall have be entitled to an additional Demand Registration in lieu thereof. Within ten (10) days after receipt by the option and rightCompany of a Demand Notice, exercisable by delivering a the Company shall give written notice to (the Company (a “Demand Notice”)) of such Demand Notice to all holders of Registrable Securities and shall, to require the Company to, pursuant to the terms of and subject to the limitations contained provisions of Section 3(b) hereof, include in such registration all Registrable Securities with respect to which the Company received written requests for inclusion therein within ten (10) days after such Notice is given by the Company to such holders. All requests made pursuant to this Agreement, prepare and file with Section 3 will specify the Commission a Registration Statement registering the offering and sale of the number and type amount 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”). The Demand Notice must set forth the number of Registrable Securities that the Initiating Holder intends to include in such Demand Registration be registered and the intended methods of disposition thereof. Notwithstanding anything to the contrary herein, in no event shall the Company be required to effectuate a Demand Registration unless the Registrable Securities to be included therein have an aggregate value, based on the VWAP as of the date of the Demand Notice, of at least $25 million (the “Minimum Amount”).
(ii) Within fifteen Business Days after the receipt of the Demand Notice (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, within forty-five days thereof), the Company shall, subject to the limitations of this Section 2(a), file a Registration Statement in accordance with the terms and conditions of the Demand Notice. The Company shall use all its commercially reasonable efforts to cause such maintain the effectiveness of the Registration Statement (except in the case of a Shelf Registration Statement) with respect to become and remain any Demand Registration for a period of at least one hundred eighty (180) days after the effective under the Securities Act until date thereof or such shorter period in which all Registrable Securities covered by included in such Registration Statement have actually been sold (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect (A) a Demand Registration within 90 days after the closing of any Requested Underwritten Offering or (B) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of the Registrable Securities held by the Initiating Holder shall have become and remains effective under the Securities Act and is sufficient to permit offers and sales of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice in accordance with the intended timing and method or methods of distribution thereof specified in the Demand Notice.
(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 a Holder to the effect that the Holder is withdrawing an amount of its Registrable Shares from the Demand Registration such that the remaining amount of Registrable Shares to be included in the Demand Registration is below the Minimum Amount, the Company shall cease all efforts to secure effectiveness of the applicable Registration Statement.
(v) The Company may include in any such Demand Registration other Company Securities for sale for its own account or for the account of any other Person, subject to Section 2(c)(iii).
(vi) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration on such appropriate registration form of the Commission (A) as shall be selected by the Company and (B) as shall permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the Demand Notice; provided that if the Company becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to the Company). If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Company that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, the Company will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(vii) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), the Company shall (A) promptly prepare and file or cause to be prepared and filed (1) such additional forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents, as may be necessary or advisable to register or qualify the securities subject to such Demand Registration, including under the securities laws of such jurisdictions as the Holders shall reasonably requestsold; provided, however, that no such qualification period shall be required in extended, if reasonably practicable, for a period of time equal to the period the holders of Registrable Securities refrain from selling 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 securities included 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 (x) an underwriter or (y) the Company pursuant to the provisions herein. The Company shall use its commercially reasonable efforts to maintain the effectiveness of a Registration Statement that constitutes a Shelf Registration Statement at all times during the Effectiveness Period; provided, however, that any Holder of Registrable Securities that has been included in a Shelf Registration Statement may request that such HolderRegistrable Securities be removed from such Shelf Registration Statement, in which event the Company shall amend or supplement promptly either withdraw such Shelf 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 or file a post-effective amendment to the such Shelf Registration Statement unless removing such Registrable Securities. Notwithstanding anything contained herein to the contrary, the Company hereby agrees that (Ai) such each Shelf Registration Statement includes only Registrable Securities held filed by the HolderCompany pursuant to this Section 3 shall contain all language (including, Affiliates without limitation, on the Prospectus cover page, the principal stockholders’ table and the plan of distribution) as may be reasonably requested by an Investor Qualified Holder to allow for distribution to, and resale by, the direct and indirect partners, investors or affiliated entities of an Investor Qualified Holder or transferees of the Holder or (Ba “Partner Distribution”) and (ii) the Company has received written consent therefor from shall, at the reasonable request of any Investor Qualified Holder seeking to effect a Person for whom Registrable Securities have been registered on (but Partner Distribution, file any Prospectus supplement or post-effective amendments and otherwise take any action reasonably necessary to include such language, if such language was not yet sold under) such included in the initial Shelf Registration Statement, other than the Holder, Affiliates of the or revise such language if deemed necessary by such Investor Qualified Holder or transferees of the Holderto effect such Partner Distribution.
Appears in 2 contracts
Samples: Registration Rights Agreement (Extraction Oil & Gas, Inc.), Registration Rights Agreement (Extraction Oil & Gas, LLC)
Demand Registration. (i) At If the Buyer receives a request from the Seller that the Buyer file a registration statement on Form S-1 (a “Registration Statement”) to register the resale of any time after the expiration of the Lock-Up Period, any Holder shall have Conversion Shares (the option and right, exercisable “Registrable Securities”) held by delivering a written notice to the Company Seller (a the “Demand Notice”), to require then the Company toBuyer shall as soon as practicable, pursuant to and in any event within thirty (30) days after the terms of and subject to date such request is given by the limitations contained in this AgreementSeller, prepare and file with the Commission a Registration Statement registering under the offering and sale Securities Act covering the resale of the number and type of all Registrable Securities on that the terms and conditions specified in the Demand NoticeSeller requested to be registered, which may include sales on a delayed or continuous basis pursuant subject to Rule 415 pursuant to a Shelf Registration Statement (a “Demand Registration”). The Demand Notice must set forth potential reduction of the number of Registrable Securities that to be registered for resale in the Initiating Holder intends to include in such Demand applicable Registration and the intended methods of disposition thereof. Notwithstanding anything Statement (“Cut Back Shares”) pursuant to the contrary hereinrequirements of the SEC (“Registration Reduction”). In the event of a Registration Reduction, in no event shall immediately after the Company be required is able to effectuate a Demand Registration unless effect the Registrable Securities registration of the Cut Back Shares, the Company shall file and cause to be included therein have an aggregate value, based on declared effective such additional Registration Statements in the VWAP time frame set forth herein as of the date of the Demand Notice, of at least $25 million (the “Minimum Amount”)necessary to ultimately cause to be covered by effective Registration Statements all Registrable Securities.
(ii) Within fifteen Business Days after the receipt of the Demand Notice (except if the Company is not then eligible The Buyer shall use its reasonably best efforts to register for resale the Registrable Securities on Form S-3, within forty-five days thereof), the Company shall, subject to the limitations of this Section 2(a), file cause a Registration Statement to be declared effective under the Securities Act as soon as practicable but in accordance no event later than ninety (90) days after such Registration Statement is initially filed with the terms and conditions of the Demand NoticeSEC. The Company shall hereby also agrees to use all commercially its reasonable best efforts to cause such keep the Registration Statement to become and remain Statements continuously effective under the Securities Act until all the Seller no longer owns any Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”)Securities.
(iii) Subject The Buyer shall pay the Registration Expenses relating to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect (A) a Demand Registration within 90 days after the closing of any Requested Underwritten Offering or (B) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all registration 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 Securities. “Registration Expenses” means all or any portion of its Registrable Securities included in a Demand Registration from such Demand Registration at any time prior expenses incident to the effectiveness Company's performance of or compliance with this Warrant, including all registration and filing fees, fees and expenses of compliance with securities or blue sky laws, printing expenses, messenger and delivery expenses, expenses and fees for listing the applicable Registration Statement. Upon receipt of a notice from a Holder to the effect that the Holder is withdrawing an amount of its Registrable Shares from the Demand Registration such that the remaining amount of Registrable Shares securities to be included in the Demand Registration is below the Minimum Amount, the Company shall cease all efforts to secure effectiveness of the applicable Registration Statement.
(v) The Company may include in any such Demand Registration other Company Securities for sale for its own account or for the account of any other Person, subject to Section 2(c)(iii).
(vi) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration registered on such appropriate registration form of the Commission (A) as shall be selected exchanges on which similar securities issued by the Company are then listed, and (B) as shall permit the disposition fees and disbursements of the Registrable Securities in accordance with the intended method or methods of disposition specified in the Demand Notice; provided that if counsel for the Company becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to the Company). If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Company that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, the Company will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(vii) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), the Company shall (A) promptly prepare and file or cause to be prepared and filed (1) such additional forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents, as may be necessary or advisable to register or qualify the securities subject to such Demand Registration, including under the securities laws of such jurisdictions as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, the Company would become subject to general service of process or to taxation or qualification to do business in such jurisdiction solely as a result of registration and (2) such forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents as may be necessary to apply for listing or to list the Registrable Securities subject to such Demand Registration on the Trading Market and (B) do any and all other acts and things that may be reasonably necessary or appropriate or reasonably requested by the Holders to enable the Holders to consummate a public sale of such Registrable Securities in accordance with the intended timing and method or methods of distribution thereof.
(viii) In the event a Holder transfers Registrable Securities included on a Registration Statement and such Registrable Securities remain Registrable Securities following such transfer, at the request of such Holder, the Company shall amend or supplement such Registration Statement as may be necessary in order to enable such transferee to offer and sell such Registrable Securities pursuant to such Registration Statement; provided that in no event shall the Company be required to file a post-effective amendment to the Registration Statement unless (A) such Registration Statement includes only Registrable Securities held by the Holder, Affiliates of the Holder or transferees of the Holder or (B) the Company has received written consent therefor from a Person for whom Registrable Securities have been registered on (but not yet sold under) such Registration Statement, other than of counsel to the Holder) and of all independent certified public accountants, Affiliates of underwriters and other persons retained by the Holder or transferees of the HolderCompany.
Appears in 2 contracts
Samples: Equity Transfer Agreement (Rebel Group, Inc.), Equity Transfer Agreement (Moxian China, Inc.)
Demand Registration. (ia) At If at any time after the expiration date of this Agreement the Company receives a request from a Holder of Registrable Securities that the Company file a Registration Statement on Form S-1 covering the resale of the Lock-Up PeriodRegistrable Securities held by such Holder (a "Demand Notice"), any Holder shall have the option and right, exercisable by delivering a written notice to then the Company shall (a “i) within five (5) days after the date it receives the Demand Notice”), give notice thereof to require all other Holders and (ii) as soon as reasonably practicable, but in no event later than the Company toFiling Date, pursuant to the terms of and subject to the limitations contained in this Agreement, prepare and file with the Commission a Registration Statement registering on Form S-1 covering the offering and sale resale of all Registrable Securities of the number Holder that provided the Demand Notice and type of any additional Registrable Securities on requested by the terms other Holders to be included therein, as specified by each such other Holder within twenty (20) days after such Holder has received notice from the Company pursuant to clause (i); provided that such Registration Statement need not include Registrable Securities already covered by an existing and conditions specified in the Demand Notice, which may include sales effective Registration Statement The Registration Statement shall be for an offering to be made on a delayed or continuous basis pursuant to Rule 415 pursuant to a Shelf 415. The Registration Statement (a “Demand Registration”). The Demand Notice must set forth the number of Registrable Securities that the Initiating Holder intends to include in such Demand Registration and the intended methods of disposition thereof. Notwithstanding anything to the contrary herein, in no event shall the Company be required to effectuate a Demand Registration unless the Registrable Securities to be included therein have an aggregate value, based on the VWAP as of the date of the Demand Notice, of at least $25 million (the “Minimum Amount”).
(ii) Within fifteen Business Days after the receipt of the Demand Notice contain (except if otherwise required pursuant to written comments received from the Company is not then eligible to register for resale Commission upon a review of such Registration Statement) the Registrable Securities on Form S-3, within forty-five days thereof), the Company shall, subject to the limitations “Plan of this Section 2(a), file a Registration Statement in accordance with the terms and conditions of the Demand Notice. Distribution” attached hereto as Annex A. The Company shall use all commercially its reasonable best efforts to cause such the Registration Statement to become be declared effective under the Securities Act as soon as practicable but, in any event, no later than the Effectiveness Date, and remain shall use its reasonable best efforts to keep the Registration Statement effective under the Securities Act until the date when all Registrable Securities covered by such the Registration Statement have been sold or may be sold without volume restrictions pursuant to Rule 144(b)(i) promulgated under the Securities Act (the “Effectiveness Period”).
(iiib) Subject If for any reason the Commission does not permit all of the Registrable Securities requested by a Holder to be included in the Registration Statement filed pursuant to Section 2(a), or for any other limitations contained in reason any such Registrable Securities are not permitted by the Commission to be included on a Registration Statement filed under this Agreement, then the Company is not obligated hereunder to effect (A) a Demand Registration within 90 days shall prepare and file as soon as possible after the closing date on which such filing may be made, an additional Registration Statement covering the resale of any Requested Underwritten Offering or (B) all of the Registrable Securities requested by Holder not already covered by an existing and effective Registration Statement for an offering to be made on a subsequent Demand Registration continuous basis at the market pursuant to Rule 415 or otherwise as may be acceptable to a Demand Notice Holder whose Registrable Securities were not registered for resale. Each such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the “Plan of Distribution” attached hereto as Annex A. The Company shall use its reasonable best efforts to cause each such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement effective under the Securities Act during the entire Effectiveness Period.
(c) If: (i) a Registration Statement covering all of the Registrable Securities held required to be covered thereby is not filed by the Initiating Holder shall have become and remains effective Company with the Commission on or prior to the Filing Date (or the applicable filing date if the Registration Statement is not the initial Registration Statement required to be filed under the Securities Act and is sufficient to permit offers and sales Section 2(a)), (ii) a Registration Statement covering all of the number and type of Registrable Securities is not declared effective by the Commission on or prior to its required Effectiveness Date (it being understood that if the terms and conditions specified in Company shall not have filed a “final” prospectus for the Demand Notice Registration Statement with the SEC under Rule 424(b) in accordance with Section 2(f) below (whether or not such a prospectus is technically required by such rule), the intended timing and method or methods Company shall not be deemed to have satisfied this clause (ii)), (iii) the Company fails to file a request for the acceleration of distribution thereof specified in the Demand Notice.
Effectiveness Date of the applicable Registration Statement as required by Section 3(c), (iv) A Holder may withdraw there is a suspension or delisting of the Company’s Common Stock (or the Company fails to timely list all the Registrable Securities) on its principal trading market or exchange, (v) after its Effective Date, other than during an Allowable Grace Period (as defined below), such Registration Statement ceases to be effective and available for use by the Holders as to any portion of its Registrable Securities included in a Demand Registration from such Demand Registration to which it is required to cover at any time prior to the effectiveness expiration of its Effectiveness Period for up to no more than 3 consecutive Trading Days (or 20 Trading Days in any 12 month period in the aggregate) (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i)-(iv), on the date on which such Event occurs, or for purposes of clause (v), the date on which the Allowable Grace Period or other specified period is exceeded, being referred to as “Event Date”), then, in addition to any other rights available to the Holders under this Agreement or under applicable law: (x) on each such Event Date the Company shall pay to each Holder an amount in cash, as partial damages and not as a penalty, equal to 1.5% of the applicable Registration Statement. Upon receipt of a notice from a aggregate Investment Amount paid by such Holder pursuant to the effect that Purchase Agreement; and (y) on each 30-day anniversary of each such Event Date (if the Holder applicable Event shall not have been cured by such date) until the applicable Event is withdrawing an amount of its Registrable Shares from the Demand Registration such that the remaining amount of Registrable Shares to be included in the Demand Registration is below the Minimum Amountcured, the Company shall cease all efforts pay to secure effectiveness each Holder an amount in cash, as partial damages and not as a penalty, equal to 1.5% of the applicable Registration Statementaggregate Investment Amount paid by such Holder pursuant to the Purchase Agreement. The partial damages pursuant to the terms hereof shall apply on a pro rata basis for any portion of a month prior to the cure of an Event. Notwithstanding the foregoing, in no event shall the partial damages under this Section 2(d) exceed an amount equal to 20% of the aggregate Investment Amounts.
(vd) The Company may include in any such Demand Registration other Company Securities for sale for its own account or for the account of any other Person, subject to Section 2(c)(iii).
(vi) Subject Notwithstanding anything to the limitations contrary contained in this Agreement, in the Company shall effect any Demand Registration on such appropriate registration form event the staff of the Commission (Athe “Staff”) or the Commission requires any Holder seeking to sell securities under a Registration Statement filed pursuant to this Agreement to be specifically identified as an “underwriter” in order to permit such Registration Statement to become effective, and such Holder does not consent to being so named as an underwriter in such Registration Statement, then in each such case, the Company shall reduce the total number of Registrable Securities to be selected registered on behalf of such Holder, until such time as the Staff or the Commission does not require such identification or until such Holder accepts such identification and the manner thereof. Any reduction pursuant to this paragraph will first reduce all Registrable Securities other than those issued pursuant to the Purchase Agreement and in the event of any reduction pursuant to this paragraph, no Holder shall have any claim against the Company as a result of such reduction and any Event or other delay or breach of this Agreement occurring primarily due to such action by the Staff or the Commission and any such relating reduction shall not require the Company to pay any partial damages pursuant to Section 2(d) hereof or otherwise provide the basis for any claim by any Holder against the Company pursuant to the Transaction Documents (it being understood that the foregoing does not constitute a waiver of Section 3.2(f) of the Securities Purchase Agreement by any Holder or the obligations of the Company under this paragraph and elsewhere in relation thereto). In the event of any reduction in Registrable Securities pursuant to this paragraph, an affected Holder shall have the right to require, upon delivery of a written request to the Company signed by the Holder, the Company to file a registration statement within 30 days of such request (Bsubject to any restrictions imposed by Rule 415 or required by the Staff or the Commission) for re-sale by such Holder in a manner acceptable to such Holder, and the Company shall following such request cause to be and keep effective such registration statement in the same manner as shall otherwise contemplated in this Agreement for registration statements hereunder, in each case until such time as: (i) all Registrable Securities held by such Holder have been registered pursuant to an effective Registration Statement in a manner acceptable to such Holder or (ii) the Registrable Securities may be resold by such Holder without restriction (including volume limitations) pursuant to Rule 144(b)(i) of the Securities Act (taking account of any Staff position with respect to “affiliate” status) or (iii) the Holder agrees to be named as an underwriter in any such Registration Statement in a manner acceptable to Holder as to all Registrable Securities held by such Holder and that have not theretofore been included in a Registration Statement under this Agreement (it being understood that the special demand right under this sentence may be exercised by a Holder multiple times and with respect to limited amounts of Registrable Securities in order to permit the disposition re-sale thereof by such Holder as contemplated above).
(e) In the event that Form S-1 is not available for the registration of the resale of Registrable Securities hereunder, the Company shall use reasonable best efforts to (i) register the resale of the Registrable Securities in accordance with on another appropriate form reasonably acceptable to the intended method or methods of disposition specified in Holders and (ii) undertake to register the Demand Notice; Registrable Securities on Form S-1 as soon as such form is available, provided that if the Company becomes, and is at shall use reasonable best efforts to maintain the effectiveness of the Registration Statement then in effect until such time of its receipt of as a Demand Notice, a WKSIRegistration Statement on Form S-1 covering the Registrable Securities has been declared effective by the Commission. In the event the Company becomes eligible to register the Registrable Securities on Form S-3, the Demand Registration for any offering and selling of Company shall use reasonable best efforts to promptly register the Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under S-3, provided that the Securities Act (if available Company shall use reasonable best efforts to maintain the Company). If at any effectiveness of the Registration Statement(s) then in effect until such time as a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Company that it intends to effect an offering of all or part of covering the Registrable Securities included has been declared effective by the Commission.
(f) By 5:30 p.m. on such the Trading Day immediately following the Effective Date of each Registration Statement, the Company will amend or supplement such Registration Statement as may shall file with the Commission in accordance with Rule 424 under the Securities Act the final prospectus to be necessary in order to enable such offering to take place.
(vii) Without limiting Section 3, used 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 sales pursuant to such Registration Statement; provided that in no event shall the Company be required to file a post-effective amendment to the Registration Statement unless (A) such Registration Statement includes only Registrable Securities held by the Holder, Affiliates of the Holder or transferees of the Holder or (B) the Company has received written consent therefor from a Person for whom Registrable Securities have been registered on (but not yet sold under) such Registration Statement, other than the Holder, Affiliates of the Holder or transferees of the Holder.
Appears in 2 contracts
Samples: Registration Rights Agreement (InsPro Technologies Corp), Registration Rights Agreement (Health Benefits Direct Corp)
Demand Registration. (ia) At any time after Commencing on the expiration date that all Investors collectively Beneficially Own at least 13% of the Lock-Up Periodissued and outstanding shares of Common Stock, and continuing until the termination of this Agreement (notwithstanding any Holder shall have subsequent reduction in the option and right, exercisable by delivering a written notice collective Beneficial Ownership of all Investors to the Company (a “Demand Notice”less than 13%), to require the Company to, pursuant to Investors may request registration under the terms Securities Act of and subject to the limitations contained in this Agreement, prepare and file with the Commission a Registration Statement registering the offering and sale all or any portion of the number and type of their Registrable Securities on the terms and conditions specified in the Demand Notice, which may include sales on a delayed Form S-3 or continuous basis pursuant to Rule 415 pursuant to a Shelf Registration Statement any successor form thereto (a “Demand Registration”). The Each request for a Demand Notice must set forth Registration shall specify the approximate number of Registrable Securities that the Initiating Holder intends to include in such Demand Registration and the intended methods of disposition thereof. Notwithstanding anything to the contrary herein, in no event shall the Company be required to effectuate a Demand Registration unless the Registrable Securities to be included therein have an aggregate value, based on the VWAP as of the date of the Demand Notice, of at least $25 million (the “Minimum Amount”).
(ii) Within fifteen Business Days after the receipt of the Demand Notice (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, within forty-five days thereof), the Company shall, subject to the limitations of this Section 2(a), file a Registration Statement in accordance with the terms and conditions of the Demand Noticeregistered. The Company shall cause a Registration Statement on Form S-3 (or any successor form) to be filed within 30 days after the date on which the request for a Demand Registration is given and shall use all commercially its reasonable best efforts to cause such Registration Statement to become be declared effective by the Commission as soon as practicable thereafter. The Company shall not be required to effect a Demand Registration more than one time for the Investors as a group.
(b) The Company shall prepare and remain file with the Commission such amendments, post-effective under the Securities Act until all Registrable Securities covered by amendments and supplements to such Registration Statement have been sold (and the “Effectiveness Period”).
(iii) Subject to the other limitations contained Prospectus used in this Agreement, the Company is not obligated hereunder to effect (A) a Demand Registration within 90 days after the closing of any Requested Underwritten Offering or (B) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of the Registrable Securities held by the Initiating Holder shall have become and remains effective under the Securities Act and is sufficient to permit offers and sales of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice in accordance connection 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 a Holder to the effect that the Holder is withdrawing an amount of its Registrable Shares from the Demand Registration such that the remaining amount of Registrable Shares to be included in the Demand Registration is below the Minimum Amount, the Company shall cease all efforts to secure effectiveness of the applicable Registration Statement.
(v) The Company may include in any such Demand Registration other Company Securities for sale for its own account or for the account of any other Person, subject to Section 2(c)(iii).
(vi) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration on such appropriate registration form of the Commission (A) as shall be selected by the Company and (B) as shall permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the Demand Notice; provided that if the Company becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to the Company). If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Company that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, the Company will amend or supplement such Registration Statement as may be necessary in order to enable keep 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 Statement effective until all of such jurisdictions as the Holders shall reasonably request; Registrable Securities have been disposed of (provided, however, that no such qualification the Company shall not be required in to keep such Registration Statement effective for a period of more than 180 days after the date that such Registration Statement becomes effective, provided that such 180 day period shall not toll during any jurisdiction where, as a result thereof, Suspension Period) and comply with the Company would become subject provisions of the Securities Act with respect 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 disposition of such Registrable Securities in accordance with the intended timing and method or methods of distribution thereofdisposition set forth in such Registration Statement.
(viiic) In A registration will not count as a Demand Registration (i) unless the event a Holder transfers Registrable Securities included on a related Registration Statement has been declared effective and has remained effective until such time as all of such Registrable Securities remain Registrable Securities following such transfer, at covered thereby have been disposed of in accordance with the request intended methods of such Holder, disposition by the Company shall amend or supplement Investors (but in no event for a period of more than 180 days after such Registration Statement as may be necessary in order to enable becomes effective, provided that such transferee to offer and sell such 180 day period shall not toll during any Suspension Period); it being understood that if, after it has become effective, an offering of Registrable Securities pursuant to a Registration Statement is terminated by any stop order, injunction, or other order of the Commission or other governmental agency or court, such registration pursuant thereto will be deemed not to have been effected and will not count as a Demand Registration Statementfor purposes of Section 2(a), or (ii) if pursuant to Section 2(f) hereof, the Investors are cut back to fewer than 75% of the Registrable Securities requested to be registered.
(d) The Company shall not be obligated to effect a Demand Registration within 90 days after the effective date of a previous Piggyback Registration in which holders of Registrable Securities were permitted to register, and actually sold, at least 50% of the Registrable Securities requested to be included therein.
(e) If the holders of the Registrable Securities requesting a Demand Registration elect to distribute the Registrable Securities covered by their request in an underwritten offering, they shall so advise the Company as a part of their request made pursuant to Section 2(a). The holders of a majority of the Registrable Securities requesting the Demand Registration shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering; provided provided, that such selection shall be subject to the consent of the Company, which consent shall not be unreasonably withheld or delayed.
(f) The Company shall not include in the Demand Registration any securities which are not Registrable Securities without the prior written consent of the holders of a majority of the Registrable Securities included in such registration. If a Demand Registration involves an underwritten offering and the managing underwriter of the requested Demand Registration advises the Company and the holders of Registrable Securities in writing that in no event shall its opinion the number of shares of Common Stock proposed to be included in the Demand Registration, including all Registrable Securities and all other shares of Common Stock proposed to be included in such underwritten offering, would adversely affect the price per share of the Registrable Securities proposed to be sold in such underwritten offering, then the Company will be required obligated to file include in such registration only that number of shares of Common Stock which, in the judgment of the managing underwriter, would not adversely affect the price per share of the Common Stock to be sold in such offering. In the case of any such reduction in the number of shares of Common Stock proposed to be included in any such registration, the shares of Common Stock to be included in such registration shall be allocated as follows: (i) first, the number of shares of Common Stock that the holders of Registrable Securities propose to sell, and (ii) second, the number of shares of Common Stock proposed to be included therein by any other Persons (including shares of Common Stock to be sold for the account of the Company and/or other holders of Common Stock) allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities proposed to be sold can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated pro rata among the respective holders thereof on the basis of the number of Registrable Securities owned by each such holder or in such other manner as they may otherwise agree.
(g) The Investors shall have the right to cancel a post-effective amendment proposed Demand Registration of Registrable Securities pursuant to this Section 2:
(i) when the request for cancellation is based upon material adverse information relating to the Registration Statement unless (A) such Registration Statement includes only Registrable Securities held by Company that is different from the Holder, Affiliates information known to any member of the Holder or transferees MHR Group at the time of the Holder or request pursuant to Section 2(a), or
(Bii) if the Company has received written consent therefor from effects a Person for whom Registrable Securities have been registered on (but Company Registration during the Investor Registration Period relating to such proposed Demand Registration. Any cancellation of a registration pursuant to this Section 2(g) shall not yet sold under) such Registration Statement, other than the Holder, Affiliates of the Holder or transferees of the Holderbe counted as a Demand Registration.
Appears in 2 contracts
Samples: Registration Rights Agreement (Key Energy Services Inc), Registration Rights Agreement (MHR Fund Management LLC)
Demand Registration. (i) At any time after Upon the expiration of the Lock-Up Period, any Holder shall have the option and right, exercisable by delivering a written notice to the Company request (a “Demand Notice”)) by Sponsor or by Holders owning at least one million of the then-outstanding Registrable Securities, subject to require the Company to, adjustment pursuant to Section 3.04, the terms of and subject to the limitations contained in this Agreement, prepare and Partnership shall file with the Commission a Registration Statement registering Commission, as soon as reasonably practicable, but in no event more than 90 days following the offering and sale receipt of the number and type Notice, a registration statement (each, a “Registration Statement”) under the Securities Act providing for the resale of the Registrable Securities on (which may, at the terms and conditions specified in option of the Demand Holders giving such Notice, which may include sales on be a delayed or continuous basis registration statement under the Securities Act that provides for the resale of the Registrable Securities pursuant to Rule 415 pursuant from time to a Shelf Registration Statement time by the Holders (a “Demand RegistrationShelf Registration Statement”)). The Demand Notice must set forth the number of Registrable Securities that the Initiating Holder intends to include in such Demand Registration and the intended methods of disposition thereof. Notwithstanding anything to the contrary herein, in no event shall the Company be required to effectuate a Demand Registration unless the Registrable Securities to be included therein have an aggregate value, based on the VWAP as of the date of the Demand Notice, of at least $25 million (the “Minimum Amount”).
(ii) Within fifteen Business Days after the receipt of the Demand Notice (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, within forty-five days thereof), the Company shall, subject to the limitations of this Section 2(a), file a Registration Statement in accordance with the terms and conditions of the Demand Notice. The Company Partnership shall use all its commercially reasonable efforts to cause such each Registration Statement to become be declared effective by the Commission as soon as reasonably practicable after the initial filing of the Registration Statement. Any Registration Statement shall provide for the resale pursuant to any method or combination of methods legally available to, and remain effective under requested by, the Holders of any and all Registrable Securities Act 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 available for the resale of all Registrable Securities by the Holders until all Registrable Securities covered by such Registration Statement have been sold ceased to be Registrable Securities (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect (A) a Demand Registration within 90 days after the closing of any Requested Underwritten Offering or (B) a subsequent Demand Registration pursuant to a Demand Notice if a . Each Registration Statement covering when effective (and the documents incorporated therein by reference) shall comply as to form with all applicable requirements of the Registrable Securities held by the Initiating Holder shall have become and remains effective under the Securities Act and is sufficient shall not contain an untrue statement of a material fact or omit to permit offers and sales of state a material fact required to be stated therein or necessary to make the statements therein not misleading. There shall be no limit on 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 a Holder to the effect that the Holder is withdrawing an amount of its Registrable Shares from the Demand Registration such that the remaining amount of Registrable Shares to be included in the Demand Registration is below the Minimum Amount, the Company shall cease all efforts to secure effectiveness of the applicable Registration Statement.
(v) The Company may include in any such Demand Registration other Company Securities for sale for its own account or for the account of any other Person, subject to Section 2(c)(iii).
(vi) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration on such appropriate registration form of the Commission (A) as shall be selected by the Company and (B) as shall permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the Demand Notice; provided that if the Company becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to the Company). If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Company that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, the Company will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(vii) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), the Company shall (A) promptly prepare and file or cause to be prepared and filed (1) such additional forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents, as may be necessary or advisable to register or qualify the securities subject to such Demand Registration, including under the securities laws of such jurisdictions as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, the Company would become subject to general service of process or to taxation or qualification to do business in such jurisdiction solely as a result of registration and (2) such forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents as may be necessary to apply for listing or to list the Registrable Securities subject to such Demand Registration on the Trading Market and (B) do any and all other acts and things Statements that may be reasonably necessary or appropriate or reasonably requested required 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 thereofhereunder.
(viii) In the event a Holder transfers Registrable Securities included on a Registration Statement and such Registrable Securities remain Registrable Securities following such transfer, at the request of such Holder, the Company shall amend or supplement such Registration Statement as may be necessary in order to enable such transferee to offer and sell such Registrable Securities pursuant to such Registration Statement; provided that in no event shall the Company be required to file a post-effective amendment to the Registration Statement unless (A) such Registration Statement includes only Registrable Securities held by the Holder, Affiliates of the Holder or transferees of the Holder or (B) the Company has received written consent therefor from a Person for whom Registrable Securities have been registered on (but not yet sold under) such Registration Statement, other than the Holder, Affiliates of the Holder or transferees of the Holder.
Appears in 2 contracts
Samples: Registration Rights Agreement (Hi-Crush Partners LP), Registration Rights Agreement (Hi-Crush Partners LP)
Demand Registration. (i) At any time after the expiration of the applicable Lock-Up Period, any Preferred Holder and Sponsoring Holder shall severally 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, prepare and file with the Commission a Registration Statement registering the offering and sale of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice, which may include sales on a delayed or continuous basis pursuant to Rule 415 pursuant to a Shelf Registration Statement (a “Demand Registration”). The Demand Notice must set forth the number of Registrable Securities that the Initiating Holder intends to include in such Demand Registration and the intended methods of disposition thereof. Notwithstanding anything to the contrary herein, in no event shall the Company be required to effectuate a Demand Registration unless the Registrable Securities of the Holders to be included therein after compliance with Section 2(a)(ii) have an aggregate value, value of at least $75 million based on the VWAP (the “Minimum Amount”) as of the date of the Demand Notice; provided, however, that the Minimum Amount shall not apply in the event that, as the result of Cutback Shares being removed from such Registration Statement pursuant to this Section 2(a)(i), the Registrable Securities of the Holders to be included therein after compliance with Section 2(a)(ii) have an aggregate value of less than $75 million. If at least $25 million any time the Commission takes the position that some or all of the Registrable Securities proposed to be included in a Registration Statement filed pursuant to a Demand Registration must be removed from such Registration Statement (such portion of the Registrable Securities, the “Minimum AmountCut Back Shares”) in order for all of the Registrable Securities in such Registration Statement filed pursuant to a Demand Registration to be eligible to be made on a delayed or continuous basis under the provisions of Rule 415 or for the Initiating Holder to not be named as an “underwriter” in such Registration Statement, then if the Initiating Holder so elects, the Company shall remove the Cutback Shares from such Registration Statement. Any Cut Back Shares so removed pursuant to this Section 2(a)(i) shall be allocated among the Holders including Registrable Securities for resale on such Registration Statement on a pro rata basis. Further, a Demand Registration shall not constitute a Demand Registration of the Initiating Holder for purposes of Section 2(a)(iii) if, as a result of the cutback provisions in this Section 2(a)(i) or Registrable Securities of Holders other than the Initiating Holder included in such Demand Registration pursuant to Section 2(a)(ii), there is included in the Demand Registration less than the lesser of (x) Registrable Securities of the Initiating Holder having a VWAP measured on the effective date of the related Registration Statement of $75 million and (y) two-thirds of the number of Registrable Securities the Initiating Holder set forth in the applicable Demand Notice.
(ii) Within fifteen five Business Days (or if the Registration Statement will be a Shelf Registration Statement, within two Business Days) after the receipt of the Demand Notice, the Company shall give written notice of such Demand Notice to all Holders and, within 30 days after receipt of the Demand Notice (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case, within forty-five 90 days thereof), the Company shall, subject to the limitations of this Section 2(a), file a Registration Statement in accordance with the terms and conditions of the Demand Notice, which Registration Statement shall cover all of the Registrable Securities that the Holders shall in writing request to be included in the Demand Registration (such request to be given to the Company within three Business Days (or if the Registration Statement will be a Shelf Registration Statement, within one Business Day) after receipt of notice of the Demand Notice given by the Company pursuant to this Section 2(a)(ii)). The Company shall use all commercially reasonable best efforts to cause such Registration Statement to become and remain effective (including using reasonable best efforts to file a Registration Statement including Registrable Securities included on any previous Registration Statement that ceases to be effective, which, for the avoidance of doubt shall not be considered an additional Demand Registration for any Holder pursuant to Section 2(a)(iii)) under the Securities Act until all such securities registered for resale thereunder cease to be Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect (A) a Demand Registration within 90 days after the closing of any Requested Underwritten Offering (or such shorter time as the Company may notify the Holders in writing) (any such time period, a “No Demand Period”), unless any Preferred No-Blocking Period exists during such No Demand Period, in which case the Company shall nevertheless be required to effect a Demand Registration initiated by any Preferred Holder that is then otherwise entitled to initiate a Demand Registration during such Preferred No-Blocking Period, (B) more than a total of four Demand Registrations for which WildHorse Holdings (or any transferee thereof in accordance with Section 8(e)) is the Initiating Holder, (C) more than a total of four Demand Registrations for which Esquisto Holdings (or any transferee thereof in accordance with Section 8(e)) is the Initiating Holder, (D) more than a total of four Demand Registrations for which Acquisition Co. Holdings (or any transferee thereof in accordance with Section 8(e)) is the Initiating Holder, (E) more than a total of six Demand Registrations for which any Preferred Holder is the Initiating Holder; and (F) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of the Registrable Securities held by the Initiating Holder shall have become and remains effective under the Securities Act and is sufficient to permit offers and sales of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice in accordance with the intended timing and method or methods of distribution thereof specified in the Demand Notice. No Demand Registration shall be deemed to have occurred for purposes of this Section 2(a)(iii) if the Registration Statement relating thereto does not become effective or is not maintained effective for its entire Effectiveness Period, in which case the Initiating Holder shall be entitled to an additional Demand Registration in lieu thereof.
(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 from the Demand Registration Securities such that the remaining amount of Registrable Shares Securities to be included in the Demand Registration is below the Minimum Amount, the Company shall may cease all efforts to secure effectiveness of the applicable Registration Statement, unless one or more Holders other than the withdrawing Holder(s) shall promptly request the Company in writing to include additional Registrable Securities in the Demand Registration such that amount of Registrable Shares to be included in the Demand Registration satisfies the Minimum Amount (a “Requisite Holder Substitution”). In the absence of a Requisite Holder Substitution, such registration nonetheless shall be deemed a Demand Registration with respect to the Initiating Holder for purposes of Section 2(a)(iii) unless (A) the Initiating Holder shall have paid or reimbursed the Company for its pro rata share of all reasonable and documented out-of-pocket fees and expenses incurred by the Company in connection with the withdrawn registration of such Registrable Securities (based on the number of securities the Initiating Holder sought to register, as compared to the total number of securities included in such Demand Registration) or (B) the withdrawal is made following the occurrence of a Material Adverse Change or pursuant to the Company’s request for suspension pursuant to Section 3(o).
(v) The Company may include in any such Demand Registration other Company Securities for sale for its own account or for the account of any other Person, subject to Section 2(c)(iii).
(vi) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration on such appropriate registration form of the Commission (A) as shall be selected by the Company and (B) subject to applicable law and the requirements of the Commission, as shall permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the Demand Notice; provided that, subject to Section 3(o), (X) if the Registration Statement is on Form S-1, the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission (provided that Form S-1 is then available for sales on a delayed or continuous basis under the provisions of Rule 415 in respect of such Demand Registration), and (Y) if the Company becomes, and is at the time of its receipt of a Demand Notice eligible to use Form S-3, the Demand Registration for any offering and selling of Registrable Securities shall be registered on Form S-3 (or any equivalent or successor form under the Securities Act (if available to the Company) and (Z) if at the time of its receipt of a Demand Notice, the Company is a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to registered on an Automatic Shelf Registration Statement, which shall be Statement on Form S-3 or any equivalent or successor form under the Securities Act (if available to the Company). If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Company that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, the Company will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(vii) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), the Company shall (A) promptly prepare and file or cause to be prepared and filed (1) such additional forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents, as may be necessary or advisable to register or qualify the securities subject to such Demand Registration, including under the securities laws of such jurisdictions as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, the Company would become subject to general service of process or to taxation or qualification to do business in such jurisdiction solely as a result of registration and (2) such forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents as may be necessary to apply for listing or to list the Registrable Securities subject to such Demand Registration on the Trading Market and (B) do any and all other acts and things that may be reasonably necessary or appropriate or reasonably requested by the Holders to enable the Holders to consummate a public sale of such Registrable Securities in accordance with the intended timing and method or methods of distribution thereof.
(viii) In the event a Holder transfers Registrable Securities included on a Registration Statement and such Registrable Securities remain Registrable Securities following such transfer, at the request of such Holder, the Company shall amend or supplement such Registration Statement as may be necessary in order to enable such transferee to offer and sell such Registrable Securities pursuant to such Registration Statement; provided that in no event shall the Company be required to file a post-effective amendment to the Registration Statement unless (A) such Registration Statement includes only Registrable Securities held by the Holder, Affiliates of the Holder or transferees of the Holder or (B) the Company has received written consent therefor from a Person for whom Registrable Securities have been registered on (but not yet sold under) such Registration Statement, other than the Holder, Affiliates of the Holder or transferees of the Holder.
(ix) Notwithstanding the foregoing restrictions of this Section 2(a), but subject to any applicable No Demand Periods, the Preferred Holders shall be permitted to deliver a Demand Notice for a Demand Registration during the Lock-Up Period so long as (A) the Company is then-eligible to use Form S-3 to register the resale of Registrable Securities and (B) the Preferred Holders do not dispose of any Registrable Securities pursuant to the applicable Registration Statement for the duration of the Lock-Up Period. Further, and for the avoidance of doubt, nothing in this Agreement shall prohibit a Preferred Holder from exercising its rights as a Holder during the Lock-Up Period, including, but not limited to, a Preferred Holder’s participation in a Demand Registration, Underwritten Offering and/or Underwritten Piggyback Offering, other than with respect to (Y) except as provided in the immediately preceding sentence, delivering a Demand Notice as an Initiating Holder during its Lock-Up Period pursuant to Section 2(a)(i) and (Z) exercising its right to receive a Piggyback Notice or to participate in any Piggyback Registration during its Lock-Up Period with respect to the filing of a registration statement for the sale of securities solely for the account of the Company, which registration statement, for the avoidance of doubt, does not include Registrable Securities of any Holder.
Appears in 2 contracts
Samples: Registration Rights Agreement (WildHorse Resource Development Corp), Stock Issuance Agreement (WildHorse Resource Development Corp)
Demand Registration. (i) At any time after Upon the expiration of the Lock-Up Period, any Holder shall have the option and right, exercisable by delivering a written notice to the Company request (a “Demand Notice”)) by Holders owning at least 1 million of the then-outstanding Registrable Securities, subject to require adjustment pursuant to Section 3.04, the Company to, pursuant to the terms of and subject to the limitations contained in this Agreement, prepare and shall file with the Commission a Registration Statement registering Commission, as soon as reasonably practicable, but in no event more than 90 days following the offering and sale receipt of the number and type Notice, a registration statement (each, a “Registration Statement”) under the Securities Act providing for the resale of the Registrable Securities on (which may, at the terms and conditions specified in option of the Demand Holders giving such Notice, which may include sales on be a delayed or continuous basis registration statement under the Securities Act that provides for the resale of the Registrable Securities pursuant to Rule 415 pursuant from time to a Shelf Registration Statement time by the Holders (a “Demand RegistrationShelf Registration Statement”). The Demand Notice must set forth the number of Registrable Securities that the Initiating Holder intends to include in such Demand Registration and the intended methods of disposition thereof. Notwithstanding anything to the contrary herein, in no event shall the Company be required to effectuate a Demand Registration unless the Registrable Securities to be included therein have an aggregate value, based on the VWAP as of the date of the Demand Notice, of at least $25 million (the “Minimum Amount”).
(ii) Within fifteen Business Days after the receipt of the Demand Notice (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, within forty-five days thereof), the Company shall, subject to the limitations of this Section 2(a), file a Registration Statement in accordance with the terms and conditions of the Demand Notice. The Company shall use all its commercially reasonable efforts to cause such each Registration Statement to become be declared effective by the Commission as soon as reasonably practicable after the initial filing of the Registration Statement. Any Registration Statement shall provide for the resale pursuant to any method or combination of methods legally available to, and remain effective under requested by, the Holders of any and all Registrable Securities Act covered by such Registration Statement. The Company shall use its commercially reasonable efforts to cause each Registration Statement filed pursuant to this Section 2.01 to be continuously effective, supplemented and amended to the extent necessary to ensure that it is available for the resale of all Registrable Securities by the Holders until all Registrable Securities covered by such Registration Statement have been sold ceased to be Registrable Securities (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect (A) a Demand Registration within 90 days after the closing of any Requested Underwritten Offering or (B) a subsequent Demand Registration pursuant to a Demand Notice if a . Each Registration Statement covering when effective (and the documents incorporated therein by reference) shall comply as to form with all applicable requirements of the Registrable Securities held by the Initiating Holder shall have become and remains effective under the Securities Act and is sufficient shall not contain an untrue statement of a material fact or omit to permit offers and sales of state a material fact required to be stated therein or necessary to make the statements therein not misleading. There shall be no limit on 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 a Holder to the effect that the Holder is withdrawing an amount of its Registrable Shares from the Demand Registration such that the remaining amount of Registrable Shares to be included in the Demand Registration is below the Minimum Amount, the Company shall cease all efforts to secure effectiveness of the applicable Registration Statement.
(v) The Company may include in any such Demand Registration other Company Securities for sale for its own account or for the account of any other Person, subject to Section 2(c)(iii).
(vi) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration on such appropriate registration form of the Commission (A) as shall be selected by the Company and (B) as shall permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the Demand Notice; provided that if the Company becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to the Company). If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Company that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, the Company will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(vii) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), the Company shall (A) promptly prepare and file or cause to be prepared and filed (1) such additional forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents, as may be necessary or advisable to register or qualify the securities subject to such Demand Registration, including under the securities laws of such jurisdictions as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, the Company would become subject to general service of process or to taxation or qualification to do business in such jurisdiction solely as a result of registration and (2) such forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents as may be necessary to apply for listing or to list the Registrable Securities subject to such Demand Registration on the Trading Market and (B) do any and all other acts and things Statements that may be reasonably necessary or appropriate or reasonably requested required 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 thereofhereunder.
(viii) In the event a Holder transfers Registrable Securities included on a Registration Statement and such Registrable Securities remain Registrable Securities following such transfer, at the request of such Holder, the Company shall amend or supplement such Registration Statement as may be necessary in order to enable such transferee to offer and sell such Registrable Securities pursuant to such Registration Statement; provided that in no event shall the Company be required to file a post-effective amendment to the Registration Statement unless (A) such Registration Statement includes only Registrable Securities held by the Holder, Affiliates of the Holder or transferees of the Holder or (B) the Company has received written consent therefor from a Person for whom Registrable Securities have been registered on (but not yet sold under) such Registration Statement, other than the Holder, Affiliates of the Holder or transferees of the Holder.
Appears in 2 contracts
Samples: Registration Rights Agreement (Niska Gas Storage Partners LLC), Registration Rights Agreement (Niska Gas Storage Partners LLC)
Demand Registration. (i) At any time after the expiration of the Lock-Up Period, any Sponsoring 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, prepare and file with the Commission a Registration Statement registering the offering and sale of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice, which may include sales on a delayed or continuous basis pursuant to Rule 415 pursuant to a Shelf Registration Statement (a “Demand Registration”). The Demand Notice must set forth the number of Registrable Securities that the Initiating Holder intends to include in such Demand Registration and the intended methods of disposition thereof. Notwithstanding anything to the contrary herein, in no event shall the Company be required to effectuate a Demand Registration unless the Registrable Securities of the Holders to be included therein after compliance with Section 2(a)(ii) have an aggregate value, value of at least $30 million based on the VWAP (the “Minimum Amount”) as of the date of the Demand Notice, of at least $25 million (the “Minimum Amount”).
(ii) Within fifteen five Business Days (or if the Registration Statement will be a Shelf Registration Statement, within two Business Days) after the receipt of the Demand Notice, the Company shall give written notice of such Demand Notice to all Holders and, within 30 days after receipt of the Demand Notice (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case, within forty-five 90 days thereof), the Company shall, subject to the limitations of this Section 2(a), file a Registration Statement in accordance with the terms and conditions of the Demand Notice, which Registration Statement shall cover all of the Registrable Securities that the Holders shall in writing request to be included in the Demand Registration (such request to be given to the Company within three Business Days (or if the Registration Statement will be a Shelf Registration Statement, within one Business Day) after receipt of notice of the Demand Notice given by the Company pursuant to this Section 2(a)(ii)). The Company shall use all commercially reasonable best efforts to cause such Registration Statement to become and remain effective under the Securities Act until the earlier of (A) 180 days (or two years if a Shelf Registration Statement is requested) after the Effective Date or (B) the date on which all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”); provided, however, that such period shall be extended for a period of time equal to the period the Holders refrain from selling any securities included in such Registration Statement at the request of an underwriter of the Company or the Company pursuant to this Agreement.
(iii) Subject to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect (A) a Demand Registration within 90 days after the closing of any Requested Underwritten Offering or Offering, (B) more than a total of four Demand Registrations for which WildHorse Holdings (or any transferee thereof in accordance with Section 8(e)) is the Initiating Holder, (C) more than a total of four Demand Registrations for which Esquisto Holdings (or any transferee thereof in accordance with Section 8(e)) is the Initiating Holder, (D) more than a total of four Demand Registrations for which Acquisition Co. Holdings (or any transferee thereof in accordance with Section 8(e)) is the Initiating Holder, and (E) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of the Registrable Securities held by the Initiating Holder shall have become and remains effective under the Securities Act and is sufficient to permit offers and sales of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice in accordance with the intended timing and method or methods of distribution thereof specified in the Demand Notice. No Demand Registration shall be deemed to have occurred for purposes of this Section 2(a)(iii) if the Registration Statement relating thereto does not become effective or is not maintained effective for its entire Effectiveness Period, in which case the Initiating Holder shall be entitled to an additional Demand Registration in lieu thereof. Further, a Demand Registration shall not constitute a Demand Registration of the Initiating Holder for purposes of this Section 2(a)(iii) if, as a result of Section 2(a)(vi), there is included in the Demand Registration less than the lesser of (x) Registrable Securities of the Initiating Holder having a VWAP measured on the effective date of the related Registration Statement of $30 million and (y) two-thirds of the number of Registrable Securities the Initiating Holder set forth in the applicable Demand Notice.
(iv) A Holder may withdraw all or any portion of its Registrable Securities included in a Demand Registration from such Demand Registration at any time prior to the effectiveness of the applicable Registration Statement. Upon receipt of a notice from the Initiating Holder that the Initiating Holder is withdrawing all of its Registrable Securities from the Demand Registration or a notice from a Holder to the effect that the Holder is withdrawing an amount of its Registrable Shares from the Demand Registration such that the remaining amount of Registrable Shares to be included in the Demand Registration is below the Minimum Amount, the Company shall cease all efforts to secure effectiveness of the applicable Registration Statement. Such registration nonetheless shall be deemed a Demand Registration with respect to the Initiating Holder for purposes of Section 2(a)(iii) unless (A) the Initiating Holder shall have paid or reimbursed the Company for its pro rata share of all reasonable and documented out-of-pocket fees and expenses incurred by the Company in connection with the withdrawn registration of such Registrable Securities (based on the number of securities the Initiating Holder sought to register, as compared to the total number of securities included in such Demand Registration) or (B) the withdrawal is made following the occurrence of a Material Adverse Change or pursuant to the Company’s request for suspension pursuant to Section 3(o).
(v) The Company may include in any such Demand Registration other Company Securities for sale for its own account or for the account of any other Person, subject to Section 2(a)(vi) and Section 2(c)(iii).
(vi) In the case of a Demand Registration not being underwritten, if the Initiating Holder advises the Company that in its reasonable opinion the aggregate number of securities requested to be included exceeds the number that can be included without being likely to have a significant adverse effect on the price, timing or distribution of the securities offered or the market for the securities offered, the Company shall include in such Demand Registration only that number of securities that in the reasonable opinion of the Initiating Holder will not have such adverse effect, with such number to be allocated as follows: (A) first, pro-rata among all Holders (including the Initiating Holder) that have requested to participate in such Demand Registration based on the relative number of Registrable Securities then held by each such Holder, (B) second, if there remains availability for additional securities to be included in such Demand Registration, the Company, and (C) third, if there remains availability for additional securities to be included in such Demand Registration, any other holders entitled to participate in such Demand Registration, if applicable, based on the relative number of securities such holder is entitled to include in such Demand Registration.
(vii) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration on such appropriate registration form of the Commission (A) as shall be selected by the Company and (B) as shall permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the Demand Notice; provided that if the Company becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to the Company). If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Company that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, the Company will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(viiviii) 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.
(viiiix) In the event a Holder transfers Registrable Securities included on a Registration Statement and such Registrable Securities remain Registrable Securities following such transfer, at the request of such Holder, the Company shall amend or supplement such Registration Statement as may be necessary in order to enable such transferee to offer and sell such Registrable Securities pursuant to such Registration Statement; provided that in no event shall the Company be required to file a post-effective amendment to the Registration Statement unless (A) such Registration Statement includes only Registrable Securities held by the Holder, Affiliates of the Holder or transferees of the Holder or (B) the Company has received written consent therefor from a Person for whom Registrable Securities have been registered on (but not yet sold under) such Registration Statement, other than the Holder, Affiliates of the Holder or transferees of the Holder.
Appears in 2 contracts
Samples: Registration Rights Agreement (WildHorse Resource Development Corp), Registration Rights Agreement (WildHorse Resource Development Corp)
Demand Registration. (i) At Upon receipt of a Notice from any Holder or Holders that hold at least 25% of the then Outstanding Registrable Securities at any time after the expiration of 180th day after the Lock-Up PeriodClosing Date, 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, prepare and shall file with the Commission as promptly as reasonably practicable a registration statement under the Securities Act (each, a “Registration Statement”) providing for the resale of the Registrable Securities identified in such Notice, which may, at the option of the Holder giving such Notice, be a Registration Statement registering that provides for the offering and sale resale of 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 from time to time pursuant to Rule 415 under the Securities Act. The Company shall notify all Holders of such Notice at least 15 days prior to the filing date. The Company shall not be required pursuant to a Shelf Registration Statement (a “Demand Registration”). The Demand Notice must set forth the number of Registrable Securities that the Initiating Holder intends to include in such Demand Registration and the intended methods of disposition thereof. Notwithstanding anything to the contrary herein, in no event shall the Company be required to effectuate a Demand Registration unless the Registrable Securities to be included therein have an aggregate value, based on the VWAP as of the date of the Demand Notice, of at least $25 million (the “Minimum Amount”).
(ii) Within fifteen Business Days after the receipt of the Demand Notice (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, within forty-five days thereof), the Company shall, subject to the limitations of this Section 2(a), 7.20(a) to file a more than one Registration Statement in accordance with any 12-month period nor to file more than six Registration Statements in the terms and conditions of the Demand Noticeaggregate. The Company shall use all commercially reasonable efforts to cause such Registration Statement to become effective as soon as reasonably practicable after the initial filing of the Registration Statement and to remain effective under and available for the resale of the Registrable Securities Act by the Selling Holders named therein until the earlier of (i) six months following such Registration Statement’s effective date and (ii) the date on which all Registrable Securities covered by such Registration Statement have been sold (sold. In the “Effectiveness Period”).
(iii) Subject event one or more Holders request in a Notice to dispose of Registrable Securities pursuant to a Registration Statement in an Underwritten Offering and such Holder or Holders reasonably anticipate gross proceeds from such Underwritten Offering of at least $30.0 million in the other limitations contained in this Agreementaggregate, the Company is not obligated hereunder shall retain underwriters that are reasonably acceptable to such Selling Holders in order to permit such Selling Holders to effect (A) a Demand Registration within 90 days after such disposition through an Underwritten Offering; provided the closing of any Requested Company shall have the exclusive right to select the bookrunning managers. The Company and such Selling Holders shall enter into an underwriting agreement in customary form that is reasonably acceptable to the Company and take all reasonable actions as are requested by the managing underwriters to facilitate the Underwritten Offering or (B) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of the Registrable Securities held by the Initiating Holder shall have become and remains effective under the Securities Act and is sufficient to permit offers and sales of the number and type sale of Registrable Securities therein, including indemnification of the underwriters and representations and covenants, in each case upon customary terms. No Holder may participate in the Underwritten Offering unless it agrees to sell its Registrable Securities covered by the Registration Statement on the terms and conditions specified of the underwriting agreement and completes and delivers all necessary documents and information reasonably required under the terms of such underwriting agreement. In the event that the managing underwriter of such Underwritten Offering advises the Company and the Holder in writing that in its opinion the Demand Notice inclusion of all or some Registrable Securities would adversely and materially affect the timing or success of the Underwritten Offering, the amount of Registrable Securities that each Selling Holder requested be included in accordance with such Underwritten Offering shall be reduced on a Pro Rata basis to the intended timing aggregate amount that the managing underwriter deems will not have such material and method or methods of distribution thereof specified in the Demand Notice.
(iv) A adverse effect. Any 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 a Holder to the effect that the Holder is withdrawing an amount of its Registrable Shares from the Demand Registration such that the remaining amount of Registrable Shares to be included in the Demand Registration is below the Minimum Amount, the Company shall cease all efforts to secure effectiveness of the applicable Registration Statement.
(v) The Company may include in any such Demand Registration other Company Securities for sale for its own account or for the account of any other Person, subject to Section 2(c)(iii).
(vi) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration on such appropriate registration form of the Commission (A) as shall be selected Underwritten Offering by the Company and (B) as shall permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the Demand Notice; provided that if the Company becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to the Company). If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Company that it intends and the managing underwriter; provided such notice is delivered prior to effect an offering of all or part of the Registrable Securities included on such Registration Statement, the Company will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(vii) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), the Company shall (A) promptly prepare and file or cause to be prepared and filed (1) such additional forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents, as may be necessary or advisable to register or qualify the securities subject to such Demand Registration, including under the securities laws launch 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 thereofUnderwritten Offering.
(viii) In the event a Holder transfers Registrable Securities included on a Registration Statement and such Registrable Securities remain Registrable Securities following such transfer, at the request of such Holder, the Company shall amend or supplement such Registration Statement as may be necessary in order to enable such transferee to offer and sell such Registrable Securities pursuant to such Registration Statement; provided that in no event shall the Company be required to file a post-effective amendment to the Registration Statement unless (A) such Registration Statement includes only Registrable Securities held by the Holder, Affiliates of the Holder or transferees of the Holder or (B) the Company has received written consent therefor from a Person for whom Registrable Securities have been registered on (but not yet sold under) such Registration Statement, other than the Holder, Affiliates of the Holder or transferees of the Holder.
Appears in 2 contracts
Samples: Limited Liability Company Agreement, Limited Liability Company Agreement (Transocean Partners LLC)
Demand Registration. (ia) At any time after and from time to time on or following the expiration of the Lock-Up PeriodPlan Effective Date, any Holder shall have the option and right, exercisable by delivering a written notice to or group of Holders may request in writing (“Demand Registration Request”) that the Company (a “Demand Notice”), to require effect the Company to, pursuant to the terms registration of and subject to the limitations contained in this Agreement, prepare and file all or part of such Holder’s or Holders’ Registrable Securities with the Commission a Registration Statement registering under and in accordance with the offering and sale provisions of 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”)Act. The Demand Notice must set forth the number of Registrable Securities that the Initiating Holder intends to include in such Demand Registration and the intended methods of disposition thereof. Notwithstanding anything to the contrary herein, in no event shall the Company be required to effectuate a Demand Registration unless the Registrable Securities to be included therein have an aggregate value, based on the VWAP as of the date of the Demand Notice, of at least $25 million (the “Minimum Amount”).
(ii) Within fifteen Business Days after the receipt of the Demand Notice (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, within forty-five days thereof), the Company shall, subject to the limitations of this Section 2(a), will file a Registration Statement in accordance with the terms covering such Holder’s or Holders’ Registrable Securities requested to be registered, and conditions of the Demand Notice. The Company shall use all its commercially reasonable efforts to cause such Registration Statement to become and remain effective under be declared effective, as promptly as practicable after receipt of such request, provided that (i) the Securities Act until all number of Registrable Securities covered by requested to be registered on such Registration Statement is at least fifteen percent (15%) of the Initial Registrable Securities Number, or (ii) the Registrable Securities requested to be sold by the Holders pursuant to such Registration Statement shall have been sold an anticipated aggregate offering price (the “Effectiveness Period”).
(iiibefore deducting underwriting discounts and commission) Subject to the other limitations contained in this Agreementof at least $100 million; provided, however, that the Company is will not obligated hereunder be required to effect file a Registration Statement pursuant to this Section 3 if:
(A) a Demand the Registrable Securities requested to be registered are already covered by an existing and effective Registration within 90 days after Statement and such Registration Statement may be utilized for the closing offering and sale of any Requested Underwritten Offering or the Registrable Securities requested to be registered;
(B) a subsequent Registration Statement shall have previously been initially declared effective by the Commission within the ninety (90) days preceding the date such Demand Registration Request is made; or
(C) the number of Demand Registration Requests previously made pursuant to this Section 3(a) shall be three or more; provided that a Demand Notice if a Registration Request shall not be considered made for purposes of this clause (C) unless the requested Registration Statement covering has been declared effective by the Commission for at least 75% of the amount of Registrable Securities for which registration has been requested.
(b) A Demand Registration Request shall specify (i) the then-current name and address of such Holder or Holders, (ii) the aggregate number 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. If at the time the Demand Registration Request is made the Company shall be eligible to use Form S-3 or another appropriate form, the Holder or Holders making such request may specify that the registration be in the form of a Shelf Registration Statement.
(c) 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 held by for which a demand for registration has been properly made under Section 3(b) hereof. If the Initiating Holder 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(c) shall have become and remains be the “the first day of effectiveness” of such Registration Statement for purposes of determining the period during which the Registration Statement is required to be maintained effective under in accordance with Section 3(e) hereof.
(d) Within ten (10) days after receiving a Demand Registration Request, the Securities Act and is sufficient Company shall give written notice of such request to permit offers and sales of the number and type all other Holders of Registrable Securities on and shall, subject to the terms and conditions specified provisions of Section 4(c) in the Demand Notice case of an Underwritten Offering, include in accordance such registration all such Registrable Securities with respect to which the intended timing Company has received written requests for inclusion therein within fifteen (15) days after the Company’s giving of such notice, provided that such Registrable Securities are not already covered by an existing and method or methods effective Registration Statement that may be utilized for the offering and sale of distribution thereof specified the Registrable Securities requested to be registered in the Demand Noticemanner so requested.
(ive) A Holder may withdraw The Company will use its commercially 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 Commission:
(A) in the case of a Registration Statement other than a Shelf Registration Statement, until all or any portion of its Registrable Securities included registered thereunder have been sold pursuant to such Registration Statement, but in no event later than ninety (90) days from the Effective Date of such Registration Statement; and
(B) in the case of a Shelf Registration Statement, the earlier of (x) three (3) years following the Effective Date of the Shelf Registration Statement; and (y) the date that all the remaining securities covered by such Shelf Registration Statement shall cease to be Registrable Securities; provided, however, that in the event of any stop order, injunction or other similar order or requirement of the Commission relating to any Registration Statement, the period during which the Registration Statement shall be required to remain effective will be extended by the number of days during which such stop order, injunction or similar order or requirement is in effect.
(f) The Holder or Holders making a Demand Registration from such Demand Registration Request may, at any time prior to the effectiveness Effective Date of the applicable Registration Statement. Upon receipt of a notice from a Holder Statement relating to the effect that the Holder is withdrawing an amount of its Registrable Shares from the Demand Registration such that the remaining amount of Registrable Shares to be included in the Demand Registration is below the Minimum Amountregistration, revoke their request for the Company shall cease all efforts to secure effectiveness of the applicable Registration Statement.
(v) The Company may include in any such Demand Registration other Company Securities for sale for its own account or for the account of any other Person, subject to Section 2(c)(iii).
(vi) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration on such appropriate registration form of the Commission (A) as shall be selected by the Company and (B) as shall permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the Demand Notice; provided that if the Company becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to the Company). If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Company that it intends to effect an offering the registration of all or part of the such Holder’s or Holders’ Registrable Securities included on by providing a written notice to the Company. If, pursuant to the preceding sentence, the entire Demand Registration Request is revoked, then, at the option of the Holder or Holders who revoke such request, either (i) such Holder or Holders shall reimburse the Company for all of its reasonable and documented out-of-pocket expenses incurred in the preparation, filing and processing of the Registration Statement, which out-of-pocket expenses, for the Company avoidance of doubt, shall not include overhead expenses. or (ii) the requested registration that has been revoked will amend or supplement such Registration Statement as may be necessary in order deemed to enable such offering to take placehave been effected for purposes of Section 3(a)(C).
(viig) Without limiting Section 3, in connection with any Demand If a Registration Statement filed pursuant to and in accordance with this Section 2(a)3 is a Shelf Registration Statement, then upon the request of one or more Holders, and subject to Section 4(e) hereof, the Company shall facilitate a “takedown” of Registrable Securities in the form of an Underwritten Offering, in the manner described in this Agreement, provided that either (Ai) 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 number 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 Registrable Securities included in such jurisdiction solely as a result “takedown” shall equal at least fifteen percent (15%) of registration and the Initial Registrable Securities Number or (2ii) 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 requested 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 sold by the Holders to enable the Holders to consummate a public sale in such “takedown” shall have an anticipated aggregate offering price (before deducting underwriting discounts and commission) of such Registrable Securities in accordance with the intended timing and method or methods of distribution thereofat least $100 million.
(viii) In the event a Holder transfers Registrable Securities included on a Registration Statement and such Registrable Securities remain Registrable Securities following such transfer, at the request of such Holder, the Company shall amend or supplement such Registration Statement as may be necessary in order to enable such transferee to offer and sell such Registrable Securities pursuant to such Registration Statement; provided that in no event shall the Company be required to file a post-effective amendment to the Registration Statement unless (A) such Registration Statement includes only Registrable Securities held by the Holder, Affiliates of the Holder or transferees of the Holder or (B) the Company has received written consent therefor from a Person for whom Registrable Securities have been registered on (but not yet sold under) such Registration Statement, other than the Holder, Affiliates of the Holder or transferees of the Holder.
Appears in 2 contracts
Samples: Registration Rights Agreement, Registration Rights Agreement (Vantage Drilling International)
Demand Registration. (i) At any time after Upon the expiration of the Lock-Up Period, any Holder shall have the option and right, exercisable by delivering a written notice to the Company request (a “Demand Notice”)) by a Principal Holder, Legacy Holder or any other Holder owning or controlling at least five percent (5%) of the then outstanding Registrable Securities (subject to require the Company to, adjustment pursuant to the terms of and subject to the limitations contained in this Agreement, prepare and file with the Commission a Registration Statement registering the offering and sale of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice, which may include sales on a delayed or continuous basis pursuant to Rule 415 pursuant to a Shelf Registration Statement (a “Demand Registration”). The Demand Notice must set forth the number of Registrable Securities that the Initiating Holder intends to include in such Demand Registration and the intended methods of disposition thereof. Notwithstanding anything to the contrary herein, in no event shall the Company be required to effectuate a Demand Registration unless the Registrable Securities to be included therein have an aggregate value, based on the VWAP as of the date of the Demand Notice, of at least $25 million (the “Minimum Amount”).
(ii) Within fifteen Business Days after the receipt of the Demand Notice (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, within forty-five days thereof), the Company shall, subject to the limitations of this Section 2(a), file a Registration Statement in accordance with the terms and conditions of the Demand Notice. The Company shall use all commercially reasonable efforts to cause such Registration Statement to become and remain effective under the Securities Act until all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect (A) a Demand Registration within 90 days after the closing of any Requested Underwritten Offering or (B) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of the Registrable Securities held by the Initiating Holder shall have become and remains effective under the Securities Act and is sufficient to permit offers and sales of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice in accordance with the intended timing and method or methods of distribution thereof specified in the Demand Notice.
(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 a Holder to the effect that the Holder is withdrawing an amount of its Registrable Shares from the Demand Registration such that the remaining amount of Registrable Shares to be included in the Demand Registration is below the Minimum Amount, the Company shall cease all efforts to secure effectiveness of the applicable Registration Statement.
(v) The Company may include in any such Demand Registration other Company Securities for sale for its own account or for the account of any other Person, subject to Section 2(c)(iii).
(vi) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration on such appropriate registration form of the Commission (A) as shall be selected by the Company and (B) as shall permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the Demand Notice; provided that if the Company becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to the Company). If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Company that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, the Company will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(vii) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a3.04), 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 documentswith the Commission, as may be necessary or advisable to register or qualify soon as reasonably practicable, but in no event more than 30 days following the securities subject to such Demand Registrationreceipt of the Notice, including a registration statement (each, a “Registration Statement”) under the securities laws Securities Act providing for the resale 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 transferwhich may, at the request option of the Holders giving such HolderNotice, be a registration statement under the Company shall amend or supplement such Registration Statement as may be necessary in order to enable such transferee to offer and sell such Securities Act that provides for the resale of the Registrable Securities pursuant to such Rule 415 from time to time by the Holders (a “Shelf Registration Statement”)); provided that in no event shall the Company be required to file a post-effective amendment Registration Statement prior to the date that is 90 days after the consummation of the Transactions. The Company shall use its commercially reasonable efforts to cause each Registration Statement unless (A) to be declared effective by the Commission as soon as reasonably practicable after the initial filing of the Registration Statement. Any Registration Statement shall provide for the resale pursuant to any method or combination of methods legally available to, and requested by, the Holders of any and all Registrable Securities covered by such Registration Statement. To the extent the initial Registration Statement is not made on Form S-3, the Company shall, upon becoming eligible to file a registration statement on Form S-3, prepare and file a new Registration Statement on Form S-3 to replace the initial Registration Statement and use its best efforts to cause such subsequent Registration Statement to be declared effective by the Commission as soon as reasonably practicable thereafter. The Company shall use its commercially reasonable efforts to cause each Registration Statement filed pursuant to this Section 2.01 to be continuously effective, supplemented and amended to the extent necessary to ensure that it is available for the resale of all Registrable Securities by the Holders until all Registrable Securities covered by such Registration Statement includes only have ceased to be Registrable Securities held (the “Effectiveness Period”). Each Registration Statement when effective (and the documents incorporated therein by reference) shall comply as to form in all material respects with all applicable requirements of the Securities Act and 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. Each Holder shall be limited to two demand registrations under this Section 2.01 in any twelve-month period (provided, however, that there shall be no limit on the number of Shelf Registration Statements that may be required by the HolderHolders hereunder), Affiliates of the Holder or transferees of the Holder or (B) and the Company has received written consent therefor from a Person for whom Registrable Securities have been registered on (but shall not yet sold under) such be obligated to file more than one Registration Statement, other than Statement within 120 days after the Holder, Affiliates effective date of any Registration Statement filed by the Holder or transferees of the HolderCompany.
Appears in 2 contracts
Samples: Registration Rights Agreement (Talos Energy Inc.), Registration Rights Agreement (SAILFISH ENERGY HOLDINGS Corp)
Demand Registration. (ia) At any time after the expiration of date that is ten months from the Lock-Up Perioddate hereof, any Holder shall have the option and right, exercisable by delivering a upon written notice to the Company (Issuer from a “Demand Notice”), to require the Company to, pursuant to the terms Holder or Holders holding a majority in interest of and subject to the limitations contained in this Agreement, prepare and file with the Commission a Registration Statement registering the offering and sale of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice, which may include sales on a delayed or continuous basis pursuant to Rule 415 pursuant to a Shelf Registration Statement (a “Demand Registration”). The Demand Notice must set forth the number of Registrable Securities that the Initiating Holder intends to include in such Demand Registration and the intended methods of disposition thereof. Notwithstanding anything to the contrary herein, in no event shall the Company be required to effectuate a Demand Registration unless the Registrable Securities to be included therein have an aggregate value, based on (a "Demand Request") requesting that the VWAP as of Issuer effect the date of the Demand Notice, of at least $25 million (the “Minimum Amount”).
(ii) Within fifteen Business Days after the receipt of the Demand Notice (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, within forty-five days thereof), the Company shall, subject to the limitations of this Section 2(a), file a Registration Statement in accordance with the terms and conditions of the Demand Notice. The Company shall use all commercially reasonable efforts to cause such Registration Statement to become and remain effective registration under the Securities Act until all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect (A) a Demand Registration within 90 days after the closing of any Requested Underwritten Offering or (B) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of the Registrable Securities held by such requesting Holders, which notice shall specify the Initiating Holder intended method or methods of disposition of such Registrable Securities, the Issuer shall have become prepare as soon as practicable and, within 15 days after such request, file with the Commission a registration statement with respect to such Registrable Securities and remains thereafter use its reasonable best efforts to cause such registration statement to be declared effective under the Securities Act and is sufficient to permit offers and sales for purposes 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 a Holder to the effect that the Holder is withdrawing an amount of its Registrable Shares from the Demand Registration such that the remaining amount of Registrable Shares to be included in the Demand Registration is below the Minimum Amount, the Company shall cease all efforts to secure effectiveness of the applicable Registration Statement.
(v) The Company may include in any such Demand Registration other Company Securities for sale for its own account or for the account of any other Person, subject to Section 2(c)(iii).
(vi) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration on such appropriate registration form of the Commission (A) as shall be selected by the Company and (B) as shall permit the disposition of the Registrable Securities dispositions in accordance with the intended method or methods of disposition specified stated in such request within 30 days after the filing of such registration statement; provided, however, that the Issuer shall have no obligation to (i) cause such registration statement filed pursuant to this Section 2.2 to be declared effective on a date that is prior to the first anniversary of this Agreement or (ii) cause such registration statement filed pursuant to this Section 2.2 to be declared effective during any period during which a Shelf Registration Statement filed pursuant to Section 2.1 remains effective. Notwithstanding any other provision of this Agreement to the contrary:
(i) the Holders may collectively exercise their Demand Notice; provided that if the Company becomes, and is at the time Request rights for registration of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of their Registrable Securities shall be effected pursuant under this Section 2.2(a) on not more than three occasions (any such registration being referred to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to the Companyherein as a "Demand Registration"). If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Company that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, the Company will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.;
(viiii) Without limiting Section 3, the method of disposition requested by Holders in connection with any Demand Registration may not, without the Issuer's written consent, be a Rule 415 Offering;
(iii) the Issuer shall not be required to effect a Demand Registration hereunder if all securities owned by the Holders have ceased to be Registrable Securities; and
(iv) the Issuer shall not be required to effect more than one Demand Registration during any 12 month period.
(b) Notwithstanding any other provision of this Agreement to the contrary, a Demand Registration requested by Holders pursuant to and in accordance with this Section 2(a)2.2 shall not be deemed to have been effected, and, therefore, not requested and the Company rights of each Holder shall be deemed not to have been exercised for purposes of paragraph (Aa) promptly prepare and file above, (i) if such Demand Registration has not become effective under the Securities Act or cause to be prepared and filed (1ii) 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 if such Demand Registration, including after it became effective under the securities laws of such jurisdictions as Securities Act, was not maintained effective under the Holders shall reasonably request; providedSecurities Act (including, howeverwithout limitation, that no such qualification shall be required in if it was interfered with by any jurisdiction wherestop order, as a result thereof, the Company would become subject to general service of process injunctions 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.other
Appears in 2 contracts
Samples: Registration Rights Agreement (Lamar Advertising Co/New), Registration Rights Agreement (Amfm Inc)
Demand Registration. (ia) At any time Commencing on or after the expiration Initial Lock-Up Termination Date and from time to time so long as there are any Registrable Securities outstanding, if the Company is not eligible to file a Shelf Registration Statement, if the Company has not caused a Shelf Registration Statement to be declared effective by the Commission in accordance with Section 2.4 or if the Shelf Registration Statement shall cease to be effective, subject to the minimum size limitations in Section 2.5(a), the Holder(s) holding a majority of Registrable Securities then outstanding may collectively make one or more written requests to the Company for registration under the Securities Act of all or part of its or their Common Stock constituting Registrable Securities, including for the avoidance of doubt shares of Common Stock issued or issuable upon exchange of Common OP Units, that are not then subject to the 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, prepare and file with the Commission a Registration Statement registering the offering and sale of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice, which may include sales on a delayed or continuous basis pursuant to Rule 415 pursuant to a Shelf Registration Statement Restrictions (a “Demand Registration”). The Holders submitting the request for a Demand Notice must set forth Registration shall concurrently provide written notice of the proposed registration to all other Holders. The Company shall prepare and file with the Commission, within thirty (30) days after such request for a Demand Registration, a registration statement on an appropriate form which the Company is then eligible to use with respect to any Demand Registration (a “Demand Registration Statement”) as selected by the Company, and shall use its reasonable best efforts to cause any such Demand Registration Statement to be declared effective by the Commission as promptly as reasonably practicable after the filing thereof. Any request for a Demand Registration will specify the number of shares of Registrable Securities proposed to be sold in the offering thereof; provided that the requesting Holder(s) may change the number of Registrable Securities that the Initiating Holder intends to include in such Demand Registration and the intended methods of disposition thereof. Notwithstanding anything to the contrary herein, in no event shall the Company be required to effectuate a Demand Registration unless the Registrable Securities proposed to be included therein have an aggregate value, based on the VWAP as of the date of the Demand Notice, of at least $25 million (the “Minimum Amount”).
(ii) Within fifteen Business Days after the receipt of the Demand Notice (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, within forty-five days thereof), the Company shall, subject to the limitations of this Section 2(a), file a Registration Statement in accordance with the terms and conditions of the Demand Notice. The Company shall use all commercially reasonable efforts to cause such Registration Statement to become and remain effective under the Securities Act until all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect (A) a Demand Registration within 90 days after the closing of any Requested Underwritten Offering or (B) a subsequent Demand Registration offered pursuant to a Demand Notice if a Registration Statement covering all of the Registrable Securities held by the Initiating Holder shall have become and remains effective under the Securities Act and is sufficient to permit offers and sales of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice in accordance with the intended timing and method or methods of distribution thereof specified in the Demand Notice.
(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 Demand Registration Statement. Upon receipt of a notice from a Holder Statement with respect to the effect that the Holder is withdrawing an amount of its Registrable Shares from the Demand Registration being declared effective by the Commission, in each case subject to the minimum size limitations in Section 2.5(a). Without the prior written consent of the Holders requesting such Demand Registration, no stockholder of the Company (other than the Holders) may include securities in any offering requested under this Section 2.1; provided that the remaining amount of Registrable Shares to be included in the Demand Registration is below the Minimum Amount, the Company shall cease all efforts to secure effectiveness of the applicable Registration Statement.
(v) The Company may include in any such Demand Registration other Company Securities for sale for its own account or offering securities to be sold for the account of any other Personthe Company, subject to the limitations set forth in Section 2(c)(iii2.5(b).
(vi) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration on such appropriate registration form of the Commission (A) as shall be selected by the Company and (B) as shall permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the Demand Notice; provided that if the Company becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to the Company). If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Company that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, the Company will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(vii) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), the Company shall (A) promptly prepare and file or cause to be prepared and filed (1) such additional forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents, as may be necessary or advisable to register or qualify the securities subject to such Demand Registration, including under the securities laws of such jurisdictions as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, the Company would become subject to general service of process or to taxation or qualification to do business in such jurisdiction solely as a result of registration and (2) such forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents as may be necessary to apply for listing or to list the Registrable Securities subject to such Demand Registration on the Trading Market and (B) do any and all other acts and things that may be reasonably necessary or appropriate or reasonably requested by the Holders to enable the Holders to consummate a public sale of such Registrable Securities in accordance with the intended timing and method or methods of distribution thereof.
(viii) In the event a Holder transfers Registrable Securities included on a Registration Statement and such Registrable Securities remain Registrable Securities following such transfer, at the request of such Holder, the Company shall amend or supplement such Registration Statement as may be necessary in order to enable such transferee to offer and sell such Registrable Securities pursuant to such Registration Statement; provided that in no event shall the Company be required to file a post-effective amendment to the Registration Statement unless (A) such Registration Statement includes only Registrable Securities held by the Holder, Affiliates of the Holder or transferees of the Holder or (B) the Company has received written consent therefor from a Person for whom Registrable Securities have been registered on (but not yet sold under) such Registration Statement, other than the Holder, Affiliates of the Holder or transferees of the Holder.
Appears in 2 contracts
Samples: Registration Rights Agreement (Hudson Pacific Properties, L.P.), Asset Purchase Agreement (Hudson Pacific Properties, Inc.)
Demand Registration. (ia) At any time after during the expiration of period beginning on the Lock-Up PeriodDemand Rights Commencement Date and ending at the Registration Rights Termination Time, any the Holder shall have the option and right, exercisable by delivering may deliver a written notice request to the Company (a the “Demand Registration Notice”), ) to require the Company to, pursuant to the terms of and subject to the limitations contained in this Agreement, prepare and file with the Commission a Registration Statement registering (the offering and sale of “Demand Registration Statement”) for the number and type registration of Registrable Securities on the terms to be offered and conditions specified in the Demand Notice, which may include sales on a delayed or continuous basis sold pursuant to Rule 415 pursuant to a Shelf Registration Statement an Underwritten Offering (a the “Demand Registration”). The Demand Registration Notice must set forth shall specify the aggregate number of Registrable Securities that the Initiating Holder intends to include in such Demand Registration and the intended methods of disposition thereof. Notwithstanding anything requested to the contrary hereinregistered pursuant to the Demand Registration. Subject to the limitations set forth in Section 2.6(a), in no event shall the Company be required shall use commercially reasonable efforts to effectuate a Demand Registration file as soon as reasonably practicable with the SEC (and, unless otherwise agreed to by the Registrable Securities to be included therein have an aggregate valueHolder, based on the VWAP as of the date of the Demand Notice, of at least $25 million (the “Minimum Amount”).
(ii) Within fifteen or before 20 Business Days after the its receipt of the Demand Registration Notice (except or, if financial statements required to be included in such a filing are not reasonably available on or before the Company is not then eligible expiration of such period of 20 Business Days, as soon as reasonably practicable thereafter), and cause to register for resale become or be declared effective under the Securities Act as soon as reasonably practicable, a Demand Registration Statement as will permit the sale and distribution of all or such portion of the Holder’s Registrable Securities on Form S-3, within forty-five days thereof), the Company shall, subject to the limitations of this Section 2(a), file a Registration Statement as are specified in accordance with the terms and conditions of the Demand Registration Notice. The Company shall use all commercially reasonable efforts to cause such promptly notify the Holder of the date on which the Demand Registration Statement to become and remain effective under the Securities Act until all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”)becomes or is declared effective.
(iiib) Subject The Holder shall have the right to the other limitations contained in this Agreement, cause the Company is not obligated hereunder to effect (A) a Demand Registration within 90 days after the closing of any Requested Underwritten Offering or (B) a subsequent one Demand Registration pursuant to a Section 2.2(a). A Demand Notice Registration requested pursuant to Section 2.2(a) shall not be deemed to be effected for purposes of this Section 2.2 if a (i) the Demand Registration Statement covering all of the Registrable Securities held for such registration has not been declared effective by the Initiating Holder shall have SEC or has not become and remains effective under in accordance with the Securities Act and is sufficient to permit offers the rules and sales of the number and type of regulations thereunder or (ii) no 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 have been sold under such Demand Registration at any time prior to the effectiveness of the applicable Registration Statement. Upon receipt of a notice from a Holder to the effect that the Holder is withdrawing an amount of its Registrable Shares from the Demand Registration 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.
(vc) The Company may include in any such Demand Registration other Company Securities for sale for its own account or for Notwithstanding the account provisions of any other Person, subject to Section 2(c)(iii2.2(a).
(vi) Subject to the limitations contained in this Agreement, the Company shall effect not be required to take any Demand Registration on such appropriate registration form action pursuant to this Section 2.2 if (i) the Registrable Securities which the Company shall have been requested to register shall have a reasonably anticipated net aggregate offering price (after deduction of the Commission (Aunderwriting discounts and fees and offering expenses) of less than $35,000,000, as shall be selected determined in good faith 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 Notice, or (ii) the Company shall have consummated a registration of Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form Common Stock under the Securities Act (if available to other than an Excluded Registration) within the Company). If at any time 120-day period immediately preceding delivery of a Demand Registration Statement on Form S-3 is effective and a Holder provides written notice to the Company that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, the Company will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take placeNotice.
(viid) Without limiting Subject to the limitations set forth in Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a2.4(a), the Company shall (A) promptly prepare and file or cause have the right 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 include 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 Statement such number of shares of Common Stock as it 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 thereofspecify.
(viii) In the event a Holder transfers Registrable Securities included on a Registration Statement and such Registrable Securities remain Registrable Securities following such transfer, at the request of such Holder, the Company shall amend or supplement such Registration Statement as may be necessary in order to enable such transferee to offer and sell such Registrable Securities pursuant to such Registration Statement; provided that in no event shall the Company be required to file a post-effective amendment to the Registration Statement unless (A) such Registration Statement includes only Registrable Securities held by the Holder, Affiliates of the Holder or transferees of the Holder or (B) the Company has received written consent therefor from a Person for whom Registrable Securities have been registered on (but not yet sold under) such Registration Statement, other than the Holder, Affiliates of the Holder or transferees of the Holder.
Appears in 2 contracts
Samples: Registration Rights and Governance Agreement (Advisory Board Co), Stock Purchase Agreement (Advisory Board Co)
Demand Registration. (i) At any time after Subject to the expiration provisions of the Lock-Up PeriodSection 2(b)(x), any Holder USBTC 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, prepare and file with the Commission a Registration Statement registering the offering and sale of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice, which may include sales on a delayed or continuous basis pursuant to Rule 415 pursuant to on a Shelf Registration Statement (a “Demand Registration”). The Demand Notice must set forth the number of Registrable Securities that the Initiating Holder intends USBTC and other Holders, as applicable, intend to include in such Demand Registration and the intended methods timing and method of disposition thereof. Notwithstanding anything to the contrary herein, in no event shall the Company be required to effectuate a Demand Registration unless the Registrable Securities of the Holders to be included therein after compliance with Section 22(b)(ii) and Section 2(b)(x): (i) have an aggregate value, value of at least $7,500,000 based on the VWAP or (ii) represent at least 15% of the Registrable Securities eligible for registration in accordance with Section 2(b)(x) (the “Minimum Amount”) as of the date of the Demand Notice, of at least $25 million (the “Minimum Amount”).
(ii) Within fifteen five Business Days (or if the Registration Statement will be a Shelf Registration Statement, within two Business Days) after the receipt of the Demand Notice, the Company shall give written notice of such Demand Notice to all Holders and, within 30 days after receipt of the Demand Notice (except if the Company is not then eligible to register for offer and resale the Registrable Securities on Form S-3, in which case, within forty-five 90 days thereof), the Company shall, subject to the limitations of this Section 2(a2(b), file a Registration Statement in accordance with the terms and conditions of, and the intended timing and method of disposition described in, the Demand Notice, which Registration Statement shall cover all of the Registrable Securities eligible for registration in accordance with Section 2(b)(x) that the Holders shall in writing request to be included in the Demand Registration (such request to be given to the Company within three Business Days (or if the Registration Statement will be a Shelf Registration Statement, within one Business Day) after receipt of notice of the Demand NoticeNotice given by the Company pursuant to this Section 2(b)(ii)). The Company shall use all commercially reasonable best efforts to cause such Registration Statement to become become, as soon as reasonably practicable after the filing thereof, and remain continuously, effective under the Securities Act until the earlier of (A) 180 days (or three years if a Shelf Registration Statement is requested) after the Effective Date of such Registration Statement or (B) the date on which all Registrable Securities covered by such Registration Statement have been sold or otherwise disposed of or such Shares are no longer Registrable Securities (the “Effectiveness Period”); provided, however, that such period shall be extended for a period of time equal to the period the Holders refrain from selling any securities included in such Registration Statement at the request of an underwriter of the Company or the Company pursuant to this Agreement.
(iii) Subject to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect (A) a Demand Registration within 90 days after the closing of any Requested Underwritten Offering or Offering, (B) more than a total of four Demand Registrations, and (C) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of the Registrable Securities held by the Initiating Holder Holders 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 disposition thereof specified in the Demand Notice; provided, that a demand for a Shelf Registration Statement shall not count against the number of allowable Demand Registrations for subclause (B) of this paragraph. No Demand Registration shall be deemed to have occurred for purposes of this Section 2(b)(iii) if the Registration Statement relating thereto does not become effective or is not maintained effective for its entire Effectiveness Period, in which case USBTC shall be entitled to an additional Demand Registration in lieu thereof. Further, a Demand Registration shall not constitute a Demand Registration for purposes of this Section 2(a)(iii) if, as a result of Section 2(b)(vi), there is included in the Demand Registration less than the Minimum Amount of Registrable Securities.
(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 a Holder to the effect USBTC that the Holder is USBTC (and/or other applicable Holders) are withdrawing an amount all of its their Registrable Shares Securities from the Demand Registration such that the remaining amount of Registrable Shares Securities to be included in the Demand Registration is below the Minimum Amount, the Company shall cease all efforts to secure effectiveness of the applicable Registration Statement. Such registration nonetheless shall be deemed a Demand Registration for purposes of Section 2(b)(iii) unless (A) USBTC shall have paid or reimbursed the Company for all reasonable and documented out-of-pocket fees and expenses incurred by the Company in connection with the withdrawn registration of such Registrable Securities (based on the number of securities USBTC sought to register, as compared to the total number of securities included in such Demand Registration) or (B) the withdrawal is made following the occurrence of a Material Adverse Change or pursuant to the Company’s request for suspension pursuant to Section 3(o).
(v) The Company may include in any such Demand Registration other Company Securities for sale for its own account or for the account of any other Person, subject to Section 2(c)(iii2(b)(vi) and Section 2(e)(iii).
(vi) In the case of a Demand Registration not being underwritten, if USBTC advises the Company that in its reasonable opinion the aggregate number of securities requested to be included in such registration exceeds the number that can be included without being likely to have a significant adverse effect on the price, timing or distribution of the securities offered or the market for the securities offered, the Company shall include in such Demand Registration only that number of securities that, in the reasonable opinion of USBTC, will not have such adverse effect, with such number to be allocated as follows: (A) first, pro-rata among all Holders (including USBTC) that have requested to participate in such Demand Registration based on the relative number of Registrable Securities then held by each such Holder, (B) second, if there remains availability for additional securities to be included in such Demand Registration, to the Company, and (C) third, if there remains availability for additional securities to be included in such Demand Registration following the allocation provided in clauses (A) and (B) above, to any other holders of Company Securities entitled to participate in such Demand Registration, if applicable, based on the relative number of Company Securities such holder is entitled to include in such Demand Registration.
(vii) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration on such appropriate registration form of the Commission (A) as shall be selected by the Company and (B) as shall permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the Demand Notice; provided provided, that if the Company becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to the Company). If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Company that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, the Company will shall amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(viiviii) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a2(b), the Company shall (A) promptly prepare and file or cause to be prepared and filed (1) such additional forms, amendments, supplements, prospectusesProspectuses, certificates, letters, opinions and other documents, documents as may be necessary or advisable to register or qualify the securities Registrable 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 such registration and (2) such forms, amendments, supplements, prospectusesProspectuses, 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..
(viiiix) 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 the transferee of such transferee Registrable Securities to offer and sell such Registrable Securities pursuant to such Registration Statement; provided 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 each other Holder 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.
(x) USBTC’s option and right with respect to Demand Registrations set forth in this Section 2(b) shall apply to the Registrable Securities as follows: (A) with respect to the Plan Sponsor Shares, immediately upon the earlier to occur of the expiration of the Lock- Up Period (as such term is defined in the Plan Sponsor Contribution Agreement) or, with respect to such Plan Sponsor Shares as shall have vested thereupon, the commencement of the Unlock Period (as such term is defined in the Plan Sponsor Contribution Agreement); (B) with respect to the Restricted Stock Agreement Shares, immediately upon the vesting of the Restricted Stock Agreement Shares in accordance with the terms of the Restricted Stock Agreement; (C) with respect to the Warrant Shares, immediately upon the Exercise Period Commencement Date (as such term is defined in the Warrant Agreements); and (D) with respect to such Shares that USBTC may acquire after the date hereof, upon the earliest to occur of the events set forth in subclauses (A), (B) or (C) of this Section 2(b)(x) following the acquisition of such Shares.
Appears in 1 contract
Samples: Investors’ and Registration Rights Agreement (Ionic Digital Inc.)
Demand Registration. (i) At any time after following the date that is 180 days following the Closing Date but prior to the expiration of the Lock-Up Effectiveness Period, any Holder shall have the option and right, exercisable by delivering a written notice to if the Company shall be requested (a “Demand NoticeRegistration Request”)) by Holders holding at least a majority of the then outstanding Registrable Securities to effect the registration under the Securities Act of Registrable Securities, to require then the Company toshall (i) within ten (10) days of the receipt of such Registration Request, pursuant give written notice of such request to all Holders describing the terms of such registration and, if applicable, the underwriting and subject (ii) as soon as practicable cause to the limitations contained in this Agreement, prepare be prepared and file filed with the Commission SEC a Registration Statement registering providing for the offering and sale resale of the number and type of all Registrable Securities on the terms and conditions specified in the Demand Notice, which may include sales on a delayed or continuous basis pursuant Holders request to Rule 415 pursuant to a Shelf be registered. The Registration Statement (a “Demand Registration”). The Demand Notice must set forth the number of Registrable Securities that the Initiating Holder intends to include in such Demand Registration and the intended methods of disposition thereof. Notwithstanding anything to the contrary herein, in no event shall the Company be required to effectuate a Demand Registration unless the Registrable Securities to be included therein have an aggregate value, based on the VWAP as of the date of the Demand Notice, of at least $25 million (the “Minimum Amount”).
(ii) Within fifteen Business Days after the receipt of the Demand Notice Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, within forty-five days thereof), the Company shall, subject to the limitations of this Section 2(a), file a Registration Statement in which case such registration shall be on another appropriate form in accordance with the terms and conditions of the Demand Noticeherewith). The Company shall use all commercially reasonable efforts to cause such the Registration Statement to become and remain be declared effective under the Securities Act as promptly as possible after the filing thereof. The Company shall keep the Registration Statement continuously effective under the Securities Act until the date when all Registrable Securities covered by such Registration Statement have been sold sold. The Company shall not be obligated to file and cause to become effective more than two (the “Effectiveness Period”).
(iii2) Subject to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect (A) a Demand Registration within 90 days after the closing of any Requested Underwritten Offering or (B) a subsequent Demand Registration Statements pursuant to a Demand Notice if a this Section 2(b). A Registration Statement covering shall not be counted for purposes of the foregoing until such time as such Registrations Statement has been declared effective by the SEC and all of the Registrable Securities held by offered pursuant to such Registration Statement are sold thereunder upon the Initiating Holder shall have become price and remains effective under terms offered. Notwithstanding anything to the Securities Act and is sufficient to permit offers and sales of contrary contained herein, the number and type amount 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 a Holder to the effect that the Holder is withdrawing an amount of its Registrable Shares from the Demand Registration such that the remaining amount of Registrable Shares required to be included in the Demand initial Registration is below the Minimum Amount, the Company shall cease all efforts to secure effectiveness of the applicable Registration Statement.
(v) The Company may include in any such Demand Registration other Company Securities for sale for its own account or for the account of any other Person, subject to Section 2(c)(iii).
(vi) Subject to the limitations contained Statement as described in this Agreement, Section 2(b) shall equal the Company shall effect any Demand Registration on such appropriate registration form lesser of (a) 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 amount of Registrable Securities shall be effected that Holders request to have so registered pursuant to an Automatic Shelf Registration Statement, this Section 2(b) and (b) the maximum amount of Registrable Securities which shall may be on Form S-3 or any equivalent or successor form under the Securities Act (if available to the Company). If at any time included in a Registration Statement on Form S-3 is effective and a Holder provides written notice to without exceeding the Company that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, the Company will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take placeRule 415 Amount.
(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
Demand Registration. After the second anniversary of the date of this ------------------- Agreement, upon receipt of a written request (a "Registration Request"), which -------------------- shall include a description of such Holders' proposed method of distribution (which method may also include an underwritten offering by a nationally recognized Underwriter selected by the Company and reasonably acceptable to the Registering Holders) from Holders holding a majority in interest of the Registrable Securities, the Company shall (i) At any time after the expiration promptly give notice of the LockRegistration Request to all non-Up Period, any Holder shall have the option requesting Holders 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 Commission a Commission, within 30 days after receipt of such Registration Statement registering Request, an amendment or supplement to the offering and Shelf Registration as may be required under Rule 424 or any similar rule under the Securities Act to permit the sale of the number and type of Registrable Securities on the terms and conditions specified in the Demand Noticemanner proposed in such Registration Request by the requesting Holders and any other Holder who makes a written request of the Company to have his Registrable Securities included in such offering, which may include sales on a delayed or continuous basis pursuant to Rule 415 pursuant to a Shelf Registration Statement (a “Demand Registration”). The Demand Notice such written request must set forth the number of Registrable Securities that the Initiating Holder intends to include in such Demand Registration and the intended methods of disposition thereof. Notwithstanding anything to the contrary herein, in no event shall be received by the Company be required to effectuate a Demand within 10 days after such Holder receives the Registration unless the Registrable Securities to be included therein have an aggregate valueRequest (all of such Holders, based on the VWAP as of the date of the Demand Notice, of at least $25 million (the “Minimum Amount”).
(ii) Within fifteen Business Days after the receipt of the Demand Notice (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, within forty-five days thereof)collectively, the Company shall, subject to the limitations of this Section 2(a"Registering Holders"), file a Registration Statement in accordance with the terms and conditions of the Demand Notice. The Company shall use all commercially reasonable -------------------- efforts to cause effect such Registration Statement as soon as practicable after its receipt of such Registration Request (including, without limitation, the execution of an undertaking to become file post-effective amendments and remain effective appropriate qualification under the Securities Act until all Registrable Securities covered by applicable state securities and real estate syndication laws). The Company shall keep such Registration Statement have been sold continuously effective until the earlier of either: (i) the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect (A) a Demand Registration within 90 days after the closing of any Requested Underwritten Offering or (B) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering date when 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 securities that were 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 date hereof have ceased to be Registrable Securities included in a Demand Registration or (ii) two (2) years from such Demand Registration at any time prior to the effectiveness effective date of the applicable Registration StatementRegistration. Upon receipt of a notice from a Holder to the effect that the Holder is withdrawing an amount of its Registrable Shares from the Demand Registration such that the remaining amount of Registrable Shares to be included in the Demand Registration is below the Minimum Amount, the Company shall cease all efforts to secure effectiveness of the applicable Registration Statement.
(v) The Company may include in any such Demand Registration other Company Securities for sale for its own account or for the account of any other Person, subject to Section 2(c)(iii).
(vi) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration on such appropriate registration form of the Commission (A) as shall be selected by the Company and (B) as shall permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the Demand Notice; provided that if the Company becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to the Company). If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Company that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, the Company will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(vii) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with Notwithstanding this Section 2(a2(b), the Company shall (A) promptly prepare and file or cause not be obligated to be prepared and filed (1) such additional forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents, as may be necessary or advisable take any action to register or qualify the securities subject to such Demand effect any Registration, including under the securities laws of such jurisdictions as the Holders shall reasonably request; provided, however, that no such qualification shall be required or compliance pursuant to this Section 2(b) in any particular jurisdiction where, as a result thereof, in which the Company would become subject be required to execute a general consent to service of process in effecting such Registration, qualification or compliance, unless the Company already is subject to taxation or qualification to do business service in such jurisdiction solely as a result of registration and jurisdiction. The Company shall not be required to effect more than two (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 Registrations 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 Holderthis Section 2(b).
Appears in 1 contract
Samples: Registration Rights Agreement (Prentiss Properties Trust/Md)
Demand Registration. (ia) At any time after On or prior to October 27, 2006 (the expiration of the Lock-Up Period, any Holder shall have the option and right, exercisable by delivering a written notice to the Company (a “Demand NoticeFiling Date”), to require the Company to, pursuant to the terms of and subject to the limitations contained in this Agreement, shall prepare and file with the Commission a the Registration Statement registering covering the offering and sale resale of all of the number and type of Registrable Securities on the terms (and conditions specified including, for purposes of this number, any securities which may be issuable upon any stock split, dividend or other distribution or recapitalization provision in the Demand Notice, which may include sales Warrants or in connection with any anti-dilution provisions in the Warrants) for an offering to be made on a delayed or continuous basis pursuant to Rule 415 pursuant 415. Subject to a Shelf the terms of this Agreement, the Company shall use its reasonable best efforts to cause the Registration Statement (a “Demand Registration”). The Demand Notice must set forth the number of Registrable Securities that the Initiating Holder intends to include in such Demand Registration and the intended methods of disposition thereof. Notwithstanding anything to the contrary herein, in no event shall the Company be required to effectuate a Demand Registration unless the Registrable Securities to be included therein have an aggregate valuedeclared effective under the Securities Act as promptly as possible after the filing thereof, based on the VWAP as of the date of the Demand Noticebut in any event prior to January 27, of at least $25 million 2007 (the “Minimum AmountEffectiveness Date”).
(ii) Within fifteen Business Days after , and shall use its reasonable best efforts to keep the receipt of the Demand Notice (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, within forty-five days thereof), the Company shall, subject to the limitations of this Section 2(a), file a Registration Statement in accordance with the terms and conditions of the Demand Notice. The Company shall use all commercially reasonable efforts to cause such Registration Statement to become and remain continuously effective under the Securities Act until the date which is two years after the date that the Registration Statement is declared effective by the Commission or such earlier date when all Registrable Securities covered by such the Registration Statement have been sold or may be sold without limitation due to volume restrictions (the “Effectiveness Period”).
. The Investor may sell such Registrable Securities in an offering pursuant to this Section 2 that is underwritten (iii) Subject to the other limitations contained in this Agreement“Underwritten Offering”). In an Underwritten Offering, the Company is not obligated hereunder to effect (A) investment banker or investment bankers and manager or managers that will administer the offering will be selected by the holders of a Demand Registration within 90 days after the closing of any Requested Underwritten Offering or (B) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all majority of the Registrable Securities held by included in the Initiating Holder offering, subject to approval of the Company (which will not be unreasonably withheld).
(b) A Registration Statement filed pursuant to the request of the Investor may include other securities of the Company with respect to which “piggy-back” registration rights have been granted, and may include securities of the Company being sold for the account of the Company; provided, however, that if the Company shall have become request inclusion in any registration pursuant to this Section 2 of the securities being sold for its own account, or if other persons shall request inclusion in any registration undertaken pursuant to this Section 2, the Investor shall, on behalf of all entities requesting inclusion in such registration, offer to include such securities in the offering; provided, however, that the Investor may condition any such offer on its acceptance of reasonable conditions (including, without limitation, if such offering is an Underwritten Offering, that the Company or any other such requesting holders agree in writing to enter into an underwriting agreement with usual and remains effective under customary terms). Notwithstanding any other provisions of this Section 2, if the Securities Act representative of the underwriters advises the Investor in writing that marketing factors require a limitation on the number of shares to be underwritten, the number of shares to be underwritten and is sufficient included in the registration shall be allocated: (i) first, to permit offers the Investor requiring registration, (ii) second, to the Company and sales (iii) third, to the other holders requesting inclusion in the registration, pro rata among the respective holders thereof on the basis of the number and type of Registrable Securities on shares for which each such requesting holder has requested registration. If a Person who has requested inclusion in such registration as provided above does not agree to the terms and conditions specified in of any such underwriting, such Person shall be excluded therefrom by written notice from the Demand Notice in accordance with Company, the intended timing and method underwriter or methods of distribution thereof specified in the Demand NoticeInvestor. The securities so excluded shall also be withdrawn from registration.
(ivc) A Holder may withdraw The Company shall immediately notify the Investor and such holders that were included in the registration (collectively, the “Holders”) via facsimile of the effectiveness of the Registration Statement on the same day that the Company receives notification of the effectiveness from the Commission.
(d) If: (i) a Registration Statement is not filed on or prior to its Filing Date (if the Company files a Registration Statement without affording the Holders the opportunity to review and comment on the same as required by Section 3(a) hereof, the Company shall not be deemed to have satisfied this clause (i)), or (ii) a Registration Statement is not declared effective by the Commission on or prior to its required Effectiveness Date, or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefore, such Registration Statement ceases for any reason to be effective and available to the Holders as to all or any portion of its Registrable Securities included in a Demand Registration from such Demand Registration which it is required to cover at any time prior to the effectiveness expiration of its Effectiveness Period, for an aggregate of 20 Trading Days for all such events (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i), and (ii) or for purposes of clause (iii) the date on which such 20 Trading Day period is exceeded, being referred to as and “Event Date”), then, in addition to any other rights available to the Holders under the Transaction Documents or under applicable law, (x) on each such Event Date the Company shall pay to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to 1.0% of the applicable Registration Statement. Upon receipt aggregate Subscription Amount of a notice from a such Holder pursuant to the effect that Purchase Agreement; and (y) on each monthly anniversary of each such Event Date thereof (if the Holder applicable Event shall not have been cured by such date) until the applicable Event is withdrawing an amount of its Registrable Shares from the Demand Registration such that the remaining amount of Registrable Shares to be included in the Demand Registration is below the Minimum Amountcured, the Company shall cease all efforts pay to secure effectiveness each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to 2.0% of the applicable Registration Statement.
(v) The Company may include in any aggregate Subscription Amount paid by such Demand Registration other Company Securities for sale for its own account or for the account of any other Person, subject to Section 2(c)(iii).
(vi) Subject Holder pursuant to the limitations contained in this Purchase Agreement, . If the Company shall effect fails to pay 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 liquidated damages pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under this Section in full within seven days after the Securities Act (if available to the Company). If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Company that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statementdate payable, the Company will amend pay interest thereon at a rate of 12% per annum (or supplement such Registration Statement as may lesser maximum amount that is permitted to be necessary paid by applicable law) to the Holder, accruing daily from the date such liquidated damages are due until such amounts, plus all such interest thereon, are paid in order full. The parties agree that the Company will not be liable for liquidated damages under this Section in respect of the Warrant Shares. The liquidated damages pursuant to enable such offering the terms hereof shall apply on a pro rata basis for any portion of a month prior to take placethe cure of an Event.
(viie) Without limiting Except as provided in Section 32(a) with respect to withdrawn Registration Statements, all Registration Expenses of the Investor incurred in connection with any Demand Registration the registration requested pursuant to and in accordance with this Section 2(a), the Company shall (A) promptly prepare and file or cause to 2 will 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 borne 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 thereofCompany.
(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: Registration Rights Agreement (Emerge Interactive Inc)
Demand Registration. (ia) At any time after For so long as the expiration Trust holds Trust Shares, upon written notice from Entergy, in the manner set forth in Section 9(i), requesting that the Company effect the registration under the Securities Act of all of the Lock-Up Period, any Holder shall have the option and right, exercisable Trust Shares by delivering a written notice to the Company (a “Demand Notice”), to require the Company to, pursuant to the terms means of and subject to the limitations contained in this Agreement, prepare and file with the Commission a Registration Statement registering the offering and sale of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice, which may include sales on a delayed or continuous basis pursuant to Rule 415 pursuant to a Shelf Registration Statement an Exchange Offer (a “Demand Registration”). The Demand Notice must set forth , which notice shall specify the number amount of Registrable Securities that the Initiating Holder intends Trust Shares proposed to include in such Demand Registration be registered and the intended methods method of disposition thereof. Notwithstanding anything to the contrary herein, in no event shall the Company be required to effectuate a Demand Registration unless the Registrable Securities to be included therein have an aggregate value, based on the VWAP as of the date of the Demand Notice, of at least $25 million (the “Minimum Amount”).
(ii) Within fifteen Business Days after the receipt of the Demand Notice (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, within forty-five days thereof)distribution, the Company shall, subject to the limitations of this Section 2(a), file a Registration Statement in accordance with the terms and conditions of the Demand Notice. The Company shall use all commercially its reasonable best efforts to cause such Registration Statement to become and remain effective effect, in the manner set forth in Section 4, the registration under the Securities Act until all Registrable Securities covered by of such Registration Statement have been sold (the “Effectiveness Period”).Trust Shares, provided that:
(iiii) Subject if, while a registration request is pending pursuant to the other limitations contained in this AgreementSection 2, the Company is not obligated hereunder to effect (A) determines, following consultation with and receiving advice from its legal counsel, that the filing or initial effectiveness of a Demand Registration within 90 days after registration statement or any amendment thereto or the closing sale or other transfer of any Requested Underwritten Offering or (B) a subsequent Demand Registration pursuant Trust Shares would require any Adverse Disclosure, upon notice to a Demand Notice if a Registration Statement covering all of the Registrable Securities held by the Initiating Holder shall have become and remains effective under the Securities Act and is sufficient to permit offers and sales of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice in accordance with the intended timing and method or methods of distribution thereof specified in the Demand Notice.
(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 a Holder to the effect that the Holder is withdrawing an amount of its Registrable Shares from the Demand Registration such that the remaining amount of Registrable Shares to be included in the Demand Registration is below the Minimum AmountEntergy, the Company shall cease all efforts not be required to secure effectiveness effect a registration pursuant to this Section 2 (a “Demand Suspension”) until the earlier of the applicable Registration Statement.
(v) The Company may include in any such Demand Registration other Company Securities for sale for its own account or for the account of any other Person, subject to Section 2(c)(iii).
(vi) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration on such appropriate registration form of the Commission (A) as shall the date upon which such Adverse Disclosure is otherwise disclosed to the public or ceases to be selected by the Company an Adverse Disclosure 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 45 days after the Company becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to the Company). If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Company that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, the Company will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(vii) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), the Company shall (A) promptly prepare and file or cause to be prepared and filed (1) such additional forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents, as may be necessary or advisable to register or qualify the securities subject to delivers such Demand Registration, including under the securities laws of such jurisdictions as the Holders shall reasonably requestSuspension; provided, however, that no such qualification the Company shall not be permitted to exercise a Demand Suspension more than two times. If a Demand Suspension occurs (or continues to occur) within 60 days of the Trust Expiration Date, the Trust Expiration Date shall be required extended until 60 days after such Demand Suspension has been terminated. In the case of a Demand Suspension, each of Entergy and the Trustee agrees to suspend use of the applicable prospectus and any free writing prospectuses in connection with any jurisdiction wheresale of, as or offer to sell, Trust Shares, upon receipt of a result thereof, notice with respect thereto and while such Demand Suspension is pending;
(ii) the Company would shall not be obligated to file a new registration statement relating to a registration request for an Exchange Offer pursuant to this Section 2 within a period of 45 days before the Trust Expiration Date; and
(iii) Entergy shall be allowed to request no more than one (1) Demand Registration with respect to the Trust Shares.
(b) Notwithstanding any other provision of this Agreement to the contrary, a registration requested by Entergy pursuant to this Section 2 shall not be deemed to have been effected (and, therefore, not requested for purposes of this Section 2), if: (i) the registration statement filed in connection therewith has not become effective; (ii) after such registration statement has become effective, it becomes subject to general service any stop order, or there is issued an injunction or other order or decree of process the SEC or to taxation other governmental agency or qualification to do business in such jurisdiction solely as court for any reason other than a result of registration misrepresentation or an omission by Entergy, which injunction, order or decree prohibits or otherwise materially and (2) such forms, amendments, supplements, prospectuses, certificates, letters, opinions adversely affects the offer 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 the Trust Shares so registered prior to the completion of the exchange thereof in accordance with the intended timing and method Exchange Offer set forth in the registration statement; or methods of distribution thereof(iii) the conditions to the Exchange Offer are not satisfied.
(viiic) In The Trustee shall have the event right to designate in consultation with the Company and Entergy (i) one or more nationally recognized investment bankers and managers to act as dealer manager in connection with an Exchange Offer (the “Dealer Manager”), (ii) an exchange agent, (iii) an information agent, and (iv) a Holder transfers Registrable Securities included on a Registration Statement and such Registrable Securities remain Registrable Securities following such transferdistribution agent, at in each case mutually acceptable to the request of such HolderCompany, the Company shall amend or supplement Trustee and Entergy (such Registration Statement as may acceptance not to be necessary in order to enable such transferee to offer unreasonably withheld). Schedule I sets forth a list of Dealer Managers, exchange agents, information agents and sell such Registrable Securities pursuant to such Registration Statement; provided distribution agents that in no event shall are pre-approved by 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.and Entergy.2
Appears in 1 contract
Demand Registration. (i) At Any Holder that holds any time after the expiration of the Lock-Up Period, any Holder Registrable Securities shall have the option and right, exercisable by delivering a written notice to the Company Triangle (a “Demand Notice,” and the Holder that delivers such a Demand Notice, the “Initiating Holder”), to require the Company Triangle to, pursuant to the terms of and subject to the limitations contained in this Agreement, prepare and file with the Commission a Registration Statement registering the offering and sale of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice in accordance with the intended timing and method or methods of distribution thereof specified in the Demand Notice, which may include sales on a delayed or continuous basis pursuant to Rule 415 pursuant to a Shelf Registration Statement (a “Demand Registration”). The Demand Notice must set forth the number of Registrable Securities that the Initiating Holder intends to include in such Demand Registration and the intended methods of disposition thereofRegistration. Notwithstanding anything to the contrary herein, in no event shall the Company Triangle be required to effectuate a Demand Registration unless the for Registrable Securities to be included therein have having an aggregate value, value of less than $30 million based on the VWAP of such Registrable Securities as of the date of the Demand Notice, of at least $25 million (the “Minimum Amount”).
(ii) Within fifteen five Business Days after of the receipt of the Demand Notice, Triangle shall give written notice of such Demand Notice (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3all Holders and, within forty-five days thereof)as soon as reasonably practicable thereafter, the Company shall, subject to the limitations of this Section 2(a), file a Registration Statement covering all of the Registrable Securities that the Holders shall in writing request (such request to be given to Triangle within three days of receipt of such notice of the Demand Notice given by Triangle pursuant to this Section 2(a)(ii)) to be included in such Demand Registration as promptly as practicable as directed by the Initiating Holder in accordance with the terms and conditions of the Demand Notice. The Company shall Notice and use all commercially reasonable efforts to cause such Registration Statement to become effective under the Securities Act and remain effective under the Securities Act until all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, the Company Triangle is not obligated hereunder to effect (A) a more than one Demand Registration within 90 days after the closing of in any Requested Underwritten Offering or 12 month period, (B) more than a total of three Demand Registrations pursuant to this Agreement and (C) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of the Registrable Securities held by the Initiating Holder Holders providing such Demand Notice shall have become effective under the Securities Act and remains effective under the Securities Act and is sufficient to permit offers and sales of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice in accordance with the intended timing and method or methods of distribution thereof specified in the Demand Notice.
(iv) A Holder may withdraw all Notwithstanding any other provision of this Section 2(a), Triangle shall not be required to effect a registration or file a Registration Statement (or any portion amendment thereto) for a period of its Registrable Securities included in up to 60 days, if (A) the Board determines that 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 a Holder to the effect that the Holder postponement is withdrawing an amount of its Registrable Shares from the Demand Registration such that the remaining amount of Registrable Shares to be included in the Demand Registration is below best interest of Triangle and its stockholders generally due to a pending transaction involving Triangle, (B) the Minimum AmountBoard determines such registration would render Triangle unable to comply with applicable securities laws or (C) the Board determines such registration would require disclosure of material information that Triangle has a bona fide business purpose for preserving as confidential (any such period, a “Blackout Period”); provided, however, that (i) in no event shall any Blackout Period together with any Suspension Period collectively exceed an aggregate of 120 days in any 12 month period, (ii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or any Suspension Period, Triangle shall not engage in any transaction involving the Company offer, issuance, sale, or purchase of Triangle Securities (whether for the benefit of Triangle or a third Person), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or in connection with the conversion or exercise of outstanding securities, including the Convertible Note, and (iii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall cease all efforts to secure effectiveness not file a registration statement (or any amendment or supplement thereto) for any other holder of the applicable Registration Statementregistration rights.
(v) The Company Triangle may include in any such Demand Registration other Company Triangle Securities for sale for its own account or for the account of any other Person; provided that if the managing underwriter, subject if any, for the Underwritten Offering determines that the type or number of Triangle Securities proposed to Section 2(c)(iii)be offered in such offering would likely have an adverse effect in any material respect on the price, timing or distribution of the Registrable Securities proposed to be included in such offering, the Registrable Securities to be sold by the Holders shall be included in such registration before any Triangle Securities proposed to be sold for the account of Triangle or any other Person.
(vi) Subject to the limitations contained in this Agreement, the Company Triangle shall effect any Demand Registration on such appropriate registration form of the Commission Form S-3 (A) as shall be selected by the Company and (B) as shall permit the disposition of except if Triangle is not then eligible to register for resale the Registrable Securities on Form S-3, in accordance with which case such Demand Registration shall be effected on another appropriate form for such purpose pursuant to the intended method or methods of disposition specified in the Demand Notice; provided that Securities Act) and if the Company Triangle becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to the CompanyTriangle). If ; provided, however, that if at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Company Triangle that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, the Company Triangle will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(vii) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), the Company shall Triangle shall, (A) promptly prepare and file or cause to be prepared and filed (1) such additional forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents, as may be necessary or advisable to register or qualify the securities subject to such Demand Registration, including under the securities laws of such jurisdictions states as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, the Company Triangle would become subject to general service of process or to taxation or qualification to do business in such jurisdiction solely as a result of registration and (2) such forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents as may be necessary to apply for listing or to list the Registrable Securities subject to such Demand Registration on the Trading Market and (B) do any and all other acts and things that may be reasonably 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: Registration Rights Agreement (Triangle Petroleum Corp)
Demand Registration. (ia) At any time after at least one hundred eighty (180) days following the expiration of Distribution, the 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, prepare and file with the Commission Stockholder may submit a Registration Statement registering the offering and sale Request for Demand Registration covering all or part of the number and type of his Registrable Securities on the terms and conditions specified in the Demand NoticeShares, which may include sales on a delayed or continuous basis pursuant to Rule 415 pursuant to a Shelf Registration Statement request must request registration of at least Two Hundred Fifty Thousand (a “Demand Registration”)250,000) Shares. The Demand Notice must set forth Registration Request shall state the number of Registrable Securities that the Initiating Holder intends Shares to include in such Demand Registration be registered and the intended methods plan of disposition distribution thereof. Notwithstanding anything eCost shall be obligated to honor Registration Requests to register Registrable Shares pursuant to this Section 2 on a total of only two (2) occasions. A request withdrawn pursuant to Subsection 2(c) hereof or deemed to be a Piggyback Registration pursuant to Subsection 2(d) hereof shall not be counted as a Registration Request. eCost shall be deemed to have satisfied its obligation under this Section 2 with respect to a Registration Request if a registration statement filed pursuant to a Registration Request becomes effective under the Act and remains effective for the period required hereby, or if the failure of such a registration statement to become or remain effective results primarily from any action or inaction of the Stockholder. Subject to the contrary hereinconditions and limitations of Section 4 hereof, in no event shall eCost will use commercially reasonable efforts to file a registration statement under the Company be required to effectuate a Demand Registration unless Act registering the Registrable Securities to be included therein have an aggregate value, based on the VWAP as of the date of the Demand Notice, of at least $25 million (the “Minimum Amount”).
(ii) Within fifteen Business Days after the receipt of the Demand Notice (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, Shares covered by a Registration Request within forty-five (45) days thereof), the Company shall, after it receives such Registration Request unless such Registration Request is withdrawn as permitted by Subsection 2(c) hereof.
(b) The right to Demand Registration is subject to the limitations of this procedures in Section 2(a), file a Registration Statement in accordance with 4 hereof and the terms following additional conditions and conditions of the Demand Notice. The Company shall use all commercially reasonable efforts to cause such Registration Statement to become and remain effective under the Securities Act until all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”).limitations:
(iiii) Subject to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect (A) a Demand Registration within 90 days after the closing of any Requested Underwritten Offering or (B) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of the Registrable Securities held by the Initiating Holder shall have become and remains effective under the Securities Act and is sufficient to permit offers and sales of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice in accordance with the intended timing and method or methods of distribution thereof specified in the Demand Notice.
(iv) A Holder The Stockholder may withdraw all or any portion of its the Stockholder's Registrable Securities included in a Demand Shares from the Registration from such Demand Registration Request at any time prior to the effectiveness time the registration statement becomes effective, provided that eCost may ignore a notice of withdrawal made within twenty-four (24) hours of the applicable time the registration statement becomes effective. Following such a withdrawal, eCost shall not take any further action to register the withdrawn Registrable Shares, and shall not be obligated to register any Registrable Shares if the number of non-withdrawn Registrable Shares is less than Two Hundred Fifty Thousand (250,000) Shares. However, except as otherwise provided in Subsection 2(c) or (d) hereof, a Registration Statement. Upon receipt Request, once made, shall count as having been made for purposes of a notice from a Holder Subsection 2(a), unless it is withdrawn by the Stockholder making such request within fifteen (15) days after having been made or it is withdrawn before eCost devotes any significant efforts to the effect that preparation of the Holder is withdrawing an amount of its Registrable Shares from the registration statement.
(ii) Unless otherwise agreed to by eCost, any Demand Registration must relate to a firm commitment underwriting for which the managing underwriter shall be reasonably satisfactory to eCost (such that satisfaction not to be withheld unreasonably) or a non-underwritten offering on a "shelf" basis in accordance with Rule 415 under the remaining amount Act.
(iii) eCost shall be permitted to use any registration form available to it for the registration of Registrable Shares Shares, and shall not be obligated to include in the prospectus any information that may be incorporated by reference or that is not required to be included in the Demand Registration is below the Minimum Amount, the Company shall cease all efforts to secure effectiveness of therein by the applicable Registration Statementregistration form.
(viv) The Company No Registration Request may include be made by the Stockholder if the amount of shares proposed to be sold could be sold by the Stockholder without limitation under Rule 144 under the Act.
(c) Notwithstanding the foregoing, if eCost is aware at the time it receives a Registration Request that a registered public sale of Shares is being contemplated or is in any the process of being prepared (except as provided in Section 7 hereof), it will notify the Stockholder of the relevant facts, and the Stockholder who joined such Demand Registration other Company Securities Request shall have the right to withdraw the request by written notice given to eCost within ten (10) days after eCost's notice under this Subsection 2(c), in which case such Registration Request will be deemed not to have been made for sale for its own account or for the account purposes of any other Person, subject to Section 2(c)(iiiSubsection 2(a).
(vid) Subject For an additional ninety (90) days following the date on which the Stockholder may first submit a Registration Request for Demand Registration, eCost will be entitled to the limitations contained include Shares in this Agreement, the Company shall effect any Demand Registration on such appropriate registration form and to reduce the number of Shares to be sold by the Stockholder thereunder to a minimum of twenty percent (20%), collectively, 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 total offering plus any offering and selling of Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to the Company)underwriters' over-allotment option. If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Company that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, the Company will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(vii) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), the Company shall (A) promptly prepare and file or cause to be prepared and filed (1) such additional forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents, as may be necessary or advisable to register or qualify the securities subject to such Demand Registration, including under the securities laws of such jurisdictions as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction whereIf, as a result thereofof this cutback procedure, the Company would become subject to general service number of process or to taxation or qualification to do business Shares sold by the Stockholder in such jurisdiction solely offering constitutes less than the number of Shares requested to be registered by the Stockholder, the registration would be treated as a result of registration Piggyback Registration under Section 3 below, 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 Request will be necessary in order deemed not 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 undermade for purposes of Subsection 2(a) such Registration Statement, other than the Holder, Affiliates of the Holder or transferees of the Holderhereof.
Appears in 1 contract
Demand Registration. (ia) At If the Buyer receives a request from the Seller that the Buyer file a registration statement on Form S-1 (a “Registration Statement”) to register the resale of any time after the expiration of the Lock-Up Period, any Holder shall have Conversion Shares (the option and right, exercisable “Registrable Securities”) held by delivering a written notice to the Company Seller (a the “Demand Notice”), to require then the Company toBuyer shall as soon as practicable, pursuant to and in any event within thirty (30) days after the terms of and subject to date such request is given by the limitations contained in this AgreementSeller, prepare and file with the Commission a Registration Statement registering under the offering and sale Securities Act covering the resale of the number and type of all Registrable Securities on that the terms and conditions specified in the Demand NoticeSeller requested to be registered, which may include sales on a delayed or continuous basis pursuant subject to Rule 415 pursuant to a Shelf Registration Statement (a “Demand Registration”). The Demand Notice must set forth potential reduction of the number of Registrable Securities that to be registered for resale in the Initiating Holder intends to include in such Demand applicable Registration and the intended methods of disposition thereof. Notwithstanding anything Statement (“Cut Back Shares”) pursuant to the contrary hereinrequirements of the SEC (“Registration Reduction”). In the event of a Registration Reduction, immediately after the Company is able to effect the registration of the Cut Back Shares, the Company shall file and cause to be declared effective such additional Registration Statements in the time frame set forth herein as necessary to ultimately cause to be covered by effective Registration Statements all Registrable Securities.
(b) The Buyer shall use its reasonably best efforts to cause a Registration Statement to be declared effective under the Securities Act as soon as practicable but in no event shall the Company be required to effectuate a Demand Registration unless the Registrable Securities to be included therein have an aggregate value, based on the VWAP as of the date of the Demand Notice, of at least $25 million later than ninety (the “Minimum Amount”).
(ii90) Within fifteen Business Days days after the receipt of the Demand Notice (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, within forty-five days thereof), the Company shall, subject to the limitations of this Section 2(a), file a such Registration Statement in accordance is initially filed with the terms and conditions of the Demand NoticeSEC. The Company shall hereby also agrees to use all commercially its reasonable best efforts to cause such keep the Registration Statement to become and remain Statements continuously effective under the Securities Act until all the Seller no longer owns any Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”)Securities.
(iiic) Subject The Buyer shall pay the Registration Expenses relating to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect (A) a Demand Registration within 90 days after the closing of any Requested Underwritten Offering or (B) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all registration 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 Securities. “Registration Expenses” means all or any portion of its Registrable Securities included in a Demand Registration from such Demand Registration at any time prior expenses incident to the effectiveness Company's performance of or compliance with this Warrant, including all registration and filing fees, fees and expenses of compliance with securities or blue sky laws, printing expenses, messenger and delivery expenses, expenses and fees for listing the applicable Registration Statement. Upon receipt of a notice from a Holder to the effect that the Holder is withdrawing an amount of its Registrable Shares from the Demand Registration such that the remaining amount of Registrable Shares securities to be included in the Demand Registration is below the Minimum Amount, the Company shall cease all efforts to secure effectiveness of the applicable Registration Statement.
(v) The Company may include in any such Demand Registration other Company Securities for sale for its own account or for the account of any other Person, subject to Section 2(c)(iii).
(vi) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration registered on such appropriate registration form of the Commission (A) as shall be selected exchanges on which similar securities issued by the Company are then listed, and (B) as shall permit the disposition fees and disbursements of the Registrable Securities in accordance with the intended method or methods of disposition specified in the Demand Notice; provided that if counsel for the Company becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to the Company). If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Company that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, the Company will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(vii) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), the Company shall (A) promptly prepare and file or cause to be prepared and filed (1) such additional forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents, as may be necessary or advisable to register or qualify the securities subject to such Demand Registration, including under the securities laws of such jurisdictions as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, the Company would become subject to general service of process or to taxation or qualification to do business in such jurisdiction solely as a result of registration and (2) such forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents as may be necessary to apply for listing or to list the Registrable Securities subject to such Demand Registration on the Trading Market and (B) do any and all other acts and things that may be reasonably necessary or appropriate or reasonably requested by the Holders to enable the Holders to consummate a public sale of such Registrable Securities in accordance with the intended timing and method or methods of distribution thereof.
(viii) In the event a Holder transfers Registrable Securities included on a Registration Statement and such Registrable Securities remain Registrable Securities following such transfer, at the request of such Holder, the Company shall amend or supplement such Registration Statement as may be necessary in order to enable such transferee to offer and sell such Registrable Securities pursuant to such Registration Statement; provided that in no event shall the Company be required to file a post-effective amendment to the Registration Statement unless (A) such Registration Statement includes only Registrable Securities held by the Holder, Affiliates of the Holder or transferees of the Holder or (B) the Company has received written consent therefor from a Person for whom Registrable Securities have been registered on (but not yet sold under) such Registration Statement, other than of counsel to the Holder) and of all independent certified public accountants, Affiliates of underwriters and other persons retained by the Holder or transferees of the HolderCompany.
Appears in 1 contract
Demand Registration. (ia) At any time after time, upon the expiration written demand of the Lock-Up Period, any Holder shall have to the option and rightCompany (a "DEMAND REGISTRATION") requesting that the Company effect the registration under the Securities Act of Registrable Securities of such Holder, exercisable the Company will promptly give written notice (a "DEMAND NOTICE") of such demand to all other Holders. Each other Holder may request that the Company effect the registration under the Securities Act of additional Registrable Securities of such Holder by delivering a written notice to the Company specifying such number of Registrable Securities within twenty (20) days of receipt of the Demand Notice. Within such 20-day period the Company shall give written notice (a “Demand Notice”), "REGISTRATION NOTICE") to require all Holders that the Company to, will be filing a Registration Statement pursuant to this Section 2.1(a).
(b) The Company is obligated to effect only two (2) Demand Registrations under Section 2.1(a); provided, however, that (i) a registration will not constitute a Demand Registration under Section 2.1(a) until it has been declared effective under the terms Securities Act and (ii) if a registration statement filed pursuant to Section 2.1(a) is terminated or withdrawn by the Company before the end of the Effectiveness Period, such registration will not constitute a Demand Registration and subject the Company shall be obligated to pay the expenses of an additional Demand Registration under Section 2.1(a).
(c) On or prior to the limitations contained in this Agreement, Filing Date the Company shall prepare and file with the Commission a Registration Statement registering covering the offering and sale of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice, which may include sales for an offering to be made on a delayed or continuous basis pursuant to Rule 415 pursuant to a Shelf 415. The Registration Statement (a “Demand Registration”). The Demand Notice must set forth the number of Registrable Securities that the Initiating Holder intends to include in such Demand Registration and the intended methods of disposition thereof. Notwithstanding anything to the contrary herein, in no event shall the Company be required to effectuate a Demand Registration unless the Registrable Securities to be included therein have an aggregate value, based on the VWAP as of the date of the Demand Notice, of at least $25 million (the “Minimum Amount”).
(ii) Within fifteen Business Days after the receipt of the Demand Notice Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, within forty-five days thereofin which case such registration shall be on another appropriate form in accordance herewith), . The Company shall cause the Company shall, subject to the limitations of this Section 2(a), file a Registration Statement in accordance with the terms to become effective and conditions of the Demand Noticeremain effective as provided herein. The Company shall use all commercially reasonable its best efforts to cause such the Registration Statement to become and remain be declared effective under the Securities Act as promptly as possible after the filing thereof, but in any event no later than the Effectiveness Date. The Company shall use its best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier date of when (i) all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect (A) a Demand Registration within 90 days after the closing of any Requested Underwritten Offering or (Bii) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of the Registrable Securities held by the Initiating Holder shall have become and remains effective may be sold immediately without registration under the Securities Act and is sufficient without volume restrictions pursuant to permit offers Rule 144(k), as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and sales of acceptable to the number Company's transfer agent and type of Registrable Securities on the terms and conditions specified in affected Holders (the Demand Notice in accordance with the intended timing and method or methods of distribution thereof specified in the Demand Notice"EFFECTIVENESS PERIOD").
(ivd) A Holder may withdraw If: (i) the Registration Statement is not filed on or prior to the Filing Date; (ii) the Registration Statement is not declared effective by the Commission by the Effectiveness Date; (iii) after the Registration Statement is filed with and declared effective by the Commission, the Registration Statement ceases to be effective (by suspension or otherwise) as to all or any portion of its Registrable Securities included in a Demand Registration from such Demand Registration to which it is required to relate at any time prior to the effectiveness expiration of the applicable Registration Statement. Upon receipt Effectiveness Period (without being succeeded immediately by an additional registration statement filed and declared effective) for a period of a notice from a Holder to the effect that the Holder is withdrawing an amount of its Registrable Shares from the Demand Registration such that the remaining amount of Registrable Shares to be included time which shall exceed thirty (30) days in the Demand aggregate per year or more than twenty (20) consecutive calendar days (defined as a period of 365 days commencing on the date the Registration Statement is below declared effective); or (iv) the Minimum AmountCommon Stock is not listed or quoted, or is suspended from trading on any Trading Market for a period of three (3) consecutive Trading Days (provided the Company shall cease all efforts not have been able to secure effectiveness cure such trading suspension within thirty (30) days of the applicable Registration Statement.
notice thereof or list the Common Stock on another Trading Market); (v) The Company may include in any such Demand Registration other Company Securities failure or breach being referred to as an "EVENT," and for sale for its own account purposes of clause (i) or (ii) the date on which such Event occurs, or for purposes of clause (iii) the account of any other Person, subject to Section 2(c)(iii).
date which such thirty (vi30) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration on such appropriate registration form of the Commission day or twenty (A20) as shall be selected by the Company and consecutive day period (B) as shall permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the Demand Notice; provided that if the Company becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to the Company). If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Company that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, the Company will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(vii) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), the Company shall (A) promptly prepare and file or cause to be prepared and filed (1) such additional forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents, as may be necessary or advisable to register or qualify the securities subject to such Demand Registration, including under the securities laws of such jurisdictions as the Holders shall reasonably requestcase may be) is exceeded, or for purposes of clause (iv) the date on which such three (3) Trading Day period is exceeded, being referred to as "EVENT DATE"; provided, however, that no such qualification with respect to the Event Date referred to in clause (ii) above, the Event Date shall be required in any jurisdiction where, extended for such time as the Effectiveness Date is delayed as a direct result thereof, of the Company would become subject receiving comments 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 transferfrom the Commission that delays effectiveness of the Registration Statement so long as the Company has promptly responded to the Commission's comments), at then until the request of such Holderapplicable Event is cured, the Company shall amend or supplement pay to each Holder an amount in cash, as liquidated damages and not as a penalty, equal to 1.0% for each thirty (30) day period (prorated for partial periods) on a daily basis of the original principal amount of the Note. While such Registration Statement Event continues, such liquidated damages shall be paid not less often than each thirty (30) days. Any unpaid liquidated damages as may of the date when an Event has been cured by the Company shall be necessary paid within three (3) days following the date on which such Event has been cured by the Company.
(e) Within three (3) Business Days of the Effectiveness Date, the Company shall cause its counsel to issue a blanket opinion, in order a form acceptable to enable such transferee the Holders, to offer the transfer agent stating that the shares are subject to an effective registration statement and sell such Registrable Securities pursuant to such Registration Statement; can be reissued free of restrictive legend upon notice of a sale by the Holders and confirmation by the Holders that they have complied with the prospectus delivery requirements, 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 not advised the transfer agent orally or in writing that the opinion has been registered on (but not yet sold under) such Registration Statement, other than the Holder, Affiliates withdrawn. Copies of the Holder or transferees of blanket opinion required by this Section 2.1(e) shall be delivered to the HolderHolders within the time frame set forth above.
Appears in 1 contract
Samples: Investor Rights Agreement (Morton Industrial Group Inc)
Demand Registration. (a) (i) At any time after the expiration of the Lock-Up Period, any Holder Distribution shall have the option and right, exercisable by delivering a written notice to on not more than four occasions in the Company (a “Demand Notice”)aggregate, and no more frequently than once during any six-month period, to require the Company toto register for offer and sale under the Securities Act (a "Demand") all or a portion of the Registrable Securities held by Distribution, pursuant to the terms of and subject to the limitations contained in restrictions set forth herein; provided that Distribution shall not 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 Distribution a notice pursuant to this AgreementSection 2(a) (a "Demand Notice"), prepare demanding that the Company register for offer and sale under the Securities Act Registrable Securities, subject to Section 2(b), the Company shall (i) use all reasonable efforts to file as promptly as reasonably practicable with the Commission a Registration Statement registering relating to the offering offer and sale of the number and type of Registrable Applicable Securities on such form as the terms and conditions specified in Company may reasonably deem appropriate (provided that the Demand NoticeCompany shall not, which may include sales unless the Company otherwise determines, be obligated to register any securities on a "shelf" registration statement or otherwise to register securities for offer or sale on a continuous or delayed or continuous basis pursuant to Rule 415 pursuant to a Shelf Registration Statement (a “Demand Registration”). The Demand Notice must set forth the number of Registrable Securities that the Initiating Holder intends to include in such Demand Registration and the intended methods of disposition thereof. Notwithstanding anything to the contrary hereinbasis) and, in no event shall the Company be required to effectuate a Demand Registration unless the Registrable Securities to be included therein have an aggregate valuethereafter, based on the VWAP as of the date of the Demand Notice, of at least $25 million (the “Minimum Amount”).
(ii) Within fifteen Business Days after the receipt filing of an initial version of the Demand Notice (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3Registration Statement, within forty-five days thereof), the Company shall, subject to the limitations of this Section 2(a), file a Registration Statement in accordance with the terms and conditions of the Demand Notice. The Company shall use all commercially reasonable efforts to cause such Registration Statement to become and remain be declared effective under the Securities Act until all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect (A) a Demand Registration within 90 days as promptly as practicable after the closing date of any Requested Underwritten Offering or (B) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all filing 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 a Holder to the effect that the Holder is withdrawing an amount of its Registrable Shares from the Demand Registration such that the remaining amount of Registrable Shares to be included in the Demand Registration is below the Minimum Amount, the Company shall cease all efforts to secure effectiveness of the applicable Registration Statement.
(v) The Company may include in any such Demand Registration other Company Securities for sale for its own account or for the account of any other Person, subject to Section 2(c)(iii).
(vi) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration on such appropriate registration form of the Commission (A) as shall be selected by the Company and (B) as shall permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the Demand Notice; provided that if the Company becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to the Company). If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Company that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, the Company will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(vii) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), the Company shall (A) promptly prepare and file or cause to be prepared and filed (1) such additional forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents, as may be necessary or advisable to register or qualify the securities subject to such Demand Registration, including under the securities laws of such jurisdictions as the Holders shall reasonably request; provided, however, that no such qualification Distribution shall not be required in any jurisdiction where, entitled to be named as a result thereof, selling securityholder in the Company would become subject to general service of process Registration Statement or to taxation or qualification to do business in such jurisdiction solely as use the Prospectus forming a result part thereof for resales 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 unless Distribution has made an Election. 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 HolderSection 2(b), the Company shall amend or supplement use reasonable efforts to keep each Registration Statement continuously effective in order to permit the Prospectus forming a part thereof to be usable by Distribution for resales of Registrable Securities for an Effectiveness Period ending on the earlier of (i) 30 days from the Effective Time of 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 (Aii) such Registration Statement includes only Registrable Securities held time as all of such securities have been disposed of 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 Holderselling securityholders.
Appears in 1 contract
Samples: Registration Rights Agreement (Crown Media Holdings Inc)
Demand Registration. (i) At any time during the Exercise Period, the Holders of all of the outstanding Registrable Securities ("Demanding Holders") may give Pegasystems written notice that such Demanding Holders desire to sell Registrable Securities in a transaction involving a public distribution. Promptly after receipt of such notice, Pegasystems and the Demanding Holders shall discuss the feasibility of arranging for a sale of such Registrable Securities pursuant to Rule 144 that would enable such Demanding Holders to dispose of such Registrable Securities within a single thirty-day distribution period commencing not later than thirty (30) days after the expiration date of the Lock-Up Period, any Holder shall have the option and right, exercisable by delivering a such written notice and with respect to which the Demanding Holders would not be required to register and would be permitted to freely sell such Registrable Securities under any applicable state securities laws (a "Non-Registered Distribution"). If required as a condition to the Company availability of Rule 144 for such a Non-Registered Distribution, the Holders shall utilize the Cashless Exercise Option in acquiring the Registrable Securities to be sold in such Non-Registered Distribution. However, the Demanding Holders may at any time following the initiation of such discussions request in writing (a “"Demand Notice”), to require the Company to, pursuant to the terms of and subject to the limitations contained in this Agreement, prepare and Request") that Pegasystems file with the Commission a Registration Statement registering registration statement under the Securities Act for a public offering and sale of the number and type of such Registrable Securities (a "Demand Registration") and Pegasystems shall be obligated to prepare and file such registration statement 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”). The Demand Notice must set forth the number of Registrable Securities that the Initiating Holder intends to include in such Demand Registration and the intended methods of disposition thereof. Notwithstanding anything to the contrary hereinbelow unless, in no event shall the Company be required to effectuate a Demand Registration unless the Registrable Securities to be included therein have an aggregate value, based on the VWAP as of the date of the Demand Notice, of at least $25 million within ten (the “Minimum Amount”).
(ii10) Within fifteen Business Days days after the receipt of the such Demand Notice Request, Pegasystems either (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, within forty-five days thereof), the Company shall, subject to the limitations of this Section 2(a), file a Registration Statement in accordance with the terms and conditions of the Demand Notice. The Company shall use all commercially reasonable efforts to cause such Registration Statement to become and remain effective under the Securities Act until all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”).
(iiii) Subject to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect (A) a Demand Registration within 90 days after the closing of any Requested Underwritten Offering or (B) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of the Registrable Securities held by the Initiating Holder shall have become and remains effective under the Securities Act and is sufficient to permit offers and sales of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice in accordance with the intended timing and method or methods of distribution thereof specified in the Demand Notice.
(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 delivers to the effectiveness of the applicable Registration Statement. Upon receipt of a notice from a Holder Demanding Holders an unqualified opinion in form and substance reasonably satisfactory to the effect Demanding Holders of nationally recognized counsel reasonably satisfactory to the Demanding Holders and with expertise in securities laws concluding that the Holder is withdrawing an amount of its Registrable Shares from the Demand Registration such that the remaining amount of Registrable Shares to be included in the Demand Registration is below the Minimum Amount, the Company shall cease all efforts to secure effectiveness of the applicable Registration Statement.
(v) The Company Demanding Holders may include in any such Demand Registration other Company Securities for sale for its own account or for the account of any other Person, subject to Section 2(c)(iii).
(vi) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration on such appropriate registration form of the Commission (A) as shall be selected by the Company and (B) as shall permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the Demand Notice; provided that if the Company becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to the Company). If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Company that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, the Company will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(vii) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), the Company shall (A) promptly prepare and file or cause to be prepared and filed (1) such additional forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents, as may be necessary or advisable to register or qualify the securities subject to such Demand Registration, including under the securities laws of such jurisdictions as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, the Company would become subject to general service of process or to taxation or qualification to do business in such jurisdiction solely as a result of registration and (2) such forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents as may be necessary to apply for listing or to list sell the Registrable Securities subject to such the Demand Registration on the Trading Market Request in a Non-Registered Distribution without violating and in accordance with applicable securities laws and (B) do agrees to indemnify such Demanding Holders against any and all other acts and things that may Damages suffered or incurred by such Demanding Holders directly or indirectly resulting from such opinion proving to be reasonably necessary incorrect in whole or appropriate in part or reasonably requested by the Holders (ii) elects to enable the Holders exercise its Call Right with respect to consummate a public sale of such Registrable Securities Securities. If the conditions described in accordance either clause (i) or (ii) of the preceding sentence are met, Pegasystems shall have no obligation to take any further action under this Section 7 with respect to such Demand Request. Notwithstanding any provision to the intended timing and method or methods of distribution thereof.
(viii) In the event contrary contained herein, Pegasystems shall have no obligation to effect a Holder transfers Demand Registration unless all Registrable Securities are 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 Holdertherein.
Appears in 1 contract
Samples: Warrant Agreement (Pegasystems Inc)
Demand Registration. (ia) At If the Company shall receive at any time after the expiration six month anniversary of the Lock-Up Perioddate hereof, any Holder shall have the option and right, exercisable by delivering a written notice to request from the Holders of a majority in interest of the Registrable Securities (the “Initiating Holders”) that the Company file a registration statement under the Securities Act of 1933, as amended, (a the “Securities Act”), then the Company shall, within fifteen (15) days after the receipt of such written request, give written notice of such request (the “Demand Notice”)) to all Holders, to require the Company to, pursuant to the terms of and subject to the limitations contained in this Agreement, prepare and file with the Commission a Registration Statement registering under the offering and sale Securities Act of the number and type of all Registrable Securities on by 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 Filing Date. The Registration Statement (a “Demand Registration”). The Demand Notice must set forth the number of Registrable Securities that the Initiating Holder intends to include in such Demand Registration and the intended methods of disposition thereof. Notwithstanding anything to the contrary herein, in no event required hereunder shall the Company be required to effectuate a Demand Registration unless the Registrable Securities to be included therein have an aggregate value, based on the VWAP as of the date of the Demand Notice, of at least $25 million (the “Minimum Amount”).
(ii) Within fifteen Business Days after the receipt of the Demand Notice Form SB-2 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3SB-2, within forty-five days thereof), in which case the Company shall, subject to the limitations of this Section 2(a), file a Registration Statement in accordance with shall be on another appropriate form). The Registration Statement required hereunder shall contain the terms and conditions Plan of Distribution, attached hereto as Annex A (which may be modified to respond to comments, if any, received by the Demand NoticeCommission). The Company shall (i) not permit any securities other than the Registrable Securities to be included in the Registration Statement and (ii) use all commercially reasonable its best efforts to cause the Registration Statement to be declared effective under the Securities Act as promptly as possible after the filing thereof, and to keep such Registration Statement to become and remain continuously effective under the Securities Act until such date as is the earlier of (x) the date when all Registrable Securities covered by such Registration Statement have been sold or (y) the date on which the Registrable Securities may be sold without any restriction pursuant to Rule 144(k) as determined by the counsel to the Company pursuant to a written opinion letter, addressed to the Company's transfer agent to such effect (the “Effectiveness Period”).
(iiib) Subject Notwithstanding anything to the other limitations contained contrary set forth in this AgreementSection 2, in the event the Commission does not permit the Company is not obligated hereunder to effect (A) a Demand Registration within 90 days after the closing of any Requested Underwritten Offering or (B) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering register all of the Registrable Securities held by in the Initiating Holder shall have become and remains effective under the Securities Act and is sufficient to permit offers and sales Registration Statement because of the Commission’s application of Rule 415, the Company shall register in the Registration Statement such number and type of Registrable Securities on as is permitted by the terms and conditions specified in Commission, provided, however, that the Demand Notice in accordance with the intended timing and method or methods number 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 a Holder to the effect that the Holder is withdrawing an amount of its Registrable Shares from the Demand Registration such that the remaining amount of Registrable Shares to be included in such Registration Statement or any subsequent registration statement shall be determined in the Demand Registration is below the Minimum Amountfollowing order: (i) first, the Company shall cease all efforts to secure effectiveness shares of Common Stock issuable upon conversion of the applicable Registration Statement.
Notes shall be registered on a pro rata basis among the holders of such Notes and (vii) The Company may include in any such Demand Registration other Company Securities for sale for its own account or for the account of any other Person, subject to Section 2(c)(iii).
(vi) Subject to the limitations contained in this Agreementsecond, the Company shall effect any Demand Registration on such appropriate registration form shares of Common Stock issuable upon exercise of the Commission (A) as Series A Warrants shall be selected by registered on a pro rata basis among the holders of such Series A Warrants. In the event the Commission does not permit the Company and (B) as shall permit the disposition to register all of the Registrable Securities in accordance with the intended method or methods of disposition specified in the Demand Notice; provided that if the Company becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to an Automatic Shelf initial Registration Statement, which the Company shall be on Form S-3 or any equivalent or successor form under use its best efforts to file subsequent Registration Statements to register the Registrable Securities Act (if available to that were not registered in the Company). If at any time a initial Registration Statement on Form S-3 is effective as promptly as possible and in a Holder provides written notice manner permitted by the Commission. For purposes of this Section 2(b), “Filing Date” means with respect to each subsequent Registration Statement filed pursuant hereto, the Company that it intends to effect an offering later of (i) sixty (60) days following the sale of substantially all or part of the Registrable Securities included on such in the initial Registration Statement or any subsequent Registration Statement and (ii) six (6) months following the effective date of the initial Registration Statement or any subsequent Registration Statement, as applicable, or such earlier date as permitted by the Company will amend or supplement Commission. For purposes of this Section 2(b), “Effectiveness Date” means with respect to each subsequent Registration Statement filed pursuant hereto, the earlier of (A) the one hundred twentieth (120th) day following the filing date of such Registration Statement as may be necessary (or 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 receives a post-effective amendment to the Registration Statement unless (A) such Registration Statement includes only Registrable Securities held “full review” by the HolderCommission, Affiliates of the Holder or transferees of the Holder one hundred fortieth (140th) day following such filing date) or (B) the date which is within three (3) Business Days after the date on which the Commission informs the Company has received written consent therefor from a Person for whom Registrable Securities have been registered on (but i) that the Commission will not yet sold under) review such Registration Statement, other than Statement or (ii) that the Holder, Affiliates Company may request the acceleration of the Holder or transferees effectiveness of such Registration Statement and the HolderCompany makes such request.
Appears in 1 contract
Samples: Registration Rights Agreement (Juma Technology Corp.)
Demand Registration. (i) At any time after the expiration of the Lock-Up Period, any Holder Holder(s) 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, prepare and file with the Commission a Registration Statement registering the offering and sale of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice, which may include sales on a delayed or continuous basis pursuant to Rule 415 pursuant to a Shelf Registration Statement (a “Demand Registration”). The Demand Notice must set forth the number of Registrable Securities that the Initiating Holder intends Holder(s) intend to include in such Demand Registration and the intended methods of disposition thereof. Notwithstanding anything to the contrary herein, in no event shall the Company be required to effectuate a Demand Registration unless the Registrable Securities of the Initiating Holder(s) and their respective Affiliates to be included therein have an aggregate value, based on the VWAP as of the date of the Demand Notice, of at least $25 million [●] or all of the Registrable Securities then held by such Initiating Holder (the “Minimum Amount”).
(ii) Within fifteen 45 Business Days after the receipt of the Demand Notice (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, within forty-five 60 days thereof), the Company shall, subject to the limitations of this Section 2(a2(b), file a Registration Statement in accordance with the terms and conditions of the Demand Notice. The Company shall use all commercially reasonable efforts to cause such Registration Statement to become and remain effective as soon as reasonably practicable after the filing thereof under the Securities Act until all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect (A) file more than three registrations for each Holder or its affiliates as requested in a Demand Registration by such Holder or its affiliates pursuant to this Section 2(b); (B) file any Registration Statement pursuant to a Demand Registration within 90 days after the closing of any Requested Underwritten Offering, unless as a result of Section 2(e), the Requested Underwritten Offering includes less than (the “Requested Underwritten Offering Minimum Condition”) the lesser of (i) Registrable Securities of the Initiating Holder(s) having an aggregate value, based on the VWAP as of the effective date of the related Registration Statement, of $[●], and (ii) two-thirds of the number of Registrable Securities the Initiating Holder(s) set forth in the applicable Underwritten Offering Notice, or (BC) effect a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of the Registrable Securities held by the Initiating Holder Holder(s) shall have become and remains effective under the Securities Act and is sufficient to permit offers and sales of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice in accordance with the intended timing and method or methods of distribution thereof specified in the Demand Notice. No Demand Registration shall be deemed to have occurred for purposes of this Section 2(b)(iii) if the Registration Statement relating thereto does not become effective or is not maintained effective for its entire Effectiveness Period, in which case the Initiating Holder(s) shall be entitled to an additional Demand Registration in lieu thereof.
(iv) A Holder may withdraw all or any portion of its Registrable Securities included in a Demand Registration from such Demand Registration at any time prior to the effectiveness of the applicable Registration Statement. Upon receipt of a notice from a an Initiating Holder to the effect that the such Initiating Holder is withdrawing an amount of its Registrable Shares from the Demand Registration Securities such that the remaining amount of Registrable Shares Securities to be included in the Demand Registration is below the Minimum Amount, the Company shall cease all efforts to secure effectiveness of the applicable Registration Statement.
(v) The Company may include in any such Demand Registration other Company Securities for sale for its own account or for the account of any other Person, subject to Section 2(c)(iii2(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 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), and shall not count as one of the two Demand Registrations for purposes of Section 2(b)(iii). If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Company that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, the Company will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(vii) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), the Company shall (A) promptly prepare and file or cause to be prepared and filed (1) such additional forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents, as may be necessary or advisable to register or qualify the securities subject to such Demand Registration, including under the securities laws of such jurisdictions as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, the Company would become subject to general service of process or to taxation or qualification to do business in such jurisdiction solely as a result of registration and (2) such forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents as may be necessary to apply for listing or to list the Registrable Securities subject to such Demand Registration on the Trading Market and (B) do any and all other acts and things that may be reasonably necessary or appropriate or reasonably requested by the Holders to enable the Holders to consummate a public sale of such Registrable Securities in accordance with the intended timing and method or methods of distribution thereof.
(viii) In the event a Holder transfers Registrable Securities included on a Registration Statement and such Registrable Securities remain Registrable Securities following such transfer, at the request of such Holder, the Company shall amend or supplement such Registration Statement as may be necessary in order to enable such transferee to offer and sell such Registrable Securities pursuant to such Registration Statement; provided that in no event shall the Company be required to file a post-effective amendment to the Registration Statement unless (A) such Registration Statement includes only Registrable Securities held by the Holder, Affiliates of the Holder or transferees of the Holder or (B) the Company has received written consent therefor from a Person for whom Registrable Securities have been registered on (but not yet sold under) such Registration Statement, other than the Holder, Affiliates of the Holder or transferees of the Holder.
Appears in 1 contract
Samples: Registration Rights Agreement (OneWater Marine Inc.)
Demand Registration. (i) 2.1.1 At any time after the expiration of the Lock-Up Periodand from time to time, any a 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, prepare and file with the Commission a Registration Statement registering the offering and sale of the number and type or Holders of Registrable Securities on the terms and conditions specified holding 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”). The Demand Notice must set forth aggregate at least 50% of the number of then existing Registrable Securities that may make a one-time written request upon the Initiating Holder intends Company, to include in file, within 60 days after such Demand Registration written request is made, with the Securities and Exchange Commission a shelf registration statement covering the intended methods of disposition thereof. Notwithstanding anything to the contrary herein, in no event shall the Company be required to effectuate a Demand Registration unless the Registrable Securities to be included therein have an aggregate value, based on the VWAP as resale of the date of Shares on an appropriate form promulgated by the Demand Notice, of at least $25 million Commission (the “Minimum Amount”"Registration Statement").
(ii) Within fifteen Business Days after the receipt of the Demand Notice (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, within forty-five days thereof), the Company shall, subject to the limitations of this Section 2(a), file a Registration Statement in accordance with the terms and conditions of the Demand Notice. The Company shall use all commercially its reasonable best efforts to cause such Registration Statement to become effective as soon as practicable and remain effective under to cause the Securities Act until all Registrable Securities covered by Shares to be qualified in such Registration Statement have been sold (state jurisdictions as the “Effectiveness Period”)Holder may request.
(iii) Subject to the other limitations contained in this Agreement2.1.2 Except as set forth herein, the Company is not obligated hereunder shall take all reasonable steps necessary to effect keep the Registration Statement current and effective until the earlier of (Ai) a Demand Registration within 90 days after the closing of any Requested Underwritten Offering one (1) year or (Bii) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering until all of the Registrable Securities held by the Initiating Holder shall have become and remains effective are transferable pursuant to Rule 144 under the Securities Act and is sufficient without the volume limitations set forth in such rule.
2.1.3 The Company shall be entitled to permit offers and require that the parties refrain from effecting any public sales or distributions of the number and type Registrable Securities pursuant to a Registration Statement that has been declared effective by the Commission or otherwise, if the board of directors of the Company reasonably determines that such public sales or distributions would interfere in any material respect with any transaction involving the Company that the board of directors reasonably determines to be material to the 77 Company or determines that the Holder of Registrable Securities on is an "insider" with respect to material non-public information. The board of directors shall, as promptly as practicable, give the terms and conditions specified in Holders of 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 written notice of any such development. In the event of a Demand Registration from such Demand Registration at any time prior to request by the effectiveness board of directors of the applicable Registration Statement. Upon receipt of a notice from a Holder to the effect Company that the Holder is withdrawing an amount of its Registrable Shares from the Demand Registration such that the remaining amount Holders of Registrable Shares to be included in Securities refrain from effecting any public sales or distributions of the Demand Registration is below the Minimum AmountRegistrable Securities, the Company shall cease all efforts be required to secure effectiveness of the applicable Registration Statement.
(v) The Company may include in any lift such Demand Registration other Company Securities for sale for its own account restrictions regarding effecting public sales or for the account of any other Person, subject to Section 2(c)(iii).
(vi) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration on such appropriate registration form of the Commission (A) as shall be selected by the Company and (B) as shall permit the disposition distributions of the Registrable Securities in accordance with as soon as reasonably practicable after the intended method board of directors shall reasonably determine public sales or methods of disposition specified in distributions by the Demand Notice; provided that if the Company becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to the Company). If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Company that it intends to effect an offering of all or part Holders of the Registrable Securities included on shall not interfere with such Registration Statementtransaction, 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 3PROVIDED, 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 any requirement that the Company be required to file a post-effective amendment to the Registration Statement unless (A) such Registration Statement includes only Holders of Registrable Securities held by refrain from effecting public sales or distributions in 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 extend for more than the Holder, Affiliates of the Holder or transferees of the Holder90 days.
Appears in 1 contract
Demand Registration. (i) At Upon request from any Holder at any time after the expiration of 180th day after the Lock-Up Perioddate hereof, any Holder the Partnership 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, prepare and file with the Commission a Registration Statement registering registration statement under the offering and sale Securities Act providing for the resale of the number and type Registrable Securities, which may, at the option of the Holder making such request, be a registration statement that provides for the resale of the Registrable Securities on the terms and conditions specified in the Demand Notice, which may include sales on a delayed or continuous basis from time to time pursuant to Rule 415 pursuant to a Shelf under the Securities Act (the “Registration Statement (a “Demand RegistrationStatement”). The Demand Notice must set forth the number of Registrable Securities that the Initiating Holder intends to include in such Demand Registration and the intended methods of disposition thereof. Notwithstanding anything to the contrary herein, in no event shall the Company be required to effectuate a Demand Registration unless the Registrable Securities to be included therein have an aggregate value, based on the VWAP as of the date of the Demand Notice, of at least $25 million (the “Minimum Amount”).
(ii) Within fifteen Business Days after the receipt of the Demand Notice (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, within forty-five days thereof), the Company shall, subject to the limitations of this Section 2(a), file a Registration Statement in accordance with the terms and conditions of the Demand Notice. The Company Partnership shall use all its commercially reasonable efforts to cause such the Registration Statement to become be declared effective by the Commission as soon as reasonably practicable after the initial filing of the Registration Statement. The Registration Statement shall provide for the resale pursuant to any method or combination of methods legally available to, and remain effective under requested by, the Holders of any and all Registrable Securities Act covered by such Registration Statement. The Partnership shall use its commercially reasonable efforts to cause the 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 available for the resale of all Registrable Securities by the Holders until all Registrable Securities covered by such Registration Statement have been sold ceased to be Registrable Securities (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect (A) a Demand Registration within 90 days after the closing of any Requested Underwritten Offering or (B) a subsequent Demand Registration pursuant to a Demand Notice if a . The Registration Statement covering when effective (and the documents incorporated therein by reference) shall comply as to form in all material respects with all applicable requirements of the Registrable Securities held by the Initiating Holder shall have become and remains effective under the Securities Act and is sufficient shall not contain an untrue statement of a material fact or omit to permit offers and sales state a material fact required to be stated therein or necessary to make the statements therein not misleading. As soon as practicable following the date that the Registration Statement becomes effective, but in any event within two (2) business days of such date, the number and type Partnership shall provide the Holders with written notice 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 a Each Holder to the effect that the Holder is withdrawing an amount of its Registrable Shares from the Demand Registration such that the remaining amount of Registrable Shares to be included in the Demand Registration is below the Minimum Amount, the Company shall cease all efforts to secure effectiveness of the applicable Registration Statement.
(v) The Company may include in any such Demand Registration other Company Securities for sale for its own account or for the account of any other Person, subject to Section 2(c)(iii).
(vi) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration on such appropriate registration form of the Commission (A) as shall be selected by the Company and (B) as shall permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the Demand Notice; provided that if the Company becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant limited to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to the Company). If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Company that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, the Company will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(vii) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), the Company shall (A) promptly prepare and file or cause to be prepared and filed one (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 demand registration under the securities laws of such jurisdictions as the Holders shall reasonably request; this Section 2.01 in any twelve-month period (provided, however, that no such qualification there 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 no limit on the Trading Market and (B) do any and all other acts and things number of Shelf Registration Statements that may be reasonably necessary or appropriate or reasonably requested required by the Holders hereunder), and the Partnership shall not be obligated to enable file more than one (1) Registration Statement within 120 days after the Holders effective date of any Registration Statement filed by the Partnership. Once a Holder’s Registrable Securities become eligible for resale without restriction and without the need for current public information pursuant to consummate a public sale any section of Rule 144 (or any similar provision then in effect) under the Securities Act, assuming the Holder of such Registrable Securities is not an affiliate (as defined in accordance Rule 144(a)(1) under the Securities Act) of the Partnership, such Holder may, at any time, request that the Partnership take such steps as are reasonably necessary to deregister such Holder’s Registrable Securities. In connection with such request, such Holder’s rights under this Agreement shall all be terminated, including without limitation the intended timing right to demand an Underwritten Offering and method or methods of distribution thereof.
(viii) In the event right to participate in a Holder transfers Registrable Securities included on a Registration Statement Piggyback Registration, and such Registrable Securities remain Registrable Securities following such transferHolder shall no longer be subject to any obligations under this Agreement, at including without limitation the request of such Holder, the Company shall amend or supplement such Registration Statement as may be necessary in order obligation to enable such transferee to offer and sell such Registrable Securities enter into letter agreements with underwriters 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 HolderSection 2.12.
Appears in 1 contract
Samples: Registration Rights Agreement (PennTex Midstream Partners, LP)
Demand Registration. (i) At any time after the expiration of the Lock-Up Period, any Holder Any Holder(s) 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, prepare and file with the Commission a Registration Statement registering the offering and sale of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice, which may include sales on a delayed or continuous basis pursuant to Rule 415 pursuant to a Shelf Registration Statement (a “Demand Registration”). The Demand Notice must set forth the number of Registrable Securities that the Initiating Holder intends Holder(s) intend to include in such Demand Registration and the intended methods of disposition thereof. Notwithstanding anything to the contrary herein, in no event shall the Company be required to effectuate a Demand Registration unless the Registrable Securities of the Initiating Holder(s) and their respective Affiliates to be included therein have an aggregate value, based on the VWAP as of the date of the Demand Notice, of at least $25 50 million (the “Minimum Amount”).
(ii) Within fifteen five Business Days (or if the Registration Statement will be a Shelf Registration Statement or relates to an Overnight Underwritten Offering or “bought deal,” within two Business Days) after the receipt of a Demand Notice, the Company shall give written notice of such Demand Notice to all Holders and, within 60 Business Days after the receipt of the Demand Notice (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, within forty-five 45 days thereof), the Company shall, subject to the limitations of this Section 2(a), file a Registration Statement in accordance with the terms and conditions of, and the intended timing and method of disposition described in, the Demand Notice, which Registration Statement shall cover all of the Registrable Securities that the Holders shall in writing request to be included in the Demand Registration (such request to be given to the Company within three Business Days after receipt of notice of the Demand NoticeNotice given by the Company pursuant to this Section 2(a)(ii)). The Company shall will use all commercially reasonable efforts to cause such Registration Statement to become and remain effective as soon as reasonably practicable after the filing thereof under the Securities Act until the earlier of (A) 180 days (or three years if a Shelf Registration Statement is requested) after the Effective Date of such Registration Statement or (B) the date on which all Registrable Securities covered by such Registration Statement have been sold or otherwise disposed of or such Shares are no longer Registrable Securities (the “Effectiveness Period”); provided, however, that such period shall be extended for a period of time equal to the period the Holders refrain from selling any securities included in such Registration Statement at the request of an underwriter of the Company or the Company pursuant to this Agreement.
(iii) Subject to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect (A) file any Registration Statement pursuant to a Demand Registration within 90 days after the closing of any a Requested Underwritten Offering, unless as a result of Section 2(d), the Requested Underwritten Offering includes less than (the “Requested Underwritten Offering Minimum Condition”) the lesser of (1) Registrable Securities of the Initiating Holder(s) having an aggregate value, based on the VWAP as of the effective date of the related Registration Statement, of $50 million, and (2) two-thirds of the number of Registrable Securities the Initiating Holder(s) set forth in the applicable Underwritten Offering Notice, or (B) effect a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of the Registrable Securities held by the Initiating Holder Holder(s) shall have become and remains effective under the Securities Act and is sufficient to permit offers and sales of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice in accordance with the intended timing and method or methods of distribution thereof specified in the Demand Notice. No Demand Registration shall be deemed to have occurred for purposes of this Section 2(a)(iii) if the Registration Statement relating thereto does not become effective or is not maintained effective for its entire Effectiveness Period, in which case the Initiating Holder(s) shall be entitled to an additional Demand Registration in lieu thereof.
(iv) A Holder may withdraw all or any portion of its Registrable Securities included in a Demand Registration from such Demand Registration at any time prior to the effectiveness of the applicable Registration Statement. Upon receipt of a notice from an Initiating Holder that such 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 from the Demand Registration Securities such that the remaining amount of Registrable Shares Securities to be included in the Demand Registration is below the Minimum Amount, the Company shall cease all efforts to secure effectiveness of the applicable Registration Statement. Such registration nonetheless shall be deemed a Demand Registration with respect to an Initiating Holder for purposes of Section 2(a)(iii) unless (A) the Initiating Holder shall have paid or reimbursed the Company for its pro rata share of all reasonable and documented out-of-pocket fees and expenses incurred by the Company in connection with the withdrawn registration of such Registrable Securities (based on the number of securities such Initiating Holder sought to register, as compared to the total number of securities included in such Demand Registration) or (B) the withdrawal is made following the occurrence of a Material Adverse Change or pursuant to the Company’s request for suspension pursuant to Section 3(o).
(v) The Company may include in any such Demand Registration other Company Securities for sale for its own account or for the account of any other Person, subject to Section 2(c)(iii2(d).
(vi) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration on such appropriate registration form of the Commission (A) as shall be selected by the Company and (B) as shall permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the Demand Notice; provided that if the Company becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to the Company). If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Company that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, the Company will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(vii) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), the Company shall (A) promptly prepare and file or cause to be prepared and filed (1) such additional forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents, as may be necessary or advisable to register or qualify the securities subject to such Demand Registration, including under the securities laws of such jurisdictions as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, the Company would become subject to general service of process or to taxation or qualification to do business in such jurisdiction solely as a result of registration and (2) such forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents as may be necessary to apply for listing or to list the Registrable Securities subject to such Demand Registration on the Trading Market and (B) do any and all other acts and things that may be reasonably necessary or appropriate or reasonably requested by the Holders to enable the Holders to consummate a public sale of such Registrable Securities in accordance with the intended timing and method or methods of distribution thereof.
(viii) In the event a Holder transfers Registrable Securities included on a Registration Statement and such Registrable Securities remain Registrable Securities following such transfer, at the request of such Holder, the Company shall amend or supplement such Registration Statement as may be necessary in order to enable such transferee to offer and sell such Registrable Securities pursuant to such Registration Statement; provided that in no event shall the Company be required to file a post-effective amendment to the Registration Statement unless (A) such Registration Statement includes only Registrable Securities held by the Holder, Affiliates of the Holder or transferees of the Holder or (B) the Company has received written consent therefor from a Person for whom Registrable Securities have been registered on (but not yet sold under) such Registration Statement, other than the Holder, Affiliates of the Holder or transferees of the Holder.
Appears in 1 contract
Samples: Registration Rights Agreement (Atlas Energy Solutions Inc.)
Demand Registration. (ia) At any time In the event that the Company has not filed a registration statement pursuant to Section 2.1 above within 6 months after the expiration Maturity Date, the Holders of at least 50% in interest of the Lock-Up Period, any Holder shall have the option and right, exercisable by delivering Common Stock may make a written notice to demand of the Company to register all of the Common Stock issuable upon conversion of the Notes. The Company shall, within 45 days of receiving such demand (a the “Demand NoticeDate”), to require the Company to, pursuant to the terms of and subject to the limitations contained in this Agreement, shall prepare and file with the Commission a the Registration Statement registering covering the offering and sale resale of all of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice, which may include sales for an offering to be made on a delayed or continuous basis pursuant to Rule 415 415. The Registration Statement required hereunder shall be on Form S-1 or Form S-3, as applicable. Subject to the terms of this Agreement, the Company shall use its commercially reasonable efforts to cause the Registration Statement to be declared effective under the Securities Act as promptly as possible after the filing thereof, but in any event not later than 180 days after the filing of such Registration Statement (the “Demand Effective Date”), and shall use its commercially reasonable efforts to keep the Registration Statement continuously effective under the Securities Act until the date when all Registrable Securities covered by the Registration Statement have been sold or may be sold pursuant to Rule 144 as determined by counsel to the Company pursuant to a Shelf Registration Statement written opinion letter to such effect, addressed and acceptable to the Company’s transfer agent and the Holder (a the “Demand RegistrationEffectiveness Period”). The Demand Notice must set forth maximum amount of Registrable Securities that may be included in a Registration Statement at any one time shall be limited by Rule 415 as required by the Commission. In the event that there is a limitation by the Commission on the number of Registrable Securities that the Initiating Holder intends to include in such Demand Registration and the intended methods of disposition thereof. Notwithstanding anything to the contrary herein, in no event shall the Company be required to effectuate a Demand Registration unless the Registrable Securities to may be included therein have an aggregate value, based on the VWAP as of the date of the Demand Notice, of for registration at least $25 million (the “Minimum Amount”).
(ii) Within fifteen Business Days after the receipt of the Demand Notice (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, within forty-five days thereof), the Company shall, subject to the limitations of this Section 2(a), file a Registration Statement in accordance with the terms and conditions of the Demand Notice. The Company shall use all commercially reasonable efforts to cause such Registration Statement to become and remain effective under the Securities Act until all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect (A) a Demand Registration within 90 days after the closing of any Requested Underwritten Offering or (B) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of the Registrable Securities held by the Initiating Holder shall have become and remains effective under the Securities Act and is sufficient to permit offers and sales of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice in accordance with the intended timing and method or methods of distribution thereof specified in the Demand Notice.
(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 a Holder to the effect that the Holder is withdrawing an amount of its Registrable Shares from the Demand Registration such that the remaining amount of Registrable Shares to be included in the Demand Registration is below the Minimum Amountone time, the Company shall cease all use its reasonable best efforts to secure effectiveness file an additional Registration Statement covering such ineligible Registrable Securities within 30 days of the applicable date such securities become eligible and to make such Registration StatementStatement be declared effective by the Commission as soon as practicably possible.
(vb) The Company may include in any such Demand If: (i) a Registration other Company Securities for sale for its own account Statement is not filed on or for the account of any other Person, subject to Section 2(c)(iii).
(vi) Subject prior to the limitations contained in this AgreementDemand Date, or (ii) the Company shall effect any Demand Registration on such appropriate registration form of fails to file with the Commission (A) as shall be selected by the Company and (B) as shall permit the disposition of the Registrable Securities a request for acceleration in accordance with the intended method or methods of disposition specified in the Demand Notice; provided that if the Company becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form Rule 461 promulgated under the Securities Act Act, within 5 trading days of the date that the Company is notified (if available to orally or in writing, whichever is earlier) by the Company). If at any time Commission that a Registration Statement on Form S-3 will not be “reviewed,” or is effective and not subject to further review, or (iii) a Holder provides written notice to the Company that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, the Company will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(vii) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), the Company shall (A) promptly prepare and file filed or cause required to be prepared and filed (1) such additional forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents, as may be necessary hereunder is not declared effective by the Commission on or advisable to register or qualify before 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 Effectiveness Date as a result of registration and (2) such forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents as may be necessary the failure of the Company to apply for listing or to list the Registrable Securities subject meet its obligations with respect to such Demand Registration on the Trading Market and filing as provided for herein, or (Biv) 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 after a Registration Statement and such Registrable Securities is first declared effective by the Commission, it ceases for any reason to remain Registrable Securities following such transfer, at the request of such Holder, the Company shall amend or supplement such Registration Statement continuously effective 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 or the Holder is not permitted to utilize the Prospectus therein to resell such Registrable Securities, for in any such case 30 consecutive days but no more than an aggregate of 60 days (which need not be consecutive days) during any 12-month period during which the Holder is not permitted to sell such Registrable Securities under Rule 144 (any such failure or breach being referred to as an “Demand Event,” and for purposes of clause (i) or (iii) the date on which such Event occurs, or for purposes of clause (ii) the date on which such 5 trading day period is exceeded, or for purposes of clause (iv) the date on which such 30-day or 60-day period, as applicable, is exceeded being referred to as “Demand Event Date”), then: (x) on the first Demand Event Date to occur the Company shall pay to such Holder an amount, at the election of the Holder Company, in cash or transferees in Common Stock, as liquidated damages and not as a penalty, equal to 1.0% of the aggregate purchase price paid by such Holder pursuant to the Subscription Agreement for any Registrable Securities then held by such Holder for which such Holder has not received liquidated damages pursuant to Section 2.4 below; and (y) on each anniversary of such Demand Event Date (if the applicable Event, or (Bany subsequent Event, shall not have been cured by such date) until all Event(s) are cured, the Company has received written consent therefor from shall pay to such Holder an amount, as determined by the Company, in cash or in Common Stock, as liquidated damages and not as a Person penalty, equal to 1.0% of the aggregate purchase price paid by such Holder pursuant to the Subscription Agreement for whom any Registrable Securities have been then held by such Holder for which such Holder has not received liquidated damages pursuant to Section 2.4 below. In determining the number of shares of Common Stock payable to the Holder, the 20-day average closing price of the Common Stock ending on the Demand Event Date shall be used. If the Company fails to pay any liquidated damages pursuant to this Section in full within seven days after the date payable, the Company will pay interest thereon at a rate of 10% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The liquidated damages pursuant to the terms hereof shall apply on a daily pro-rata basis for any portion of a year prior to the cure of a Demand Event.
2.3 Notwithstanding any other provision of this Section 2, if the Commission determines that the number of securities that the Company may register on the Registration Statement pursuant to Rule 415 is limited such that the shares so registered thereunder shall exclude any Registrable Securities held by the Holder, then the Company shall promptly so advise the Holder and the Company shall use commercially reasonable efforts to effect the registration of any Registrable Securities, not so included on (but not yet sold under) such the Registration Statement, other than on a pro-rata basis, as a result thereof as soon as is legally possible to do so. In such event, the Company shall pay to such Holder liquidated damages as set forth hereof with respect to any Registrable Securities then held by the Holder that were not registered by the Effectiveness Date.
2.4 The parties acknowledge and agree that (i) the maximum amount of damages that the Company shall be obligated to pay the Holder for any and all breaches of this Section 2 is the amount of liquidated damages set forth in Section 2.1 or 2.2, and (ii) such liquidated damages shall be the sole remedy available to Holder for any breach of this Agreement, provided that nothing in this Section 2.4 shall preclude Holder from seeking injunctive relief, including specific performance of its rights under this Section 2.
2.5 At any time after a Registration Statement has become effective, the Company may, upon giving prompt written notice of such action to the Holder, Affiliates suspend the use of any such Registration Statement if, in the good faith judgment of the Holder Company, the use of a Registration Statement covering the Registrable Securities would be detrimental to the Company or transferees its stockholders at such time and the Company concludes, as a result, that it is in the best interests of the Company or its stockholders to suspend the use of such Registration Statement at such time. The Company shall have the right to suspend such Registration Statement for a period of not more than thirty (30) consecutive days from the date the Company notifies the Holder of such suspension, with such suspension not exceed an aggregate of sixty (60) days (whether or not consecutive) during any 12-month period. In the case of the suspension of any effective Registration Statement, the Holder, immediately upon receipt of notice thereof from the Company, will discontinue any sales of Registrable Securities pursuant to such Registration Statement until advised in writing by the Company that the use of such Registration Statement may be resumed.
Appears in 1 contract
Demand Registration. (i) At any time after Upon the expiration of the Lock-Up Period, any Holder shall have the option and right, exercisable by delivering a written notice to the Company request (a “Demand Notice”)) by one or more Holders, to require the Company to, pursuant to the terms of and subject to the limitations contained in this Agreement, prepare and EVA shall promptly file with the Commission a Registration Statement registering Commission, as soon as reasonably practicable, but in no event more than 30 days following the offering and sale receipt of the number and type Notice, a registration statement (each, a “Registration Statement”) under the Securities Act providing for the resale of the Registrable Securities on (which may, at the terms and conditions specified in option of the Demand Holders giving such Notice, which may include sales on be a delayed or continuous basis registration statement under the Securities Act that provides for the resale of the Registrable Securities pursuant to Rule 415 pursuant from time to a Shelf Registration Statement time by the Holders (a “Demand RegistrationShelf Registration Statement”)). The Demand Notice must set forth the number of Registrable Securities that the Initiating Holder intends to include in such Demand Registration and the intended methods of disposition thereof. Notwithstanding anything to the contrary herein, in no event shall the Company be required to effectuate a Demand Registration unless the Registrable Securities to be included therein have an aggregate value, based on the VWAP as of the date of the Demand Notice, of at least $25 million (the “Minimum Amount”).
(ii) Within fifteen Business Days after the receipt of the Demand Notice (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, within forty-five days thereof), the Company shall, subject to the limitations of this Section 2(a), file a Registration Statement in accordance with the terms and conditions of the Demand Notice. The Company EVA shall use all its commercially reasonable efforts to cause such each Registration Statement to be declared effective by the Commission or otherwise become effective as soon as reasonably practicable after the initial filing of the Registration Statement. Any Registration Statement shall provide for the resale pursuant to any method or combination of methods legally available to, and remain effective under requested by, the Holders of any and all Registrable Securities Act covered by such Registration Statement. EVA 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 available for the resale of all Registrable Securities by the Holders until all Registrable Securities covered by such Registration Statement have been sold ceased to be Registrable Securities (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect (A) a Demand Registration within 90 days after the closing of any Requested Underwritten Offering or (B) a subsequent Demand Registration pursuant to a Demand Notice if a . Each Registration Statement covering when effective (and the documents incorporated therein by reference) shall comply as to form in all material respects with all applicable requirements of the Registrable Securities held by the Initiating Holder shall have become and remains effective under the Securities Act and is sufficient shall not contain an untrue statement of a material fact or omit to permit offers and sales of state a material fact required to be stated therein or necessary to make the statements therein not misleading. There shall be no limit on 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 a Holder to the effect that the Holder is withdrawing an amount of its Registrable Shares from the Demand Registration such that the remaining amount of Registrable Shares to be included in the Demand Registration is below the Minimum Amount, the Company shall cease all efforts to secure effectiveness of the applicable Registration Statement.
(v) The Company may include in any such Demand Registration other Company Securities for sale for its own account or for the account of any other Person, subject to Section 2(c)(iii).
(vi) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration on such appropriate registration form of the Commission (A) as shall be selected by the Company and (B) as shall permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the Demand Notice; provided that if the Company becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to the Company). If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Company that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, the Company will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(vii) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), the Company shall (A) promptly prepare and file or cause to be prepared and filed (1) such additional forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents, as may be necessary or advisable to register or qualify the securities subject to such Demand Registration, including under the securities laws of such jurisdictions as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, the Company would become subject to general service of process or to taxation or qualification to do business in such jurisdiction solely as a result of registration and (2) such forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents as may be necessary to apply for listing or to list the Registrable Securities subject to such Demand Registration on the Trading Market and (B) do any and all other acts and things Statements that may be reasonably necessary or appropriate or reasonably requested required 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 thereofhereunder.
(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: Registration Rights Agreement (Enviva Partners, LP)
Demand Registration. (ia) At If at any time after prior to the expiration fifth anniversary of the Lock-Up Period, any Holder date of consummation of the Company’s initial public offering the Company shall have the option and right, exercisable by delivering receive a written notice to the Company request (a “Demand Notice”), to require ) from the Demand Committee that the Company to, pursuant to effect the terms registration under the Securities Act of and subject to the limitations contained in this Agreement, prepare and file with the Commission a Registration Statement registering the offering and sale all or any portion of 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 Notice (a “Demand Registration”). The Demand Notice must , specifying the information set forth under Section 2.7(i), then the Company shall use its commercially reasonable efforts to effect, as expeditiously as reasonably practicable, subject to the restrictions in Section 2.4, the registration under the Securities Act of the Registrable Securities for which the Demand Committee has requested registration under this Section 2.2, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as specified) of such Registrable Securities. If the Demand Committee elects to effect a Demand Registration, the provisions of Section 2.5(a) with respect to the notices required and the determination of the number of Registrable Securities that the Initiating Holder intends to include in such Demand Registration and the intended methods of disposition thereof. Notwithstanding anything to the contrary herein, in no event shall the Company be required to effectuate a Demand Registration unless the Piggyback Registrable Securities to be included therein have an aggregate valuein a Piggyback Registration shall apply mutatis mutandis to such Demand Registration, based on but the VWAP inclusion of such Registrable Securities pursuant to this Section 2.2 shall be treated as of the date part of the Demand Notice, of at least $25 million (the “Minimum Amount”)Registration and not as a Piggyback Registration hereunder.
(iib) Within fifteen Business Days after the receipt The Demand Committee may request an unlimited number of the Demand Notice (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, within forty-five days thereof), the Company shall, subject to the limitations of this Section 2(a), file a Registration Statement in accordance with the terms and conditions of the Demand Notice. The Company shall use all commercially reasonable efforts to cause such Registration Statement to become and remain effective under the Securities Act until all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect (A) a Demand Registration within 90 days after the closing of any Requested Underwritten Offering or (B) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of the Registrable Securities held by the Initiating Holder shall have become and remains effective under the Securities Act and is sufficient to permit offers and sales of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice in accordance with the intended timing and method or methods of distribution thereof specified in the Demand Notice.
(iv) A Holder may withdraw all or any portion of its Registrable Securities included in a Demand Registration from such Demand Registration Registrations at any time prior to the effectiveness fifth anniversary of the applicable date of consummation of the Company’s initial public offering, subject to the limitations set forth in Section 2.4.
(c) Subject to the availability of Form S-3 or any successor registration form to effect a Demand Registration, at the request of the Demand Committee, any Demand Registration Statement. Upon receipt of shall be a shelf registration effected in accordance with Rule 415 under the Securities Act or any successor or similar rule (a “Shelf Registration”).
(d) At any time, the Demand Committee may revoke such Demand Registration request by providing a notice from a Holder to the effect that Company revoking such request. The Company shall be liable for and pay all Registration Expenses in connection with any Demand Registration, whether or not so revoked.
(e) At the Holder is withdrawing an amount request of its Registrable Shares from the Demand Committee, the Demand Registration such that shall involve an Underwritten Public Offering. If a Demand Registration involves an Underwritten Public Offering and the remaining amount managing underwriter advises the Company and the Demand Committee that, in its view, the number of Registrable Shares Securities and other securities requested to be included in such registration exceeds the largest number of Class A Shares that can be sold without having a material adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Demand Registration is below the Minimum AmountOffering Size”), the Company shall cease all efforts include in such Demand Registration, in the priority listed below, up to secure effectiveness of the applicable Registration Statement.Maximum Demand Offering Size:
(vi) The Company may include first, all Registrable Securities requested to be registered in any such the Demand Registration other by the Demand Committee (allocated, if necessary with respect to Covered Persons, on a pro rata basis for the offering not to exceed the Maximum Demand Offering Size); and
(ii) second, any securities proposed to be registered by the Company Securities for sale for its own account or any securities proposed to be registered for the account of any other Personpersons, subject to Section 2(c)(iii).
(vi) Subject to the limitations contained in this Agreement, with such priorities among them as the Company shall effect any Demand Registration on such appropriate registration form of the Commission (A) as shall be selected by the Company and (B) as shall permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the Demand Notice; provided that if the Company becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to the Company). If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Company that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, the Company will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take placedetermine.
(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: Registration Rights Agreement (Och-Ziff Capital Management Group LLC)
Demand Registration. (ia) At any time after the expiration of date that is ten months from the Lock-Up Perioddate hereof, any Holder shall have the option and right, exercisable by delivering a upon written notice to the Company (Issuer from a “Demand Notice”), to require the Company to, pursuant to the terms Holder or Holders holding a majority in interest of and subject to the limitations contained in this Agreement, prepare and file with the Commission a Registration Statement registering the offering and sale of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice, which may include sales on a delayed or continuous basis pursuant to Rule 415 pursuant to a Shelf Registration Statement (a “Demand Registration”). The Demand Notice must set forth the number of Registrable Securities that the Initiating Holder intends to include in such Demand Registration and the intended methods of disposition thereof. Notwithstanding anything to the contrary herein, in no event shall the Company be required to effectuate a Demand Registration unless the Registrable Securities to be included therein have an aggregate value, based on (a "Demand Request") requesting that the VWAP as of Issuer effect the date of the Demand Notice, of at least $25 million (the “Minimum Amount”).
(ii) Within fifteen Business Days after the receipt of the Demand Notice (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, within forty-five days thereof), the Company shall, subject to the limitations of this Section 2(a), file a Registration Statement in accordance with the terms and conditions of the Demand Notice. The Company shall use all commercially reasonable efforts to cause such Registration Statement to become and remain effective registration under the Securities Act until all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect (A) a Demand Registration within 90 days after the closing of any Requested Underwritten Offering or (B) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of the Registrable Securities held by such requesting Holders, which notice shall specify the Initiating Holder intended method or methods of disposition of such Registrable Securities, the Issuer shall have become prepare as soon as practicable and, within 15 days after such request, file with the Commission a registration statement with respect to such Registrable Securities and remains thereafter use its reasonable best efforts to cause such registration statement to be declared effective under the Securities Act and is sufficient to permit offers and sales for purposes 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 a Holder to the effect that the Holder is withdrawing an amount of its Registrable Shares from the Demand Registration such that the remaining amount of Registrable Shares to be included in the Demand Registration is below the Minimum Amount, the Company shall cease all efforts to secure effectiveness of the applicable Registration Statement.
(v) The Company may include in any such Demand Registration other Company Securities for sale for its own account or for the account of any other Person, subject to Section 2(c)(iii).
(vi) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration on such appropriate registration form of the Commission (A) as shall be selected by the Company and (B) as shall permit the disposition of the Registrable Securities dispositions in accordance with the intended method or methods of disposition specified stated in such request within 30 days after the filing of such registration statement; provided, however, that the Issuer shall have no obligation to (i) cause such registration statement filed pursuant to this Section 2.2 to be declared effective on a date that is prior to the first anniversary of this Agreement or (ii) cause such registration statement filed pursuant to this Section 2.2 to be declared effective during any period during which a Shelf Registration Statement filed pursuant to Section 2.1 remains effective. Notwithstanding any other provision of this Agreement to the contrary:
(i) the Holders may collectively exercise their Demand Notice; provided that if the Company becomes, and is at the time Request rights for registration of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of their Registrable Securities shall be effected pursuant under this Section 2.2(a) on not more than three occasions (any such registration being referred to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to the Companyherein as a "Demand Registration"). If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Company that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, the Company will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.;
(viiii) Without limiting Section 3, the method of disposition requested by Holders in connection with any Demand Registration may not, without the Issuer's written consent, be a Rule 415 Offering;
(iii) the Issuer shall not be required to effect a Demand Registration hereunder if all securities owned by the Holders have ceased to be Registrable Securities; and
(iv) the Issuer shall not be required to effect more than one Demand Registration during any 12 month period.
(b) Notwithstanding any other provision of this Agreement to the contrary, a Demand Registration requested by Holders pursuant to and in accordance with this Section 2(a)2.2 shall not be deemed to have been effected, and, therefore, not requested and the Company rights of each Holder shall be deemed not to have been exercised for purposes of paragraph (Aa) promptly prepare and file above, (i) if such Demand Registration has not become effective under the Securities Act or cause to be prepared and filed (1ii) 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 if such Demand Registration, including after it became effective under the securities laws Securities Act, was not maintained effective under the Securities Act (including, without limitation, if it was interfered with by any stop order, injunctions or other order or requirement the Commission or other governmental agency or court) for at least 30 days (or such shorter period ending when all the Registrable Securities covered thereby have been disposed of such jurisdictions as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction wherepursuant thereto) and, 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 requested to be registered cannot be distributed in accordance with the plan of distribution set forth in the related registration statement. The Holders shall be deemed not to have exercised a Demand Request under Section 2.2 if the Demand Registration related to such Demand Registration on Request is delayed or not effected in the Trading Market and circumstances set forth in this clause (Bb).
(c) do The Issuer shall have the right to cause the registration of additional shares of Common Stock for sale for the account of the Issuer, but not for the account of any and all other acts and things that may be reasonably necessary or appropriate or reasonably Person, in the registration of Registrable Securities requested by the Holders pursuant to enable Section 2.2(a) above, provided, that if such Holders are advised by the lead or managing underwriter referred to in Section 2.2(e) that, in such underwriter's good faith view, all or a part of such Registrable Securities and additional shares of Common Stock cannot be sold or the inclusion of such Registrable Securities and additional shares of Common Stock in such registration would be likely to have a material adverse effect on the price, timing or distribution of the offering and sale of the Registrable Securities and additional equity securities then contemplated, then the number of securities that can, in the good faith view of such underwriter, be sold in such offering without so materially adversely affecting such offering shall be allocated first, pro rata among the requesting Holders on the basis of the relative number requested to be included therein by each such Holder and then second, to the Issuer. The Holders of the Registrable Securities to be offered pursuant to paragraph (a) above may require that any such additional equity securities be included by the Issuer in the offering proposed by such Holders on the same conditions as the Registrable Securities that are included therein. If, in the case of any registration pursuant to a Demand Request, the Holders making such Demand Request are advised by the lead or managing underwriter referred to consummate in Section 2.2(e) that, in such underwriter's good faith view, all or a public sale part of such Registrable Securities cannot be sold or the inclusion of such Registrable Securities in accordance with such registration would be likely to have a material adverse effect on the intended price, timing or distribution of the offering and method or methods sale of distribution thereofthe Registrable Securities then contemplated, then such Holders will have the right, within 15 days following such advice from such underwriter, to elect to terminate such Demand Request, in which case the Holders shall be deemed not to have exercised a Demand Request pursuant to Section 2.2 hereof.
(viiid) Within 10 days after delivery of a Demand Request by a Holder, the Issuer shall provide a written notice to each Holder, advising such Holder of its right to include any or all of the Registrable Securities held by such Holder for sale pursuant to the Demand Registration and advising such Holder of procedures to enable such Holder to elect to so include Registrable Securities for sale in the Demand Registration as each such Holder may request. Any Holder may, within 20 days of delivery to such Holder of a notice pursuant to this Section 2.2(d), elect to so include such portion of its Registrable Securities in the Demand Registration by written notice to such effect to the Issuer specifying the number of Registrable Securities desired to be so included by such Holder.
(e) In the event that any public offering pursuant to either Section 2.1 or 2.2 of this Agreement shall involve, in whole or in part, an underwritten offering, the Holders of a Holder transfers majority of the Registrable Securities being included on a Registration Statement and in such Registrable Securities remain Registrable Securities following such transfer, at underwritten offering shall have the request right to designate an underwriter or underwriters as the lead or managing underwriters of such Holderunderwritten offering; provided, the Company that such selection 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 subject to the Registration Statement unless (A) such Registration Statement includes only Registrable Securities held by the Holder, Affiliates consent of the Holder Issuer, which consent shall not be unreasonably withheld 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 Holderdelayed.
Appears in 1 contract
Demand Registration. (i) At any time after during the expiration five year period following the Closing Date, the Investor may make a written request (the "DEMAND NOTICE") for registration under the Securities Act (a "DEMAND REGISTRATION") of its Registrable Securities. The Demand Notice will specify the number of shares of Registrable Securities proposed to be sold and will also specify the intended method of disposition thereof. Following receipt of a Demand Notice from the Investor, the Company promptly will file a registration statement on any appropriate form which will cover the Registrable Securities that the Company has been so requested to register by the Investor. Unless the Investor shall consent in writing, no party (including the Company) other than DDR, USAA Real Estate Company ("Realco"), MS Real Estate Special Situations Inc. ("MRSE"), certain clients of Morgxx Xxxnxxx Xxxet Management Inc. who have purchased Common Shares of the Lock-Up PeriodCompany (such clients together with MRSE, the "Morgxx Xxxities"), LaSalle Advisors Limited Partnership acting as agent for and on behalf of certain clients ("LaSalle"), or ABKB/LaSalle Securities Limited Partnership ("ABKB" and together with LaSalle, the "LaSalle Entities") shall be 4 permitted to offer securities under any Holder such Demand Registration. The Company shall not be required to effect more than three Demand Registrations under this Section 2(b). A registration requested pursuant to this Section 2(b) will not be deemed to have been effected (and it shall not count as one of the option three Demand Registrations) unless the Registration Statement relating thereto has become effective under the Securities Act; provided, however that if, after such Registration Statement has become effective, the offering of the Registrable Securities pursuant to such registration is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such registration will be deemed not to have been effected (and right, exercisable it shall not count as one of the three Demand Registrations). The Investor may at any time prior to the effective date of the Registration Statement relating to such registration revoke a Demand Notice by delivering providing a written notice to the Company (a “in which case such Demand Notice”Registration shall not count as one of the three Demand Registrations). If the Investor so elects, to require the Company to, pursuant to the terms of and subject to the limitations contained in this Agreement, prepare and file with the Commission a Registration Statement registering the offering and sale of the number and type of Registrable Securities on the terms and conditions specified pursuant to such registration shall be in the Demand Noticeform of an Underwritten Offering. If the managing underwriter or underwriters of such offering advise the Company and the Investor in writing that in their opinion the number of shares of Registrable Securities and shares of DDR, which may Realco, the Morgxx Xxxities or the LaSalle Entities, if any, requested to be included in such offering is sufficiently large to materially and adversely affect the success of such offering, the Company will include sales on a delayed or continuous basis pursuant to Rule 415 pursuant to a Shelf Registration Statement (a “Demand Registration”). The Demand Notice must set forth in such registration the aggregate number of Registrable Securities that and shares of DDR, Realco, the Initiating Holder intends to include in such Demand Registration and Morgxx Xxxities or the intended methods of disposition thereof. Notwithstanding anything to the contrary hereinLaSalle Entities, in no event shall the Company be required to effectuate a Demand Registration unless the Registrable Securities if any, requested to be included therein have an aggregate valueincluded, based on the VWAP as of the date of the Demand Notice, of at least $25 million (the “Minimum Amount”).
(ii) Within fifteen Business Days after the receipt of the Demand Notice (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, within forty-five days thereof), the Company shall, subject to the limitations of this Section 2(a), file a Registration Statement in accordance with the terms and conditions of the Demand Notice. The Company shall use all commercially reasonable efforts to cause such Registration Statement to become and remain effective under the Securities Act until all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect (A) a Demand Registration within 90 days after the closing of any Requested Underwritten Offering or (B) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of the Registrable Securities held by the Initiating Holder shall have become and remains effective under the Securities Act and is sufficient to permit offers and sales of the number and type of Registrable Securities on the terms and conditions specified which in the Demand Notice in accordance with the intended timing and method opinion of such managing underwriter 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 a Holder to the effect that the Holder is withdrawing an amount of its Registrable Shares from the Demand Registration such that the remaining amount of Registrable Shares to underwriters can be included in the Demand Registration is below the Minimum Amount, the Company shall cease all efforts to secure effectiveness of the applicable Registration Statement.
(v) The Company may include in sold without any such Demand Registration other Company Securities for sale for its own account or for the account of any other Person, subject to Section 2(c)(iii).
(vi) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration on such appropriate registration form of the Commission (A) as shall be selected by the Company and (B) as shall permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the Demand Notice; provided that if the Company becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to the Company). If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Company that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, the Company will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(vii) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), the Company shall (A) promptly prepare and file or cause to be prepared and filed (1) such additional forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents, as may be necessary or advisable to register or qualify the securities subject to such Demand Registration, including under the securities laws of such jurisdictions as the Holders shall reasonably requestmaterial adverse effect; provided, however, that no Registrable Securities or shares of DDR, Realco, the Morgxx Xxxities or the LaSalle Entities, if any, may be excluded before all shares proposed to be sold by other parties, including the Company, have been excluded. If any Registrable Securities are excluded, such qualification registration shall not count as one of the three Demand Registrations. If the amount of Registrable Securities proposed to be registered hereunder are required to be excluded pursuant to this paragraph, the number of Registrable Securities of the Investor and the number of shares of DDR, Realco, the Morgxx Xxxities or the LaSalle Entities, if any, to be included in such Registration shall be required in any jurisdiction wherereduced pro rata (according to the total number of Registrable Securities or shares, as a result thereofthe case may be, beneficially owned by each such holder), to 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 extent necessary to apply for listing reduce the total amount necessary to be included in the Offering to the amount recommended by such managing underwriter 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 underwriters. No registration pursuant to such Registration Statement; provided that a request or requests referred to in no event this subsection 2(b) shall the Company be required deemed to file be 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 HolderShelf Registration.
Appears in 1 contract
Samples: Registration Rights Agreement (American Industrial Properties Reit Inc)
Demand Registration. (i) At any time after the expiration of the Lock-Up Period, any Sponsoring 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, prepare and file with the Commission a Registration Statement registering the offering and sale of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice, which may include sales on a delayed or continuous basis pursuant to Rule 415 pursuant to a Shelf Registration Statement (a “Demand Registration”). The Demand Notice must set forth the number of Registrable Securities that the Initiating Holder intends to include in such Demand Registration and the intended methods of disposition thereof. Notwithstanding anything to the contrary herein, in no event shall the Company be required to effectuate a Demand Registration unless the Registrable Securities of the Holders to be included therein after compliance with Section 2(a)(ii) have an aggregate value, based on the VWAP as of the date of the Demand Notice, of at least $25 50 million (the “Minimum Amount”).
(ii) Within fifteen five Business Days (or if the Registration Statement will be a Shelf Registration Statement, within two Business Days) after the receipt of the Demand Notice, the Company shall give written notice of such Demand Notice to all Holders and, within 30 days after receipt of the Demand Notice (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case, within forty-five 90 days thereof), the Company shall, subject to the limitations of this Section 2(a), file a Registration Statement in accordance with the terms and conditions of the Demand Notice, which Registration Statement shall cover all of the Registrable Securities that the Holders shall in writing request to be included in the Demand Registration (such request to be given to the Company within three Business Days (or if the Registration Statement will be a Shelf Registration Statement, within one Business Day) after receipt of notice of the Demand Notice given by the Company pursuant to this Section 2(a)(ii)). The Company shall use all commercially reasonable best efforts to cause such Registration Statement to become and remain effective under the Securities Act until the earlier of (A) 180 days (or two years if a Shelf Registration Statement is requested) after the Effective Date or (B) the date on which all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”); provided, however, that such period shall be extended for a period of time equal to the period the Holders refrain from selling any securities included in such Registration Statement at the request of an underwriter of the Company or the Company pursuant to this Agreement.
(iii) Subject to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect (A) a Demand Registration within 90 days after the closing of any Requested Underwritten Offering Offering, (B) more than a total of three Demand Registrations for which GSO (or any transferee thereof in accordance with Section 9(e)) is the Initiating Holder or (BC) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of the Registrable Securities held by the Initiating Holder shall have become and remains effective under the Securities Act and is sufficient to permit offers and sales of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice in accordance with the intended timing and method or methods of distribution thereof specified in the Demand Notice. No Demand Registration shall be deemed to have occurred for purposes of this Section 2(a)(iii) if the Registration Statement relating thereto does not become effective or is not maintained effective for its entire Effectiveness Period, in which case the Initiating Holder shall be entitled to an additional Demand Registration in lieu thereof.
(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 from the Demand Registration Securities such that the remaining amount of Registrable Shares Securities to be included in the Demand Registration is below the Minimum Amount, the Company shall cease all efforts to secure effectiveness of the applicable Registration Statement. Such registration nonetheless shall be deemed a Demand Registration with respect to the Initiating Holder for purposes of Section 2(a)(iii) unless (A) the Initiating Holder shall have paid or reimbursed the Company for its pro rata share of all reasonable and documented out-of-pocket fees and expenses incurred by the Company in connection with the withdrawn registration of such Registrable Securities (based on the number of securities the Initiating Holder sought to register, as compared to the total number of securities included in such Demand Registration) or (B) the withdrawal is made following the occurrence of a Material Adverse Change or pursuant to the Company’s request for suspension pursuant to Section 3(o).
(v) The Company may include in any such Demand Registration other Company Securities for sale for its own account or for the account of any other Person, subject to Section 2(a)(vi) and Section 2(c)(iii).
(vi) In the case of a Demand Registration not being underwritten, if the Initiating Holder advises the Company that in its reasonable opinion the aggregate number of securities requested to be included exceeds the number that can be included without being likely to have a significant adverse effect on the price, timing or distribution of the securities offered or the market for the securities offered, the Company shall include in such Demand Registration only that number of securities that in the reasonable opinion of the Initiating Holder will not have such adverse effect, with such number to be allocated as follows: (A) first, pro-rata among all Holders (including the Initiating Holder) that have requested to participate in such Demand Registration based on the relative number of Registrable Securities then held by each such Holder, (B) second, if there remains availability for additional securities to be included in such Demand Registration, the Company, and (C) third, if there remains availability for additional securities to be included in such Demand Registration, any other holders entitled to participate in such Demand Registration, if applicable, based on the relative number of securities such Holder is entitled to include in such Demand Registration.
(vii) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration on such appropriate registration form of the Commission (A) as shall be selected by the Company and (B) as shall permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the Demand Notice; provided that if the Company becomes, and is at the time of its receipt of a Demand Notice, eligible to file a Shelf Registration Statement, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to a Shelf Registration Statement; provided further that if the Company becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to the Company). If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Company that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, the Company will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(viiviii) 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.
(viiiix) 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: Registration Rights Agreement (Tapstone Energy Inc.)
Demand Registration. (i) At any time after the expiration of the 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, prepare and file with the Commission a Registration Statement registering the offering and sale of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice, which may include sales on a delayed or continuous basis pursuant to Rule 415 pursuant to on a Shelf Registration Statement (a “Demand Registration”). The Demand Notice must set forth the number of Registrable Securities that the Initiating Holder intends to include in such Demand Registration and the intended methods timing and method of disposition thereof. Notwithstanding anything to the contrary herein, in no event shall the Company be required to effectuate a Demand Registration unless the Registrable Securities of the Holders to be included therein after compliance with Section 2(a)(ii) (A) represent at least [3]% of the total outstanding shares of Common Stock or (B) have an aggregate value, value of at least $[50] million based on the VWAP (the “Minimum Amount”) as of the date of the Demand Notice, of at least $25 million (the “Minimum Amount”).
(ii) Within fifteen five Business Days (or if the Registration Statement will be a Shelf Registration Statement, within two Business Days) after the receipt of the Demand Notice, the Company shall give written notice of such Demand Notice to all Holders and, within 30 days after receipt of the Demand Notice (except if the Company is not then eligible to register for offer and resale the Registrable Securities on Form S-3, in which case, within forty-five 90 days thereof), the Company shall, subject to the limitations of this Section 2(a), file a Registration Statement in accordance with the terms and conditions of, and the intended timing and method of disposition described in, the Demand Notice, which Registration Statement shall cover all of the Registrable Securities that the Holders shall in writing request to be included in the Demand Registration (such request to be given to the Company within three Business Days after receipt of notice of the Demand NoticeNotice given by the Company pursuant to this Section 2(a)(ii)). The Company shall use all commercially reasonable best efforts to cause such Registration Statement to become become, as soon as reasonably practicable after the filing thereof, and remain continuously, effective under the Securities Act until the earlier of (A) 180 days (or three years if a Shelf Registration Statement is requested) after the Effective Date of such Registration Statement or (B) the date on which all Registrable Securities covered by such Registration Statement have been sold or otherwise disposed of or such Shares are no longer Registrable Securities (the “Effectiveness Period”); provided, however, that such period shall be extended for a period of time equal to the period the Holders refrain from selling any securities included in such Registration Statement at the request of an underwriter of the Company or the Company pursuant to this Agreement.
(iii) Subject to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect (A) a Demand Registration within 90 days after the closing of any Requested Underwritten Offering or Offering, (B) more than a total of [four] Demand Registrations for which THRC (or any transferee thereof in accordance with Section 8(e)) is the Initiating Holder, (C) more than a total of [four] Demand Registrations for which Equify Financial (or any transferee thereof in accordance with Section 8(e)) is the Initiating Holder, (D) more than a total of [four] Demand Registrations for which Xx. Xxxxxx Xxxxx (or any transferee thereof in accordance with Section 8(e)) is the Initiating Holder, and (E) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of the Registrable Securities held by the Initiating Holder shall have become and remains effective under the Securities Act and is sufficient to permit offers and sales of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice in accordance with the intended timing and method or methods of distribution disposition thereof specified in the Demand Notice; provided, that a demand for a Shelf Registration Statement shall not count against the number of allowable Demand Registrations for (B), (C) and (D) of this paragraph. No Demand Registration shall be deemed to have occurred for purposes of this Section 2(a)(iii) if the Registration Statement relating thereto does not become effective or is not maintained effective for its entire Effectiveness Period, in which case the Initiating Holder shall be entitled to an additional Demand Registration in lieu thereof. Further, a Demand Registration shall not constitute a Demand Registration of the Initiating Holder for purposes of this Section 2(a)(iii) if, as a result of Section 2(a)(vi), there is included in the Demand Registration less than the lesser of (x) Registrable Securities of the Initiating Holder having a VWAP measured on the Effective Date of the applicable Registration Statement of $[50] million and (y) [two-thirds] of the number of Registrable Securities the Initiating Holder set forth in the applicable Demand Notice.
(iv) A Holder may withdraw all or any portion of its Registrable Securities included in a Demand Registration from such Demand Registration at any time prior to the effectiveness of the applicable Registration Statement. Upon receipt of a notice from the Initiating Holder that the Initiating Holder is withdrawing all of its Registrable Securities from the Demand Registration or a notice from a Holder to the effect that the Holder is withdrawing an amount of its Registrable Shares from the Demand Registration Securities such that the remaining amount of Registrable Shares Securities to be included in the Demand Registration is below the Minimum Amount, the Company shall cease all efforts to secure effectiveness of the applicable Registration Statement. Such registration nonetheless shall be deemed a Demand Registration with respect to the Initiating Holder for purposes of Section 2(a)(iii) unless (A) the Initiating Holder shall have paid or reimbursed the Company for its pro rata share of all reasonable and documented out-of-pocket fees and expenses incurred by the Company in connection with the withdrawn registration of such Registrable Securities (based on the number of securities the Initiating Holder sought to register, as compared to the total number of securities included in such Demand Registration) or (B) the withdrawal is made following the occurrence of a Material Adverse Change or pursuant to the Company’s request for suspension pursuant to Section 3(o).
(v) The Company may include in any such Demand Registration other Company Securities for sale for its own account or for the account of any other Person, subject to Section 2(c)(iii2(a)(vi) and Section 2(d)(iii).
(vi) In the case of a Demand Registration not being underwritten, if the Initiating Holder advises the Company that in its reasonable opinion the aggregate number of securities requested to be included in such registration exceeds the number that can be included without being likely to have a significant adverse effect on the price, timing or distribution of the securities offered or the market for the securities offered, the Company shall include in such Demand Registration only that number of securities that, in the reasonable opinion of the Initiating Holder, will not have such adverse effect, with such number to be allocated as follows: (A) first, pro-rata among all Holders (including the Initiating Holder) that have requested to participate in such Demand Registration based on the relative number of Registrable Securities then held by each such Holder, (B) second, if there remains availability for additional securities to be included in such Demand Registration, to the Company, and (C) third, if there remains availability for additional securities to be included in such Demand Registration following the allocation provided in clauses (A) and (B) above, to any other holders of Company Securities entitled to participate in such Demand Registration, if applicable, based on the relative number of Company Securities such holder is entitled to include in such Demand Registration.
(vii) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration on such appropriate registration form of the Commission (A) as shall be selected by the Company and (B) as shall permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the Demand Notice; provided provided, that if the Company becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to the Company). If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Company that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, the Company will shall amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(viiviii) 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, prospectusesProspectuses, certificates, letters, opinions and other documents, documents as may be necessary or advisable to register or qualify the securities Registrable 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 such registration and (2) such forms, amendments, supplements, prospectusesProspectuses, 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.
(viiiix) 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 the transferee of such transferee Registrable Securities to offer and sell such Registrable Securities pursuant to such Registration Statement; provided 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 each other Holder for whom Registrable Securities have been registered on (but not yet sold under) such Registration Statement, other than the Holder, Affiliates of the Holder or transferees of the Holder.
Appears in 1 contract
Samples: Registration Rights Agreement (ProFrac Holding Corp.)
Demand Registration. (i) At any time after If the expiration Company (i) is in violation of its obligation to file a Shelf Registration Statement pursuant to Section 2(a) or (ii) following the effectiveness of the Lock-Up Shelf Registration Statement contemplated by Section 2(a), thereafter ceases to have an effective Shelf Registration Statement during the Shelf Period (other than during any Suspension Period), any Holder shall have subject to the option terms and rightconditions of this Agreement (including Section 2(b)(iii)), exercisable by delivering a upon written notice to the Company (a “Demand NoticeRequest”)) delivered by a Qualified Holder that holds at least 5% of the outstanding Equity Securities, to require calculated at the time of such demand, requesting that the Company to, pursuant to effect the terms of and subject to the limitations contained in this Agreement, prepare and file with the Commission a Registration Statement registering the offering and sale of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice, which may include sales on a delayed or continuous basis pursuant to Rule 415 pursuant to a Shelf Registration Statement registration (a “Demand Registration”) under the Securities Act of any or all of the Registrable Securities beneficially owned by such Qualified Holder(s). The , the Company shall give a notice of the receipt of such Demand Notice must set forth the number Request (a “Demand Notice”) to all other Holders of Registrable Securities that (which notice shall state the Initiating Holder intends material terms of such proposed Demand Registration, to the extent known). Such Demand Notice shall be given not more than ten (10) Business Days and not less than five (5) Business Days, in each case prior to the expected date of the public filing of the registration statement (the “Demand Registration Statement”) for such Demand Registration. Subject to the provisions of Section 2(a)(iii) and Section 2(e) below, the Company shall file the Demand Registration Statement and use its commercially reasonable efforts to effect, as soon as reasonably practicable, the registration under the Securities Act and under the applicable state securities laws and include in such Demand Registration Statement all Registrable Securities that are New Common Shares with respect to which the Company has received written requests for inclusion therein within five (5) Business Days after the later of (i) the Company delivering the Demand Notice to Holders of Registrable Securities and the intended methods of disposition thereof. Notwithstanding anything (ii) five (5) Business Days prior to the contrary herein, in no event shall the Company be required to effectuate a Demand Registration unless the Registrable Securities to be included therein have an aggregate value, based on the VWAP as of the date actual public filing of the Demand Notice, Registration Statement. Nothing in this Section 2(b) shall relieve the Company of at least $25 million (the “Minimum Amount”its obligations under Section 2(a).
(ii) Within fifteen Business Days after the receipt of the Demand Notice (except if the Company is not then eligible to register for resale the Registrable Securities on Registration Using Form S-3, within forty-five days thereof), the Company shall, subject to the limitations of this Section 2(a), file a Registration Statement in accordance with the terms and conditions of the Demand NoticeF-3. The Company shall use all commercially reasonable efforts to cause such Registration Statement to become and remain effective under the Securities Act until all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect (A) a any requested Demand Registration within 90 days after the closing of any Requested Underwritten Offering or (B) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of the Registrable Securities held by the Initiating Holder shall have become and remains effective under the Securities Act and is sufficient to permit offers and sales of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice in accordance with the intended timing and method or methods of distribution thereof specified in the Demand Notice.
(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 a Holder to the effect that the Holder is withdrawing an amount of its Registrable Shares from the Demand Registration such that the remaining amount of Registrable Shares to be included in the Demand Registration is below the Minimum Amount, the Company shall cease all efforts to secure effectiveness of the applicable Registration Statement.
(v) The Company may include in any such Demand Registration other Company Securities for sale for its own account or for the account of any other Person, subject to Section 2(c)(iii).
(vi) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration on such appropriate registration form of the Commission (A) as shall be selected by the Company and (B) as shall permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the Demand Notice; provided that if the Company becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to the Company). If at any time using a Registration Statement on Form S-3 is effective and a Holder provides written notice to F-3 whenever the Company that it intends to effect is a Seasoned Issuer or a WKSI, and shall use an offering of all or part of the Registrable Securities included on such Registration Statement, the Company will amend or supplement such Automatic Shelf Registration Statement as may be necessary in order to enable such offering to take placeif it is a WKSI.
(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: Registration Rights Agreement
Demand Registration. (i) At any time after the expiration of the Lock-Up Period, any Holder shall have the option and right, exercisable by delivering Investor may make a written notice demand to the Company (a “Demand Notice”)Corporation for registration of all or part of its Registrable Securities, to require which written demand shall describe the Company to, pursuant to the terms of and subject to the limitations contained in this Agreement, prepare and file with the Commission a Registration Statement registering the offering and sale of the number amount and type of Registrable Securities on securities to be included in such registration and 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 intended method(s) of distribution thereof (such written demand a “Demand Registration”). The Demand Notice must set forth the number of Registrable Securities ; provided, however, that the Initiating Holder intends to include in such Demand Registration and the intended methods of disposition thereof. Notwithstanding anything to the contrary herein, in no event shall the Company be required to effectuate an Investor may not request a Demand Registration unless the Registrable Securities to be included therein have an aggregate value, based on the VWAP as class of securities of the date of the Demand Notice, of at least $25 million (the “Minimum Amount”).
(ii) Within fifteen Business Days after the receipt of the Demand Notice (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, within forty-five days thereof), the Company shall, Corporation subject to the limitations of this Demand Registration are registered pursuant to Section 2(a), file a Registration Statement in accordance with the terms and conditions 12(b) of the Demand NoticeExchange Act. The Company shall use all commercially reasonable efforts to cause Upon receipt by the Corporation of such Registration Statement to become and remain effective under the Securities Act until all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect (A) written request for a Demand Registration within 90 days after from an Investor, the closing of any Requested Underwritten Offering or (B) a subsequent Demand Registration pursuant Investor shall be entitled to a Demand Notice if a Registration Statement covering all of the Registrable Securities held by the Initiating Holder shall have become and remains effective under the Securities Act and is sufficient to permit offers and sales of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice in accordance with the intended timing and method or methods of distribution thereof specified in the Demand Notice.
(iv) A Holder may withdraw all or any portion of its Registrable Securities included in a Demand Registration from such Demand Registration registration at any time prior to the effectiveness cost and expense of the applicable Registration Statement. Upon receipt of a notice from a Holder to Corporation and the effect that the Holder Corporation shall effect, as soon thereafter as is withdrawing an amount of its Registrable Shares from the Demand Registration such that the remaining amount of Registrable Shares to be included in the Demand Registration is below the Minimum Amountcommercially reasonable, the Company shall cease registration of all efforts to secure effectiveness of the applicable Registration Statement.
(v) The Company may include in any such Demand Registration other Company Registrable Securities for sale for its own account or for the account of any other Person, subject to Section 2(c)(iii).
(vi) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration on such appropriate registration form of the Commission (A) as shall be selected requested 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 Investor pursuant to such request for a Demand NoticeRegistration, including by filing a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to Statement on an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor appropriate form under the Securities Act relating thereto as soon as practicable, but not more than forty five (45) days immediately after the Corporation’s receipt of the request for a Demand Registration. Under no circumstances shall the Corporation be obligated to (i) effect more than an aggregate of two (2) Demand Registrations with respect to any or all of an Investor’s Registrable Securities, and never more than one (1) Demand Registration in a twelve (12) month period and (ii) proceed if available the required minimum offering size of at least US$3.5 million is not met; provided, however, that a registration pursuant to the Company). If at any time a request for a Demand Registration shall not be counted for such purposes unless a Registration Statement on Form S-3 is with respect to such request for a Demand Registration has become effective and a Holder provides written notice to the Company that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statementrequested by the Investor to be registered have been sold. Notwithstanding the foregoing obligations, if the Company will amend or supplement such Registration Statement as may be necessary in order Corporation furnishes to enable such offering to take place.
(vii) Without limiting Section 3, in connection with any Demand Registration holders requesting a registration pursuant to and in accordance with this Section 2(a)2.1 a certificate signed by the Corporation’s chief executive officer stating that in the good faith judgment of the Board of Directors it would be materially detrimental to the Corporation and its shareholders 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 Corporation; (ii) require premature disclosure of material information that the Corporation has a bona fide business purpose for preserving as confidential; or (iii) render the Corporation unable to comply with requirements under the Securities Act or Exchange Act, then the Corporation shall (A) promptly prepare and file or cause have the right 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 defer taking action with respect to such Demand Registration, including under filing for a period of not more than sixty (60) days after the securities laws of such jurisdictions as the Holders shall reasonably request; provided, however, that no such qualification shall be required the Corporation may not invoke this right more than once in any jurisdiction where, as a result thereof, twelve (12) month period; and provided further that the Company would become subject to general service Corporation shall not register any securities for its own account or that of process or to taxation or qualification to do business in any other stockholder during such jurisdiction solely as a result of registration and sixty (260) 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 thereofday period.
(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: Investor's Rights Agreement (Aptose Biosciences Inc.)
Demand Registration. (ia) At any time after the expiration of the Lock-Up Period, any Holder shall have the option and right, exercisable by delivering a Upon written notice to the Company (a “Demand Notice”), to require the Company to, pursuant Issuer prior to the terms Termination Date from a Holder or Holders holding a majority in interest of and subject to the limitations contained in this Agreement, prepare and file with the Commission a Registration Statement registering the offering and sale of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice, which may include sales on a delayed or continuous basis pursuant to Rule 415 pursuant to a Shelf Registration Statement (a “Demand Registration”). The Demand Notice must set forth the number of Registrable Securities that the Initiating Holder intends to include in such Demand Registration and the intended methods of disposition thereof. Notwithstanding anything to the contrary herein, in no event shall the Company be required to effectuate a Demand Registration unless the Registrable Securities to be included therein have an aggregate value, based on the VWAP as of the date of the Demand Notice, of at least $25 million (the “Minimum Amount”).
(ii"Demand Request") Within fifteen Business Days after requesting that the receipt of Issuer effect the Demand Notice (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, within forty-five days thereof), the Company shall, subject to the limitations of this Section 2(a), file a Registration Statement in accordance with the terms and conditions of the Demand Notice. The Company shall use all commercially reasonable efforts to cause such Registration Statement to become and remain effective registration under the Securities Act until all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect (A) a Demand Registration within 90 days after the closing of any Requested Underwritten Offering or (B) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of the Registrable Securities held by such requesting Holders (the Initiating Holder "Requesting Holders" which term shall have become include parties deemed "Requesting Holders" pursuant to Section 2.1(d)) in a firmly underwritten public offering, the Issuer shall prepare as soon as practicable and, within 30 days after such request, file with the Commission a registration statement with respect to such Registrable Securities and remains thereafter use its reasonable best efforts to cause such registration statement to be declared effective under the Securities Act and is sufficient to permit offers and sales within 45 days after the filing 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) such registration statement. 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 a Holder to the effect that the Holder is withdrawing an amount of its Registrable Shares from the Demand Registration such that the remaining amount of Registrable Shares to be included in the Demand Registration is below the Minimum Amount, the Company shall cease all efforts to secure effectiveness of the applicable Registration Statement.
(v) The Company may include in any such Demand Registration other Company Securities for sale for its own account or for the account of any other Person, subject to Section 2(c)(iii).
(vi) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration on such appropriate registration form of the Commission (A) as shall be selected by the Company and (B) as shall permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the Demand Notice; provided that if the Company becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statement, which a Demand Request pursuant to this Section 2.1(a) shall be on Form S-3 or referred to herein as a "Demand Registration." Notwithstanding any equivalent or successor form under the Securities Act (if available other provision of this Agreement to the Company). If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Company that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, the Company will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.contrary:
(viii) Without limiting Section 3, the Holders may collectively exercise their rights to request Demand Registrations on not more the one occasion in any 12-month period;
(ii) the method of disposition requested by Holders in connection with any Demand Registration may not, without the Issuer's written consent, be a Rule 415 Offering; and
(iii) the Issuer shall not be required to effect a Demand Registration hereunder unless the aggregate offering size for such offering is at least $500 million.
(b) Notwithstanding any other provision of this Agreement to the contrary, a Demand Registration requested by Holders pursuant to and in accordance with this Section 2(a)2.1 shall not be deemed to have been effected, and, therefore, not requested and the Company rights of each Holder shall be deemed not to have been exercised for purposes of paragraph (Aa) promptly prepare and file or cause to be prepared and filed above, if (1i) such additional forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents, as may be necessary Demand Registration has not become effective under the Securities Act or advisable to register or qualify the securities subject to (ii) such Demand Registration, including after it became effective under the securities laws Securities Act, was not maintained effective under the Securities Act (other than as a result of any stop order, injunction or other order or requirement of the Commission or other government agency or court solely on the account of a material misrepresentation or omission of a Holder) for at least 90 days (or such jurisdictions as shorter period ending when all the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction whereRegistrable Securities covered thereby have been disposed of pursuant thereto) and, as a result thereof, the Company would become subject Registrable Securities requested to general service be registered cannot be distributed in accordance with the plan of process or to taxation or qualification to do business distribution set forth in such jurisdiction solely the related registration statement. So long as a result of registration and (2Demand Request is made by the Holders prior to the Termination Date, the Holders shall not lose their right to their Demand Registration under Section 2.1(a) such forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents as may be necessary to apply for listing or to list if the Registrable Securities subject Demand Registration related to such Demand Registration on Request is delayed or not effected in the Trading Market and circumstances set forth in this Section 2.1(b) or Section 2.4.
(Bc) do The Issuer shall have the right to cause the registration of additional equity securities for sale for the account of the Issuer or any and all other acts and things that may be reasonably necessary or appropriate or reasonably Person to whom the Issuer has granted registration rights from time to time, in the registration of Registrable Securities 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.Section 2.1(a)
Appears in 1 contract
Samples: Registration Rights Agreement (Clear Channel Communications Inc)
Demand Registration. (i) At 2.1.1 Subject to the Subscription Agreement and the rules and regulations of the Commission, at any time after the expiration of the Lockand from time to time, Purchaser may make a one-Up Period, any Holder shall have the option and right, exercisable by delivering a time written notice to demand upon the Company to file, within sixty (60) days after such written demand is made, a “Demand Notice”), to require registration statement covering the Company to, pursuant to the terms resale of and subject to the limitations contained in this Agreement, prepare and file with the Commission a Registration Statement registering the offering and sale all of 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”). The Demand Notice must set forth the number of Registrable Securities that the Initiating Holder intends to include in such Demand Registration and the intended methods of disposition thereof. Notwithstanding anything to the contrary herein, in no event shall the Company be required to effectuate a Demand Registration unless the Registrable Securities to be included therein have an aggregate value, based on the VWAP as of the date of the Demand Notice, of at least $25 million (the “Minimum Amount”).
(ii) Within fifteen Business Days after the receipt of the Demand Notice (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3S-0, within forty-five days thereof), the Company shall, subject to the limitations of this Section 2(a), file a Registration Statement in accordance X-0 or S-3 as appropriate with the terms and conditions of Commission (the “Demand NoticeRegistration Statement”). The Company shall use all commercially its reasonable best efforts to cause such Registration Statement to become effective as soon after filing as practicable and remain effective under the Securities Act until all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect (A) a Demand Registration within 90 days after the closing of any Requested Underwritten Offering or (B) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering cause all of the Registrable Securities held by to be qualified in such state jurisdictions as the Initiating Holder holders may request.
2.1.2 Except as set forth herein, the Company shall have become take all reasonable steps necessary to keep the Registration Statement current and remains effective until the lesser of: (i) two years and (ii) until the Registrable Securities are transferable pursuant to Rule 144 under the Securities Act and is sufficient without the volume limitations set forth in such rule.
2.1.3 The Company shall be entitled to permit offers and sales of the number and type require that a holder or holders of Registrable Securities on refrain from effecting any public sales or distributions of 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 pursuant to a Registration Statement that has been declared effective by the Commission or otherwise, if the board of directors of the Company reasonably determines that such public sales or distributions would interfere in a Demand Registration from such Demand Registration at any time prior material respect with any transaction involving the Company that the board of directors reasonably determines to be material to the effectiveness Company. The board of directors shall, as promptly as practicable, give the holders of the applicable Registration StatementRegistrable Securities written notice of any such development. Upon receipt In the event of a notice from a Holder to request by the effect board of directors of the Company that the Holder is withdrawing an amount of its Registrable Shares from the Demand Registration such that the remaining amount holders of Registrable Shares to be included in Securities refrain from effecting any public sales or distributions of the Demand Registration is below the Minimum AmountRegistrable Securities, the Company shall cease all efforts be required to secure effectiveness of the applicable Registration Statement.
(v) The Company may include in any lift such Demand Registration other Company Securities for sale for its own account restrictions regarding effecting public sales or for the account of any other Person, subject to Section 2(c)(iii).
(vi) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration on such appropriate registration form of the Commission (A) as shall be selected by the Company and (B) as shall permit the disposition distributions of the Registrable Securities in accordance with as soon as reasonably practicable after the intended method board of directors shall reasonably determine public sales or methods of disposition specified in distributions by the Demand Notice; provided that if the Company becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to the Company). If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Company that it intends to effect an offering of all or part holders of the Registrable Securities included on shall not interfere with such transaction, provided, that in no event shall any requirement that the holders of Registrable Securities refrain from effecting public sales or distributions if the Registrable Securities extend for more than ninety (90) days.
2.1.4 Notwithstanding the foregoing, the one-time demand registration rights provided in this Section 2.1 shall be subject to the following additional limitations:
(i) Company shall not be obligated to file such Registration StatementStatement on a Form S-2 or S-3 if it does not then meet the requirements (including the financial statement requirements) of such Form, and if the Company is required to file a Form S-1, it should not be obligated to file the Form S-1 until it shall have prepared current financial statements as required by Form S-1;
(ii) If, upon receipt of any request for registration of Registrable Securities pursuant to this Section 2.1, the Company will amend has then engaged a reputable and nationally or supplement such Registration Statement as may be necessary in order to enable such regionally recognized securities or investment banking firm for a registered public offering to take place.
(vii) Without limiting Section 3of Shares of Common Stock, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), then the Company shall give notice of such negotiations to all holders of Registrable Securities within fifteen (A15) promptly prepare days of the date upon which the Company received such holder’s request and file or cause to be prepared and filed the Company shall not, for sixty (160) days after giving 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 notice to such Demand Registrationholders, including under be required to undertake a required registration of the securities laws of Registrable Securities pursuant to this Section 2.1 in response to such jurisdictions as the Holders shall reasonably holder’s request; provided, however, that no if such qualification shall be required in any jurisdiction where, as a result thereof, registration statement of such proposed public offering is not filed within sixty (60) days after the Company would become subject gives such notice to general service holders 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 HolderSecurities, the Company shall amend or supplement such Registration Statement as may be necessary in order respond to enable such transferee to offer and sell the holder’s request for registration of Registrable Securities and, unless otherwise required by the provisions of this Section 2.1, register such Registrable Securities pursuant to Securities, no later than twenty (20) days after the expiration of such Registration Statement; sixty (60) day period and as 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 Holderherein.
Appears in 1 contract
Samples: Registration Rights Agreement (Teraforce Technology Corp)
Demand Registration. (ia) At any time after following the expiration date of this Agreement, the Lock-Up Period, any Holder Selling Shareholder shall have the option right to request in writing (which request shall specify the Registrable Securities intended to be disposed of and right, exercisable by delivering a written notice to the intended method of distribution thereof) that the Company register any and all of the Selling Shareholder’s Registrable Securities by filing with the SEC a registration statement covering such Registrable Securities (a “Demand Notice”), to require the Company to, pursuant to the terms of and subject to the limitations contained in this Agreement, prepare and file with the Commission a Registration Statement registering the offering and sale of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice, which may include sales on a delayed or continuous basis pursuant to Rule 415 pursuant to a Shelf Registration Statement (a “Demand RegistrationStatement”). The Demand Notice must set forth the number of Registrable Securities that the Initiating Holder intends to include in such Demand Registration and the intended methods of disposition thereof. Notwithstanding anything to the contrary herein, in no event shall the Company be required to effectuate a Demand Registration unless the Registrable Securities to be included therein have an aggregate value, based on the VWAP as of the date of the Demand Notice, of at least $25 million (the “Minimum Amount”).
(ii) Within fifteen Business Days after Upon the receipt of the Demand Notice (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, within forty-five days thereof)such a request, the Company shall, subject not later than the 45th calendar day after the receipt of such a request, cause to the limitations of this Section 2(a), file be filed a Demand Registration Statement in accordance with providing for the terms and conditions of the Demand Notice. The Company shall use all commercially reasonable efforts to cause such Registration Statement to become and remain effective registration under the Securities Act until all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect (A) a Demand Registration within 90 days after the closing of any Requested Underwritten Offering or (B) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of the Registrable Securities held which the Company has been so requested to register 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 Selling Shareholder, to the effectiveness of the applicable Registration Statement. Upon receipt of a notice from a Holder extent necessary to the effect that the Holder is withdrawing an amount of its Registrable Shares from the Demand Registration such that the remaining amount of Registrable Shares to be included in the Demand Registration is below the Minimum Amount, the Company shall cease all efforts to secure effectiveness of the applicable Registration Statement.
(v) The Company may include in any such Demand Registration other Company Securities for sale for its own account or for the account of any other Person, subject to Section 2(c)(iii).
(vi) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration on such appropriate registration form of the Commission (A) as shall be selected by the Company and (B) as shall permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the Demand Notice; provided that if the Company becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to the Company). If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Company that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, the Company will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(vii) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), the Company shall (A) promptly prepare and file or cause to be prepared and filed (1) such additional forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents, as may be necessary or advisable to register or qualify the securities subject to such Demand Registration, including under the securities laws of such jurisdictions as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, the Company would become subject to general service of process or to taxation or qualification to do business in such jurisdiction solely as a result of registration and (2) such forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents as may be necessary to apply for listing or to list the Registrable Securities subject to such Demand Registration on the Trading Market and (B) do any and all other acts and things that may be reasonably necessary or appropriate or reasonably requested by the Holders to enable the Holders to consummate a public sale of such Registrable Securities in accordance with the intended timing and method or methods of distribution thereofthereof specified in such request, and shall use its best efforts to have such Demand Registration Statement declared effective by the SEC or otherwise become effective as soon as practicable thereafter (but in no event later than the 75th calendar day after the receipt of such a request) and to keep such Demand Registration Statement continuously effective for 120 calendar days following the date on which such Demand Registration Statement is declared effective by the SEC or has otherwise become effective or such shorter period terminating when all the Registrable Securities covered by such Demand Registration Statement have been sold pursuant thereto (including, if necessary, by filing with the SEC a post-effective amendment or a supplement to the Demand Registration Statement or the related prospectus or any document incorporated therein by reference or by filing any other required document or otherwise supplementing or amending the Demand Registration Statement, if required by the rules, regulations or instructions applicable to the registration form under the Securities Act 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).
(viiib) In the event a Holder transfers Registrable Securities included on a A Demand Registration Statement shall be deemed not to have become effective (and such Registrable the related registration shall be deemed not to have been effected) unless it has been declared effective by the SEC or otherwise becomes effective as provided by the Securities remain Registrable Securities following such transferAct; provided, at the request of such Holderhowever, that if, after it has been declared (or becomes) effective, the Company shall amend or supplement such Registration Statement as may be necessary in order to enable such transferee to offer and sell such offering of any Registrable Securities pursuant to such Demand Registration Statement; provided that Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court (other than any such stop order or injunction issued as a result of the inclusion in no event shall such Demand Registration Statement of any information supplied in writing to the Company for inclusion therein by the Selling Shareholder) such Demand Registration Statement shall be required deemed not to file a post-effective amendment have become effective.
(c) The Selling Shareholder may only make five demands under Section 2(a). Any demand by the Selling Shareholder under Section 2(a) shall be for the registration of at least (i) 5% of the total number of Common Shares of the Company outstanding at the time such demand is made; and (ii) the aggregate public offering price for the Registrable Securities included in such demand (based on the closing sale price of the Common Shares on the NYSE, or such other exchange or market on which the Common Shares are principally listed or quoted, if the Common Shares cease to be listed on the NYSE, on the last trading day prior to the delivery of the request) shall be at least $250,000,000.
(d) If the Selling Shareholder desires to sell Registrable Securities in an Underwritten Offering pursuant to a Demand Registration Statement unless filed under this Section 2, the underwriter(s), including the managing underwriter(s), shall be selected by the Selling Shareholder, which underwriter(s) and managing underwriter(s) shall be reasonably satisfactory to the Company.
(Ae) such No other Person, including the Company or any subsidiary of the Company, shall be permitted to offer securities under any Demand Registration Statement includes only Registrable Securities held by filed pursuant to this Section 2 unless 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 HolderSelling Shareholder consents in writing.
Appears in 1 contract
Demand Registration. (i) At any time after the expiration of the Lock-Up Period, any Sponsoring 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, prepare and file with the Commission a Registration Statement registering the offering and sale of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice, which may include sales on a delayed or continuous basis pursuant to Rule 415 pursuant to a Shelf Registration Statement (a “Demand Registration”). The Demand Notice must set forth the number of Registrable Securities that the Initiating Holder intends to include in such Demand Registration and the intended methods of disposition thereof. Notwithstanding anything to the contrary herein, in no event shall the Company be required to effectuate a Demand Registration unless the Registrable Securities of the Holders to be included therein after compliance with Section 2(a)(ii) have an aggregate value, value of at least $30 million based on the VWAP (the “Minimum Amount”) as of the date of the Demand Notice, of at least $25 million (the “Minimum Amount”).
(ii) Within fifteen five Business Days (or if the Registration Statement will be a Shelf Registration Statement, within two Business Days) after the receipt of the Demand Notice, the Company shall give written notice of such Demand Notice to all Holders and, within 30 days after receipt of the Demand Notice (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case, within forty-five 90 days thereof), the Company shall, subject to the limitations of this Section 2(a), file a Registration Statement in accordance with the terms and conditions of the Demand Notice, which Registration Statement shall cover all of the Registrable Securities that the Holders shall in writing request to be included in the Demand Registration (such request to be given to the Company within three Business Days (or if the Registration Statement will be a Shelf Registration Statement, within one Business Day) after receipt of notice of the Demand Notice given by the Company pursuant to this Section 2(a)(ii)). The Company shall use all commercially reasonable best efforts to cause such Registration Statement to become and remain effective under the Securities Act until the earlier of (A) 180 days (or two years if a Shelf Registration Statement is requested) after the Effective Date or (B) the date on which all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”); provided, however, that such period shall be extended for a period of time equal to the period the Holders refrain from selling any securities included in such Registration Statement at the request of an underwriter of the Company or the Company pursuant to this Agreement.
(iii) Subject to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect (A) a Demand Registration within 90 days after the closing of any Requested Underwritten Offering or Offering, (B) (1) through the third anniversary of the date of this Agreement, more than a total of four Demand Registrations for which Centennial HoldCo (or any transferee thereof in accordance with Section 8(e)) is the Initiating Holder and (2) after the third anniversary of the date of this Agreement, more than one Demand Registration per calendar year for which Centennial HoldCo (or any transferee thereof in accordance with Section 8(e)) is the Initiating Holder, (C) more than a total of three Demand Registrations for which Celero (or any transferee thereof in accordance with Section 8(e)) is the Initiating Holder, and (D) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of the Registrable Securities held by the Initiating Holder shall have become and remains effective under the Securities Act and is sufficient to permit offers and sales of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice in accordance with the intended timing and method or methods of distribution thereof specified in the Demand Notice. No Demand Registration shall be deemed to have occurred for purposes of this Section 2(a)(iii) if the Registration Statement relating thereto does not become effective or is not maintained effective for its entire Effectiveness Period, in which case the Initiating Holder shall be entitled to an additional Demand Registration in lieu thereof. Further, a Demand Registration shall not constitute a Demand Registration of the Initiating Holder for purposes of this Section 2(a)(iii) if, as a result of Section 2(a)(vi), there is included in the Demand Registration less than the lesser of (x) Registrable Securities of the Initiating Holder having a VWAP measured on the effective date of the related Registration Statement of $30 million and (y) two-thirds of the number of Registrable Securities the Initiating Holder set forth in the applicable Demand Notice.
(iv) A Holder may withdraw all or any portion of its Registrable Securities included in a Demand Registration from such Demand Registration at any time prior to the effectiveness of the applicable Registration Statement. Upon receipt of a notice from the Initiating Holder that the Initiating Holder is withdrawing all of its Registrable Securities from the Demand Registration or a notice from a Holder to the effect that the Holder is withdrawing an amount of its Registrable Shares from the Demand Registration such that the remaining amount of Registrable Shares to be included in the Demand Registration is below the Minimum Amount, the Company shall cease all efforts to secure effectiveness of the applicable Registration Statement. Such registration nonetheless shall be deemed a Demand Registration with respect to the Initiating Holder for purposes of Section 2(a)(iii) unless (A) the Initiating Holder shall have paid or reimbursed the Company for its pro rata share of all reasonable and documented out-of-pocket fees and expenses incurred by the Company in connection with the withdrawn registration of such Registrable Securities (based on the number of securities the Initiating Holder sought to register, as compared to the total number of securities included in such Demand Registration) or (B) the withdrawal is made following the occurrence of a Material Adverse Change or pursuant to the Company’s request for suspension pursuant to Section 3(o).
(v) The Company may include in any such Demand Registration other Company Securities for sale for its own account or for the account of any other Person, subject to Section 2(a)(vi) and Section 2(c)(iii).
(vi) In the case of a Demand Registration not being underwritten, if the Initiating Holder advises the Company that in its reasonable opinion the aggregate number of securities requested to be included exceeds the number that can be included without being likely to have a significant adverse effect on the price, timing or distribution of the securities offered or the market for the securities offered, the Company shall include in such Demand Registration only that number of securities that in the reasonable opinion of the Initiating Holder will not have such adverse effect, with such number to be allocated as follows: (A) first, pro-rata among all Holders (including the Initiating Holder) that have requested to participate in such Demand Registration based on the relative number of Registrable Securities then held by each such Holder, (B) second, if there remains availability for additional securities to be included in such Demand Registration, the Company, and (C) third, if there remains availability for additional securities to be included in such Demand Registration, any other holders entitled to participate in such Demand Registration, if applicable, based on the relative number of securities such holder is entitled to include in such Demand Registration.
(vii) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration on such appropriate registration form of the Commission (A) as shall be selected by the Company and (B) as shall permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the Demand Notice; provided that if the Company becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to the Company). If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Company that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, the Company will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(viiviii) 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.
(viiiix) 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: Registration Rights Agreement (Centennial Resource Development, Inc.)
Demand Registration. (ia) At any time after the expiration Upon receipt of the Lock-Up Period, any Holder shall have the option and right, exercisable by delivering a written notice to the Company request (a “Demand NoticeRequest”) from the Holders of Requisite Securities, subject to Section 4(c), to require the Company toshall, pursuant to the terms of and subject to the limitations contained in this Agreement, as promptly as practicable prepare and file cause to be filed with the Commission a Registration Statement registering the offering and sale of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice, which may include sales on a delayed or continuous basis SEC pursuant to Rule 415 pursuant to under the Securities Act a Shelf Registration Statement on the appropriate form relating to resales of all Registrable Securities (a “Demand Registration”). The Demand Notice must set forth the number of Registrable Securities that the Initiating Holder intends to include in such Demand Registration and the intended methods of disposition thereof. Notwithstanding anything In addition to the contrary herein, in no event shall the Company be required to effectuate a Demand Registration unless the Registrable Securities to be included therein have an aggregate value, based on the VWAP as of the date of the Demand Notice, of at least $25 million (the “Minimum Amount”).
(ii) Within fifteen Business Days after the receipt of the Demand Notice (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, within forty-five days thereof)foregoing, the Company shallmay, subject to the limitations of this Section 2(a), file a Registration Statement in accordance with the terms and conditions of the Demand Notice. The Company shall use all commercially reasonable efforts to cause such Registration Statement to become and remain effective under the Securities Act until all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect (A) a Demand Registration within 90 days after the closing of any Requested Underwritten Offering or (B) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of the Registrable Securities held by the Initiating Holder shall have become and remains effective under the Securities Act and is sufficient to permit offers and sales of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice in accordance with the intended timing and method or methods of distribution thereof specified in the Demand Notice.
(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 Demand Request, at its option, prepare and cause to be filed with the SEC pursuant to Rule 415 under the Act a Holder Registration Statement on the appropriate form relating to the effect that the Holder is withdrawing an amount resales of its all Registrable Shares from Securities (a “Company Registration,” either of the Demand Registration or Company Registration being referred to herein as a “Registration”). The Company shall use its reasonable best efforts to cause any such Registration Statement to be declared effective by the SEC. To the extent necessary to ensure that the remaining amount Registration Statement is available for sales of Registrable Shares Securities by the Holders thereof entitled to be included in the Demand Registration is below the Minimum Amountbenefit of this Section 4(a), the Company shall cease all use its reasonable best efforts to secure effectiveness of the applicable keep any Registration Statement.
(vStatement required by this Section 4(a) 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 Personcontinuously effective, supplemented, amended and current as required by and subject to the provisions of Section 2(c)(iii).
(vi4(a) Subject to hereof and in conformity in all material respects with the limitations contained in requirements of this Agreement, the Company shall effect any Demand Registration on such appropriate registration form Securities Act and the rules and regulations of the Commission promulgated thereunder from time to time (including (A) as shall be selected by the Company preparing and (B) as shall permit the disposition of the Registrable Securities in accordance filing with the intended method or methods of disposition specified in the Demand Notice; provided that if the Company becomes, SEC such amendments and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available post-effective amendments to the Company). If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Company that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, the Company will amend or supplement such Registration Statement as may be necessary to keep such Registration Statement effective; (B) causing the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act, and complying with Rules 424, 430A and 462, as applicable, under the Securities Act in order a timely manner; and (C) complying with the provisions of the Securities Act with respect to enable the disposition of all securities covered by such offering to take placeRegistration Statement), until the second anniversary of the effective date of the Registration Statement; provided that such obligation shall expire before such date if all the Registrable Securities covered by the Registration Statement (i) have been sold pursuant thereto or (ii) are no longer Restricted Securities.
(viib) Without limiting Section 3No Holder may include any of its Registrable Securities in any Registration Statement pursuant to this Agreement unless and until such Holder furnishes to the Company in writing, within 20 days after receipt of a request therefor, the information specified in Item 507 or 508 of Regulation S-K, as applicable, of the Securities Act for use in connection with any Demand Registration Statement or Prospectus or preliminary Prospectus included therein. Each selling Holder agrees to promptly furnish additional information required to be disclosed in order to make the information previously furnished to the Company by such Holder not materially misleading.
(c) The Company shall be required to effect no more than four (4) Registrations (including any Company Registration) pursuant to and in accordance with this Section 2(a)4, the Company shall (A) promptly prepare and file or cause to be prepared and filed only one (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 Registration shall be required to become effective in any jurisdiction where, as a 180-day period. The Company shall be deemed not to have used its best efforts to keep the Registration Statement effective during the requisite period if it voluntarily takes any action that would result thereof, the Company would become subject to general service in Holders 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 covered thereby not being able to offer and sell such Registrable Securities during that period, unless such action is required by applicable law or this Agreement. In lieu of effecting a Registration pursuant to this Section 4, the Company may elect to amend or supplement a Registration Statement that has been previously been filed and declared effective pursuant to a Demand Registration or a Company Registration to add such requesting Holders’ Registrable Shares to such Registration Statement; Statement provided that in no event such amendment or supplement is permitted by applicable law. In such case, the Company’s obligations with respect to such Registration shall be satisfied.
(d) If the Company receives a Demand Request during a “lock-up” or “black out” period (the “Lock Up Period”) imposed on the Company pursuant to or in connection with any underwriting or purchase agreement relating to a Rule 144A offering or a registered public offering of Common Stock or securities convertible into or exchangeable for Common Stock, the Company shall not be required to file a post-effective amendment Registration Statement prior to the end of the Lock Up Period; provided that such Lock Up Period shall not exceed 90 days or, in the case of the Company’s initial Public Equity Offering, 180 days. In such event, the Company shall use its reasonable best efforts to cause the Registration Statement unless to become effective no later than the later of (Ai) such Registration Statement includes only Registrable Securities held by the Holder, Affiliates 180 days after receipt of the Holder or transferees Demand Request and (ii) 60 days after the end of the Holder or (B) Lock Up Period. The Company shall notify 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 Holders within 10 days of the Holder or transferees imposition of any Lock Up Period on the HolderCompany.
Appears in 1 contract
Samples: Equity Registration Rights Agreement (Grande Communications Holdings, Inc.)
Demand Registration. (i) At On any time two (2) occasions after November 16, 1997 until the expiration earlier of (i) the third anniversary of this Agreement or (ii) the date on which all of the Lock-Up PeriodRegistrable Shares (as hereinafter defined) have become eligible for sale pursuant to Rule 144 promulgated under the Securities Act, subject to the conditions set forth in this Agreement, including without limitation the conditions set forth in Section 1(a)(ii) below, any Holder or Holders may request that the Company cause to be filed a registration statement (a "Demand Registration Statement") under Rule 415 under the Securities Act relating to the sale by such holders of their previously or concurrently issued Registrable Shares in accordance with the terms hereof. As used in this Agreement, the term "Registrable Shares" means shares of Common Stock issued or to be issued to the Holders upon redemption or in exchange for their Units, excluding (A) Common Stock for which a Registration Statement relating to the sale thereof shall have become effective under the Securities Act, (B) Common Stock sold pursuant to Rule 144 under the Securities Act or (C) Common Stock eligible for sale pursuant to Rule 144 under the Securities Act. Upon receipt of any such request, the Company shall give written notice of such proposed registration to all Holders of Units and Registrable Shares. Such Holders shall have the option and right, exercisable by delivering a giving written notice to the Company within fifteen (a “Demand Notice”), 15) business days after such notice referred to require in the preceding sentence has been given by the Company to, pursuant to the terms of and subject elect to the limitations contained in this Agreement, prepare and file with the Commission a Registration Statement registering the offering and sale of the number and type of Registrable Securities on the terms and conditions specified have included 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”). The Demand Notice must set forth the number such of their Registrable Securities that the Initiating Shares as each Holder intends to include may request in such Demand Registration and the intended methods notice of disposition thereofelection. Notwithstanding anything to the contrary herein, in no event shall the Company be required to effectuate a Demand Registration unless the Registrable Securities to be included therein have an aggregate value, based on the VWAP as of the date of the Demand Notice, of at least $25 million (the “Minimum Amount”).
(ii) Within fifteen Business Days after the receipt of the Demand Notice (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, within forty-five days thereof)Thereupon, the Company shall, subject to the limitations of this Section 2(a), file a Registration Statement in accordance with the terms and conditions of the Demand Notice. The Company shall use all commercially reasonable efforts to cause such Demand Registration Statement to become be filed and remain declared effective by the Securities and Exchange Commission (the "SEC") for all Registrable Shares which the Company has been requested to register as soon as practicable thereafter. The Company agrees to use reasonable efforts to keep the Demand Registration Statement continuously effective until the earliest of (a) the date on which the Holders no longer hold any Registrable Shares registered under the Demand Registration Statement, (b) the date on which the Registrable Shares may be sold by the Holders pursuant to Rule 144 promulgated under the Securities Act until all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect (A) a Demand Registration within 90 days after the closing of any Requested Underwritten Offering or (Bc) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all the date which is six (6) months from the effective date 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 a Holder to the effect that the Holder is withdrawing an amount of its Registrable Shares from the Demand Registration such that the remaining amount of Registrable Shares to be included in the Demand Registration is below the Minimum Amount, the The Company shall cease all efforts to secure effectiveness of the applicable Registration Statement.
(v) The Company may include in any such Demand Registration other Company Securities for sale for its own account or for the account of any other Person, subject to Section 2(c)(iii).
(vi) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration on such appropriate registration form of the Commission (A) as shall be selected by the Company and (B) as shall permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the Demand Notice; provided that if the Company becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to the Company). If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Company that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, the Company will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(vii) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), the Company shall (A) promptly prepare and file or cause to be prepared and filed (1) such additional forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents, as may be necessary or advisable to register or qualify the securities subject to such Demand Registration, including under the securities laws of such jurisdictions as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, the Company would become subject to general service of process or to taxation or qualification to do business in such jurisdiction solely as a result of registration and (2) such forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents as may be necessary to apply for listing or to list the Registrable Securities subject to such Demand Registration on the Trading Market and (B) do any and all other acts and things that may be reasonably necessary or appropriate or reasonably requested by the Holders to enable the Holders to consummate a public sale of such Registrable Securities in accordance with the intended timing and method or methods of distribution thereof.
(viii) In the event a Holder transfers Registrable Securities included on a Registration Statement and such Registrable Securities remain Registrable Securities following such transfer, at the request of such Holder, the Company shall amend or supplement such Registration Statement as may be necessary in order to enable such transferee to offer and sell such Registrable Securities pursuant to such Registration Statement; provided that in no event shall the Company not be required to file and effect a post-effective amendment to the new Demand Registration Statement unless pursuant to this Section 1(a) until a period of twelve (A12) such Registration Statement includes only Registrable Securities held by months has elapsed from the Holder, Affiliates termination of the Holder or transferees of the Holder or (B) the Company has received written consent therefor from registration statement with respect to Registrable Shares covered by 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 Holderprior registration request.
Appears in 1 contract
Samples: Registration Rights Agreement (Patriot American Hospitality Operating Co\de)
Demand Registration. (ia) At any time after the expiration of the Lock-Up Period, any Holder The Company 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, prepare and file with the Commission a Registration Statement registering with the offering and sale SEC, on or before the Filing Deadline, covering the resale of all of the number and type Registrable Securities as described herein. The Company shall use commercially reasonable efforts to have the Registration Statement declared effective as soon as practicable. In the event that the Company is unable to register for resale under Rule 415 all of the Registrable Securities on the terms and conditions specified in the Demand Notice, which may include sales on a delayed or continuous basis Registration Statement that it has agreed to file pursuant to Section 2(a) due to limits imposed by the SEC’s interpretation of Rule 415 pursuant 415, then the Company shall be obligated to a Shelf include in such Registration Statement (a “Demand Registration”)as withdrawn and refiled if necessary to comply with Rule 415) only such limited portion of the Registrable Securities as the SEC shall permit. The Demand Notice must set forth Any exclusion of Registrable Securities shall be made pro rata among the Holders in proportion to the number of Registrable Securities that held by such Holders. Any request for acceleration of the Initiating Holder intends Registration Statement shall seek effectiveness at 5:00 p.m., Texas time, or as soon thereafter as practicable. The Company shall notify the Holders by facsimile or e-mail as soon as promptly practicable, and in any event, prior to include 9:00 a.m., Texas time, on the day after any Registration Statement is declared effective, shall file with the SEC under Rule 424 a final prospectus as promptly as practicable, and in such Demand any event, prior to 9:00 a.m., Texas time, on the day after any Registration and the intended methods of disposition thereof. Notwithstanding anything to the contrary hereinStatement is declared effective.
(b) The Company shall prepare, and, as soon as practicable but in no event shall later than the Company be required to effectuate Additional Filing Deadline, file with the SEC an Additional Registration Statement on Form S-1 (or Form S-3, if applicable) covering the resale of all of the Registrable Securities not previously registered in a Demand Registration unless Statement or a preceding Additional Registration Statement as the case may be. To the extent the SEC does not permit the aforesaid Registrable Securities to be included therein have registered on an aggregate value, based on the VWAP as of the date of the Demand Notice, of at least $25 million (the “Minimum Amount”).
(ii) Within fifteen Business Days after the receipt of the Demand Notice (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, within forty-five days thereof)Additional Registration Statement, the Company shall, subject shall file Additional Registration Statements successively trying to the limitations of this Section 2(a), file a register on each such Additional Registration Statement in accordance the maximum number of remaining Registrable Securities until the resale of the remaining Registrable Securities have been registered with the terms and conditions of the Demand NoticeSEC. The Company shall use all its commercially reasonable efforts to cause such have each Additional Registration Statement to become and remain declared effective under the Securities Act until all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect (A) a Demand Registration within 90 days after the closing of any Requested Underwritten Offering or (B) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of the Registrable Securities held by the Initiating Holder shall have become and remains effective under SEC as soon as practicable, but in no event later than the Securities Act and is sufficient to permit offers and sales of the number and type of Registrable Securities Additional Effectiveness Deadline. By 9:00 a.m. Texas time on the terms and conditions specified in business day following 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 a Holder to the effect that the Holder is withdrawing an amount of its Registrable Shares from the Demand Registration such that the remaining amount of Registrable Shares to be included in the Demand Registration is below the Minimum AmountAdditional Effective Date, the Company shall cease all efforts file with the SEC in accordance with Rule 424 the final prospectus to secure effectiveness of the applicable be used in connection with sales pursuant to such Additional Registration Statement.
(v) The Company may include in any such Demand Registration other Company Securities for sale for its own account or for the account of any other Person, subject to Section 2(c)(iii).
(vi) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration on such appropriate registration form of the Commission (A) as shall be selected by the Company and (B) as shall permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the Demand Notice; provided that if the Company becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to the Company). If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Company that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, the Company will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(vii) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), the Company shall (A) promptly prepare and file or cause to be prepared and filed (1) such additional forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents, as may be necessary or advisable to register or qualify the securities subject to such Demand Registration, including under the securities laws of such jurisdictions as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, the Company would become subject to general service of process or to taxation or qualification to do business in such jurisdiction solely as a result of registration and (2) such forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents as may be necessary to apply for listing or to list the Registrable Securities subject to such Demand Registration on the Trading Market and (B) do any and all other acts and things that may be reasonably necessary or appropriate or reasonably requested by the Holders to enable the Holders to consummate a public sale of such Registrable Securities in accordance with the intended timing and method or methods of distribution thereof.
(viii) In the event a Holder transfers Registrable Securities included on a Registration Statement and such Registrable Securities remain Registrable Securities following such transfer, at the request of such Holder, the Company shall amend or supplement such Registration Statement as may be necessary in order to enable such transferee to offer and sell such Registrable Securities pursuant to such Registration Statement; provided that in no event shall the Company be required to file a post-effective amendment to the Registration Statement unless (A) such Registration Statement includes only Registrable Securities held by the Holder, Affiliates of the Holder or transferees of the Holder or (B) the Company has received written consent therefor from a Person for whom Registrable Securities have been registered on (but not yet sold under) such Registration Statement, other than the Holder, Affiliates of the Holder or transferees of the Holder.
Appears in 1 contract
Samples: Registration Rights Agreement (Youblast Global, Inc.)
Demand Registration. (ia) At any time From and after the expiration of one (1) year anniversary following the Lock-Up PeriodClosing, 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 AgreementSection 1.1(b), prepare Section 1.1(c) and file with the Commission Section 2.3, upon written request from a Registration Statement registering the offering and sale of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice, which may include sales on a delayed or continuous basis pursuant to Rule 415 pursuant to a Shelf Registration Statement (a “Demand Registration”). The Demand Notice must set forth the number of Registrable Securities Holder requesting that the Initiating Holder intends to include in such Demand Registration and Company effect the intended methods of disposition thereof. Notwithstanding anything to the contrary herein, in no event shall the Company be required to effectuate a Demand Registration unless the Registrable Securities to be included therein have an aggregate value, based on the VWAP as of the date of the Demand Notice, of at least $25 million (the “Minimum Amount”).
(ii) Within fifteen Business Days after the receipt of the Demand Notice (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, within forty-five days thereof), the Company shall, subject to the limitations of this Section 2(a), file a Registration Statement in accordance with the terms and conditions of the Demand Notice. The Company shall use all commercially reasonable efforts to cause such Registration Statement to become and remain effective registration under the Securities Act until of all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect (A) a Demand Registration within 90 days after the closing of any Requested Underwritten Offering or (B) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all part of the Registrable Securities held by such Holder, which notice may be delivered at any time after such one (1) year anniversary and which notice shall specify the Initiating Holder shall have become and remains intended method or methods of disposition of such Registrable Securities (“Registration Request Notice”), unless such Registrable Securities are included in a currently effective Registration Statement permitting the resale of such Registrable Securities in the manner contemplated by the Registration Request Notice, the Company will use its commercially reasonable efforts to file the appropriate Registration Statement under the Securities Act and is sufficient to permit offers and sales with the SEC as promptly as reasonably practicable after receipt of the number and type of Registrable Securities on the terms and conditions specified in the Demand Registration Request Notice in accordance with the intended timing and method or methods of distribution thereof specified in the Demand and, as promptly as reasonably practicable following such Registration Request Notice.
(iv) A Holder may withdraw all or any portion of its Registrable Securities included in a Demand , cause such Registration from such Demand Registration at any time prior to the effectiveness of the applicable Registration Statement. Upon receipt of a notice from a Holder to the effect that the Holder is withdrawing an amount of its Registrable Shares from the Demand Registration such that the remaining amount of Registrable Shares Statement to be included in the Demand Registration is below the Minimum Amount, the Company shall cease all efforts to secure effectiveness of the applicable Registration Statement.
(v) The Company may include in any such Demand Registration other Company Securities for sale for its own account or for the account of any other Person, subject to Section 2(c)(iii).
(vi) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration on such appropriate registration form of the Commission (A) as shall be selected declared effective by the Company SEC and (B) as shall to permit the disposition of the such Registrable Securities in accordance with the intended method or methods of disposition specified stated in such Registration Request Notice. The Company shall not be required to maintain the Demand Notice; provided that if the Company becomes, and is at the time effectiveness of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to the Company). If at any time a such Registration Statement on Form S-3 is beyond the earlier to occur of (i) one hundred twenty 120 days after the effective date thereof and a (ii) consummation of the distribution by Holder provides written notice to the Company that it intends to effect an offering of all or part of the Registrable Securities included on in such Registration StatementStatement (such period, the “Effectiveness Period”).
(b) Notwithstanding Section 1.1(a), if the Company previously shall have caused a Registration Statement to be declared effective by the SEC with respect to the Registrable Securities, the Company will amend or supplement such shall not be required to cause a subsequent Registration Statement as may to be necessary in order declared effective by the SEC pursuant to enable this Section 1.1 until a period of one hundred twenty (120) days shall have elapsed from the effective date of the most recent such offering to take placeprevious registration.
(viic) Without limiting Notwithstanding Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a1.1(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 not 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 effect (i) more than two (2) such formsregistrations pursuant to this Section 1.1 in any twelve (12) consecutive month period or (ii) a registration of Registrable Securities, 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 fair market value of which on the Trading Market and (B) do any and all other acts and things that may be reasonably necessary or appropriate or reasonably requested date of receipt by the Holders to enable the Holders to consummate a public sale Company 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 Request Notice is less than twenty million dollars (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$20,000,000).
Appears in 1 contract
Demand Registration. (i) At any time after After the expiration of first date upon which Units held by the Lock-Up PeriodHolders may be redeemed until the date on which there are no Registrable Shares (as hereinafter defined) remaining, 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 conditions set forth in this Agreement, prepare and file with including without limitation the Commission conditions set forth in Section 1(b)(ii) below, any Holder or Holders may request that the Company cause to be filed a registration statement (a "Demand Registration Statement registering the offering and sale of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice, which may include sales on a delayed or continuous basis pursuant to Statement") under Rule 415 pursuant to a Shelf Registration Statement (a “Demand Registration”). The Demand Notice must set forth under the number of Registrable Securities that the Initiating Holder intends to include in such Demand Registration and the intended methods of disposition thereof. Notwithstanding anything Act relating to the contrary herein, in no event shall the Company be required to effectuate a Demand Registration unless the sale by such Holders of their previously or concurrently issued Registrable Securities to be included therein have an aggregate value, based on the VWAP as of the date of the Demand Notice, of at least $25 million (the “Minimum Amount”).
(ii) Within fifteen Business Days after the receipt of the Demand Notice (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, within forty-five days thereof), the Company shall, subject to the limitations of this Section 2(a), file a Registration Statement Shares in accordance with the terms and conditions of the Demand Noticehereof. The Company shall use all commercially reasonable efforts to cause such Registration Statement to become and remain effective under the Securities Act until all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”).
(iii) Subject to the other limitations contained As used in this Agreement, the Company is not obligated hereunder term "Registrable Shares" means shares of Common Stock issued or to effect be issued to the Holders upon redemption or in exchange for their Units, excluding (A) a Demand Registration within 90 days after the closing of any Requested Underwritten Offering or (B) a subsequent Demand Registration pursuant to a Demand Notice if Common Stock for which a Registration Statement covering all of relating to the Registrable Securities held by the Initiating Holder issuance or sale thereof shall have become and remains effective under the Securities Act and is sufficient which have been issued or sold, as applicable, under such Registration Statement, (B) Common Stock sold pursuant to permit offers Rule 144 under the Securities Act or (C) Common Stock which, together with all other Registrable Shares held by such Holder and any other Holder whose sales of Registrable Shares must be aggregated with sales of such Holder pursuant to Rule 144(e), is eligible for sale pursuant to Rule 144(e) under 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 StatementAct. Upon receipt of a any such request, the Company shall give written notice from a Holder of such proposed registration to all Holders of Units and Registrable Shares. Such Holders shall have the right, by giving written notice to the effect that Company within fifteen (15) business days after such notice referred to in the Holder is withdrawing an amount of its Registrable Shares from preceding sentence has been given by the Demand Registration such that the remaining amount of Registrable Shares Company to be elect to have included in the Demand Registration is below the Minimum AmountStatement such of their Registrable Shares as each Holder may request in such notice of election. Thereupon, the Company shall cease all use reasonable efforts to secure effectiveness of the applicable Registration Statement.
(v) The Company may include in any cause such Demand Registration Statement to be filed and declared effective by the SEC for all Registrable Shares which the Company has been requested to register as soon as practicable thereafter. The Company agrees to use reasonable efforts to keep the Demand Registration Statement continuously effective until the earliest of (a) the date on which the Holders no longer hold any Registrable Shares registered under the Demand Registration Statement, (b) the date on which the Registrable Shares registered under the Demand Registration Statement held by each Holder may, together with all other Company Securities for sale for its own account or for the account of Registrable Shares held by such Holder and any other PersonHolder whose sales of Registrable Shares must be aggregated with sales of such Holder pursuant to Rule 144(e), subject be sold by such Holder pursuant to Rule 144(e) under the Securities Act or (c) the date which is six (6) months from the effective date of such Demand Registration Statement. Lexington agrees not to request more than five (5) Demand Registration Statements pursuant to this Section 2(c)(iii1(b) and each Holder other than Lexington agrees not to request more than one (1) Demand Registration Statement pursuant to this Section 1(b).
(vi) Subject to the limitations contained in this Agreement. In addition, the Company shall effect any Demand Registration on such appropriate registration form of the Commission (A) as shall be selected by the Company and (B) as shall permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the Demand Notice; provided that if the Company becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to the Company). If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Company that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, the Company will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(vii) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), the Company shall (A) promptly prepare and file or cause to be prepared and filed (1) such additional forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents, as may be necessary or advisable to register or qualify the securities subject to such Demand Registration, including under the securities laws of such jurisdictions as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, the Company would become subject to general service of process or to taxation or qualification to do business in such jurisdiction solely as a result of registration and (2) such forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents as may be necessary to apply for listing or to list the Registrable Securities subject to such Demand Registration on the Trading Market and (B) do any and all other acts and things that may be reasonably necessary or appropriate or reasonably requested by the Holders to enable the Holders to consummate a public sale of such Registrable Securities in accordance with the intended timing and method or methods of distribution thereof.
(viii) In the event a Holder transfers Registrable Securities included on a Registration Statement and such Registrable Securities remain Registrable Securities following such transfer, at the request of such Holder, the Company shall amend or supplement such Registration Statement as may be necessary in order to enable such transferee to offer and sell such Registrable Securities pursuant to such Registration Statement; provided that in no event shall the Company not be required to file and effect a post-effective amendment to the new Demand Registration Statement unless pursuant to this Section 1(b) until a period of six (A6) such Registration Statement includes only Registrable Securities held by months has elapsed from the Holder, Affiliates termination of the Holder or transferees of the Holder or (B) the Company has received written consent therefor from registration statement with respect to Registrable Shares covered by 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 Holderprior registration request.
Appears in 1 contract
Samples: Registration Rights Agreement (Bradley Real Estate Inc)
Demand Registration. (ia) At Subject to Section 5 hereof, if at any time after the expiration of the Lock-Up Period, any Holder shall have the option and right, exercisable by delivering a written notice to request the Company (a “Demand Notice”), to require the Company to, pursuant to the terms of and subject to the limitations contained in this Agreement, prepare and file with the Commission a Registration Statement registering the offering and sale of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice, which may include sales on a delayed or continuous basis pursuant to Rule 415 pursuant to a Shelf Registration Statement (a “Demand Registration”). The Demand Notice must set forth the number of Registrable Securities that the Initiating Holder intends to include in such Demand Registration and the intended methods of disposition thereof. Notwithstanding anything to the contrary herein, in no event shall the Company be required to effectuate a Demand Registration unless the Registrable Securities to be included therein have an aggregate value, based on the VWAP as of the date of the Demand Notice, of at least $25 million (the “Minimum Amount”).
(ii) Within fifteen Business Days after the receipt of the Demand Notice (except if the Company is not then eligible writing to register for resale the Registrable Securities on Form S-3, within forty-five days thereof), the Company shall, subject to the limitations of this Section 2(a), file a Registration Statement in accordance with the terms and conditions of the Demand Notice. The Company shall use all commercially reasonable efforts to cause such Registration Statement to become and remain effective under the Securities Act until all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect (A) or a Demand Registration within 90 days after the closing of any Requested Underwritten Offering or (B) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all part of the Registrable Securities held by the Initiating such 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 (a "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 a Holder to the effect that the Holder is withdrawing an amount of its Registrable Shares from the Demand Registration such that the remaining amount of Registrable Shares to be included in the Demand Registration is below the Minimum Amount, the Company shall cease all efforts to secure effectiveness of the applicable Registration Statement.
(v) The Company may include in any such Demand Registration other Company Securities for sale for its own account or for the account of any other Person, subject to Section 2(c)(iii).
(vi) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration on such appropriate registration form of the Commission (A) as shall be selected by the Company and (B) as shall permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the Demand Notice; provided that if the Company becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to the Company). If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Company that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, the Company will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(vii) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(aRegistration"), the Company shall (A) promptly prepare and file or use its best efforts to cause to be prepared filed and declared effective as soon as reasonably practicable (but in no event filed (1later than the 60th day after such Holder's request is made) a registration statement, on 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 appropriate form as the Holders Company shall reasonably request; provideddetermine, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, providing for 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 all such Registrable Securities by such Holder. The Company agrees to use its best efforts to keep any such registration statement continuously effective and usable for resale of Registrable Securities until the earlier of (a) the date the Holder whose Registrable Securities are included therein shall request and (b) the expiration of 180 days after such registration statement becomes effective, subject to extension as provided in accordance with the intended timing and method or methods of distribution thereofSection 4(d). The Company shall be obligated to file registration statements pursuant to this Section 2(a) until all Registrable Securities have ceased to be Registrable Securities. Each registration statement filed pursuant to this Section 2(a) is hereinafter referred to as a "Demand Registration Statement." Holders shall be entitled to two effective Demand Registration Statements per year.
(viiib) In The Company agrees (i) not to effect any public or private sale, distribution or purchase of any of its securities which are the event same as or similar to the Registrable Securities, including a Holder transfers Registrable sale pursuant to Regulation D or Regulation S under the Securities included Act, during the 60-day period prior to (or shorter if the Holder's notice precedes the offering by less than 60 days), and during the 90-day period beginning on, the closing date of each underwritten offering under any Demand Registration Statement, and (ii) to use reasonable best efforts to cause each holder of its securities purchased from the Company, at any time on or after the date of this Agreement (other than in a registered public offering) to agree not to effect any public sale or distribution of any such securities during such period, including a sale pursuant to Rule 144 under the Securities Act; it being understood that the registration rights granted hereunder are intended to take precedence over any other registration or distribution rights granted to any other purchasers of the Company's securities.
(c) The Company may postpone for a reasonable period of time, not to exceed 30 days, the filing or the effectiveness of any Demand Registration Statement and such Registrable Securities remain Registrable Securities following such transfer, at if the request Board of such Holder, Directors of 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 good faith determines 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 registration might have a material adverse effect on any plan or proposal by the HolderCompany with respect to any financing, Affiliates of the Holder acquisition, recapitalization, reorganization or transferees of the Holder other material transaction, or (B) the Company has received written consent therefor from is in possession of material non-public information that, if publicly disclosed, could result in a Person for whom material disruption of a major corporate development or transaction then pending or in progress or in other material adverse consequences to the Company.
(d) If at any time any Holder of Registrable Securities to be covered by a Demand Registration Statement desires to sell Registrable Securities in an underwritten offering, such Holder shall have the right to select any nationally recognized investment banking firm(s) to manage the offering, subject to the approval of the Company, which approval shall not be unreasonably withheld, and the Company shall enter into underwriting agreements with the underwriter(s) of such offering, which agreements shall contain such representations and warranties by the Company, and such other terms, conditions and indemnities as are similar to those of the Company contained in the underwriting agreement dated October 7, 1999 relating to the Offering or otherwise are at the time customarily contained in underwriting agreements for similar offerings.
(e) A Demand Registration Statement requested pursuant to Section 2(a) shall not be deemed to have been registered on effected (but i) if such Demand Registration Statement has not yet sold underbecome effective, (ii) if, after it has become effective, such Demand Registration StatementStatement becomes subject to any stop order, injunction or other order of the SEC 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 solely by reason of some act or omission by the Holder, Affiliates of the Holder or transferees of the HolderHolders.
Appears in 1 contract
Samples: Registration Rights Agreement (Homeservices Com Inc)
Demand Registration. (ia) At any time (and from time to time) after the earlier of (x) 180 days after the effective date of the registration statement for the IPO and (y) the expiration of the Lock-Up Periodperiod during which the managing underwriters for the IPO shall prohibit the Issuer from effecting any other public sale or distribution of Registrable Securities, the Issuer shall receive a request (each such request, a “Demand Request”) from Buyer or L Brands (each such Person (together with its permitted assigns, a “Requesting Shareholder”) that the Issuer effect the registration under the Securities Act of all or any Holder shall have the option and right, exercisable by delivering a written notice to the Company portion of such Requesting Shareholder’s Registrable Securities on Form S-3 (a “Demand NoticeShort Form Registration”)) or, only if the Issuer is not eligible to require the Company touse Form S-3 at such time, pursuant to the terms of Form S-1 (or any successor form thereto) (a “Long Form Registration,” and subject to the limitations contained in this Agreementtogether with a Short Form Registration, prepare and file with the Commission a Registration Statement registering the offering and sale of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice, which may include sales on a delayed or continuous basis pursuant to Rule 415 pursuant to a Shelf Registration Statement (a “Demand Registration”). The Demand Notice must , for the registration of such Registrable Securities, the Partnership shall provide the notices and take the actions set forth in the number immediately following paragraph. Each Demand Request shall specify the aggregate amount of Registrable Securities that the Initiating Holder intends to include in such Demand Registration be registered and the intended methods of disposition thereof. Notwithstanding anything to Promptly upon delivery of the contrary hereinDemand Request, the Issuer shall as soon as practicable, and in any event within 90 days, in no event shall the Company be required to effectuate case of a Demand Registration unless request for a Long Form Registration, and within 45 days, in the Registrable Securities to be included therein have an aggregate valuecase of a Short Form Registration, based on the VWAP as of in each case, after the date of the Demand NoticeRequest, of at least $25 million file with the SEC a Registration Statement relating to such Demand Request covering all Registrable Securities requested to be included in such registration, as specified in the Demand Request (provided, however, that if a Demand Request is delivered prior to the “Minimum Amount”).
(ii) Within fifteen Business Days after the receipt expiration of the Demand Notice Lock-up Period (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, within forty-five days thereofas defined below), the Company shallIssuer shall not be obligated to file, subject but shall be obligated to prepare, such Registration Statement prior to the limitations of this Section 2(a), file a Registration Statement in accordance with the terms and conditions expiration of the Demand Notice. The Company shall Lock-up Period) and use all commercially its reasonable best efforts to cause such Registration Statement to become and remain effective under the Securities Act until as promptly as reasonably practicable. The Issuer shall promptly give notice of any Demand Request at least 20 Business Days prior to the anticipated filing date of the registration statement relating to such Demand Registration to the other equityholders of the Issuer entitled to exercise registration rights (together with their respective permitted assigns, (the “Shareholders”) and shall use its reasonable best efforts to effect, as expeditiously as possible, the registration under the Securities Act, as detailed above, of:
(i) subject to the restrictions set forth in Section 10.01(e) and Section 10.03, all Registrable Securities covered by such Registration Statement have been sold (for which the “Effectiveness Period”).Requesting Shareholder has requested registration under this Section 10.01; and
(iiiii) Subject subject to the restrictions set forth in Section 10.01(e) and Section 10.03, all other limitations contained Registrable Securities of the same class as those requested to be registered by the Requesting Shareholder that any Shareholder with rights to request registration under this Section 10.01 (all such Limited Partners, together with the Requesting Shareholder, and any Shareholders participating in this Agreement, the Company is not obligated hereunder to effect (A) a Demand Registration within 90 days after the closing of any Requested Underwritten Offering or (B) a subsequent Demand Piggyback Registration pursuant to a Section 10.03, the “Registering Shareholders”) have requested the Issuer to register by request received by the Issuer within 15 Business Days after such Shareholders receive the Issuer’s notice of the Demand Notice if a Registration Statement covering Registration; all to the extent necessary to permit the disposition (in accordance with the Demand Request) of the Registrable Securities held so to be registered; provided that, subject to Section 10.01(d), the Issuer shall not be obligated to effect more than one Demand Request in any six-month period, and no Requesting Shareholder shall be entitled to make more than three requests for registration pursuant to this Section 10.01, other than Short Form Registrations, for which an unlimited number of requests pursuant to this Section 10.01 shall be permitted, so long as the Issuer is eligible to use Form S-3 under the Securities Act (or any successor thereto); provided further that the Issuer shall not be obligated to effect a Demand Request unless the aggregate proceeds expected to be received from the sale of the Registrable Securities requested to be included in such Demand Request equals or exceeds $100,000,000.
(b) Promptly after the expiration of the fifteen-Business Day-period referred to in Section 10.01(a)(ii), the Issuer will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of Registrable Securities requested to be included therein.
(c) The Issuer shall be liable for and pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Demand Registration is effected; provided that the Issuer shall not be liable for, and the Requesting Shareholder who made the request for such Demand Registration shall be liable for, any Registration Expenses of any registration begun pursuant to Section 10.01(a), the request of which is subsequently withdrawn by such Requesting Shareholder unless the withdrawal is based upon (i) any fact, circumstance, event, change, effect or occurrence that individually or in the aggregate has a material adverse effect on the Issuer, or (ii) material adverse information concerning the Issuer that the Issuer had not publicly revealed prior to such request for a Demand Registration or that the Issuer had not otherwise notified such Requesting Shareholder of at the time of such request. All Selling Expenses incurred in connection with any Demand Registration shall be borne by the Initiating Holder Shareholders of the Registrable Securities so registered pro rata on the basis of the aggregate offering or sale price of the Registrable Securities so registered.
(d) A Demand Registration shall not be deemed to have occurred unless the registration statement relating thereto (i) has become and remains effective under the Securities Act and is sufficient to permit offers and sales (ii) has remained continuously effective until all Registrable Securities of the Registering Shareholders included in such registration have actually been sold thereunder); provided that such registration statement shall not be considered a Demand Registration if, after such registration statement becomes effective, such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other Governmental Authority.
(e) If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Issuer that, in its view, 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 a Holder to the effect that the Holder is withdrawing an amount of its Registrable Shares from the Demand Registration such that the remaining amount of Registrable Shares requested to be included in such registration exceeds the Demand Registration is below the Minimum Amount, the Company shall cease all efforts to secure effectiveness of the applicable Registration Statement.
(v) The Company may include in any such Demand Registration other Company Securities for sale for its own account or for the account of any other Person, subject to Section 2(c)(iii).
(vi) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration on such appropriate registration form of the Commission (A) as shall be selected by the Company and (B) as shall permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the Demand Notice; provided that if the Company becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling largest number of Registrable Securities shall that can be effected pursuant to sold without having an Automatic Shelf Registration Statementadverse effect on such offering, including the price at which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to the Company). If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Company that it intends to effect an offering of all or part of the such Registrable Securities included on such Registration Statement, can be sold (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“Maximum Offering Size”), the Company Issuer shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(Ai) promptly prepare and file or cause first, all Registrable Securities requested 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 included in such jurisdiction solely as a result of registration and by any Shareholders pursuant to this Section 10.01 (2) allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among 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 Shareholders 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 basis of the Holders to enable the Holders to consummate a public sale relative number of such Registrable Securities in accordance with the intended timing and method or methods shares 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 each such Shareholder at such time of determination (provided that any securities thereby allocated to a Shareholder that exceed such Shareholder’s request shall be reallocated among the Holderremaining requesting Shareholders in like manner)); and
(ii) second, Affiliates of any securities proposed to be registered by any other Persons (including the Holder or transferees of Issuer), with such priorities among them as 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 HolderIssuer shall determine.
Appears in 1 contract
Demand Registration. (i) At any time after the expiration of the Lock-Up Period, any Holder Distribution shall have the option and right, exercisable by delivering a written notice to on not more than four occasions in the Company (a “Demand Notice”)aggregate, and no more frequently than once during any six-month period, to require the Company toto register for offer and sale under the Securities Act (a "Demand") all or a portion of the Registrable Securities held by Distribution, pursuant to the terms of and subject to the limitations contained in restrictions set forth herein; provided that Distribution shall not 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 Distribution a notice pursuant to this AgreementSection 2(a) (a "Demand Notice"), prepare demanding that the Company register for offer and sale under the Securities Act Registrable Securities, subject to Section 2(b), the Company shall (i) use all reasonable efforts to file as promptly as reasonably practicable with the Commission a Registration Statement registering relating to the offering offer and sale of the number and type of Registrable Applicable Securities on such form as the terms and conditions specified in Company may reasonably deem appropriate (provided that the Demand NoticeCompany shall not, which may include sales unless the Company otherwise determines, be obligated to register any securities on a "shelf" registration statement or otherwise to register securities for offer or sale on a continuous or delayed or continuous basis pursuant to Rule 415 pursuant to a Shelf Registration Statement (a “Demand Registration”). The Demand Notice must set forth the number of Registrable Securities that the Initiating Holder intends to include in such Demand Registration and the intended methods of disposition thereof. Notwithstanding anything to the contrary hereinbasis) and, in no event shall the Company be required to effectuate a Demand Registration unless the Registrable Securities to be included therein have an aggregate valuethereafter, based on the VWAP as of the date of the Demand Notice, of at least $25 million (the “Minimum Amount”).
(ii) Within fifteen Business Days after the receipt filing of an initial version of the Demand Notice (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3Registration Statement, within forty-five days thereof), the Company shall, subject to the limitations of this Section 2(a), file a Registration Statement in accordance with the terms and conditions of the Demand Notice. The Company shall use all commercially reasonable efforts to cause such Registration Statement to become and remain be declared effective under the Securities Act until all Registrable Securities covered by as promptly as practicable after the date of filing of such Registration Statement have been sold (Statement; provided, however, that Distribution shall not be entitled to be named as a selling securityholder in the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect (A) a Demand Registration within 90 days after the closing of any Requested Underwritten Offering or (B) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of or to use 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 Prospectus forming a part thereof for resales 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 unless Distribution has made an Election. Subject to the effectiveness of the applicable Registration Statement. Upon receipt of a notice from a Holder to the effect that the Holder is withdrawing an amount of its Registrable Shares from the Demand Registration such that the remaining amount of Registrable Shares to be included in the Demand Registration is below the Minimum AmountSection 2(b), the Company shall cease all use reasonable efforts to secure effectiveness keep each Registration Statement continuously effective in order to permit the Prospectus forming a part thereof to be usable by Distribution for resales of Registrable Securities for an Effectiveness Period ending on the applicable earlier of (i) 30 days from the Effective Time of such Registration StatementStatement and (ii) such time as all of such securities have been disposed of by the selling securityholders.
(vb) The Company shall have the right to postpone (or, if necessary or advisable, withdraw) the filing, or delay the effectiveness, of a Registration Statement, or fail to keep such Registration Statement continuously effective or not amend or supplement the Registration Statement or included Prospectus, if 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 six-month period and all such postponements shall not exceed 180 days in the aggregate. The Company shall advise Distribution 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 sold 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. EXHIBIT 1.46
(d) The Company may include in any such Demand Registration requested pursuant to Section 2(a) hereof other Company Securities 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 Distribution, together with other securities for sale for the account of the Company or any other Person, subject to Section 2(c)(iii).
(vi) Subject to be registered exceeds the limitations contained number which can be sold in this Agreementsuch offering, the Company shall effect 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 Distribution and (ii) second, any other securities requested to be included in such Registration.
(e) Distribution shall have the right to withdraw any Demand (i) prior to the time the Registration on Statement in respect of such appropriate registration form 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 2(b), or (iv) if Distribution is prevented pursuant to Section 2(c) or (d) from selling all of the Commission Applicable Securities it requested to be registered. Notwithstanding such request to withdraw the Demand, the Registration requested by Distribution shall nonetheless be deemed to have been effected (and, therefore, requested) for purposes of Section 2(a) hereof if Distribution 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 Distribution could have been included, and in each case, (x) the Company has not availed itself of Section 2(b) with respect to such Registration request or (y) the Company has availed itself of Section 2(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 2(b). If Distribution 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, Distribution shall be entitled to participate in such Registration pursuant to Section 3, but in such case the Intended Offering Notice shall be required to be given to Distribution 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 Distribution and Distribution 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 2 shall involve, in whole or in part, an underwritten offering, one co-lead managing underwriter 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 becomesbe reasonably acceptable to Distribution, 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 other co-lead underwriter shall be effected pursuant to an Automatic Shelf Registration Statementselected by Distribution, which and shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available reasonably acceptable to the Company). If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Company that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, the Company will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(vii) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), the Company shall (A) promptly prepare and file or cause to be prepared and filed (1) such Any 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 co-managing underwriters 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 selected 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 thereofCompany.
(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: Registration Rights Agreement (Crown Media Holdings Inc)
Demand Registration. (ia) At any time after the expiration of Closing Date but before three (3) years after the Lock-Up PeriodClosing Date, any Holder the Holders shall have the option and right, exercisable by delivering a written notice delivered to the Company (such notice, a “Demand Notice”), to require the Company to, to register (the “Demand Registration”) under the Securities Act not less than 20% and up to 100% of the Registrable Securities. The number of Demand Registrations pursuant to this Section 2(a) shall not exceed two (2).
(b) The Company shall file each Registration Statement prepared in connection with a Demand Registration within ninety (90) days of the terms date on which the Company received the Demand Notice and shall use its commercially reasonable efforts to cause the same to be declared effective by the SEC within one hundred eighty (180) days of the date on which the Company received the Demand Notice and subject to the limitations contained in this Agreement, prepare and file with the Commission SEC a Registration Statement registering Prospectus that will be available for resales by the offering and sale of the number and type Holders of Registrable Securities on the terms and conditions specified in Securities. The Company shall keep the Demand NoticeRegistration effective for a period of ninety (90) days, which may include sales on or six (6) months (the “Effectiveness Period”) if a delayed or continuous basis pursuant Demand Registration is requested to Rule 415 pursuant to be a Shelf Registration Statement shelf registration (a “Shelf Registration”) from the date on which the SEC declares such Registration Statement effective or such shorter period which will terminate upon the distribution of all Registrable Securities pursuant to such Registration Statement.
(c) Subject to the conditions set forth in Section 2(a) hereof, the Holders may, at any time, make a written request for a Demand Registration”). The Demand Notice must set forth All requests made pursuant to this Section 2 will specify the number of Registrable Securities that the Initiating Holder intends to include in such Demand Registration be registered and will also specify the intended methods of disposition thereof. Notwithstanding anything If the Holders intend to distribute the Registrable Securities covered by the request by means of a registered public offering involving an underwriting, then the Demand Notice shall so state. In such event, the Holders shall select an underwriter that is reasonably acceptable to the contrary hereinCompany, in no event shall and the Company and the Holders shall enter into an underwriting agreement in customary form with such underwriter.
(d) Notwithstanding the foregoing provisions of this Section 2,
(i) the Company shall not be required obliged to effectuate effect a Demand Registration unless the Registrable Securities pursuant to be included therein have an aggregate value, based on the VWAP this Section 2 if a Registration Statement was previously filed as a result of a request pursuant to this Section 2 within a period of one hundred twenty (120) days of the date Company’s receipt of the Demand Notice, of at least $25 million (the “Minimum Amount”).;
(ii) Within fifteen Business Days after the receipt of the Demand Notice (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, within forty-five days thereof), the Company shall, subject has issued and sold to the limitations of this Section 2(a)public, file pursuant to a Registration Statement in accordance with the terms and conditions of the Demand Notice. The Company shall use all commercially reasonable efforts to cause such Registration Statement to become and remain effective registration statement filed under the Securities Act until all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this AgreementAct, the Company is not obligated hereunder to effect (A) a Demand Registration within 90 days after the closing of any Requested Underwritten Offering or (B) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of the Registrable Securities held by the Initiating Holder shall have become and remains effective under the Securities Act and is sufficient to permit offers and sales of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice in accordance with the intended timing and method or methods of distribution thereof specified in the Demand Notice.
(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 securities within three (3) months prior to the effectiveness of the applicable Registration Statement. Upon receipt of a notice from a Holder to the effect that the Holder is withdrawing an amount of its Registrable Shares from the Demand Registration such that the remaining amount of Registrable Shares to be included in the Demand Registration is below the Minimum Amount, the Company shall cease all efforts to secure effectiveness of the applicable Registration Statement.
(v) The Company may include in any such Demand Registration other Company Securities for sale for its own account or for the account of any other Person, subject to Section 2(c)(iii).
(vi) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration on such appropriate registration form of the Commission (A) as shall be selected by the Company and (B) as shall permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the Demand Notice; provided that if the Company becomes, and is at the time date of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected Notice pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to this Section 2 and the Company). If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to ’s investment banker has advised the Company in writing that it intends to effect an offering of all or part the registration of the Registrable Securities included on would adversely affect the market for the Company’s securities covered by such Registration Statement, the Company will amend or supplement shall have the right to delay the requested registration of the Registrable Securities for such Registration Statement period as the investment banker may be necessary in order to enable so advise, but no more than ninety (90) days after the date on which such offering to take place.Demand Notice was made; and
(viiiii) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), the Company shall be entitled to postpone for a reasonable period of time but in no event more than ninety (A90) promptly prepare and file or cause days the filing of any Registration Statement otherwise required to be prepared and filed (1) by it pursuant to this Section 2 if, at the time it receives a Demand Notice pursuant to this Section 2, the Company determines, in its reasonable judgment, that such additional formsregistration and offering would materially interfere with any financing, amendmentsacquisition, supplements, prospectuses, certificates, letters, opinions corporate reorganization or other material transaction involving the Company or its Affiliates and other documents, as may be necessary or advisable to register or qualify promptly gives the securities subject to such Demand Registration, including under the securities laws Holders written notice of such jurisdictions as the Holders shall reasonably requestdetermination; 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 may exercise its rights under this Section 2(d) no more than once during any three hundred sixty-five (2365) 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 thereofday period.
(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
Demand Registration. (ia) At any time after and from time to time, the expiration of the Lock-Up Period, any Holder Purchaser shall have the option and right, exercisable by delivering a written notice right to request in writing (which request shall specify the Company (a “Demand Notice”), Shares intended to require the Company to, pursuant to the terms be disposed of and subject to the limitations contained in this Agreement, prepare and file with the Commission a Registration Statement registering the offering and sale of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice, which may include sales on a delayed or continuous basis pursuant to Rule 415 pursuant to a Shelf Registration Statement (a “Demand Registration”). The Demand Notice must set forth the number of Registrable Securities that the Initiating Holder intends to include in such Demand Registration and the intended methods method of disposition distribution thereof. Notwithstanding anything to the contrary herein, in no event shall ) that the Company be required to effectuate register any or all of the Shares by filing with the SEC a registration statement covering such Shares (a "Demand Registration unless the Registrable Securities to be included therein have an aggregate value, based on the VWAP as of the date of the Demand Notice, of at least $25 million (the “Minimum Amount”Statement").
(ii) Within fifteen Business Days after . Upon the receipt of the Demand Notice (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, within forty-five days thereof)such a request, the Company shall, subject not later than the 60th calendar day after the receipt of such a request, cause to the limitations of this Section 2(a), file be filed a Demand Registration Statement in accordance with providing for the terms and conditions of the Demand Notice. The Company shall use all commercially reasonable efforts to cause such Registration Statement to become and remain effective registration under the Securities Act until all Registrable Securities covered of the Shares which the Company has been so requested to register by such Registration Statement have been sold (the “Effectiveness Period”).
(iii) Subject Purchaser, to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect (A) a Demand Registration within 90 days after the closing of any Requested Underwritten Offering or (B) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of the Registrable Securities held by the Initiating Holder shall have become and remains effective under the Securities Act and is sufficient extent necessary to permit offers and sales the disposition of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice such Shares 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 such request, and shall use its Registrable Securities included in a Demand Registration from best efforts to have such Demand Registration at any time prior to Statement declared effective by the effectiveness SEC as soon as practicable thereafter (but in no event later than the 90th calendar day after the date of the applicable Registration Statement. Upon receipt of a notice from a Holder to the effect that the Holder is withdrawing an amount of its Registrable Shares from filing the Demand Registration Statement with the SEC) and to keep such that Demand Registration Statement continuously effective for a period of time necessary following the remaining amount date on which such Demand Registration Statement is declared effective to permit the sale of Registrable all the Shares covered by such Demand Registration Statement or such shorter period which will terminate when all the Shares covered by such Demand Registration Statement have been sold pursuant thereto (including, if necessary, by filing with the SEC a post-effective amendment or a supplement to be included in the Demand Registration is below Statement or the Minimum Amount, the Company shall cease all efforts to secure effectiveness of the applicable Registration Statement.
(v) The Company may include in related prospectus or any such Demand Registration other Company Securities for sale for its own account document incorporated therein by reference or for the account of by filing any other Person, subject to Section 2(c)(iii).
(vi) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration on such appropriate registration form of the Commission (A) as shall be selected by the Company and (B) as shall permit the disposition of the Registrable Securities in accordance with the intended method required document 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, otherwise supplementing or amending the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 if required by the rules, regulations or any equivalent or successor instructions applicable to the registration form under the Securities Act (if available to used by the Company). If at any time a Company for such Demand Registration Statement on Form S-3 is effective or by the Securities Act, any state securities or "blue sky" laws, or any other rules and a Holder provides written notice to the Company that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, the Company will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take placeregulations thereunder).
(viib) Without limiting Section 3, in connection with any A Demand Registration pursuant Statement shall be deemed not to have become effective (and in accordance with this Section 2(a), the Company related registration shall (Abe deemed not to have been effected) 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 unless it has been declared effective by the securities subject to such Demand Registration, including under the securities laws of such jurisdictions as the Holders shall reasonably requestSEC; provided, however, that no such qualification shall be required in any jurisdiction whereif, as a result thereofafter it has been declared effective, the Company would become subject offering of any Shares pursuant to general service such Demand Registration Statement is interfered with by any stop order, injunction or other order or requirement of process the SEC or to taxation any other governmental agency or qualification to do business in court (other than any such jurisdiction solely stop order or injunction issued as a result of registration and (2i) 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 inclusion in such Demand Registration on Statement of any information supplied to the Trading Market and (B) do any and all other acts and things that may be reasonably necessary or appropriate or reasonably requested Company for inclusion therein by the Holders Purchaser or (ii) the conduct of the offering by the Purchaser or its agents) such Demand Registration Statement will be deemed not 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 thereofhave become effective.
(viiic) In the event a Holder transfers Registrable Securities included on a The Purchaser shall only be entitled to two effective Demand 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 Statements pursuant to such Registration StatementSection 8.2(a); provided provided, however, that in no event shall if the Company be required to file Purchaser requests 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 second Demand Registration Statement, other than (i) the Holder, Affiliates of the Holder or transferees of the Holder.Purchaser must propose to include in such Demand
Appears in 1 contract
Demand Registration. (i) At Subject to Section 2(f), at any time or from time to time after the expiration six-month anniversary of the Lock-Up PeriodEffectiveness Date, 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, prepare and file with the Commission a Registration Statement registering the offering and sale of the number and type of whose Registrable Securities on were excluded from 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”). The Demand Notice must set forth the number of Registrable Securities that the Initiating Holder intends to include in such Demand Registration and the intended methods of disposition thereof. Notwithstanding anything to the contrary herein, in no event shall the Company be required to effectuate a Demand Registration unless the Registrable Securities to be included therein have an aggregate value, based on the VWAP as of the date of the Demand Notice, of at least $25 million (the “Minimum Amount”).
(ii) Within fifteen Business Days after the receipt of the Demand Notice (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, within forty-five days thereof), the Company shall, subject to the limitations of this Section 2(a), file a Registration Statement in accordance with the terms provisions of Section 2(d) shall have the right to request in writing that the Company register all or part of such Holder's previously excluded Registrable Securities (a "REQUEST") (which Request shall specify the amount of Registrable Securities intended to be disposed of by such Holder and conditions the intended method of disposition thereof) by filing with the SEC a Demand Registration Statement. In the event that Form S-3 is unavailable for such a registration, the Company shall use such other form as is available for such a registration on another appropriate form reasonably acceptable to the requesting Holder(s), subject to the provisions of Section 2(h). As promptly as practicable, but no later than 10 days after receipt of a Request, the Company shall give written notice of such requested registration to all Holders of Registrable Securities which were previously excluded. Subject to Section 2(f), the Company shall include in a Demand Registration (i) the Registrable Securities intended to be disposed of by the requesting Holder(s) and (ii) the Registrable Securities intended to be disposed of by any other Holder which shall have made a written request (which request shall specify the amount of Registrable Securities to be registered and the intended method of disposition thereof) to the Company for inclusion thereof in such registration within 20 days after the receipt of such written notice from the Company. The Company shall, as expeditiously as possible following a Request, use its best efforts to cause to be filed with the SEC a Demand Registration Statement providing for the registration under the Securities Act of the Demand NoticeRegistrable Securities which the Company has been so requested to register in accordance herewith by all such Holders, to the extent necessary to permit the disposition of such Registrable Securities so to be registered in accordance with the intended methods of disposition thereof specified in such Request or further requests. The Company shall use all commercially reasonable its best efforts to cause such Registration Statement to become and remain effective under the Securities Act until all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect (A) a Demand Registration within 90 days after the closing of any Requested Underwritten Offering or (B) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of the Registrable Securities held by the Initiating Holder shall have become and remains effective under the Securities Act and is sufficient to permit offers and sales of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice in accordance with the intended timing and method or methods of distribution thereof specified in the Demand Notice.
(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 Statement declared effective by the SEC as soon as practicable thereafter and to the effectiveness of the applicable Registration Statement. Upon receipt of a notice from a Holder to the effect that the Holder is withdrawing an amount of its Registrable Shares from the Demand Registration such that the remaining amount of Registrable Shares to be included in the Demand Registration is below the Minimum Amount, the Company shall cease all efforts to secure effectiveness of the applicable Registration Statement.
(v) The Company may include in any keep such Demand Registration other Company Securities for sale for its own account or Statement continuously effective for the account of any other Person, subject to period specified in Section 2(c)(iii2(h).
(vi) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration on such appropriate registration form of the Commission (A) as shall be selected by the Company and (B) as shall permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the Demand Notice; provided that if the Company becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to the Company). If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Company that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, the Company will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(vii) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), the Company shall (A) promptly prepare and file or cause to be prepared and filed (1) such additional forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents, as may be necessary or advisable to register or qualify the securities subject to such Demand Registration, including under the securities laws of such jurisdictions as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, the Company would become subject to general service of process or to taxation or qualification to do business in such jurisdiction solely as a result of registration and (2) such forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents as may be necessary to apply for listing or to list the Registrable Securities subject to such Demand Registration on the Trading Market and (B) do any and all other acts and things that may be reasonably necessary or appropriate or reasonably requested by the Holders to enable the Holders to consummate a public sale of such Registrable Securities in accordance with the intended timing and method or methods of distribution thereof.
(viii) In the event a Holder transfers Registrable Securities included on a Registration Statement and such Registrable Securities remain Registrable Securities following such transfer, at the request of such Holder, the Company shall amend or supplement such Registration Statement as may be necessary in order to enable such transferee to offer and sell such Registrable Securities pursuant to such Registration Statement; provided that in no event shall the Company be required to file a post-effective amendment to the Registration Statement unless (A) such Registration Statement includes only Registrable Securities held by the Holder, Affiliates of the Holder or transferees of the Holder or (B) the Company has received written consent therefor from a Person for whom Registrable Securities have been registered on (but not yet sold under) such Registration Statement, other than the Holder, Affiliates of the Holder or transferees of the Holder.
Appears in 1 contract
Samples: Registration Rights Agreement (Aerobic Creations, Inc.)
Demand Registration. Subject to clause (i) At below, the Investor may request registration under the Securities Act (a "Demand Registration") of all or any time after the expiration portion of the 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, prepare and file with the Commission a Registration Statement registering the offering and sale of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice, which may include sales on a delayed Form S-3 or continuous basis pursuant to Rule 415 pursuant to a Shelf Registration Statement any similar short-form registration (a “Demand "Short Form Registration”"). The Investor's request for a Demand Notice must set forth Registration shall specify the approximate number of Registrable Securities that requested to be registered. Within ten days after receipt of such request, the Initiating Holder intends Company will give written notice of such requested registration to all other security holders and will include in such Demand Registration registration the Registrable Securities and the intended methods of disposition thereof. Notwithstanding anything such other securities with respect to the contrary herein, in no event shall which the Company has received written requests for inclusion therein within 15 days after the receipt of the Company's notice.
(i) The Company shall not be required to effectuate a effect the Demand Registration contemplated by this Section 2(a) unless the Company and the transaction proposed to be registered are eligible for Short Form Registration providing for automatic incorporation by reference of reports filed pursuant to the Exchange Act. The Company will use its commercially reasonable efforts to make a Short-Form Registration available for the sale of the Registrable Securities. After the Company has qualified for the use of a Short-Form Registration and for so long as the Investor owns any Registrable Securities, the Investor shall be entitled to request one Short-Form Registration. The Company will use its commercially reasonable efforts to maintain the effectiveness of such Short Form Registration at all times until the earliest to occur of (i) the sale of all of the Registrable Securities pursuant to the Registration Statement, (ii) the date on which all of the Registrable Securities become eligible for sale within a three (3) month period pursuant to Rule 144 under the Securities Act and (iii) the date on which the shares of Registrable Securities are transferred to any Person other than an Affiliate of the Investor (the latest of which to occur to be included therein have an aggregate value, based on known as the VWAP as of the date of the Demand Notice, of at least $25 million (the “Minimum Amount”"Termination Date").
(ii) Within fifteen Business Days after the receipt of the Demand Notice (except if the Company is not then eligible A registration pursuant to register for resale the Registrable Securities on Form S-3, within forty-five days thereof), the Company shall, subject to the limitations of this Section 2(a), file a Registration Statement in accordance with the terms and conditions 2 shall not be deemed to have been effected for purposes of the Demand Notice. The Company shall use all commercially reasonable efforts to cause Section 2(a)(i) hereof if:
(A) such Registration Statement to registration does not become effective and remain effective under until the Securities Act until all Registrable Securities covered Termination Date, without interference by such Registration Statement have been sold (the “Effectiveness Period”).
(iii) Subject to issuance by the other limitations contained in this Agreement, the Company is not obligated hereunder to effect (A) a Demand Registration within 90 days after the closing SEC of any Requested Underwritten Offering stop order with respect thereto or any other order preventing or suspending the use of any preliminary prospectus or prospectus;
(B) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of the Registrable Securities held by the Initiating Holder shall have become and remains effective under the Securities Act and is sufficient to permit offers and sales of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice in accordance with the intended timing and method registration 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 a Holder to the effect that the Holder is withdrawing an amount of its Registrable Shares from the Demand Registration such that the remaining amount of Registrable Shares to be included in the Demand Registration is below the Minimum Amount, the Company shall cease all efforts to secure effectiveness of the applicable Registration Statement.
(v) The Company may include in any such Demand Registration other Company Securities for sale for its own account or qualification for the account of any other Person, subject to Section 2(c)(iii).
(vi) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration on such appropriate registration form of the Commission (A) as shall be selected by the Company and (B) as shall permit the disposition offer or sale 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 any jurisdiction is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration suspended for any offering and selling of Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 reason or proceedings for any equivalent such purpose are initiated or successor form under threatened;
(C) the Securities Act (if available to the Company). If Investor withdraws its request for registration in its entirety at any time a because the Investor reasonably believed that the Registration Statement on Form S-3 is effective and or any prospectus related thereto contained an untrue statement of a Holder provides written notice material fact or omitted to state a material fact required to be stated therein or necessary to make the statements made therein (in the case of any prospectus, in light of the circumstances under which they were made) not misleading, notified the Company of such fact and requested that it intends the Company correct such alleged misstatement or omission, and the Company has refused to effect an offering correct such alleged misstatement or omission;
(E) the Company fails to comply with the provisions of all this Agreement or part any other agreement, document or instrument entered into in connection with such required registration, other than by reason of some act or omission by the holders of the Registrable Securities included on such Registration Statement, the Company will amend or supplement such Registration Statement as may be necessary in order that were 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 and sold; or
(but not yet sold underF) such Registration Statement, other than registration does not become effective within one hundred eighty (180) days after filing with the Holder, Affiliates of the Holder or transferees of the HolderSEC.
Appears in 1 contract
Samples: Registration Rights Agreement (Nstor Technologies Inc)
Demand Registration. (ia) At any time on or after the expiration date ninety (90) days from the date of the Lock-Up PeriodStock Purchase Agreement, any Holder shall have the option and right, exercisable by delivering a upon written notice to the Company Issuer from a Holder or Holders holding a majority in interest of the Registrable Securities (a “the "Demand Notice”Request"), to require the Company towhich notice requests, pursuant to the terms of and subject to the limitations contained in this AgreementSection 2.1, prepare and file with the Commission a Registration Statement registering the offering and sale of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice, which may include sales on a delayed or continuous basis pursuant to Rule 415 pursuant to a Shelf Registration Statement (a “Demand Registration”). The Demand Notice must set forth the number of Registrable Securities that the Initiating Holder intends to include in such Demand Registration and Issuer effect the intended methods of disposition thereof. Notwithstanding anything to the contrary herein, in no event shall the Company be required to effectuate a Demand Registration unless the Registrable Securities to be included therein have an aggregate value, based on the VWAP as of the date of the Demand Notice, of at least $25 million (the “Minimum Amount”).
(ii) Within fifteen Business Days after the receipt of the Demand Notice (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, within forty-five days thereof), the Company shall, subject to the limitations of this Section 2(a), file a Registration Statement in accordance with the terms and conditions of the Demand Notice. The Company shall use all commercially reasonable efforts to cause such Registration Statement to become and remain effective registration under the Securities Act until all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect (A) a Demand Registration within 90 days after the closing of any Requested Underwritten Offering or (B) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of the Registrable Securities held by such requesting Holders, which notice shall specify the Initiating Holder intended method or methods of disposition of such Registrable Securities, the Issuer shall have become prepare as soon as practicable and, within 20 days after such request, file with the Commission a registration statement with respect to such Registrable Securities and remains thereafter use all reasonable efforts to cause such registration statement to be declared effective under the Securities Act and is sufficient to permit offers and sales for purposes 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 a Holder to the effect that the Holder is withdrawing an amount of its Registrable Shares from the Demand Registration such that the remaining amount of Registrable Shares to be included in the Demand Registration is below the Minimum Amount, the Company shall cease all efforts to secure effectiveness of the applicable Registration Statement.
(v) The Company may include in any such Demand Registration other Company Securities for sale for its own account or for the account of any other Person, subject to Section 2(c)(iii).
(vi) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration on such appropriate registration form of the Commission (A) as shall be selected by the Company and (B) as shall permit the disposition of the Registrable Securities dispositions in accordance with the intended method or methods of disposition specified stated in such request. Notwithstanding any other provision of this Agreement to the contrary:
(i) the Holders may collectively exercise their rights to request registration under this Section 2.1(a) on not more than one occasion (such registration being referred to herein as the "Demand Notice; provided that if Registration");
(ii) the Company becomesmethod of disposition requested by Holders in connection with any Demand Registrations may not, and is at without the time of its receipt of Issuer's written consent, be a Rule 415 Offering;
(iii) the Issuer shall not be required to effect a Demand NoticeRegistration hereunder if all securities that were Registrable Securities on the date hereof have ceased to be Registrable Securities; and
(iv) the Issuer shall not be required to effect a Demand Registration hereunder, or to maintain any registration statement filed pursuant hereto effective after the date on which the Holders have met the holding period requirements pursuant to Rule 144.
(b) Notwithstanding any other provision of this Agreement to the contrary, a WKSI, the Demand Registration for any offering requested by Holders pursuant to this Section 2.1 shall not be deemed to have been effected and, therefore, not requested and selling the rights of Registrable Securities each Holder shall be effected pursuant deemed not to an Automatic Shelf have been exercised for purposes of paragraph (a) above, (i) if such Demand Registration Statementhas not become effective under the Securities Act or (ii) if such Demand Registration, which shall be on Form S-3 or any equivalent or successor form after it became effective under the Securities Act, was not maintained effective under the Securities Act (if available to other than as a result of any stop order, injunction or other order or requirement of the Company). If Commission or other government agency or court solely on the account of a material misrepresentation or omission of a Holder) for 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 least 30 days (or such shorter period ending when all or part of the Registrable Securities included on covered thereby have been disposed of pursuant thereto) (provided that such Registration Statement, 30-day period shall be extended for such number of days that equals 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 number of days elapsing from (A) promptly prepare and file or cause the date the written notice contemplated by Section 2.5(e) is given by the Issuer to be prepared and filed (1B) such additional forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents, as may be necessary or advisable the date on which the Issuer delivers 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 whereof Registrable Securities the amendment contemplated by Section 2.5(e)), 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 requested to be registered cannot be distributed in accordance with the plan of distribution set forth in the related registration statement. The Holders shall not lose their right to a Demand Registration under Section 2.1 if the Demand Registration related to such Demand Registration on Request is delayed or not effected in the Trading Market and circumstances set forth in this Section 2.1(b).
(Bc) do any and all other acts and things that may be reasonably necessary or appropriate or reasonably The Issuer shall have the right to cause the registration of additional equity securities for sale for the account of the Issuer in the registration of Registrable Securities requested by the Holders pursuant to enable Section 2.1(a), provided that if such Holders are advised in writing (with a copy to the Holders Issuer) by the lead or managing underwriter referred to consummate in Section 2.2 that, in such underwriter's good faith view, all or a public sale part of such Registrable Securities and additional equity securities cannot be sold and the inclusion of such Registrable Securities and additional equity securities in accordance with such registration would be likely to have an adverse effect on the intended price, timing or distribution of the offering and method or methods sale of distribution thereofthe Registrable Securities and additional equity securities then contemplated, then the number of securities that can, in the good faith view of such underwriter, be sold in such offering without so adversely affecting such offering shall be allocated first, to the Registrable Securities proposed to be included in the Demand Registration by the Holders and second, to the securities of the Issuer proposed to be included in such registration by the Issuer for sale for its own account. The Holders of the Registrable Securities to be offered pursuant to paragraph (a) above may require that any such additional equity securities be included by the Issuer in the offering proposed by such Holders on the same conditions as the Registrable Securities that are included therein.
(viiid) In the event Within seven days after delivery of a Holder transfers Registrable Securities included on Demand Request by a Registration Statement and such Registrable Securities remain Registrable Securities following such transfer, at the request of such Holder, the Company Issuer shall amend or supplement provide a written notice to each Holder, advising such Registration Statement as may be necessary in order Holder of its right to enable such transferee to offer and sell such Registrable Securities pursuant to such Registration Statement; provided that in no event shall include all of 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 such Holder for sale pursuant to the Holder, Affiliates Demand Registration and advising such Holder of the procedures to enable such Holder or transferees of the Holder or (B) the Company has received written consent therefor from a Person for whom to elect to so include Registrable Securities have been registered on (but not yet sold under) for sale in such Demand Registration. Any Holder may, within twenty days of delivery to such Holder of a notice pursuant to this Section 2.2(d), elect to so include Registrable Securities in such Demand Registration Statement, other than by written notice to such effect to the Holder, Affiliates Issuer specifying the number of the Holder or transferees of the Registrable Securities desired to be so included by such Holder.
Appears in 1 contract
Demand Registration. (ia) At any time after the expiration of the 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 Subject to the limitations contained set forth in this Agreement, prepare at any time and file with from time to time (without limitation other than the Commission a Registration Statement registering the offering and sale of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice, which may include sales on a delayed or continuous basis pursuant to Rule 415 pursuant to a Shelf Registration Statement (a “Demand Registration”). The Demand Notice must set forth the total number of Registrable Securities that Securities) on or after November 15, 1998, the Initiating Holder intends to include in such Demand Registration and the intended methods of disposition thereof. Notwithstanding anything to the contrary herein, in no event shall may request the Company be required to effectuate a Demand Registration unless the Registrable Securities to be included therein have an aggregate value, based on the VWAP as of the date of the Demand Notice, of at least $25 million (the “Minimum Amount”).
(ii) Within fifteen Business Days after the receipt of the Demand Notice (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, within forty-five days thereof), the Company shall, subject to the limitations of this Section 2(a), file a Registration Statement in accordance with the terms and conditions of the Demand Notice. The Company shall use all commercially reasonable efforts to cause such Registration Statement to become and remain effective under the Securities Act until all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this AgreementAct, the Company is not obligated hereunder to effect (A) a Demand Registration within 90 days after the closing of any Requested Underwritten Offering or (B) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of the Registrable Securities held by the Initiating Holder shall have become and remains effective under the Securities Act and is sufficient to permit offers and sales of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice in accordance with the intended timing and method or methods of distribution thereof specified in the Demand Notice.
(iv) A Holder may withdraw all or any portion of its Registrable Restricted Securities included for sale on terms and conditions comparable to those normally applicable to offerings of equity securities in similar circumstances as determined by the Company on Form X-0, Xxxx X-0, if available, or such other form as the Company deems appropriate; provided, however, that the request for registration must be for a Demand Shelf Registration from such Demand Registration at any time prior Statement pursuant to Rule 415 under the effectiveness of Securities Act.
(b) In connection with the applicable Shelf Registration Statement. Upon receipt of a notice from a Holder to the effect that the Holder is withdrawing an amount of its Registrable Shares from the Demand Registration such that the remaining amount of Registrable Shares to be included in the Demand Registration is below the Minimum Amount, the Company shall cease comply with all the provisions of Section 2.4 below and shall use its reasonable efforts to secure effectiveness effect such registration to permit the sale of the applicable Registration Statement.
(v) The Company may include in any such Demand Registration other Company Restricted Securities for sale for its own account or for the account of any other Person, subject to Section 2(c)(iii).
(vi) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration on such appropriate registration form of the Commission (A) as shall be selected by the Company and (B) as shall permit the disposition of the Registrable Securities being sold in accordance with the intended method or methods of disposition specified distribution thereof (as indicated in the Demand Notice; provided that if the Company becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to the Company). If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice information furnished to the Company that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, the Company will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(vii) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a2.2(c)). Subject to Section 2.2(d), the Company shall (Ause its best efforts to keep each such Shelf Registration Statement continuously effective, supplemented and amended as required by the provisions of Section 2.2(d) promptly prepare to the extent necessary to ensure that it is available for resales of Restricted Securities by the Holder, and file to ensure that it conforms with the requirements of this Agreement, the Securities Act and the policies, rules and regulations of the Commission as announced from time to time, for a period of 24 months from the Effective Time or cause such longer period as required by Section 2.2(d) or such shorter period that will terminate when all the securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or otherwise cease to be prepared and filed Restricted Securities (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 "Effective Period"). Upon the securities laws occurrence of such jurisdictions as the Holders shall reasonably request; provided, however, any event that no such qualification shall be required in would cause 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 Shelf Registration Statement or the Prospectus contained therein (i) to contain a material misstatement or omission or (ii) not to be effective and such Registrable usable for sale or resale of Restricted Securities remain Registrable Securities following such transfer, at during the request of such Holderperiod required by this Agreement, the Company shall amend file promptly an appropriate amendment to such Shelf Registration Statement or supplement the related Prospectus or any document incorporated therein by reference, in the case of clause (i), correcting any such misstatement or omission, and, in the case of either clause (i) or (ii), use its reasonable efforts to cause such amendment to be declared effective and such Registration Statement and the related Prospectus to become usable for its intended purpose(s) as soon as practicable thereafter.
(c) The Holder may not include any of its Restricted Securities in a Shelf Registration Statement pursuant to this Agreement unless and until such Holder furnishes to the Company in writing, within 30 Business Days after receipt of a written request therefor, such information specified in Item 507 of Regulation S-K under the Securities Act and such other information as the Company may reasonably request for use in connection with a Shelf Registration Statement or Prospectus or preliminary Prospectus included therein and in any application to the NASD. The Holder agrees to furnish promptly to the Company all information required to be necessary disclosed in order to enable such transferee make the information previously furnished 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) by 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 Holdermaterially misleading.
Appears in 1 contract
Samples: Registration Rights Agreement (Commodore Environmental Services Inc /De/)
Demand Registration. (ia) At Right to Demand Registration. Commencing December 15, 2000, at ---------------------------- any time after or from time to time when the expiration of the 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, prepare and file with the Commission a Registration Statement registering the offering and sale of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice, which may include sales on a delayed or continuous basis pursuant to Rule 415 pursuant to a Shelf Registration Statement (a “Demand Registration”). The Demand Notice must set forth the number of Registrable Securities that the Initiating Holder intends to include provided for in such Demand Registration and the intended methods of disposition thereof. Notwithstanding anything to the contrary herein, in no event shall the Company be required to effectuate a Demand Registration unless the Registrable Securities to be included therein have an aggregate value, based on the VWAP as of the date of the Demand Notice, of at least $25 million (the “Minimum Amount”).
(ii) Within fifteen Business Days after the receipt of the Demand Notice (except if the Company Section 2.3 has not become or is not then eligible to register for resale the Registrable Securities on Form S-3, within forty-five days thereof), the Company shall, subject to the limitations of this Section 2(a), file a Registration Statement in accordance with the terms and conditions of the Demand Notice. The Company shall use all commercially reasonable efforts to cause such Registration Statement to become and remain effective under the Securities Act until Act, the Majority Holders shall have the right to request in writing that the Company register all or part of such Holders' Registrable Securities covered by such Registration Statement have been sold (a "Request") ------- (which Request shall specify the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect (A) a Demand Registration within 90 days after the closing of any Requested Underwritten Offering or (B) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of the Registrable Securities held by the Initiating Holder shall have become and remains effective under the Securities Act and is sufficient to permit offers and sales of the number and type amount 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 a Holder to the effect that the Holder is withdrawing an amount of its Registrable Shares from the Demand Registration 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 disposed of the applicable Registration Statement.
(v) The Company may include in any by such Demand Registration other Company Securities for sale for its own account or for the account of any other Person, subject to Section 2(c)(iii).
(vi) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration on such appropriate registration form of the Commission (A) as shall be selected by the Company Holders and (B) as shall permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in thereof) by filing with the SEC a Demand Notice; provided that if the Company becomesRegistration Statement. As promptly as practicable, and is at the time of its but no later than 10 days after receipt of a Demand Notice, a WKSIRequest, the Company shall give written notice of such requested registration to all Holders of Registrable Securities. Subject to Section 2.1(b), the Company shall include in a Demand Registration for (i) the Registrable Securities intended to be disposed of by the Initiating Holders and (ii) the Registrable Securities intended to be disposed of by any offering and selling other Holder which shall have made a written request (which request shall specify the amount of Registrable Securities shall to be effected registered) to the Company for inclusion thereof in such registration within 20 days after the receipt of such written notice from the Company. The Company shall, as expeditiously as possible following a Request, use its best efforts to cause to be filed with the SEC a Demand Registration Statement providing for the registration under the Securities Act of the Registrable Securities which the Company has been so requested to register by all such Holders, to the extent necessary to permit the disposition of such Registrable Securities so to be registered in accordance with the intended method of disposition thereof specified in such Request (including, without limitation, by means of a shelf registration pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form Rule 415 under the Securities Act (a "Shelf ----- Registration") if available so requested and if the Company is then eligible to use such a ------------ registration). The Company shall use its best efforts to have such Demand Registration Statement declared effective by the SEC as soon as practicable thereafter and to keep such Demand Registration Statement continuously effective for the period specified in Section 4.1(b). A Request may be withdrawn prior to the Company). If at any time a filing of the Demand Registration Statement on Form S-3 is effective by the Majority Holders of the Registration (a "Withdrawn --------- Request") and a Holder provides written notice Demand Registration Statement may be withdrawn prior to the Company that it intends to effect an offering of all or part ------- effectiveness thereof by the Majority Holders of the Registration (a "Withdrawn --------- Demand Registration"), and such withdrawals shall be treated as a Demand ------------------- Registration which shall have been effected pursuant to this Section 2.1, unless the Holders of Registrable Securities to be included on such Registration Statement, the Company will amend or supplement in such Registration Statement as may be necessary in order reimburse the Company for its reasonable out-of-pocket Registration Expenses relating to enable the preparation and filing of such offering to take place.
(vii) Without limiting Section 3, in connection with any Demand Registration pursuant Statement (to and in accordance with this Section 2(athe extent actually incurred), 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 if a result thereof, the Company would become subject to general service of process -------- ------- Withdrawn Request 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 Withdrawn 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 is made (A) such Registration Statement includes only Registrable Securities held because of a material adverse change in the business, financial condition or prospects of the Company determined, in the case of an Underwritten Offering, by the Holdersole or lead managing Underwriter in its reasonable discretion, Affiliates of the Holder or transferees of the Holder or (B) because the Company has received written consent therefor from a Person for whom sole or lead managing Underwriter advises that the amount of Registrable Securities have been registered on (but not yet to be sold underin such offering be reduced pursuant to Section 2.1(b) by more than 20% of the Registrable Securities to be included in such Registration Statement, other than or (C) because of a postponement of such registration pursuant to Section 2.6, then such withdrawal shall not be treated as a Demand Registration effected pursuant to this Section 2.1 (and shall not be counted toward the Holdernumber of Demand Registrations), Affiliates and the Company shall pay all Registration Expenses in connection therewith. Any Holder requesting inclusion in a Demand Registration may, at any time prior to the effective date of the Holder or transferees Demand Registration Statement (and for any reason) revoke such request by delivering written notice to the Company revoking such requested inclusion. There is no limitation on the number of Demand Registrations pursuant to this Section 2.1 which the HolderCompany is obligated to effect. The registration rights granted pursuant to the provisions of this Section 2.1 shall be in addition to the registration rights granted pursuant to the other provisions of Section 2 hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (World Wrestling Federation Entertainment Inc)
Demand Registration. (ia) At any time after the expiration of the Lock-Up Period, any Holder shall have the option and right, exercisable by delivering a Upon written notice to the Company (Issuer from a “Demand Notice”), to require the Company to, pursuant to the terms Holder or Holders holding at least 10% of and subject to the limitations contained in this Agreement, prepare and file with the Commission a Registration Statement registering the offering and sale of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice, which may include sales on a delayed or continuous basis pursuant to Rule 415 pursuant to a Shelf Registration Statement (a “Demand Registration”). The Demand Notice must set forth the number of Registrable Securities that the Initiating Holder intends to include in such Demand Registration and the intended methods of disposition thereof. Notwithstanding anything to the contrary herein, in no event shall the Company be required to effectuate a Demand Registration unless the Registrable Securities to be included therein have an aggregate value, based on the VWAP as of the date of the Demand Notice, of at least $25 million (the “Minimum Amount”).
(ii"Demand Request") Within fifteen Business Days after requesting that the receipt of Issuer effect the Demand Notice (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, within forty-five days thereof), the Company shall, subject to the limitations of this Section 2(a), file a Registration Statement in accordance with the terms and conditions of the Demand Notice. The Company shall use all commercially reasonable efforts to cause such Registration Statement to become and remain effective registration under the Securities Act until all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect (A) a Demand Registration within 90 days after the closing of any Requested Underwritten Offering or (B) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of the Registrable Securities held by the Initiating Holder shall have become and remains effective under the Securities Act and is sufficient to permit offers and sales of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice in accordance with the intended timing and method or methods of distribution thereof specified in the Demand Notice.
(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 a Holder to the effect that the Holder is withdrawing an amount of its Registrable Shares from the Demand Registration such that the remaining amount of Registrable Shares to be included in the Demand Registration is below the Minimum Amount, the Company shall cease all efforts to secure effectiveness of the applicable Registration Statement.
(v) The Company may include in any such Demand Registration other Company Securities for sale for its own account or for the account of any other Person, subject to Section 2(c)(iii).
(vi) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration on such appropriate registration form of the Commission (A) as shall be selected by the Company and (B) as shall permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the Demand Notice; provided that if the Company becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to the Company). If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Company that it intends to effect an offering of all or part of the Registrable Securities included on held by such Registration Statement, requesting Holders (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"Requesting Holders"), the Company Issuer shall (A) promptly prepare as soon as practicable and file or with the Commission, within 30 days after such request, a registration statement with respect to such Registrable Securities and thereafter use its best efforts to cause such registration statement to be prepared declared effective under the Securities Act as soon as practicable. A registration effected pursuant to a Demand Request pursuant to this Section 2.1(a) shall be referred to herein as a "Demand Registration."
(b) Notwithstanding any other provision of this Agreement to the contrary, a Demand Registration requested by Holders pursuant to this Section 2.1 shall not be deemed to have been effected, and, therefore, not requested and filed the rights of each Holder shall be deemed not to have been exercised for purposes of paragraph (1a) above, if (i) such additional forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents, as may be necessary Demand Registration has not become effective under the Securities Act or advisable to register or qualify the securities subject to (ii) such Demand Registration, including after it became effective under the securities laws Securities Act, was not maintained effective under the Securities Act for at least 180 days (or such shorter period ending when all the Registrable Securities covered thereby have been disposed of such jurisdictions as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction wherepursuant thereto) and, as a result thereof, the Company would become subject Registrable Securities requested to general service be registered cannot be distributed in accordance with the plan of process or distribution set forth in the related registration statement.
(c) If the Requesting Holders initiating the Demand Registration intend to taxation or qualification distribute the Registrable Securities covered by their request by means of an underwritten offering, they shall so advise the Issuer as a part of their Demand Request and the Issuer shall include such information in the written notice referred to do business in Section 2.1(d). In such event, the right of any Holder to include its Registrable Securities in such jurisdiction solely 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 Registrable Securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by a majority in interest of the Requesting Holders initiating the registration (which underwriter or underwriters shall be reasonably acceptable to the Issuer). Notwithstanding any other provision of this Section 2.1, if the managing underwriter advises the Issuer that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities), then the Issuer shall so advise all Requesting Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of Registrable Securities that may be included in the underwriting shall be allocated to the Requesting Holders on a pro rata basis based on the number of Registrable Securities held by all Requesting Holders; provided, -------- however, that the number of Registrable Securities to be included in such ------- underwriting and registration will not be reduced unless all other securities of the Issuer that are entitled by contract or otherwise to be included therein are first entirely excluded from such underwriting and registration. If, as a result of the reduction specified in the immediately previous sentence, the Requesting Holders are required to reduce the securities they sought to register by 50% or more then the 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 shall not constitute a Demand Registration under this Section 2.1. Any Registrable Securities subject to excluded or withdrawn from such Demand Registration on underwriting shall be withdrawn from 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 thereofregistration.
(viiid) In the event Within five days after delivery of a Holder transfers Registrable Securities included on Demand Request by a Registration Statement and such Registrable Securities remain Registrable Securities following such transfer, at the request of such Holder, the Company Issuer shall amend provide a written notice to all other Holders, advising each such Holder of its right to include all 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 part of 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 such Holder for sale pursuant to the Demand Registration and advising such Holder of procedures to enable such Holder to elect to so include Registrable Securities for sale in the Demand Registration. Any Holder may, within 10 days of delivery to such Holder of a notice pursuant to this Section 2.1(d), elect to so include all or any portion of such Holder's Registrable Securities in the Demand Registration by written notice to such effect to the Issuer specifying the number of Registrable Securities desired to be so included by such Holder. All Holders requesting to have their Registrable Securities included in a Demand Registration pursuant to this Section 2.1(d) shall be deemed "Requesting Holders" for purposes of this Article 2.
(e) The Demand Registrations requested pursuant to Section 2.1(a) are subject to all the following limitations: (i) the Issuer shall not be required to effect more than three Demand Registrations (including registrations pursuant to a Form S-3 Request); (ii) the Issuer shall not be required to effect more than one registration statement on Form S-1 or any similar long form registration statement in any 12 month period and (iii) a registration statement on Form S-1 or any similar long form registration statement must include Registrable Securities with an aggregate public offering price of at least $20,000,000;
(f) Notwithstanding anything contained herein, upon the written request ("Form S-3 Request") of a Holder, the Issuer shall prepare and file with the Commission within 30 days after such request one or more registration statements on Form S-3 (which may at the Holder's request be a Rule 415 Offering) covering the resale of Registrable Securities in an amount as requested by such Holder, Affiliates and the Issuer shall use its best efforts to obtain the effectiveness of such registration statement as soon as practicable after filing and to maintain the Holder or transferees effectiveness of such registration statement until the Holder or (B) the Company has received written consent therefor from a Person for whom Registrable Securities have been registered on sold pursuant thereto; provided, however, -------- ------- that the Issuer shall not be obligated to effect any such registration pursuant to this Section 2.1(f): (but i) if Form S-3 is not yet sold underavailable or (ii) such Registration Statementif the Holders, together with the holders of any other than the Holder, Affiliates securities of the Holder Issuer entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public (net of any underwriters' discounts or transferees commissions) of the Holderless than $20,000,000.
Appears in 1 contract
Samples: Registration Rights Agreement (Plains All American Pipeline Lp)
Demand Registration. (i) At any time after the expiration of the 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, prepare and file with the Commission a Registration Statement registering the offering and sale of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice, which may include sales on a delayed or continuous basis pursuant to Rule 415 pursuant to a Shelf Registration Statement (a “Demand Registration”). The Demand Notice must set forth the number of Registrable Securities that the Initiating Holder intends to include in such Demand Registration and the intended methods of disposition thereof. Notwithstanding anything to the contrary herein, in no event shall the Company be required to effectuate a Demand Registration unless the Registrable Securities of the Holders to be included therein after compliance with Section 2(a)(ii) have an aggregate value, value of at least $50 million based on the VWAP (the “Minimum Amount”) as of the date of the Demand Notice, of at least $25 million (the “Minimum Amount”).
(ii) Within fifteen five Business Days (or if the Registration Statement will be a Shelf Registration Statement, within two Business Days) after the receipt of the Demand Notice, the Company shall give written notice of such Demand Notice to all Holders and, within 30 days after receipt of the Demand Notice (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case, within forty-five 90 days thereof), the Company shall, subject to the limitations of this Section 2(a), file a Registration Statement in accordance with the terms and conditions of the Demand Notice, which Registration Statement shall cover all of the Registrable Securities that the Holders shall in writing request to be included in the Demand Registration (such request to be given to the Company within three Business Days (or if the Registration Statement will be a Shelf Registration Statement, within one Business Day) after receipt of notice of the Demand Notice given by the Company pursuant to this Section 2(a)(ii)). The Company shall use all commercially reasonable best efforts to cause such Registration Statement to become and remain effective under the Securities Act until the earlier of (A) 180 days (or two years if a Shelf Registration Statement is requested) after the Effective Date or (B) the date on which all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”); provided, however, that such period shall be extended for a period of time equal to the period the Holders refrain from selling any securities included in such Registration Statement at the request of an underwriter of the Company or the Company pursuant to this Agreement.
(iii) Subject to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect (A) a Demand Registration within 90 days after the closing of any Requested Underwritten Offering or Offering, (B) more than a total of four Demand Registrations for which Kimmeridge (or any transferee thereof in accordance with Section 8(e)) is the Initiating Holder, (C) more than a total of four Demand Registrations for which Rock Ridge (or any transferee thereof in accordance with Section 8(e)) is the Initiating Holder, (D) more than a total of four Demand Registrations for which Source (or any transferee thereof in accordance with Section 8(e)) is the Initiating Holder, and (E) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of the Registrable Securities held by the Initiating Holder shall have become and remains effective under the Securities Act and is sufficient to permit offers and sales of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice in accordance with the intended timing and method or methods of distribution thereof specified in the Demand Notice; provided, that a demand for a Shelf Registration Statement shall not count against the number of allowable Demand Registrations for (B), (C) and (D) of this paragraph. No Demand Registration shall be deemed to have occurred for purposes of this Section 2(a)(iii) if the Registration Statement relating thereto does not become effective or is not maintained effective for its entire Effectiveness Period, in which case the Initiating Holder shall be entitled to an additional Demand Registration in lieu thereof. Further, a Demand Registration shall not constitute a Demand Registration of the Initiating Holder for purposes of this Section 2(a)(iii) if, as a result of Section 2(a)(vi), there is included in the Demand Registration less than the lesser of (x) Registrable Securities of the Initiating Holder having a VWAP measured on the effective date of the related Registration Statement of $50 million and (y) two-thirds of the number of Registrable Securities the Initiating Holder set forth in the applicable Demand Notice.
(iv) A Holder may withdraw all or any portion of its Registrable Securities included in a Demand Registration from such Demand Registration at any time prior to the effectiveness of the applicable Registration Statement. Upon receipt of a notice from the Initiating Holder that the Initiating Holder is withdrawing all of its Registrable Securities from the Demand Registration or a notice from a Holder to the effect that the Holder is withdrawing an amount of its Registrable Shares from the Demand Registration Securities such that the remaining amount of Registrable Shares Securities to be included in the Demand Registration is below the Minimum Amount, the Company shall cease all efforts to secure effectiveness of the applicable Registration Statement. Such registration nonetheless shall be deemed a Demand Registration with respect to the Initiating Holder for purposes of Section 2(a)(iii) unless (A) the Initiating Holder shall have paid or reimbursed the Company for its pro rata share of all reasonable and documented out-of-pocket fees and expenses incurred by the Company in connection with the withdrawn registration of such Registrable Securities (based on the number of securities the Initiating Holder sought to register, as compared to the total number of securities included in such Demand Registration) or (B) the withdrawal is made following the occurrence of a Material Adverse Change or pursuant to the Company’s request for suspension pursuant to Section 3(o).
(v) The Company may include in any such Demand Registration other Company Securities for sale for its own account or for the account of any other Person, subject to Section 2(c)(iii2(a)(vi) and Section 2(d)(iii).
(vi) In the case of a Demand Registration not being underwritten, if the Initiating Holder advises the Company that in its reasonable opinion the aggregate number of securities requested to be included exceeds the number that can be included without being likely to have a significant adverse effect on the price, timing or distribution of the securities offered or the market for the securities offered, the Company shall include in such Demand Registration only that number of securities that in the reasonable opinion of the Initiating Holder will not have such adverse effect, with such number to be allocated as follows: (A) first, pro-rata among all Holders (including the Initiating Holder) that have requested to participate in such Demand Registration based on the relative number of Registrable Securities then held by each such Holder, (B) second, if there remains availability for additional securities to be included in such Demand Registration, to the Company, and (C) third, if there remains availability for additional securities to be included in such Demand Registration, to any other holders entitled to participate in such Demand Registration, if applicable, based on the relative number of securities such holder is entitled to include in such Demand Registration.
(vii) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration on such appropriate registration form of the Commission (A) as shall be 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 provided, that if the Company becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to the Company). If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Company that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, the Company will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(viiviii) 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.
(viiiix) 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 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: Registration Rights Agreement (Desert Peak Minerals Inc.)
Demand Registration. (i) At If the Company shall receive, at any time after the expiration Effectiveness Date of the Lock-Up PeriodRegistration Statement pursuant to a mandatory registration under Section 2(a) but prior to five (5) years from the date of this Agreement, any Holder shall have the option and right, exercisable by delivering a written notice to request from the Holders of a majority in interest of the Warrant Shares (the “Initiating Holders”) that the Company file a registration statement under the Securities Act, then the Company shall, within fifteen (a 15) days after the receipt of such written request, give written notice of such request to all Holders (the “Demand Notice”), to require the Company to, pursuant to the terms of and subject to the limitations contained in this Agreement, prepare and file with by the Commission Demand Filing Date a Registration Statement registering (the offering and sale “Demand Registration Statement”) under the Securities Act covering all Warrant Shares requested to be registered by the Holders in a written request received by the Company within fifteen (15) days of 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”). The Demand Notice must set forth the number of Registrable Securities that the Initiating Holder intends to include in such Demand Registration and the intended methods of disposition thereof. Notwithstanding anything to the contrary herein, in no event shall the Company be required to effectuate a Demand Registration unless the Registrable Securities to be included therein have an aggregate value, based on the VWAP as of the date mailing of the Demand Notice, of at least $25 million (provided that such Registration Statement must be declared effective by the “Minimum Amount”).
(ii) Within fifteen Business Days after the receipt of Commission by the Demand Notice Effectiveness Date. The Demand Registration Statement required hereunder shall be on Form SB-2 (except if the Company is not then eligible to register for resale the Registrable Securities Warrant Shares on Form S-3SB-2, within forty-five days thereof), in which case the Company shall, subject to the limitations of this Section 2(a), file a Demand Registration Statement in accordance with shall be on another appropriate form). The Demand Registration Statement required hereunder shall contain the terms and conditions Plan of Distribution, attached hereto as Exhibit A (which may be modified to respond to comments, if any, received by the Demand NoticeCommission). The Company shall use all commercially reasonable efforts to cause such Registration Statement to become and remain effective under (i) not permit any securities other than the Securities Act until all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect (A) a Demand Registration within 90 days after the closing of any Requested Underwritten Offering or (B) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of the Registrable Securities held by the Initiating Holder shall have become and remains effective under the Securities Act and is sufficient to permit offers and sales of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice in accordance with the intended timing and method or methods of distribution thereof specified in the Demand Notice.
(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 a Holder to the effect that the Holder is withdrawing an amount of its Registrable Shares from the Demand Registration such that the remaining amount of Registrable Warrant Shares to be included in the Demand Registration is below the Minimum Amount, the Company shall cease all Statement and (ii) use its best efforts to secure effectiveness of the applicable Registration Statement.
(v) The Company may include in any such Demand Registration other Company Securities for sale for its own account or for the account of any other Person, subject to Section 2(c)(iii).
(vi) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration on such appropriate registration form of the Commission (A) as shall be selected by the Company and (B) as shall permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the Demand Notice; provided that if the Company becomes, and is at the time of its receipt of a Demand Notice, a WKSI, cause the Demand Registration for any offering and selling of Registrable Securities shall Statement to be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form declared effective under the Securities Act as promptly as possible after the filing thereof, and to keep such Demand Registration Statement continuously effective under the Securities Act until such date as is the earlier of (if available x) the date when all Warrant Shares covered by such Demand Registration Statement have been sold or (y) the date on which the Warrant Shares may be sold without any restriction pursuant to Rule 144(k) as determined by the counsel to the Company pursuant to a written opinion letter, addressed to the Company’s transfer agent to such effect (the “Demand Effectiveness Period”). If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Company that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, the Company will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(vii) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), the 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 not be required to file effect a post-effective amendment to the Demand Registration Statement unless pursuant to this Section 2(b): (Aaa) such Registration Statement includes only Registrable Securities held by the Holder, Affiliates of the Holder or transferees of the Holder or (B) after the Company has received written consent therefor from a Person for whom Registrable Securities effected one Demand Registration Statement pursuant to this Section 2(b), and such registrations have been registered on declared or ordered effective; and (but not yet sold underbb) such Registration Statement, other than during the Holder, Affiliates period starting with the date sixty (60) days prior to the Company’s good faith estimate of the Holder or transferees date of the Holderfiling of, and ending on a date one hundred eighty (180) days following the effective date of, a Company-initiated Registration Statement subject to Section 2(c), provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective.
Appears in 1 contract
Samples: Registration Rights Agreement (NovaRay Medical, Inc.)
Demand Registration. (i) At A Holder or Holders may request (at any time and from time to time, after the expiration Company completes an IPO) by written notice delivered to the Company that the Company register under the Securities Act all or any portion of the Lock-Up PeriodRegistrable Securities then held by such Holder or Holders and their affiliates for sale in the manner specified in such notice (including, but not limited to, in an underwritten public offering). In each such case, such notice shall specify the number of Registrable Securities for which registration is requested and the proposed manner of disposition of such securities. Within ten (10) Business Days after receipt of such notice, the Company shall notify the Holder(s) requesting registration of (A) the proposed filing date of the registration statement and (B) such other information concerning the offering as any Holder may have reasonably requested. If any Holder(s) shall have requested that such offering be underwritten, the managing underwriter for such offering shall be chosen by such Holders, with the consent of the Company (which consent shall not be unreasonably withheld or delayed), not less than thirty (30) days prior to the proposed filing date stated in the Company’s notice. On or before the thirtieth (30th) day prior to such anticipated filing date, any Holder shall have the option and right, exercisable by delivering a may give written notice to the Company and the managing underwriter specifying (a “Demand Notice”), to require the Company to, pursuant to the terms of and subject to the limitations contained in this Agreement, prepare and file with the Commission a Registration Statement registering the offering and sale of A) the number and type of shares of Registrable Securities of such Holder that are to be included in the underwriting and/or (B) the number of shares of Registrable Securities of such Holder that are to be registered pursuant to such registration statement and sold in the open market without any underwriting, on the terms and conditions comparable to those normally applicable to offerings in reasonably similar circumstances, regardless of the method of disposition originally 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”). The Demand Notice must set forth the number of Registrable Securities that the Initiating Holder intends to include in such Demand Registration and the intended methods of disposition thereofapplicable request for registration. Notwithstanding anything to the contrary contained herein, in no event shall the obligation of the Company to file a shelf registration statement shall be required subject to effectuate a Demand Registration unless the Registrable Securities terms of any lockup agreement applicable to be included therein have an aggregate value, based on the VWAP as Company under the terms of the date underwriting agreement entered into in connection with the initial public offering of Common Stock by the Demand Notice, of at least $25 million (the “Minimum Amount”)Company.
(ii) Within fifteen Business Days after the receipt of the Demand Notice (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, within forty-five days thereof), the Company shall, subject to the limitations of this Section 2(a), file a Registration Statement in accordance with the terms and conditions of the Demand Notice. The Company shall use all commercially reasonable efforts to cause such Registration Statement to become and remain effective under the Securities Act until all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect (A) a Demand Registration within 90 days after the closing of any Requested Underwritten Offering or (B) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of the Registrable Securities held by the Initiating Holder shall have become and remains effective under the Securities Act and is sufficient to permit offers and sales of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice in accordance file with the intended timing and method or methods of distribution thereof specified in the Demand Notice.
SEC within forty-five (iv45) 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 a Holder to the effect that the Holder is withdrawing an amount of its Registrable Shares from the Demand Registration 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.
days (vthirty (30) The Company may include in any such Demand Registration other Company Securities for sale for its own account or for the account of any other Person, subject to Section 2(c)(iii).
(vi) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration on such appropriate registration form of the Commission (A) as shall be selected by the Company and (B) as shall permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the Demand Notice; provided that days if the Company becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to the Company). If at any time may use a Registration Statement on Form S-3 is effective and to register such Registrable Securities) after the Company’s receipt of written notice from a Holder provides written notice or Holders pursuant to Section 2(a)(i), a registration statement for the public offering and sale, in accordance with the method of disposition specified by such Holder(s), of the number of Registrable Securities specified in such notice, and thereafter use all commercially reasonable efforts to cause such registration statement to become effective as soon as practicable, but in any event within sixty (60) days after its filing. Such registration statement may be on Form S-1 or another appropriate form (including Form S-3) that the Company is eligible to use and that is reasonably acceptable to the managing underwriter, if any.
(iii) If the Company is required to use commercially reasonable efforts to register Registrable Securities in a registration initiated upon the demand of a Holder or Holders pursuant to Section 2(a)(i) of this Agreement and the managing underwriters for such offering advise the Company in writing (with a copy to the Holder(s) demanding the registration) that it intends to effect an offering the inclusion of all Registrable Securities and other securities sought to be registered may interfere with an orderly sale and distribution of or part may materially adversely affect the price of such offering, then the Company will include in such offering (x) first, the aggregate number of Registrable Securities requested to be included by the Holder(s) pursuant to Section 2(a)(i) which the managing underwriters advise will not likely have such effect, allocated pro rata based on the number of such Registrable Securities duly requested to be included in such registration, (y) second, the Registrable Securities sought to be included in such registration pursuant to Article 3, allocated pro rata based on the number of such Registration StatementRegistrable Securities duly requested to be included in such registration and (z) third, all other securities requested to be included in such registration.
(iv) Upon the demand of a Holder or Holders made at any time and from time to time, the Company will amend facilitate a “takedown” of shares of Common Stock off of an effective shelf registration statement on Form S-3 (or supplement such Registration Statement as may be necessary in order to enable such offering to take placeany successor form thereto).
(viiv) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a)Upon the demand of a Holder or Holders, the Company shall (A) promptly prepare will file 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 seek the securities subject to such Demand Registration, including under the securities laws effectiveness 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 an existing shelf registration statement on Form S-3 (or any successor form thereto) in order to register up to the Registration Statement unless number of shares previously taken down off of such shelf by such Holder(s) and not yet “reloaded” onto such shelf registration statement. The Holder(s) and the Company will consult and coordinate with each other in order to accomplish such replenishments from time to time in a sensible manner.
(Ab) such Registration Statement includes only No registration of Registrable Securities held by the Holder, Affiliates of the Holder or transferees of the Holder or (B) under this Article 2 shall relieve the Company has received written consent therefor from a Person for whom of its obligation to effect registrations of 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 Holderpursuant to Article 3.
Appears in 1 contract
Samples: Registration Rights Agreement (MedQuist Holdings Inc.)
Demand Registration. (a) Subject to the conditions of this Section 2.1, if NPDC receives a written request from Flegel that NPDC file a registration statement under the Xxxxxxties Act covering the registration of all or a part of his Registrable Securities, then NPDC shall use its commercially reasonable efforts to effect, as soon as practicable, the registration under the Securities Act of all Registrable Securities that he has requested to be registered (such request to include the number of Registrable Securities sought to be included and the intended method or methods of distribution of such Registrable Securities), subject to and in accordance with the terms, conditions, procedures, and limitations contained in this Agreement. Flegel may at any time prior to the effective date of the xxxxxtration statement relating to a requested registration under this Section 2.1 revoke his request by providing written notice to NPDC, in which case the Registration Expenses will be borne in accordance with Section 2.4.
(b) NPDC shall not be required to effect a registration pursuant to this Section 2.1:
(i) At any time after prior to the expiration of the 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, prepare and file with the Commission a Registration Statement registering the offering and sale of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice, which may include sales on a delayed or continuous basis pursuant to Rule 415 pursuant to a Shelf Registration Statement (a “Demand Registration”). The Demand Notice must set forth the number of Registrable Securities that the Initiating Holder intends to include in such Demand Registration and the intended methods of disposition thereof. Notwithstanding anything to the contrary herein, in no event shall the Company be required to effectuate a Demand Registration unless the Registrable Securities to be included therein have an aggregate value, based on the VWAP as of the date of the Demand Notice, of at least $25 million (the “Minimum Amount”).;
(ii) Within fifteen Business Days after NPDC has effected one registration pursuant to this Section 2.1, provided, however, that a registration shall not count as having been effected unless and until it has become effective, and unless and until Flegel shall have had the receipt of the Demand Notice (except if the Company is not then eligible opportunity to register for resale the and sell 100% of xxx Registrable Securities on Form S-3initially requested to be registered pursuant thereto, within forty-five days thereof)except that a registration the request for which has been revoked by Flegel shall count as having been effected unless the revxxxxxxn is based upon material adverse information concerning the business or financial condition of NPDC, of which Flegel was not aware at the Company shall, subject to time of his request for regisxxxxxxn;
(iii) during the limitations of this Section 2(a), file a Registration Statement in accordance period starting with the terms date of filing of, and conditions of ending on the Demand Notice. The Company shall use all date 90 days following the effective date of, a registration statement pertaining to any underwritten public offering in which Flegel was given the opportunity to participate pursuant to Sectiox 2.2; provided that NPDC uses commercially reasonable efforts to cause such Registration Statement registration statement to become and remain effective under the Securities Act until all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect (A) a Demand Registration within 90 days after the closing of any Requested Underwritten Offering or (B) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of the Registrable Securities held by the Initiating Holder shall have become and remains effective under the Securities Act and is sufficient to permit offers and sales of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice in accordance with the intended timing and method or methods of distribution thereof specified in the Demand Notice.effective; or
(iv) A Holder may withdraw all or during any portion of its Registrable Securities included in a Demand Registration from such Demand Registration at any time prior period when NPDC is not eligible to the effectiveness of the applicable Registration Statement. Upon receipt of a notice from a Holder use Form S-3 to the effect that the Holder is withdrawing an amount of its Registrable Shares from the Demand Registration such that the remaining amount of Registrable Shares to be included in the Demand Registration is below the Minimum Amount, the Company shall cease all efforts to secure effectiveness of the applicable Registration Statement.
(v) The Company may include in any such Demand Registration other Company Securities for sale for its own account or for the account of any other Person, subject to Section 2(c)(iii).
(vi) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration on such appropriate registration form of the Commission (A) as shall be selected by the Company and (B) as shall permit the disposition of register the Registrable Securities in accordance with the intended method or methods of disposition specified in the Demand Notice; provided that if the Company becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to the Company). If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Company that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, the Company will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take placeSecurities.
(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: Registration Rights Agreement (National Patent Development Corp)
Demand Registration. (a) From and after the date hereof for a period of 270 days (plus any additional days during which a registration has been postponed pursuant to Section 2.1(f), but in no event beyond one (1) year after the date hereof), the Holder shall be entitled to have NDCHealth effect one (1) demand registration on Form S-3 (or any applicable substitute, replacement or successor form that may be adopted by the SEC) of the Registrable Securities then owned of record and beneficially by such Holder; provided, however, (i) At any time after that such demand registration shall only be exercisable if Arclight has terminated the expiration License Agreement pursuant to Section 18.2 or Section 18.3 thereof within the nine (9) month period beginning as of the Lock-Up PeriodClosing, any Holder and (ii) that NDCHealth shall have not be required to effect a demand registration unless the option and right, exercisable Registrable Securities for which demand is made constitutes all of the Registrable Securities acquired by delivering a written notice to Arclight as the Company Initial Exclusivity Fee. A request for such demand registration (a “Demand NoticeRegistration Request”)) must be made in writing by the Holder.
(b) NDCHealth shall use its best efforts to cause the Registrable Securities specified in the Registration Request to be registered as soon as reasonably practicable so as to permit the sale thereof and, to require in connection therewith, shall, within thirty (30) days after the Company to, pursuant to the terms of and subject to the limitations contained in this AgreementHolder provides NDCHealth with such notice, prepare and file a registration statement with the Commission a Registration Statement registering SEC under the offering Securities Act to effect such registration.
(c) Such registration statement shall contain such required information pursuant to the rules and sale regulations promulgated under the Securities Act and such additional information as deemed necessary by the managing underwriter or, if there is no managing underwriter, as deemed under the Securities Act to be necessary by NDCHealth.
(d) In connection with the preparation of the number and type of Registrable Securities on registration statement, 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 Holder shall:
(a “Demand Registration”). The Demand Notice must set forth i) Specify the number of Registrable Securities intended to be offered and sold by the Holder;
(ii) Express the Holder’s intention to offer or cause the offering of such shares for distribution;
(iii) Describe the nature or method of the proposed offer and sale thereof by the Holder; and
(iv) Undertake to provide all such information and materials and take all such action as may be required in order to permit NDCHealth to comply with all applicable requirements of the SEC and to obtain any desired acceleration of the effective date of such registration statement.
(e) Notwithstanding the foregoing, if NDCHealth shall furnish to the Holder a certificate signed by a duly authorized officer of NDCHealth stating that in the good faith judgment of the Board of Directors of NDCHealth it would be seriously detrimental to NDCHealth for such registration statement to be filed on or before the date such filing would be required, then NDCHealth shall be entitled to postpone the filing of the registration statement for up to ninety (90) days; provided, that no period of postponement shall be counted in tolling the 270-day period referred to in Section 2.1 (except that the Initiating Holder intends one (1) year outside date contained therein shall continue to include in such Demand Registration and the intended methods of disposition thereof. Notwithstanding anything to the contrary herein, in no event shall the Company be required to effectuate a Demand Registration unless the Registrable Securities to be included therein have an aggregate value, based on the VWAP as of the date of the Demand Notice, of at least $25 million (the “Minimum Amount”apply).
(iif) Within fifteen Business Days after the receipt If a registration has become effective but is withdrawn before completion of the Demand Notice (except if the Company is offering contemplated thereby because of adverse business developments at NDCHealth that were not then eligible to register for resale the Registrable Securities on Form S-3, within forty-five days thereof), the Company shall, subject known to the limitations Holder when it requested that NDCHealth initiate such registration proceedings, or which developments came into existence subsequent to such request, such registration shall not count as the demand registration referred to in the first sentence of this Section 2(a), file 2.1.
(g) If a Registration Statement in accordance with the terms and conditions registration is filed on behalf of the Demand Notice. The Company Holder and such registration is withdrawn at the request of the Holder for any reason other than adverse business developments at NDCHealth that were not known to the Holder, such registration shall use all commercially reasonable efforts count as the demand registration referred to in the first sentence of this Section 2.1.
(h) NDCHealth shall not cause such Registration Statement to become and remain effective the registration under the Securities Act until all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect (A) a Demand Registration within 90 days after the closing of any Requested Underwritten Offering or (B) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of the Registrable Securities held by the Initiating Holder shall have become and remains effective under the Securities Act and is sufficient to permit offers and sales of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice in accordance with the intended timing and method or methods of distribution thereof specified in the Demand Notice.
(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 a Holder to the effect that the Holder is withdrawing an amount of its Registrable Shares from the Demand Registration such that the remaining amount of Registrable Shares to be included in the Demand Registration is below the Minimum Amount, the Company shall cease all efforts to secure effectiveness of the applicable Registration Statement.
(v) The Company may include in any such Demand Registration other Company Securities for sale for its own account or for the account of any other Personshares of Common Stock to become effective (other than the registration of an employee stock plan, subject to Section 2(c)(iii).
(vi) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration on such appropriate or registration form of the Commission (A) as shall be selected by the Company and (B) as shall permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the Demand Notice; provided that if the Company becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to the Company). If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Company that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, the Company will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(vii) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), Rule 145 or similar transaction) during 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 effectiveness 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 thereofhereunder.
(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
Demand Registration. (i) At The Company shall, upon the written demand of the Buyer at any time after the expiration of the 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, prepare and file with the Commission a Registration Statement registering the offering and sale of the number and type acquisition of Registrable Securities on Securities, use its reasonable best efforts to effect the terms and conditions specified in registration (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”). The Demand Notice must set forth ") under the Act of such number of Registrable Securities that the Initiating Holder intends to include in such Demand Registration and the intended methods of disposition thereof. Notwithstanding anything to the contrary herein, in no event shall the Company be required to effectuate a Demand Registration unless the Registrable Securities to be included therein have an aggregate value, based on the VWAP as of the date of the Demand Notice, of at least $25 million (the “Minimum Amount”).
(ii) Within fifteen Business Days after the receipt of the Demand Notice (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, within forty-five days thereof), the Company shall, subject to the limitations of this Section 2(a), file a Registration Statement in accordance with the terms and conditions of the Demand Notice. The Company shall use all commercially reasonable efforts to cause such Registration Statement to become and remain effective under the Securities Act until all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect (A) a Demand Registration within 90 days after the closing of any Requested Underwritten Offering or (B) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of the Registrable Securities held by the Initiating Holder Buyer as shall have become and remains effective be indicated in a written demand sent to the Company by the Buyer; provided, however, that the Company shall not be required to effect a Demand Registration if counsel for the Company reasonably acceptable to the Buyer shall deliver to the Buyer an opinion reasonably acceptable to counsel for the Buyer that, pursuant to Rule 144 under the Securities Act and is sufficient to permit offers and sales of or otherwise, the number and type of Buyer can sell 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 a Holder to the effect that the Holder is withdrawing an amount of its Registrable Shares from the Demand Registration such that the remaining amount of Registrable Shares proposed to be included in the Demand Registration is below without registration under the Minimum AmountAct, without limitation as to the number of Registrable Securities that are proposed to be sold by the Buyer. The Company shall pay all expenses in connection with a Demand Registration. Upon receipt of the Buyer's written demand, the Company shall cease all expeditiously (but in any event within 90 days) file a registration statement under the Act for the Registrable Securities and use its best efforts to secure effectiveness of have such registration statement declared effective as soon as practicable after the applicable Registration Statement.
filing thereof; provided that (vA) The Company may include in any such Demand Registration other Company Securities for sale for its own account or for the account of any other Person, subject to Section 2(c)(iii).
(vi) Subject to the limitations contained in this Agreement, the Company shall effect not be required to cause any Demand Registration on such appropriate registration form of the Commission (A) as shall special audit to be selected by the Company and (B) as shall permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the Demand Notice; provided that if the Company becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to the Company). If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Company that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, the Company will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(vii) Without limiting Section 3, undertaken 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 shall not be required to file any registration statement during any period of time (not exceeding 90 days) when (I) the Company is contemplating a Person for whom Registrable Securities have been registered on public offering of its securities and, in the judgment of the managing underwriter thereof (but or the Company, if such offering is not yet sold underunderwritten) such Registration Statementfiling would have a material adverse effect on the contemplated offering, other than (II) the Holder, Affiliates Company is in possession of material information that it deems advisable not to disclose in a registration statement or (III) the Company is engaged in any program for the repurchase of voting securities of the Holder or transferees Company. The Buyer shall have the right to select the underwriters for a Demand Registration, subject to the approval of the HolderCompany, which approval will not be unreasonably withheld.
Appears in 1 contract
Samples: Stock Purchase and Registration Rights Agreement (Group Technologies Corp)
Demand Registration. (ia) At any time after the expiration of Closing Date but before three (3) years after the Lock-Up PeriodClosing Date, any Holder the Holders shall have the option and right, exercisable by delivering a written notice delivered to the Company (such notice, a “Demand Notice”), to require the Company to, pursuant to register (the terms of and subject to the limitations contained in this Agreement, prepare and file with the Commission a Registration Statement registering the offering and sale of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice, which may include sales on a delayed or continuous basis pursuant to Rule 415 pursuant to a Shelf Registration Statement (a “Demand Registration”)) under the Securities Act not less than 20% and up to 100% of the Registrable Securities. The Demand Notice must set forth the number of Registrable Securities that Holders delivering the Initiating Holder intends Demand Notice intend to include in such Demand Registration and the intended methods of disposition thereof. Notwithstanding anything The number of Demand Registrations pursuant to the contrary herein, this Section 2(a) shall not exceed two (2).
(b) The Company shall file each Registration Statement prepared in no event shall the Company be required to effectuate connection with a Demand Registration unless within ninety (90) days of the date on which the Company received the Demand Notice and shall use its commercially reasonable efforts to cause the same to be declared effective by the SEC within one hundred eighty (180) days of the date on which the Company received the Demand Notice and prepare and file with the SEC a Prospectus that will be available for resales by the Holders of Registrable Securities. The Company shall keep the Demand Registration effective for a period of ninety (90) days, or six (6) months (the “Effectiveness Period”) if a Demand Registration is requested to be a shelf registration (a “Shelf Registration”) from the date on which the SEC declares such Registration Statement effective or such shorter period which will terminate upon the distribution of all Registrable Securities pursuant to such Registration Statement.
(c) Subject to the conditions set forth in Section 2(a) hereof, the Holders may, at any time, make a written request for a Demand Registration. All requests made pursuant to this Section 2 will specify the number of Registrable Securities to be included therein have registered and will also specify the intended methods of disposition thereof. If the Holders intend to distribute the Registrable Securities covered by the request by means of a registered public offering involving an aggregate valueunderwriting, based on the VWAP as of the date of the Demand Notice, of at least $25 million (the “Minimum Amount”).
(ii) Within fifteen Business Days after the receipt of then the Demand Notice (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, within forty-five days thereof)shall so state. In such event, the Company shallshall designate a managing underwriter; provided, subject however, that such designated managing underwriter shall be reasonably acceptable to the limitations of this Section 2(a), file a Registration Statement in accordance with the terms and conditions of Holders delivering the Demand Notice. The Company and the Holders shall use all commercially reasonable efforts enter into an underwriting agreement in customary form with such underwriter; provided, however, that such underwriting agreement shall be reasonably acceptable to cause such Registration Statement to become and remain effective under the Securities Act until all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”)Company.
(iiid) Subject to Notwithstanding the other limitations contained in foregoing provisions of this AgreementSection 2, (i) the Company is shall not obligated hereunder be obliged to effect (A) a Demand Registration pursuant to this Section 2 if a Registration Statement was previously filed as a result of a request pursuant to this Section 2 within 90 a period of one hundred twenty (120) days after of the closing Company’s receipt of any Requested Underwritten Offering or the Demand Notice;
(Bii) the Company shall not be obliged to effect a subsequent Demand Registration with respect to any Registrable Securities pursuant to a Demand Notice this Section 2 if a Registration Statement covering all of the such requested 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.Act;
(iviii) A Holder may withdraw all or if the Company has issued and sold to the public, pursuant to a registration statement filed under the Securities Act, any portion of its Registrable Securities included in a Demand Registration from such Demand Registration at any time securities within three (3) months prior to the effectiveness of the applicable Registration Statement. Upon receipt of a notice from a Holder to the effect that the Holder is withdrawing an amount of its Registrable Shares from the Demand Registration such that the remaining amount of Registrable Shares to be included in the Demand Registration is below the Minimum Amount, the Company shall cease all efforts to secure effectiveness of the applicable Registration Statement.
(v) The Company may include in any such Demand Registration other Company Securities for sale for its own account or for the account of any other Person, subject to Section 2(c)(iii).
(vi) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration on such appropriate registration form of the Commission (A) as shall be selected by the Company and (B) as shall permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the Demand Notice; provided that if the Company becomes, and is at the time date of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected Notice pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to this Section 2 and the Company). If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to ’s investment banker has advised the Company in writing that it intends to effect an offering of all or part the registration of the Registrable Securities included on would adversely affect the market for the Company’s securities covered by such Registration Statement, the Company will amend or supplement shall have the right to delay the requested registration of the Registrable Securities for such Registration Statement period as the investment banker may be necessary in order to enable so advise, but no more than ninety (90) days after the date on which such offering to take place.Demand Notice was made; or
(viiiv) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), the Company shall be entitled to postpone for a reasonable period of time but in no event more than ninety (A90) promptly prepare and file or cause days the filing of any Registration Statement otherwise required to be prepared and filed (1) such additional formsby it pursuant to this Section 2 if, amendments, supplements, prospectuses, certificates, letters, opinions and other documents, as may be necessary or advisable at the time it receives a Demand Notice pursuant 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 thereofthis Section 2, the Company would become subject to general service of process or to taxation or qualification to do business determines, in its reasonable judgment, that such jurisdiction solely as a result of registration and (2) such formsoffering would materially interfere with any financing, amendmentsacquisition, supplements, prospectuses, certificates, letters, opinions corporate reorganization or other material transaction involving the Company or its Affiliates 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 promptly gives the Holders to enable the Holders to consummate a public sale written notice of such Registrable Securities in accordance with the intended timing and method or methods of distribution thereofdetermination.
(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
Demand Registration. (ia) At If the Preferred Shares are not redeemed by the Company pursuant to the Articles Supplementary on or before March 15, 2024, at any time after the expiration of the Lock-Up Periodsuch date, any Holder shall have the option and right, exercisable by delivering Modiv may make a written notice to the Company demand (such written demand a “Demand Notice”), to require the Company to, pursuant to the terms Registration” and which written demand may be sent via e-mail) for registration of and subject to the limitations contained in this Agreement, prepare and file with the Commission a Registration Statement registering the offering and sale all of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice, which may include sales an effective Registration Statement for an offering to be made on a delayed or continuous basis pursuant to Rule 415 pursuant to a Shelf Registration Statement (a “Demand Registration”)415. The Demand Notice must set forth the number of Registrable Securities that the Initiating Holder intends to include in such Demand Registration and the intended methods of disposition thereof. Notwithstanding anything Subject to the contrary hereinprovisions of Section 2(b) hereof, in no event shall the Company be required to effectuate a Demand Registration unless shall prepare and file with the Registrable Securities to be included therein have an aggregate valueSEC, based on the VWAP as of the date of the Demand Noticesoon thereafter as reasonably practicable, of at least $25 million but not more than thirty (the “Minimum Amount”).
(ii30) Within fifteen Business Days days after the Company’s receipt of the Demand Notice Registration, a Registration Statement on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, within forty-five days thereof)in which case such registration shall be on another appropriate form) in accordance herewith and which Registration Statement shall contain substantially the “Plan of Distribution” attached hereto as Annex A and substantially the “Selling Stockholder” section attached hereto as Annex B, with such changes mutually agreed upon by the Company shall, subject and Modiv or its permitted assigns prior to the limitations filing of this Section 2(a), file such Registration Statement. Such Registration Statement shall comply as to form in all material respects with the requirements of the applicable form and include all financial statements required by the SEC to be filed therewith. Modiv shall not be required to be named as an “underwriter” in a Registration Statement in accordance with the terms and conditions of the Demand Noticefiled pursuant to this Agreement without Modiv’s prior written consent, unless requested by SEC Guidance. The Company shall use all commercially reasonable efforts to cause such Registration Statement to become and remain effective under the Securities Act until all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”).
(iii) Subject to the other limitations contained Except as otherwise provided in this Agreement, under no circumstances shall the Company is not be obligated hereunder to effect more than an aggregate of one (A1) a Demand Registration within 90 days after the closing of any Requested Underwritten Offering or (B) a subsequent Demand Registration registration pursuant to a Demand Notice if a Registration Statement covering under this Section 2(a) with respect to any or 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 StatementSecurities. Upon receipt of a notice from a Holder to the effect that the Holder is withdrawing an amount of its Registrable Shares from the Demand Registration such that the remaining amount of Registrable Shares to be included in the Demand Registration is below the Minimum Amount, the Company shall cease all efforts to secure effectiveness of the applicable Registration Statement.
(v) The Company may include in any such Demand Registration other Company Securities for sale for its own account or for the account of any other Person, subject to Section 2(c)(iii).
(vi) Subject to the limitations contained in terms of this Agreement, the Company shall effect any Demand use commercially reasonable efforts to cause a Registration on such appropriate registration form Statement filed pursuant to this Agreement to be declared effective as soon as reasonably practicable after its initial filing. The Company shall promptly notify Modiv by e-mail of the Commission (A) as shall be selected by effectiveness of a Registration Statement on the same day that the Company and (B) as shall permit the disposition of the Registrable Securities in accordance telephonically confirms effectiveness with the intended method or methods of disposition specified in the Demand Notice; provided that if the Company becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to an Automatic Shelf Registration StatementSEC, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available date of effectiveness of such Registration Statement. The Company shall promptly file a final Prospectus with the SEC as required by Rule 424. Notwithstanding anything to the contrary herein, to the extent the Preferred Shares have been redeemed in full by the Company for Redemption Shares, this Section 2(a) shall be inapplicable.
(b) If the Company furnishes Modiv a certificate signed by the Company). If at any time ’s chief executive officer stating that in the reasonable good faith judgment of the board of directors of the Company filing a Registration Statement on Form S-3 is effective and pursuant to this Agreement would (i) materially interfere with a Holder provides written notice to significant acquisition, corporate organization, financing, securities offering or other similar transaction involving the Company; or (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential and the Company’s board of directors determines as a result that it intends is necessary to effect an offering defer the filing of all or part of the Registrable Securities included on such Registration Statement, the Company will amend or supplement such Registration Statement as may be necessary in order to enable at such offering to take place.
(vii) Without limiting Section 3time, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a)then the Company shall promptly notify Modiv of such determination. In such event, the Company shall have the right to defer such filing for a period of not more than sixty (A60) 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 requestdays; provided, however, that no the Company shall not defer its obligation in this manner more than one (1) time in any 12-month period; provided further, that in such qualification event, Modiv shall be required in any jurisdiction whereentitled to withdraw its Demand Registration request and, if such Demand Registration request is so withdrawn, such Demand Registration shall not count as a result thereofpermitted Demand Registration hereunder and the Company shall pay all registration expenses in connection with such registration.
(c) Notwithstanding the registration obligations set forth in Section 2(a), if the SEC or any SEC Guidance sets forth a limitation on the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering, the number of Registrable Securities to be registered on such Registration Statement will be reduced as required by the SEC. In such case, the Company would become subject agrees to general service of process or use its commercially reasonable efforts to taxation or qualification file amendments 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 permitted by the SEC, covering the maximum number of Registrable Securities pursuant then permitted to be registered by the SEC on Form S-3, or such other form available to register for resale the Registrable Securities as a secondary offering, subject, in each case, to the provisions of Section 2(b). If the number of Preferred Shares proposed to be included in the Registration Statement; provided Statement exceeds the maximum number of Registrable Securities then permitted to be registered by the SEC on Form S-3, or such other form available to register for resale the Registrable Securities as a secondary offering, the limitation on the number of Demand Registrations in Section 2(a) shall be changed such that in no event shall the Company shall be required to file a post-effective amendment cause to be effected one additional Demand Registration for each occurrence where the number of Preferred Shares proposed to be included in the Registration Statement unless (A) such Registration Statement includes only exceeds the maximum number of Registrable Securities held then permitted to be registered 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 HolderSEC.
Appears in 1 contract
Samples: Registration Rights Agreement (Generation Income Properties, Inc.)
Demand Registration. (i) At any time commencing after the expiration of Closing Date, the Lock-Up Period, any Holder Purchasers shall have the option and right, exercisable by delivering a written notice to the Company (a “the "Demand Notice”Registration Request"), to require have the Company toprepare and file with the Commission, pursuant on one occasion, at the sole expense of the Company, in respect of all the Shares of Common Stock purchased under this Agreement (the "Registrable Securities"), a Registration Statement so as to permit a public offering and sale of the terms of and subject to Registrable Securities. Upon such demand, the limitations contained in this Agreement, Company shall prepare and file with the Commission a "Shelf" Registration Statement registering covering the offering and sale resale of the number and type of all Registrable Securities on the terms and conditions specified in the Demand Notice, which may include sales for an offering to be made on a delayed or continuous basis pursuant to Rule 415 pursuant to a Shelf 415. The Registration Statement shall be on Form S-1 or another appropriate form permitting registration of Registrable Securities for resale by the Holders in the manner or manners designated by them (a “Demand Registration”including, without limitation, public or private sales and one or more Underwritten Offerings). The Demand Notice must set forth the number of Registrable Securities that the Initiating Holder intends to include in such Demand Registration and the intended methods of disposition thereof. Notwithstanding anything to the contrary herein, in no event Company shall the Company be required to effectuate a Demand Registration unless (i) not permit any securities other than the Registrable Securities to be included therein have an aggregate valuein the Registration Statement, based on except those shares of common stock owned by NewState Capital Corp. ("NewState") or the VWAP as shareholders of the date of the Demand NoticeNewState is NewState has or is about to be dissolved, of at least $25 million (the “Minimum Amount”).
GEM Singapore Pte Limited and Turbo International, Ltd. and (ii) Within fifteen Business Days after the receipt of the Demand Notice (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, within forty-five days thereof), the Company shall, subject to the limitations of this Section 2(a), file a Registration Statement in accordance with the terms and conditions of the Demand Notice. The Company shall use all commercially reasonable its best efforts to cause the Registration Statement to be declared effective under the Securities Act as promptly as practicable after the filing thereof, but in any event prior 120 days after the filing of such Registration Statement, and to keep such Registration Statement to become and remain continuously effective under the Securities Act until the date which is five years after the date of this Agreement or such earlier date when all Registrable Securities covered by such Registration Statement have been sold (or may be sold pursuant to Rule 144 as determined by the “Effectiveness Period”).
(iii) Subject counsel to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect (A) a Demand Registration within 90 days after the closing of any Requested Underwritten Offering or (B) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of the Registrable Securities held by the Initiating Holder shall have become and remains effective under the Securities Act and is sufficient to permit offers and sales of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice in accordance with the intended timing and method or methods of distribution thereof specified in the Demand Notice.
(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 written opinion letter, addressed to the effectiveness of the applicable Registration Statement. Upon receipt of a notice from a Holder to the effect that the Holder is withdrawing an amount of its Registrable Shares from the Demand Registration such that the remaining amount of Registrable Shares to be included in the Demand Registration is below the Minimum AmountHolders, the Company shall cease all efforts to secure effectiveness of the applicable Registration Statement.
(v) The Company may include in any such Demand Registration other Company Securities for sale for its own account or for the account of any other Person, subject to Section 2(c)(iii).
(vi) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration on such appropriate registration form of the Commission (A) as shall be selected by the Company and (B) as shall permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the Demand Notice; provided that if the Company becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to the Company). If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Company that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, the Company will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(vii) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), the Company shall (A) promptly prepare and file or cause to be prepared and filed (1) such additional forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents, as may be necessary or advisable to register or qualify the securities subject to such Demand Registration, including under effect (the securities laws of such jurisdictions as the Holders shall reasonably request"Effectiveness Period"); provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, the Company shall not be deemed to have used its best efforts to keep the Registration Statement effective during the Effectiveness Period if it ----------- initial voluntarily takes any action that would become subject result in the Holders not being able 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 sell 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 covered 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 during the Effectiveness Period, unless such transferee to offer and sell such Registrable Securities pursuant to such Registration Statement; provided that in no event shall action is required under applicable law or the Company be required to file has filed a post-effective amendment to the Registration Statement unless (A) such and the Commission has not declared it effective.
a. If the Holders of a majority of the Registrable Securities so elect, an offering of Registrable Securities pursuant to a Registration Statement includes only may be effected in the form of an Underwritten Offering. In such event, and if the managing underwriters advise the Company and such Holders in writing that in their opinion the amount of Registrable Securities held proposed to be sold in such offering exceeds the amount of Registrable Securities which can be sold in such offering, there shall be included in such Underwritten Offering the amount of such Registrable Securities which in the opinion of such managing underwriters can be sold, and such amount shall be allocated pro rata among the Holders proposing to sell Registrable Securities in such Underwritten Offering.
b. If any of the Registrable Securities are to be sold in an Underwritten Offering, the investment banker or investment bankers and manager or managers that will administer the offering will be selected by the Holder, Affiliates Holders of a majority of the Holder or transferees Registrable Securities included in such offering and the Company shall be advised in advance of the identity of any underwriter and the general terms of the proposed offering. No Holder or may participate in any Underwritten Offering hereunder unless such Person (Bi) the Company has received written consent therefor from a Person for whom agrees to sell its Registrable Securities have been registered on the basis provided in any underwriting agreements approved by the Persons entitled hereunder to approve such arrangements and (but not yet sold underii) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents required under the terms of such Registration Statement, other than the Holder, Affiliates of the Holder or transferees of the Holderarrangements.
Appears in 1 contract
Samples: Common Stock Purchase Agreement (Racom Systems Inc)
Demand Registration. (ia) At If at any time after the expiration date of this Agreement the Company receives a request from a Holder of Registrable Securities that the Company file a Registration Statement on Form S-1 covering the resale of the Lock-Up PeriodRegistrable Securities held by such Holder (a "Demand Notice"), any Holder shall have the option and right, exercisable by delivering a written notice to then the Company shall (a “i) within five (5) days after the date it receives the Demand Notice”), give notice thereof to require all other Holders and (ii) as soon as reasonably practicable, but in no event later than the Company toFiling Date, pursuant to the terms of and subject to the limitations contained in this Agreement, prepare and file with the Commission a Registration Statement registering on Form S-1 covering the offering and sale resale of all Registrable Securities of the number Holder that provided the Demand Notice and type of any additional Registrable Securities on requested by the terms other Holders to be included therein, as specified by each such other Holder within twenty (20) days after such Holder has received notice from the Company pursuant to clause (i); provided that such Registration Statement need not include Registrable Securities already covered by an existing and conditions specified in the Demand Notice, which may include sales effective Registration Statement The Registration Statement shall be for an offering to be made on a delayed or continuous basis pursuant to Rule 415 pursuant to a Shelf 415. The Registration Statement (a “Demand Registration”). The Demand Notice must set forth the number of Registrable Securities that the Initiating Holder intends to include in such Demand Registration and the intended methods of disposition thereof. Notwithstanding anything to the contrary herein, in no event shall the Company be required to effectuate a Demand Registration unless the Registrable Securities to be included therein have an aggregate value, based on the VWAP as of the date of the Demand Notice, of at least $25 million (the “Minimum Amount”).
(ii) Within fifteen Business Days after the receipt of the Demand Notice contain (except if otherwise required pursuant to written comments received from the Company is not then eligible to register for resale Commission upon a review of such Registration Statement) the Registrable Securities on Form S-3, within forty-five days thereof), the Company shall, subject to the limitations “Plan of this Section 2(a), file a Registration Statement in accordance with the terms and conditions of the Demand Notice. Distribution” attached hereto as Annex A. The Company shall use all commercially its reasonable best efforts to cause such the Registration Statement to become be declared effective under the Securities Act as soon as practicable but, in any event, no later than the Effectiveness Date, and remain shall use its reasonable best efforts to keep the Registration Statement effective under the Securities Act until the date when all Registrable Securities covered by such the Registration Statement have been sold or may be sold without volume restrictions pursuant to Rule 144(b)(i) promulgated under the Securities Act (the “Effectiveness Period”).
(iiib) Subject If for any reason the Commission does not permit all of the Registrable Securities requested by a Holder to be included in the Registration Statement filed pursuant to Section 2(a), or for any other limitations contained in reason any such Registrable Securities are not permitted by the Commission to be included on a Registration Statement filed under this Agreement, then the Company is not obligated hereunder to effect (A) a Demand Registration within 90 days shall prepare and file as soon as possible after the closing date on which such filing may be made, an additional Registration Statement covering the resale of any Requested Underwritten Offering or (B) all of the Registrable Securities requested by Holder not already covered by an existing and effective Registration Statement for an offering to be made on a subsequent Demand Registration continuous basis at the market pursuant to Rule 415 or otherwise as may be acceptable to a Demand Notice Holder whose Registrable Securities were not registered for resale. Each such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the “Plan of Distribution” attached hereto as Annex A. The Company shall use its reasonable best efforts to cause each such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement effective under the Securities Act during the entire Effectiveness Period.
(c) If: (i) a Registration Statement covering all of the Registrable Securities held required to be covered thereby is not filed by the Initiating Holder shall have become and remains effective Company with the Commission on or prior to the Filing Date (or the applicable filing date if the Registration Statement is not the initial Registration Statement required to be filed under the Securities Act and is sufficient to permit offers and sales Section 2(a)), (ii) a Registration Statement covering all of the number and type of Registrable Securities is not declared effective by the Commission on or prior to its required Effectiveness Date (it being understood that if the terms and conditions specified in Company shall not have filed a “final” prospectus for the Demand Notice Registration Statement with the SEC under Rule 424(b) in accordance with Section 2(f) below (whether or not such a prospectus is technically required by such rule), the intended timing and method or methods Company shall not be deemed to have satisfied this clause (ii)), (iii) the Company fails to file a request for the acceleration of distribution thereof specified in the Demand Notice.
Effectiveness Date of the applicable Registration Statement as required by Section 3(c), (iv) A Holder may withdraw there is a suspension or delisting of the Company’s Common Stock (or the Company fails to timely list all the Registrable Securities) on its principal trading market or exchange, (v) after its Effective Date, other than during an Allowable Grace Period (as defined below), such Registration Statement ceases to be effective and available for use by the Holders as to any portion of its Registrable Securities included in a Demand Registration from such Demand Registration to which it is required to cover at any time prior to the effectiveness expiration of its Effectiveness Period for up to no more than 3 consecutive Trading Days (or 20 Trading Days in any 12 month period in the aggregate) (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i)-(iv), on the date on which such Event occurs, or for purposes of clause (v), the date on which the Allowable Grace Period or other specified period is exceeded, being referred to as “Event Date”), then, in addition to any other rights available to the Holders under this Agreement or under applicable law: (x) on each such Event Date the Company shall pay to each Holder an amount in cash, as partial damages and not as a penalty, equal to 1.5% of the applicable Registration Statement. Upon receipt of a notice from a aggregate Investment Amount paid by such Holder pursuant to the effect that Purchase Agreement; and (y) on each 30-day anniversary of each such Event Date (if the Holder applicable Event shall not have been cured by such date) until the applicable Event is withdrawing an amount of its Registrable Shares from the Demand Registration such that the remaining amount of Registrable Shares to be included in the Demand Registration is below the Minimum Amountcured, the Company shall cease all efforts pay to secure effectiveness each Holder an amount in cash, as partial damages and not as a penalty, equal to 1.5% of the applicable Registration Statementaggregate Investment Amount paid by such Holder pursuant to the Purchase Agreement. The partial damages pursuant to the terms hereof shall apply on a pro rata basis for any portion of a month prior to the cure of an Event. Notwithstanding the foregoing, in no event shall the partial damages under this Section 2(d) exceed an amount equal to 20% of the aggregate Investment Amounts.
(vd) The Company may include in any such Demand Registration other Company Securities for sale for its own account or for the account of any other Person, subject to Section 2(c)(iii).
(vi) Subject Notwithstanding anything to the limitations contrary contained in this Agreement, in the Company shall effect any Demand Registration on such appropriate registration form event the staff of the Commission (Athe “Staff”) or the Commission requires any Holder seeking to sell securities under a Registration Statement filed pursuant to this Agreement to be specifically identified as an “underwriter” in order to permit such Registration Statement to become effective, and such Holder does not consent to being so named as an underwriter in such Registration Statement, then in each such case, the Company shall reduce the total number of Registrable Securities to be selected registered on behalf of such Holder, until such time as the Staff or the Commission does not require such identification or until such Holder accepts such identification and the manner thereof. Any reduction pursuant to this paragraph will first reduce all Registrable Securities other than those issued pursuant to the Purchase Agreement and in the event of any reduction pursuant to this paragraph, no Holder shall have any claim against the Company as a result of such reduction and any Event or other delay or breach of this Agreement occurring primarily due to such action by the Staff or the Commission and any such relating reduction shall not require the Company to pay any partial damages or otherwise provide the basis for any claim by any Holder against the Company pursuant to the Transaction Documents (it being understood that the foregoing does not constitute a waiver of Section 3.2(f) of the Securities Purchase Agreement by any Holder or the obligations of the Company under this paragraph and elsewhere in relation thereto). In the event of any reduction in Registrable Securities pursuant to this paragraph, an affected Holder shall have the right to require, upon delivery of a written request to the Company signed by the Holder, the Company to file a registration statement within 30 days of such request (Bsubject to any restrictions imposed by Rule 415 or required by the Staff or the Commission) for re-sale by such Holder in a manner acceptable to such Holder, and the Company shall following such request cause to be and keep effective such registration statement in the same manner as shall otherwise contemplated in this Agreement for registration statements hereunder, in each case until such time as: (i) all Registrable Securities held by such Holder have been registered pursuant to an effective Registration Statement in a manner acceptable to such Holder or (ii) the Registrable Securities may be resold by such Holder without restriction (including volume limitations) pursuant to Rule 144(b)(i) of the Securities Act (taking account of any Staff position with respect to “affiliate” status) or (iii) the Holder agrees to be named as an underwriter in any such Registration Statement in a manner acceptable to Holder as to all Registrable Securities held by such Holder and that have not theretofore been included in a Registration Statement under this Agreement (it being understood that the special demand right under this sentence may be exercised by a Holder multiple times and with respect to limited amounts of Registrable Securities in order to permit the disposition re-sale thereof by such Holder as contemplated above).
(e) In the event that Form S-1 is not available for the registration of the resale of Registrable Securities hereunder, the Company shall use reasonable best efforts to (i) register the resale of the Registrable Securities in accordance with on another appropriate form reasonably acceptable to the intended method or methods of disposition specified in Holders and (ii) undertake to register the Demand Notice; Registrable Securities on Form S-1 as soon as such form is available, provided that if the Company becomes, and is at shall use reasonable best efforts to maintain the effectiveness of the Registration Statement then in effect until such time of its receipt of as a Demand Notice, a WKSIRegistration Statement on Form S-1 covering the Registrable Securities has been declared effective by the Commission. In the event the Company becomes eligible to register the Registrable Securities on Form S-3, the Demand Registration for any offering and selling of Company shall use reasonable best efforts to promptly register the Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under S-3, provided that the Securities Act (if available Company shall use reasonable best efforts to maintain the Company). If at any effectiveness of the Registration Statement(s) then in effect until such time as a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Company that it intends to effect an offering of all or part of covering the Registrable Securities included has been declared effective by the Commission.
(f) By 5:30 p.m. on such the Trading Day immediately following the Effective Date of each Registration Statement, the Company will amend or supplement such Registration Statement as may shall file with the Commission in accordance with Rule 424 under the Securities Act the final prospectus to be necessary in order to enable such offering to take place.
(vii) Without limiting Section 3, used 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 sales 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: Registration Rights Agreement (InsPro Technologies Corp)
Demand Registration. (i) At The Purchaser may, at any time after the expiration of the Lock-Up Period, any Holder shall have the option and right, exercisable by delivering a written notice deliver to the Company up to two (2) written notices (each, a “Demand Notice”), to require ) requesting that the Company toregister all or any portion of the Registrable Securities that have previously been issued and have not been registered.
(ii) In the event that the Company receives a Demand Notice, pursuant to the terms of and subject to the limitations contained in this Agreement, Company shall prepare and file with the Commission SEC, a Registration Statement registering on Form N-2 (or, if Form N-2 is not then available, on such other form as is available to effect such a registration) covering the offering and sale resale of the number and type of Registrable Securities on held by 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 Selling Holders (a “Demand Registration”). The Demand Notice must Company may also Register shares of the Company’s capital stock for sale for its own account (the “Company Securities”) or shares of the Company’s capital stock for sale for the accounts of other security holders (the “Additional Securities”) as it shall desire.
(iii) After filing the initial Registration Statement with respect to the Additional Registrable Securities pursuant to Section 2(a)(ii) hereof, the Company shall use commercially reasonable efforts to cause such initial Registration Statement to become effective under the Securities Act as soon as practicable thereafter.
(iv) Notwithstanding the registration obligations set forth herein in the event that the SEC informs the Company that all of the Registrable Securities, Company Securities and Additional Securities cannot, as a result of the application of Rule 415 under the Securities Act, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (1) inform each of the Selling Holders thereof and file amendments to the applicable Registration Statement with respect to the Registrable Securities, Company Securities and Additional Securities as required by the SEC and/or (2) withdraw the applicable Registration Statement and file a new registration statement, in either case covering the maximum number of Registrable Securities, Company Securities that the Initiating Holder intends to include in such Demand Registration and the intended methods of disposition thereof. Notwithstanding anything to the contrary herein, in no event shall the Company be required to effectuate a Demand Registration unless the Registrable Additional Securities permitted to be included therein have an aggregate valueregistered by the SEC, based on the VWAP as of the date of the Demand Notice, of at least $25 million (the “Minimum Amount”).
(ii) Within fifteen Business Days after the receipt of the Demand Notice (except if the Company is not then eligible Form N-2 or such other form available to register for resale the Registrable Securities and Additional Securities as a secondary offering. Notwithstanding any other provision of this Agreement, if any SEC guidance imposes a limitation on Form S-3, within forty-five days thereofthe number of securities permitted to be registered on a particular Registration Statement (and notwithstanding that the Company used reasonable best efforts to advocate to the SEC for the registration of all or a greater number of securities), the number of Registrable Securities, Company shallSecurities and Additional Securities to be registered on such Registration Statement shall be reduced in the following order: (A) first the number of Additional Securities sought to be registered, (B), second the number of Registrable Securities sought to be registered and (C) third, the number of Company Securities sought to be registered (each, a “Registration Cut Back”); provided, that, no registration in connection with which 25% or more of the Purchaser’s Registrable Securities that were included in the applicable Demand Notice are subject to the limitations of this Section 2(a), file a Registration Statement in accordance with the terms and conditions of the Demand Notice. The Company Cut Back shall use all commercially reasonable efforts to cause such Registration Statement to become and remain effective under the Securities Act until all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect (A) constitute a Demand Registration within 90 days after the closing of any Requested Underwritten Offering or (B) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all for purposes 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 limit of the number and type of Registrable Securities on the terms and conditions specified in the two (2) 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 a Holder to the effect that the Holder is withdrawing an amount of its Registrable Shares from the Demand Registration such that the remaining amount of Registrable Shares to be included in the Demand Registration is below the Minimum Amount, the Company shall cease all efforts to secure effectiveness of the applicable Registration Statement.
(v) The Company may include in any such Demand Registration other Company Securities for sale for its own account or for the account of any other Person, Notices subject to Section 2(c)(iii)2(a)(i) hereof.
(vi) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration on such appropriate registration form of the Commission (A) as shall be selected by the Company and (B) as shall permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the Demand Notice; provided that if the Company becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to the Company). If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Company that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, the Company will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(vii) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), the Company shall (A) promptly prepare and file or cause to be prepared and filed (1) such additional forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents, as may be necessary or advisable to register or qualify the securities subject to such Demand Registration, including under the securities laws of such jurisdictions as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, the Company would become subject to general service of process or to taxation or qualification to do business in such jurisdiction solely as a result of registration and (2) such forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents as may be necessary to apply for listing or to list the Registrable Securities subject to such Demand Registration on the Trading Market and (B) do any and all other acts and things that may be reasonably necessary or appropriate or reasonably requested by the Holders to enable the Holders to consummate a public sale of such Registrable Securities in accordance with the intended timing and method or methods of distribution thereof.
(viii) In the event a Holder transfers Registrable Securities included on a Registration Statement and such Registrable Securities remain Registrable Securities following such transfer, at the request of such Holder, the Company shall amend or supplement such Registration Statement as may be necessary in order to enable such transferee to offer and sell such Registrable Securities pursuant to such Registration Statement; provided that in no event shall the Company be required to file a post-effective amendment to the Registration Statement unless (A) such Registration Statement includes only Registrable Securities held by the Holder, Affiliates of the Holder or transferees of the Holder or (B) the Company has received written consent therefor from a Person for whom Registrable Securities have been registered on (but not yet sold under) such Registration Statement, other than the Holder, Affiliates of the Holder or transferees of the Holder.
Appears in 1 contract
Demand Registration. (ia) At any time From and after the expiration of one (1) year anniversary following the Lock-Up PeriodClosing, 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 AgreementSection 1.1(b), prepare Section 1.1(c) and file with the Commission Section 2.3, upon written request from a Registration Statement registering the offering and sale of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice, which may include sales on a delayed or continuous basis pursuant to Rule 415 pursuant to a Shelf Registration Statement (a “Demand Registration”). The Demand Notice must set forth the number of Registrable Securities Holder requesting that the Initiating Holder intends to include in such Demand Registration and Company effect the intended methods of disposition thereof. Notwithstanding anything to the contrary herein, in no event shall the Company be required to effectuate a Demand Registration unless the Registrable Securities to be included therein have an aggregate value, based on the VWAP as of the date of the Demand Notice, of at least $25 million (the “Minimum Amount”).
(ii) Within fifteen Business Days after the receipt of the Demand Notice (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, within forty-five days thereof), the Company shall, subject to the limitations of this Section 2(a), file a Registration Statement in accordance with the terms and conditions of the Demand Notice. The Company shall use all commercially reasonable efforts to cause such Registration Statement to become and remain effective registration under the Securities Act until of all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect (A) a Demand Registration within 90 days after the closing of any Requested Underwritten Offering or (B) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all part of the Registrable Securities held by such Holder, which notice may be delivered at any time after such one (1) year anniversary and which notice shall specify the Initiating Holder shall have become and remains intended method or methods of disposition of such Registrable Securities (“Registration Request Notice”), unless such Registrable Securities are included in a currently effective Registration Statement permitting the resale of such Registrable Securities in the manner contemplated by the Registration Request Notice, the Company will use its commercially reasonable efforts to file the appropriate Registration Statement under the Securities Act and is sufficient to permit offers and sales with the SEC as promptly as reasonably practicable after receipt of the number and type of Registrable Securities on the terms and conditions specified in the Demand Registration Request Notice in accordance with the intended timing and method or methods of distribution thereof specified in the Demand and, as promptly as reasonably practicable following such Registration Request Notice.
(iv) A Holder may withdraw all or any portion of its Registrable Securities included in a Demand , cause such Registration from such Demand Registration at any time prior to the effectiveness of the applicable Registration Statement. Upon receipt of a notice from a Holder to the effect that the Holder is withdrawing an amount of its Registrable Shares from the Demand Registration such that the remaining amount of Registrable Shares Statement to be included in the Demand Registration is below the Minimum Amount, the Company shall cease all efforts to secure effectiveness of the applicable Registration Statement.
(v) The Company may include in any such Demand Registration other Company Securities for sale for its own account or for the account of any other Person, subject to Section 2(c)(iii).
(vi) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration on such appropriate registration form of the Commission (A) as shall be selected declared effective by the Company SEC and (B) as shall to permit the disposition of the such Registrable Securities in accordance with the intended method or methods of disposition specified stated in such Registration Request Notice. The Company shall not be required to maintain the Demand Notice; provided that if the Company becomes, and is at the time effectiveness of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to the Company). If at any time a such Registration Statement on Form S-3 is beyond the earlier to occur of (i) one hundred twenty (120) days after the effective date thereof and a (ii) consummation of the distribution by Holder provides written notice to the Company that it intends to effect an offering of all or part of the Registrable Securities included on in such Registration StatementStatement (such period, the “Effectiveness Period”).
(b) Notwithstanding Section 1.1(a), if the Company previously shall have caused a Registration Statement to be declared effective by the SEC with respect to the Registrable Securities, the Company will amend or supplement such shall not be required to cause a subsequent Registration Statement as may to be necessary in order declared effective by the SEC pursuant to enable this Section 1.1 until a period of one hundred twenty (120) days shall have elapsed from the effective date of the most recent such offering to take placeprevious registration.
(viic) Without limiting Notwithstanding Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a1.1(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 not 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 effect (i) more than two (2) such formsregistrations pursuant to this Section 1.1 in any twelve (12) consecutive month period or (ii) a registration of Registrable Securities, 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 fair market value of which on the Trading Market and (B) do any and all other acts and things that may be reasonably necessary or appropriate or reasonably requested date of receipt by the Holders to enable the Holders to consummate a public sale Company 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 Request Notice is less than twenty million dollars (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$20,000,000).
Appears in 1 contract
Samples: Registration Rights Agreement (Approach Resources Inc)
Demand Registration. (i) At any time after the expiration of the applicable Lock-Up Period, any Preferred Holder and Sponsoring Holder shall severally 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, prepare and file with the Commission a Registration Statement registering the offering and sale of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice, which may include sales on a delayed or continuous basis pursuant to Rule 415 pursuant to a Shelf Registration Statement (a “Demand Registration”). The Demand Notice must set forth the number of Registrable Securities that the Initiating Holder intends to include in such Demand Registration and the intended methods of disposition thereof. Notwithstanding anything to the contrary herein, in no event shall the Company be required to effectuate a Demand Registration unless the Registrable Securities of the Holders to be included therein after compliance with Section 2(a)(ii) have an aggregate value, value of at least $75 million based on the VWAP (the “Minimum Amount”) as of the date of the Demand Notice, of at least $25 million (the “Minimum Amount”).
(ii) Within fifteen Business Days after the receipt of the Demand Notice (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, within forty-five days thereof), the Company shall, subject to the limitations of this Section 2(a), file a Registration Statement in accordance with the terms and conditions of the Demand Notice. The Company shall use all commercially reasonable efforts to cause such Registration Statement to become and remain effective under the Securities Act until all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect (A) a Demand Registration within 90 days after the closing of any Requested Underwritten Offering or (B) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of the Registrable Securities held by the Initiating Holder shall have become and remains effective under the Securities Act and is sufficient to permit offers and sales of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice in accordance with the intended timing and method or methods of distribution thereof specified in the Demand Notice.
(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 a Holder to the effect that the Holder is withdrawing an amount of its Registrable Shares from the Demand Registration such that the remaining amount of Registrable Shares to be included in the Demand Registration is below the Minimum Amount, the Company shall cease all efforts to secure effectiveness of the applicable Registration Statement.
(v) The Company may include in any such Demand Registration other Company Securities for sale for its own account or for the account of any other Person, subject to Section 2(c)(iii).
(vi) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration on such appropriate registration form of the Commission (A) as shall be selected by the Company and (B) as shall permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the Demand Notice; provided that if the Company becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to the Company). If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Company that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, the Company will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(vii) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), the Company shall (A) promptly prepare and file or cause to be prepared and filed (1) such additional forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents, as may be necessary or advisable to register or qualify the securities subject to such Demand Registration, including under the securities laws of such jurisdictions as the Holders shall reasonably request; provided, however, that no such qualification the Minimum Amount shall be required not apply in any jurisdiction wherethe event that, 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) Cutback Shares being removed from such formsRegistration Statement pursuant to this Section 2(a)(i), 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 of the Holders to enable be included therein after compliance with Section 2(a)(ii) have an aggregate value of less than $75 million. If at any time the Holders Commission takes the position that some or all of the Registrable Securities proposed to consummate be included in a public sale Registration Statement filed pursuant to a Demand Registration must be removed from such Registration Statement (such portion of such the Registrable Securities, the “Cut Back Shares”) in order for all of the Registrable Securities in accordance with the intended timing and method or methods of distribution thereof.
(viii) In the event such Registration Statement filed pursuant to a Holder transfers Registrable Securities included Demand Registration to be eligible to be made on a delayed or continuous basis under the provisions of Rule 415 or for the Initiating Holder to not be named as an “underwriter” in such Registration Statement and such Registrable Securities remain Registrable Securities following such transferStatement, at then if the request of such HolderInitiating Holder so elects, the Company shall amend or supplement remove the Cutback Shares from 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.Registration
Appears in 1 contract
Samples: Preferred Stock Purchase Agreement (WildHorse Resource Development Corp)
Demand Registration. (i) At any time after September 1, 2000, the expiration Purchaser may demand that that Company register Common Stock constituting all or part of its Registrable Securities under the Lock-Up PeriodSecurities Act (a "Demand for Registration") on Forms X-0, any Holder X-0 or S-3 (or similar forms then in effect for small business entities) promulgated by the Commission under the Securities Act. Such demand for registration ("Demand for Registration") shall have the option and rightbe in writing, exercisable by delivering a written notice delivered to the Company (a “Demand Notice”), to require the Company to, pursuant to the terms in accordance with Section __ of this Agreement and subject to the limitations contained in this Agreement, prepare and file with the Commission a Registration Statement registering the offering and sale of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice, which may include sales on a delayed or continuous basis pursuant to Rule 415 pursuant to a Shelf Registration Statement (a “Demand Registration”). The Demand Notice must set forth shall specify the number of Registrable Securities that the Initiating Holder intends to include in such Demand Registration be registered and the intended methods method of the disposition thereofof such securities. Notwithstanding anything to the contrary herein, in no event shall No later than ten (10) Business Days after receipt of such Demand for Registration the Company be required shall give written notice (a "Notice of Demand for Registration") of such Demand for Registration to effectuate a Demand Registration unless all other Holders, and shall use its best efforts to effect the registration under the Securities Act of:
(i) the Registrable Securities to be included therein have an aggregate value, based on the VWAP as of the date of in the Demand Noticefor Registration, of at least $25 million (the “Minimum Amount”).and
(ii) Within fifteen Business Days after the receipt of the Demand Notice (except if all other Registrable Securities as to which any Holder has delivered to the Company is not then eligible to register a Request for resale the Registrable Securities on Form S-3, within forty-five days thereof), the Company shall, subject to the limitations of this Section 2(a), file a Registration Statement in accordance with the terms and conditions of the Demand Notice. The Company shall use all commercially reasonable efforts to cause such Registration Statement to become and remain effective under the Securities Act until all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect (A) a Demand Registration within 90 fifteen (15) days after the closing of any Requested Underwritten Offering or (B) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all giving 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 Notice 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 for Registration, 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 a Holder extent required to the effect that the Holder is withdrawing an amount of its Registrable Shares from the Demand Registration such that the remaining amount of Registrable Shares to be included in the Demand Registration is below the Minimum Amount, the Company shall cease all efforts to secure effectiveness of the applicable Registration Statement.
(v) The Company may include in any such Demand Registration other Company Securities for sale for its own account or for the account of any other Person, subject to Section 2(c)(iii).
(vi) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration on such appropriate registration form of the Commission (A) as shall be selected by the Company and (B) as shall permit the disposition of the Registrable Securities so to be registered in accordance with the intended method or methods of disposition specified in specified. At the Demand Notice; provided that if request of the Company becomes, and is at the time of its receipt Holders of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to the Company). If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Company that it intends to effect an offering of all or part majority of the Registrable Securities to be registered, the method of disposition of all Registrable Securities included in such registration shall be an underwritten offering effected in accordance with Section 5(a). Notwithstanding the foregoing, the Company may postpone taking action with respect to a Demand Registration for a reasonable period of time after receipt of the original Demand for Registration (not exceeding ninety (90) days) if, in the good faith opinion of the Board, effecting the registration would adversely affect a material financing, acquisition, disposition of assets or stock, merger or other comparable transaction or would require the Company to make public disclosure of information the public disclosure of which would have a material adverse effect upon the Company, provided that the Company shall not delay such action pursuant to this sentence more than once in any twelve (12) month period. No Holder shall have the right to include any securities in a registration statement to be filed as part of a Demand Registration unless (i) such securities are of the same class as the Registrable Securities included in the Demand for Registration (or the demanding Holders consent to such inclusion in writing), and (ii) if such Demand Registration is an underwritten offering, such other Holders agree in writing to sell their securities on such Registration Statementthe same terms and conditions as apply to the Registrable Securities being sold pursuant to the Demand for Registration. Except as provided under this Section 2, the Company will amend or supplement such include in each Demand for 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 all Registrable Securities for which the Company receives timely written requests for inclusion. All demands made pursuant to and in accordance with this Section 2(a), 2 must specify the Company shall (A) promptly prepare and file or cause number of Registrable Securities to be prepared registered 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 intended method 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 disposing 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 thereofSecurities.
(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: Registration Rights Agreement (Rainwire Partners Inc /De/)
Demand Registration. (ia) At Subject to the provisions hereof, at any time on or after the expiration four (4) year anniversary of the Lock-Up PeriodEffective Date, any Holder the Investor shall have the option and right, exercisable by delivering a written notice to the Company (a “Demand Notice”), right to require the Company to, pursuant to the terms of and subject to the limitations contained in this Agreement, prepare and file with the Commission a Registration Statement registering for the offering offer, sale and sale distribution of the number and type all or part of their Registrable Securities on under 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 Securities Act (a “Demand Registration”). The Demand Notice must set forth ) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities that the Initiating Holder intends to include be included in such Demand Registration and registration, (ii) specifying the intended methods method of disposition thereof, including whether pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about the Investor required to be included in such Registration Statement in accordance with applicable law. Notwithstanding anything The date upon which the Investor delivers such request shall be referred to herein as a “Demand Date.” As soon as practicable after the contrary hereinDemand Date, in no event shall the Company be required shall use reasonable best efforts to effectuate effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to register; provided, however, that (A) the Investor shall not make a request for a Demand Registration unless the Registrable Securities requested to be included therein have an so registered (i) would reasonably be expected to result in aggregate value, based on the VWAP as gross cash sale proceeds in excess of the date of the Demand Notice, of at least $25 million 20,000,000 (the “Minimum Amount”).
without regard to any underwriting discount or commission) or (ii) Within fifteen Business Days after the receipt comprise at least 10% of the Outstanding Securities prior to the applicable Demand Notice Date, and (except if B) the Investor will not be entitled to require the Company is not then eligible to register for resale effect more than five (5) Demand Registrations in the Registrable Securities on Form S-3, within forty-five days thereof)aggregate under this Agreement. Notwithstanding the foregoing, the Company shall, subject to the limitations of this Section 2(a), file a Registration Statement limitation set forth in accordance with the terms and conditions of the Demand Notice. The Company shall use all commercially reasonable efforts to cause such Registration Statement to become and remain effective under the Securities Act until all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect proviso (A) above will not apply so long as the Investor requests a Demand Registration within 90 days after the closing of any Requested Underwritten Offering or (B) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering for all of the Registrable Securities held by it holds at the Initiating Holder shall have become and remains effective under the Securities Act and is sufficient to permit offers and sales time 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 Noticerequest.
(ivb) A Holder may withdraw all or any portion The offering of its the Registrable Securities included in a Demand Registration from pursuant to such Demand Registration at any time prior to may be in the effectiveness form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company, with the written consent of the applicable Registration Statement. Upon receipt of a notice from a Holder to the effect that the Holder is withdrawing an amount of its Registrable Shares from the Demand Registration such that the remaining amount of Registrable Shares Investor (not to be included unreasonably withheld) may designate the managing underwriter(s), investment banker(s) and manager(s) of the Underwritten Offering (including in the Demand Registration is below the Minimum Amount, any Shelf Offering) and (ii) the Company shall cease all efforts (together with the Investor) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to secure effectiveness distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 2.9 of this Agreement; provided, that (i) the Investor shall not be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (ii) the liability of the applicable Investor in respect of any indemnification, contribution or other obligation of the Investor arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement.
, any such preliminary Prospectus, final Prospectus, summary Prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with information furnished to the Company by or on behalf of the Investor expressly for inclusion therein and (vb) The Company may include shall not in any such Demand Registration other Company Securities for sale for its own account event, absent fraud or for the account of any other Personintentional misrepresentation, subject to Section 2(c)(iii).
(vi) Subject exceed an amount equal to the limitations contained in this Agreement, net proceeds to the Company shall effect any Demand Registration on such appropriate registration form Investor (after deduction of the Commission (Aall underwriters’ discounts and commissions) as shall be selected by the Company and (B) as shall permit from the disposition of the Registrable Securities disposed of by the Investor pursuant to such Underwritten Offering. The Investor may not participate in any such Underwritten Offering unless the Investor agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their good faith opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Investor to be included in such registration that does not exceed such Underwriters’ Maximum Number pro rata among the holders of Registrable Securities that have requested to participate in such Demand Registration on the basis of the percentage of the Registrable Securities requested to be included in such Registration Statement by such holders. No Common Stock held by any Person other than Registrable Securities held by the Investor shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto (i) covers all Registrable Securities specified in the applicable Demand Registration request for sale in accordance with the intended method or methods of disposition distribution specified in such Demand Registration, subject to the Demand Notice; provided that underwriter cutbacks described in Section 2.1(c) (but only if the Company becomes, and is Underwriters’ Maximum Number represents at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to the Company). If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Company that it intends to effect an offering of all or part least 75% of the Registrable Securities included on such Registration Statementso specified), (ii) has been declared effective by the Commission, (iii) is maintained effective for the period required pursuant to this Agreement and (iv) the Company will amend or supplement such Registration Statement as may be necessary has complied in order to enable such offering to take place.
(vii) Without limiting Section 3, in connection all material respects with any Demand Registration pursuant to and in accordance its obligations under this Agreement 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 requestrespect thereto; provided, however, that no such qualification shall be required in any jurisdiction whereif, as a result thereofafter it has become effective, 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 or the related offer, sale or distribution of Registrable Securities held thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the Commission or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration (but only if such stop order, injunction or other order or requirement did not result from a statement or alleged statement in or omission or alleged omission from such Registration Statement, any preliminary Prospectus, final Prospectus or summary Prospectus contained therein, or any amendment or supplement thereto, if such statement or alleged statement or omission or alleged omission was made in reliance upon and in conformity with information specifically furnished to the Company by the HolderInvestor for incorporation therein), Affiliates and in each case less than all of the Holder or transferees of Registrable Securities covered by the Holder effective Registration Statement are actually sold by the Investor pursuant to the Registration Statement, or (B) if, in the case of an Underwritten Offering, the Company has received written consent therefor fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (B) of the proviso to Section 2.1(a). If (i) a registration requested pursuant to this Section 2.1 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 2.1 does not remain continuously effective until at least 75% of the Registrable Securities covered by the effective Registration Statement have been sold, then such Demand Registration request shall not count as a Demand Registration request for the purposes of clause (B) of the proviso to Section 2.1(a) and the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 2.1 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 2.1(d), the Investor shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Person Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for whom Registrable Securities have been registered on purposes of clause (but not yet sold underB) of the proviso to Section 2.1(a).
(e) The Investor shall be permitted to abandon or withdraw all or any part of their shares from a Demand Registration, in which event the Company shall abandon or withdraw such Registration Statement; provided, other than the Holder, Affiliates that such Demand Registration underlying such abandonment or withdrawal shall not be deemed to be a Demand Notice for purposes of clause (B) of the Holder proviso to Section 2.1(a) if (a) such withdrawal or transferees abandonment is requested prior to the filing of the Holderapplicable Registration Statement or in response to a material adverse change regarding the Company or a material adverse change in the financial markets generally or (b) the Investor reimburses the Company for the documented out-of-pocket Registration Expenses incurred by the Company in connection with such Demand Registration prior to the date of such abandonment or withdrawal.
Appears in 1 contract
Samples: Investor Rights Agreement (Sentio Healthcare Properties Inc)
Demand Registration. (i) At any time after the expiration of the Lock-Up Period, any Holder Holder(s) 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, prepare and file with the Commission a Registration Statement registering the offering and sale of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice, which may include sales on a delayed or continuous basis pursuant to Rule 415 pursuant to a Shelf Registration Statement (a “Demand Registration”). The Demand Notice must set forth the number of Registrable Securities that the Initiating Holder intends Holder(s) intend to include in such Demand Registration and the intended methods of disposition thereof. Notwithstanding anything to the contrary herein, in no event shall the Company be required to effectuate a Demand Registration unless the Registrable Securities of the Initiating Holder(s) and their respective Affiliates to be included therein have an aggregate value, based on the VWAP as of the date of the Demand Notice, of at least $25 7.5 million or all of the Registrable Securities then held by such Initiating Holder (the “Minimum Amount”).
(ii) Within fifteen 45 Business Days after the receipt of the Demand Notice (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, within forty-five 60 days thereof), the Company shall, subject to the limitations of this Section 2(a2(b), file a Registration Statement in accordance with the terms and conditions of the Demand Notice. The Company shall use all commercially reasonable efforts to cause such Registration Statement to become and remain effective as soon as reasonably practicable after the filing thereof under the Securities Act until all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect (A) file more than three registrations for each Holder or its affiliates as requested in a Demand Registration by such Holder or its affiliates pursuant to this Section 2(b); (B) file any Registration Statement pursuant to a Demand Registration within 90 days after the closing of any Requested Underwritten Offering, unless as a result of Section 2(e), the Requested Underwritten Offering includes less than (the “Requested Underwritten Offering Minimum Condition”) the lesser of (i) Registrable Securities of the Initiating Holder(s) having an aggregate value, based on the VWAP as of the effective date of the related Registration Statement, of $7.5 million, and (ii) two-thirds of the number of Registrable Securities the Initiating Holder(s) set forth in the applicable Underwritten Offering Notice, or (BC) effect a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of the Registrable Securities held by the Initiating Holder Holder(s) shall have become and remains effective under the Securities Act and is sufficient to permit offers and sales of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice in accordance with the intended timing and method or methods of distribution thereof specified in the Demand Notice. No Demand Registration shall be deemed to have occurred for purposes of this Section 2(b)(iii) if the Registration Statement relating thereto does not become effective or is not maintained effective for its entire Effectiveness Period, in which case the Initiating Holder(s) shall be entitled to an additional Demand Registration in lieu thereof.
(iv) A Holder may withdraw all or any portion of its Registrable Securities included in a Demand Registration from such Demand Registration at any time prior to the effectiveness of the applicable Registration Statement. Upon receipt of a notice from a an Initiating Holder to the effect that the such Initiating Holder is withdrawing an amount of its Registrable Shares from the Demand Registration Securities such that the remaining amount of Registrable Shares Securities to be included in the Demand Registration is below the Minimum Amount, the Company shall cease all efforts to secure effectiveness of the applicable Registration Statement.
(v) The Company may include in any such Demand Registration other Company Securities for sale for its own account or for the account of any other Person, subject to Section 2(c)(iii2(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 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), and shall not count as one of the two Demand Registrations for purposes of Section 2(b)(iii). If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Company that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, the Company will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(vii) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), the Company shall (A) promptly prepare and file or cause to be prepared and filed (1) such additional forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents, as may be necessary or advisable to register or qualify the securities subject to such Demand Registration, including under the securities laws of such jurisdictions as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, the Company would become subject to general service of process or to taxation or qualification to do business in such jurisdiction solely as a result of registration and (2) such forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents as may be necessary to apply for listing or to list the Registrable Securities subject to such Demand Registration on the Trading Market and (B) do any and all other acts and things that may be reasonably necessary or appropriate or reasonably requested by the Holders to enable the Holders to consummate a public sale of such Registrable Securities in accordance with the intended timing and method or methods of distribution thereof.
(viii) In the event a Holder transfers Registrable Securities included on a Registration Statement and such Registrable Securities remain Registrable Securities following such transfer, at the request of such Holder, the Company shall amend or supplement such Registration Statement as may be necessary in order to enable such transferee to offer and sell such Registrable Securities pursuant to such Registration Statement; provided that in no event shall the Company be required to file a post-effective amendment to the Registration Statement unless (A) such Registration Statement includes only Registrable Securities held by the Holder, Affiliates of the Holder or transferees of the Holder or (B) the Company has received written consent therefor from a Person for whom Registrable Securities have been registered on (but not yet sold under) such Registration Statement, other than the Holder, Affiliates of the Holder or transferees of the Holder.
Appears in 1 contract
Samples: Registration Rights Agreement (OneWater Marine Inc.)
Demand Registration. (ia) At To the extent the Company shall receive a written request from the Investors that the Company effect the registration under the Securities Act of all or any time after the expiration portion of the Lock-Up Period, any Holder shall have the option and right, exercisable by delivering a written notice to the Company Registrable Securities (a “Demand Notice”), to require the Company toshall prepare, pursuant to and, as soon as practicable, but in no event later than the terms of and subject to Filing Date, the limitations contained in this Agreement, prepare and Company shall file with the Commission a SEC the Initial Registration Statement registering for resale under the offering and sale Securities Act all of the number and type of Registrable Securities by, and for the account of, the Holders as selling stockholders thereunder, that are not then registered on the terms and conditions specified in the Demand Notice, which may include sales an effective Registration Statement for an offering to be made on a delayed or continuous basis pursuant to Rule 415 pursuant to a Shelf Registration Statement (a “Demand Registration”). The Demand Notice must set forth the number of Registrable Securities that the Initiating Holder intends to include in such Demand Registration and the intended methods of disposition thereof. Notwithstanding anything to the contrary herein, in no event shall the Company be required to effectuate a Demand Registration unless the Registrable Securities to be included therein have an aggregate value, based on the VWAP as of the date of the Demand Notice, of at least $25 million (the “Minimum Amount”).
(ii) Within fifteen Business Days after the receipt of the Demand Notice (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, within forty-five days thereof), the Company shall, subject to the limitations of this Section 2(a), file a Registration Statement in accordance with the terms and conditions of the Demand NoticeAct. The Company shall use all commercially reasonable its best efforts to cause have such Initial Registration Statement to become and remain declared effective by the SEC under the Securities Act until all Registrable Securities covered by such as soon as practicable, but in no event, later than the Effectiveness Deadline.
(b) The Company shall use its reasonable best efforts to keep the Initial Registration Statement have been sold current and effective until such date (the “Effectiveness Period”).
) that is the earlier of (iiii) Subject to the other limitations contained in this Agreement, date as of which all of the Company is not obligated hereunder to effect (A) a Demand Registration within 90 days after the closing of any Requested Underwritten Offering or (B) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering Holders as selling stockholders thereunder may sell all of the Registrable Securities held by registered for resale thereon without restriction pursuant to Rule 144, or otherwise, or (ii) the Initiating Holder shall have become and remains effective under the Securities Act and is sufficient to permit offers and sales date when all of the Registrable Securities have been sold, but in no event longer than three years.
(c) Notwithstanding any other provision of this Agreement, if the SEC affirmatively limits the number and type of Registrable Securities on the terms and conditions specified to be registered in the Demand Notice in accordance Initial Registration Statement (and the Company has used its reasonable best efforts to advocate with the intended timing and method or methods SEC for the registration of distribution thereof specified in the Demand Notice.
(iv) A Holder may withdraw all or any portion the maximum number of its Registrable Securities), the number of Registrable Securities included in a Demand to be registered on such Registration from such Demand Registration at any time prior Statement will be reduced to the effectiveness maximum number of the applicable Registrable Securities permitted to be registered in such Initial Registration Statement. Upon receipt The Company shall file a new Registration Statement as soon as practicable covering the resale by the Holders of a notice from a Holder not less than the number of such Registrable Securities that are not registered in the Initial Registration Statement. The Company shall not be liable for liquidated damages under Section 3(a) or any other relevant penalty as to any Registrable Securities which are expressly not permitted by the effect that the Holder is withdrawing an amount of its Registrable Shares from the Demand Registration such that the remaining amount of Registrable Shares SEC staff to be included in the Demand Initial Registration is below Statement. In such case, any liquidated damages payable under Section 3(a) shall be calculated to apply only to the Minimum Amount, the Company shall cease all efforts percentage of Registrable Securities which are permitted to secure effectiveness of the applicable be included in such Registration Statement.
(vd) The If at any time after the date hereof, other than a Suspension Period referred to in Section 8, the Company may include in any such Demand Registration other Company Securities for sale shall determine to prepare and file with the SEC a registration statement relating to an offering for its own account or for the account of others under the Securities Act of any of its equity securities, other Personthan on Form S-4 or Form S-8 (each as promulgated under the Securities Act) or their then equivalents relating to equity securities to be issued solely in connection with any acquisition of any entity or business or equity securities issuable in connection with stock option or other employee benefit plans, subject then the Company shall send to Section 2(c)(iii).
each Holder written notice of such determination and if, within fifteen (vi15) Subject to the limitations contained days after receipt of such notice, any such Holder shall so request in this Agreementwriting, the Company shall effect any Demand Registration on include in such appropriate registration form of the Commission (A) as shall be selected by the Company and (B) as shall permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the Demand Notice; provided that if the Company becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 statement all or any equivalent or successor form under the Securities Act (if available to the Company). If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Company that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, the Company will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(vii) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), the Company shall (A) promptly prepare and file or cause to be prepared and filed (1) such additional forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents, as may be necessary or advisable to register or qualify the securities subject to such Demand Registration, including under the securities laws of such jurisdictions as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, the Company would become subject to general service of process or to taxation or qualification to do business in such jurisdiction solely as a result of registration and (2) such forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents as may be necessary to apply for listing or to list the Registrable Securities subject to such Demand Registration on the Trading Market and (B) do any and all other acts and things that may be reasonably necessary or appropriate or reasonably requested by the Holders to enable the Holders to consummate a public sale of such Registrable Securities in accordance with the intended timing and method or methods of distribution thereof.
(viii) In the event a Holder transfers Registrable Securities included on a Registration Statement and such Registrable Securities remain Registrable Securities following such transfer, at the request of such Holder, the Company shall amend or supplement such Registration Statement as may be necessary in order to enable such transferee to offer and sell such Registrable Securities pursuant to such not already covered by an effective 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
Demand Registration. (ia) At Subject to the limitations provided herein, at any time after during the expiration of period commencing on the Lock-Up Period, any Holder shall have date which is one year from the option Closing Date (as defined on the Asset Purchase Agreement) and right, exercisable by delivering a written notice to ending on the Company date which is two years from the Closing Date (a the “Demand NoticeEnd Date”), to require upon the Company to, pursuant to the terms written request of and subject to the limitations contained in this Agreement, prepare and file with the Commission a Registration Statement registering the offering and sale any Holder or group of the number and type Holders holding not less than 50% 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”). The Demand Notice must set forth the number of Registrable Securities that the Initiating Holder intends to include in such Demand Registration and the intended methods of disposition thereof. Notwithstanding anything to the contrary herein, in no event shall the Company be required to effectuate a Demand Registration unless the Registrable Securities to be included therein have an aggregate value, based on the VWAP as of the date of the Demand Notice, of at least $25 million (the “Minimum AmountHolders’ Request”).
(ii) Within fifteen Business Days after the receipt of the Demand Notice (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, within forty-five days thereof), the Company shall, subject will (i) promptly give written notice of the proposed registration to the limitations of this Section 2(a)all Holders and (ii) within 30 days after delivering such notice, file a Registration Statement in accordance with registration statement under the terms and conditions Securities Act of 1933, as amended (the “Securities Act”) providing for the resale of the Demand Notice. The Registrable Securities specified in the Holders’ Request, together with all or such portion of the Registrable Securities of any Holder joining in such request as are specified in a written request received by the Company shall on or before 5 days prior to the date on which such registration statement is required to be filed and will use all commercially its reasonable efforts to cause such Registration Statement registration statement to become effective within 120 days following the initial filing thereof; provided, however, that if the Company is required to effect a registration pursuant to this Section 1.1 and remain effective under the Securities Act until all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”).
(iii) Subject Company furnishes to the other limitations contained Holders requesting registration a certificate signed by the Chief Executive Officer of the Company stating that in this Agreementthe 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 filed on or before the date such filing would otherwise be required hereunder and it is therefore necessary to defer the filing of such registration statement, the Company is shall have the right to defer such filing for a period of not obligated hereunder to effect more than ninety (A90) a Demand Registration within 90 days after the closing of any Requested Underwritten Offering or (B) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all receipt of the Registrable Securities held by Holders’ Request, provided, however, that the Initiating Holder Company 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.
not obtain such a deferral more than one (iv1) 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 a Holder to the effect that the Holder is withdrawing an amount of its Registrable Shares from the Demand Registration 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 StatementEnd Date.
(vb) 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 under this Section 2(c)(iii).
(vi) Subject to the limitations contained in this Agreement, the Company 1.1 shall effect any Demand Registration be on such appropriate registration form of the Securities and Exchange Commission (A“Commission”) as shall be selected by the Company and (B) as shall permit be reasonably acceptable to the disposition Holders requesting registration.
(c) A registration requested pursuant to this Section 1.1 shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective (unless a substantial cause of the failure of such registration statement to become effective shall be attributable to any of the Holders requesting registration) and all Registrable Securities for which registration has been requested pursuant to this Section 1.1 have been included in accordance such registration statement, or (ii) if after it has become effective, such registration is interfered with by any stop order, injunction or other order or requirement of the intended method Commission 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 other governmental agency or court for any reason, resulting in a failure to consummate the offering and selling of Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to the Company). If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Company that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, the Company will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take placeoffered thereby.
(viid) Without limiting Section 3, in connection with Notwithstanding the other provisions of this Agreement and any Demand Registration pursuant to and in accordance with permitted assignment of the Holders’ rights under this Section 2(a)Agreement, 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 not be required in any jurisdiction whereby this Section 1.1 to effect more than one effective registration of Registrable Securities, 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 have no obligation under Section 1.1 or supplement such Registration Statement as may be necessary in order Section 1.2 hereof to enable such transferee to offer and sell such register any Registrable Securities pursuant to such Registration Statement; provided at any time 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 all Registrable Securities held by the Holder, Affiliates any of the Holder or transferees Holders are eligible for resale in a single transaction under Rule 144 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 HolderAct.
Appears in 1 contract
Samples: Registration Rights Agreement (Radiant Systems Inc)
Demand Registration. (i) At any time Commencing three months after the expiration Final Closing, record holders of a majority of the Lock-Up PeriodShares included in the Units (“Majority Holders”), any Holder shall have the option and right, exercisable by delivering a written notice on one (1) occasion only, to demand that the Company (a “Demand Notice”), to require the Company to, pursuant to the terms of and subject to the limitations contained in this Agreement, prepare and file with the Commission a Registration Statement registering Form F-3 registration statement (or such other form that it is eligible to use) (the offering and sale of 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 RegistrationRegistration Statement”). The Demand Notice must set forth the number of Registrable Securities that the Initiating Holder intends ) in order to include in such Demand Registration and the intended methods of disposition thereof. Notwithstanding anything to the contrary herein, in no event shall the Company be required to effectuate a Demand Registration unless register the Registrable Securities to be included therein have an aggregate value, based on (as hereinafter defined) for resale and distribution under the VWAP as of the date of the Demand Notice, of at least $25 million (the “Minimum Amount”).
(ii) Within fifteen Business Days after the receipt of the Demand Notice (except if 1933 Act. The Majority Holders shall notify the Company is not then eligible in writing of their desire to register for resale exercise the Registrable Securities on Form S-3demand registration right described herein, within forty-five days thereof), and the Company shall, subject to the limitations of this Section 2(a), file a Registration Statement in accordance with the terms and conditions of the Demand Notice. The Company shall use all its commercially reasonable best efforts to cause such Demand Registration Statement to become and remain effective under the Securities Act until all Registrable Securities covered by such Registration Statement have been sold be filed within sixty (the “Effectiveness Period”).
(iii60) Subject to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect (A) a Demand Registration within 90 days after the closing of any Requested Underwritten Offering or (B) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of the Registrable Securities held by the Initiating Holder shall have become and remains effective under the Securities Act and is sufficient to permit offers and sales of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice in accordance with the intended timing and method or methods of distribution thereof specified in the Demand Notice.
(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 a Holder to the effect that the Holder is withdrawing an amount of its Registrable Shares from the Demand Registration such that the remaining amount of Registrable Shares to be included in the Demand Registration is below the Minimum Amount, the Company shall cease all efforts to secure effectiveness of the applicable Registration Statement.
(v) The Company may include in any such Demand Registration other Company Securities for sale for its own account or for the account of any other Person, subject to Section 2(c)(iii).
(vi) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration on such appropriate registration form of the Commission (A) as shall be selected by the Company and (B) as shall permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the Demand Notice; provided that if the Company becomes, and is at the time of following its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to the Company). If at any time a Registration Statement on Form S-3 is effective and a Holder provides such written notice to the Company that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, the Company will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(vii) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), the Company shall (A) promptly prepare and file or cause to be prepared and filed (1) such additional forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents, as may be necessary or advisable to register or qualify the securities subject to such Demand Registration, including under the securities laws of such jurisdictions as the Holders shall reasonably requestnotification; provided, however, that no such qualification the Company shall be required entitled to defer the filing of such Demand Registration Statement to not more than five (5) business days following the date the Company is in any jurisdiction where, as a result thereofpossession of financial statements that meet the requirements of the 1933 Act with respect to the Demand Registration Statement to be filed. Subject to Section 12.4 and the other provisions of this Agreement, the Company would become subject will register in the Demand Registration Statement not less than 100% of the Shares included in the Units (collectively the “Registrable Securities”). The registration right provided in this paragraph shall not apply to general service the extent of process Registrable Securities that may be sold pursuant to Rule 144, without regard to volume limitations, or to taxation or qualification to do business in such jurisdiction solely as a result Registrable Securities that are otherwise freely transferable without registration under the 1933 Act; and the holders of registration and (2) such forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents as Registrable Securities that may be necessary sold pursuant to apply for listing or Rule 144 without regard to list volume limitations, and of Registrable Securities that are otherwise freely transferable without registration under the 1933 Act shall not be considered in determining the Majority Holders. Notwithstanding the foregoing, nothing in this Agreement shall require that the Company register Registrable Securities in an amount that exceeds the number of securities that may be registered pursuant to applicable rules and regulations of the Commission at the time the Demand Registration Statement is filed (“Applicable Rules”). In the event that Applicable Rules do not permit all Registrable Securities to be registered at the time the Demand Registration Statement is initially filed, the Company hereby agrees to include in the Demand Registration Statement such number of Registrable Securities as is permitted by Applicable Rules, and to file such amendments to the Demand Registration Statement, and/or such other and further registration statements, to be filed, as and when permitted by Applicable Rules, such that all of the Registrable Securities subject are covered by an effective registration statement. For purposes of this Section, a demand by Majority Holders to such file a Demand Registration on Statement shall include any amendments and/or other and further registration statements necessary in order for the Trading Market and (B) Company to comply with its obligations under this Section. To the extent that Applicable Rules do any and not permit a Demand Registration Statement to include all other acts and things that may be reasonably necessary or appropriate or reasonably requested by of the Holders to enable the Holders to consummate a public sale of such Subscribers’ 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 Holderone filing, the Company shall amend or supplement such Registration Statement as may be necessary in order to enable such transferee to offer and sell such include each Subscriber’s pro-rata portion of 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 Holderfiling.
Appears in 1 contract
Samples: Subscription Agreement (China Natural Resources Inc)
Demand Registration. (ia) At any time after and from time to time on or following the expiration of the Lock-Up PeriodPlan Effective Date, any Holder shall have the option and right, exercisable by delivering a written notice to or group of Holders may request in writing (“Demand Registration Request”) that the Company (a “Demand Notice”), to require effect the Company to, pursuant to the terms registration of and subject to the limitations contained in this Agreement, prepare and file all or part of such Holder’s or Holders’ Registrable Securities with the Commission a Registration Statement registering under and in accordance with the offering and sale provisions of 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”)Act. The Demand Notice must set forth the number of Registrable Securities that the Initiating Holder intends to include in such Demand Registration and the intended methods of disposition thereof. Notwithstanding anything to the contrary herein, in no event shall the Company be required to effectuate a Demand Registration unless the Registrable Securities to be included therein have an aggregate value, based on the VWAP as of the date of the Demand Notice, of at least $25 million (the “Minimum Amount”).
(ii) Within fifteen Business Days after the receipt of the Demand Notice (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, within forty-five days thereof), the Company shall, subject to the limitations of this Section 2(a), will file a Registration Statement in accordance with the terms covering such Holder’s or Holders’ Registrable Securities requested to be registered, and conditions of the Demand Notice. The Company shall use all its commercially reasonable efforts to cause such Registration Statement to become and remain effective under be declared effective, as promptly as practicable after receipt of such request, provided that (i) the Securities Act until all number of Registrable Securities covered by requested to be registered on such Registration Statement is at least fifteen percent (15%) of the Initial Registrable Securities Number, or (ii) the Registrable Securities requested to be sold by the Holders pursuant to such Registration Statement shall have been sold an anticipated aggregate offering price (the “Effectiveness Period”).
(iiibefore deducting underwriting discounts and commission) Subject to the other limitations contained in this Agreementof at least $100 million; provided, however, that the Company is will not obligated hereunder be required to effect file a Registration Statement pursuant to this Section 3 if:
(A) a Demand the Registrable Securities requested to be registered are already covered by an existing and effective Registration within 90 days after Statement and such Registration Statement may be utilized for the closing offering and sale of any Requested Underwritten Offering or the Registrable Securities requested to be registered;
(B) a subsequent Registration Statement shall have previously been initially declared effective by the Commission within the ninety (90) days preceding the date such Demand Registration Request is made; or
(C) the number of Demand Registration Requests previously made pursuant to this Section 3(a) shall be three or more; provided that a Demand Notice if a Registration Request shall not be considered made for purposes of this clause (C) unless the requested Registration Statement covering has been declared effective by the Commission for at least 75% of the amount of Registrable Securities for which registration has been requested.
(b) A Demand Registration Request shall specify (i) the then-current name and address of such Holder or Holders, (ii) the aggregate number 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. If at the time the Demand Registration Request is made the Company shall be eligible to use Form S-3 or another appropriate form, the Holder or Holders making such request may specify that the registration be in the form of a Shelf Registration Statement.
(c) 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 held by for which a demand for registration has been properly made under Section 3(b) hereof. If the Initiating Holder 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(c) shall have become and remains be the “the first day of effectiveness” of such Registration Statement for purposes of determining the period during which the Registration Statement is required to be maintained effective under in accordance with Section 3(e) hereof.
(d) Within ten (10) days after receiving a Demand Registration Request, the Securities Act and is sufficient Company shall give written notice of such request to permit offers and sales of the number and type all other Holders of Registrable Securities on and shall, subject to the terms and conditions specified provisions of Section 4(c) in the Demand Notice case of an Underwritten Offering, include in accordance such registration all such Registrable Securities with respect to which the intended timing Company has received written requests for inclusion therein within fifteen (15) days after the Company’s giving of such notice, provided that such Registrable Securities are not already covered by an existing and method or methods effective Registration Statement that may be utilized for the offering and sale of distribution thereof specified the Registrable Securities requested to be registered in the Demand Noticemanner so requested.
(ive) A Holder may withdraw The Company will use its commercially 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 Commission:
(A) in the case of a Registration Statement other than a Shelf Registration Statement, until all or any portion of its Registrable Securities included registered thereunder have been sold pursuant to such Registration Statement, but in no event later than ninety (90) days from the Effective Date of such Registration Statement; and
(B) in the case of a Shelf Registration Statement, the earlier of (x) three (3) years following the Effective Date of the Shelf Registration Statement; and (y) the date that all the remaining securities covered by such Shelf Registration Statement shall cease to be Registrable Securities;
(f) The Holder or Holders making a Demand Registration from such Demand Registration Request may, at any time prior to the effectiveness Effective Date of the applicable Registration Statement. Upon receipt of a notice from a Holder Statement relating to the effect that the Holder is withdrawing an amount of its Registrable Shares from the Demand Registration such that the remaining amount of Registrable Shares to be included in the Demand Registration is below the Minimum Amountregistration, revoke their request for the Company shall cease all efforts to secure effectiveness of the applicable Registration Statement.
(v) The Company may include in any such Demand Registration other Company Securities for sale for its own account or for the account of any other Person, subject to Section 2(c)(iii).
(vi) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration on such appropriate registration form of the Commission (A) as shall be selected by the Company and (B) as shall permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the Demand Notice; provided that if the Company becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to the Company). If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Company that it intends to effect an offering the registration of all or part of the such Holder’s or Holders’ Registrable Securities included on by providing a written notice to the Company. If, pursuant to the preceding sentence, the entire Demand Registration Request is revoked, then, at the option of the Holder or Holders who revoke such request, either (i) such Holder or Holders shall reimburse the Company for all of its reasonable and documented out-of-pocket expenses incurred in the preparation, filing and processing of the Registration Statement, which out-of- pocket expenses, for the Company avoidance of doubt, shall not include overhead expenses. or (ii) the requested registration that has been revoked will amend or supplement such Registration Statement as may be necessary in order deemed to enable such offering to take placehave been effected for purposes of Section 3(a)(C).
(viig) Without limiting Section 3, in connection with any Demand If a Registration Statement filed pursuant to and in accordance with this Section 2(a)3 is a Shelf Registration Statement, then upon the request of one or more Holders, and subject to Section 4(e) hereof, the Company shall facilitate a “takedown” of Registrable Securities in the form of an Underwritten Offering, in the manner described in this Agreement, provided that either (Ai) 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 number 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 Registrable Securities included in such jurisdiction solely as a result “takedown” shall equal at least fifteen percent (15%) of registration and the Initial Registrable Securities Number or (2ii) 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 requested 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 sold by the Holders to enable the Holders to consummate a public sale in such “takedown” shall have an anticipated aggregate offering price (before deducting underwriting discounts and commission) of such Registrable Securities in accordance with the intended timing and method or methods of distribution thereofat least $100 million.
(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: Registration Rights Agreement
Demand Registration. (ia) At If at any time after the expiration of the Initial Lock-Up PeriodPeriod and prior to the termination of registration rights pursuant to Section 4.10, Source shall receive from Stockholder (or any Holder shall have the option and right, exercisable by delivering assignee that Stockholder specifically designates may provide such notice) a written notice to the Company request (a “Demand NoticeRequest”) that Source effect the registration under the Securities Act of all or any part of any of the Registrable Securities that are then free from the restrictions on transfer contained in Section 3.1(b) above (the “Demand Registrable Securities”), to require the Company to, pursuant to the terms of and subject to the limitations contained in this Agreement, prepare and file with the Commission a Registration Statement registering the offering and sale of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice, which may include sales on a delayed or continuous basis pursuant to Rule 415 pursuant to a Shelf Registration Statement (a “Demand Registration”). The Demand Notice must set forth the number of Registrable Securities that the Initiating Holder intends to include in such Demand Registration and the intended methods of disposition thereof. Notwithstanding anything to the contrary herein, in no event then Source shall the Company be required to effectuate a Demand Registration unless the Registrable Securities to be included therein have an aggregate value, based on the VWAP as of the date of the Demand Notice, of at least $25 million (the “Minimum Amount”).
(ii) Within fifteen Business Days after the receipt of the Demand Notice (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, within forty-five days thereof), the Company shall, subject to the limitations of this Section 2(a), file a Registration Statement in accordance with the terms and conditions of the Demand Notice. The Company shall use all commercially reasonable efforts to cause such Registration Statement to become and remain effective under the Securities Act until all Demand Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect (A) a Demand Registration within 90 days be registered as soon as reasonably practicable after the closing receipt of any Requested Underwritten Offering or (B) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of the Registrable Securities held by the Initiating Holder shall have become and remains effective under the Securities Act and is sufficient to permit offers and sales of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice in accordance with the intended timing and method or methods of distribution thereof specified in the Demand Notice.
(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 a Holder to the effect that the Holder is withdrawing an amount of its Registrable Shares from the Demand Registration such that the remaining amount of Registrable Shares to be included in the Demand Registration is below the Minimum Amount, the Company shall cease all efforts to secure effectiveness of the applicable Registration Statement.
(v) The Company may include in any such Demand Registration other Company Securities for sale for its own account or for the account of any other Person, subject to Section 2(c)(iii).
(vi) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration on such appropriate registration form of the Commission (A) as shall be selected by the Company and (B) as shall permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the Demand Notice; provided that if the Company becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to the Company). If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Company that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, the Company will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(vii) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), the Company shall (A) promptly prepare and file or cause to be prepared and filed (1) such additional forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents, as may be necessary or advisable to register or qualify the securities subject to such Demand Registration, including under the securities laws of such jurisdictions as the Holders shall reasonably requestRequest; provided, however, that no such qualification Demand Registrable Securities are to be offered and sold pursuant to a firmly committed underwritten offering led by a nationally recognized investment banking firm. In connection with the Demand Request, Source shall prepare and file with the SEC as soon as reasonably practicable after receipt of the Demand Request, and shall use its commercially reasonable efforts to cause to become effective as soon as practicable thereafter, a registration statement (a “Demand Registration Statement”) to effect such registration. The Demand Request shall (i) specify the number of Demand Registrable Securities intended to 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 offered and sold by Stockholder pursuant thereto and (2ii) contain the undertaking of Stockholder to provide all such forms, amendments, supplements, prospectuses, certificates, letters, opinions reasonable information and other documents materials and take all such reasonable actions as may be necessary required under applicable laws in order to apply for listing or permit Source to list comply with all applicable requirements of the Registrable Securities subject Act, the Exchange Act and the rules and regulations of the SEC thereunder, and to obtain any desired acceleration of the effective date of such Demand Registration on Statement. The procedures to be followed by Source and Stockholder, and the Trading Market respective rights and (B) do any obligations of Source and all other acts Stockholder, with respect to the preparation, filing and things that may be reasonably necessary or appropriate or reasonably requested by effectiveness of 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 Demand Registration Statement and such Registrable Securities remain Registrable Securities following such transfer, at the request distribution 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 Demand 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 Holderunder this Section 4.1 are set forth in Section 4.3.
Appears in 1 contract
Samples: Stockholder's Agreement (Oa3, LLC)
Demand Registration. (ia) At any time after the expiration of the Lock-Up Period, any Holder shall have the option and right, exercisable by delivering a Upon written notice to the Company (Issuer from a “Demand Notice”), to require the Company to, pursuant to the terms Holder or Holders holding a majority in interest of and subject to the limitations contained in this Agreement, prepare and file with the Commission a Registration Statement registering the offering and sale of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice, which may include sales on a delayed or continuous basis pursuant to Rule 415 pursuant to a Shelf Registration Statement (a “Demand Registration”). The Demand Notice must set forth the number of Registrable Securities that the Initiating Holder intends to include in such Demand Registration and the intended methods of disposition thereof. Notwithstanding anything to the contrary herein, in no event shall the Company be required to effectuate a Demand Registration unless the Registrable Securities to be included therein have an aggregate value, based on the VWAP as of (but not later than the date of that is 180 days after the Demand Notice, of at least $25 million Shelf Termination Date) (the “Minimum Amount”).
(ii"Demand Request") Within fifteen Business Days after requesting that the receipt of Issuer effect the Demand Notice (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, within forty-five days thereof), the Company shall, subject to the limitations of this Section 2(a), file a Registration Statement in accordance with the terms and conditions of the Demand Notice. The Company shall use all commercially reasonable efforts to cause such Registration Statement to become and remain effective registration under the Securities Act until all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect (A) a Demand Registration within 90 days after the closing of any Requested Underwritten Offering or (B) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of the Registrable Securities held by such requesting Holders, which notice shall specify the Initiating Holder intended method or methods of disposition of such Registrable Securities, the Issuer shall have become prepare as soon as practicable and, within 15 days after such request, file with the Commission a registration statement with respect to such Registrable Securities and remains thereafter use its reasonable best efforts to cause such registration statement to be declared effective under the Securities Act and is sufficient to permit offers and sales for purposes 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 a Holder to the effect that the Holder is withdrawing an amount of its Registrable Shares from the Demand Registration such that the remaining amount of Registrable Shares to be included in the Demand Registration is below the Minimum Amount, the Company shall cease all efforts to secure effectiveness of the applicable Registration Statement.
(v) The Company may include in any such Demand Registration other Company Securities for sale for its own account or for the account of any other Person, subject to Section 2(c)(iii).
(vi) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration on such appropriate registration form of the Commission (A) as shall be selected by the Company and (B) as shall permit the disposition of the Registrable Securities dispositions in accordance with the intended method or methods of disposition specified stated in such request within the Demand Notice; provided that if later to occur of the Company becomes, first public release by the Issuer of 30 days of combined financial results of the Issuer and is at QFC and 30 days after the time filing of its receipt such registration statement. Notwithstanding any other provision of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available this Agreement to the Company). If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Company that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, the Company will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.contrary:
(viii) Without limiting the Holders may collectively exercise their rights to request registration under this Section 3, 2.2(a) on not more than one occasion (such registration being referred to herein as the "Demand Registration");
(ii) the method of disposition requested by Holders in connection with any Demand Registration may not, without the Issuer's written consent, be a Rule 415 Offering; and
(iii) the Issuer shall not be required to effect the Demand Registration hereunder if all securities that were Registrable Securities on the date hereof have ceased to be Registrable Securities.
(b) Notwithstanding any other provision of this Agreement to the contrary, a Demand Registration requested by Holders pursuant to and in accordance with this Section 2(a)2.2 shall not be deemed to have been effected, and, therefore, not requested and the Company rights of each Holder shall be deemed not to have been exercised for purposes of paragraph (Aa) promptly prepare and file above, (i) if such Demand Registration has not become effective under the Securities Act or cause to be prepared and filed (1ii) 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 if such Demand Registration, including after it became effective under the securities laws Securities Act, was not maintained effective under the Securities Act (other than as a result of any stop order, injunction or other order or requirement of the Commission or other government agency or court solely on the account of a material misrepresentation or omission of a Holder) for at least 30 days (or such jurisdictions as shorter period ending when all the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction whereRegistrable Securities covered thereby have been disposed of pursuant thereto) and, as a result thereof, the Company would become subject Registrable Securities requested to general service be registered cannot be distributed in accordance with the plan of process or to taxation or qualification to do business distribution set forth in such jurisdiction solely the related registration statement. So long as a result of registration and (2) such formsDemand Request is made by the Holders within the 180-day period referred to in Section 2.2(a), amendments, supplements, prospectuses, certificates, letters, opinions and other documents as may be necessary the Holders shall not lose their right to apply for listing or to list their Demand Registration under Section 2.2 if the Registrable Securities subject Demand Registration related to such Demand Registration on Request is delayed or not effected in the Trading Market and circumstances set forth in this clause (Bb).
(c) do any and all other acts and things that may be reasonably necessary or appropriate or reasonably The Issuer shall have the right to cause the registration of additional equity securities for sale for the account of the Issuer in the registration of Registrable Securities requested by the Holders pursuant to enable Section 2.2(a) above, provided that if such Holders are advised in writing (with a copy to the Holders Issuer) by the lead or managing underwriter referred to consummate in Section 2.3(b) that, in such underwriters good faith view, all or a public sale part of such Registrable Securities in accordance with and additional equity securities cannot be sold and the intended timing and method or methods inclusion of distribution thereof.
(viii) In the event a Holder transfers Registrable Securities included on a Registration Statement and such Registrable Securities remain and additional equity securities in such registration would be likely to have an adverse effect on the price, timing or distribution of the offering and sale of the Registrable Securities following such transferand additional equity securities then contemplated, at then the request number of securities that can, in the good faith view of such underwriter, be sold in such offering without so adversely affecting such offering shall be allocated pro rata among the requesting Holders and the Issuer on the basis of the relative number requested to be included therein by the Issuer and each such Holder, 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 the event such a pro rata allocation shall be made in connection with the Company Demand Request, the remaining Holders shall be required entitled to file request one additional Demand Registration (without needing to make a postDemand Request therefor within the 180-effective amendment day period referred to in Section 2.2(a); provided further that in connection with such additional Demand Registration, if any, the Issuer may not include additional securities therein for its own account if such inclusion would result in any reduction in the Registrable Securities proposed to be sold therein by the Holders. The Holders of the Registrable Securities to be offered pursuant to paragraph (a) above may require that any such additional equity securities be included by the Issuer in the offering proposed by such Holders on the same conditions as the Registrable Securities that are included therein.
(d) Within 7 days after delivery of a Demand Request by a Holder, the Issuer shall provide a written notice to each Holder (or, if so requested by the Issuer after appropriate notice to the Registration Statement unless (A) Zell Holders' Agent by the Xxxxer, the Zell Holders' Agent shall pxxxxde written notice to each Zell Holder), advising such Registration Statement includes only Holder of its right to include any or all of the Registrable Securities held by such Holder for sale pursuant to the Holder, Affiliates Demand Registration and advising such Holder of the procedures to enable such Holder or transferees of the Holder or (B) the Company has received written consent therefor from a Person for whom to elect to so include Registrable Securities have been registered on (but not yet sold under) for sale in the Demand Registration. Any Holder may, within 7 days of delivery to such Holder of a notice pursuant to this Section 2.2(d), elect to so include Registrable Securities in the Demand Registration Statement, other than by written notice to such effect to the Holder, Affiliates Issuer specifying the number of the Holder or transferees of the Registrable Securities desired to be so included by such Holder.
Appears in 1 contract
Demand Registration. (i) At any time after the expiration of the Lock-Up Period, any Holder Sponsor Holder(s) 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, prepare and file with the Commission a Registration Statement registering the offering and sale of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice, which may include sales on a delayed or continuous basis pursuant to Rule 415 pursuant to a Shelf Registration Statement (a “Demand Registration”). The Demand Notice must set forth the number of Registrable Securities that the Initiating Holder intends Holder(s) intend to include in such Demand Registration and the intended methods of disposition thereof. Notwithstanding anything to the contrary herein, in no event shall the Company be required to effectuate a Demand Registration unless the Registrable Securities of the Initiating Holder(s) and their respective Affiliates to be included therein have an aggregate value, based on the VWAP as of the date of the Demand Notice, of at least $25 30 million (the “Minimum Amount”).
(ii) Within fifteen thirty Business Days after the receipt of the Demand Notice (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, within forty-five 45 days thereof), the Company shall, subject to the limitations of this Section 2(a), file a Registration Statement in accordance with the terms and conditions of the Demand Notice. The Company shall use all commercially reasonable efforts to cause such Registration Statement to become and remain effective as soon as reasonably practicable after the filing thereof under the Securities Act until all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect (A) file any Registration Statement pursuant to a Demand Registration within 90 days after the closing of any Requested Underwritten Offering, unless as a result of Section 2(d), the Requested Underwritten Offering includes less than (the “Requested Underwritten Offering Minimum Condition”) the lesser of (i) Registrable Securities of the Initiating Holder(s) having an aggregate value, based on the VWAP as of the effective date of the related Registration Statement, of $30 million, and (ii) two-thirds of the number of Registrable Securities the Initiating Holder(s) set forth in the applicable Underwritten Offering Notice, or (B) effect a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of the Registrable Securities held by the Initiating Holder Holder(s) shall have become and remains effective under the Securities Act and is sufficient to permit offers and sales of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice in accordance with the intended timing and method or methods of distribution thereof specified in the Demand Notice. No Demand Registration shall be deemed to have occurred for purposes of this Section 2(a)(iii) if the Registration Statement relating thereto does not become effective or is not maintained effective for its entire Effectiveness Period, in which case the Initiating Holder(s) shall be entitled to an additional Demand Registration in lieu thereof.
(iv) A Holder may withdraw all or any portion of its Registrable Securities included in a Demand Registration from such Demand Registration at any time prior to the effectiveness of the applicable Registration Statement. Upon receipt of a notice from a an Initiating Holder to the effect that the such Initiating Holder is withdrawing an amount of its Registrable Shares from the Demand Registration Securities such that the remaining amount of Registrable Shares Securities to be included in the Demand Registration is below the Minimum Amount, the Company shall may cease all efforts to secure effectiveness of the applicable Registration Statement.
(v) The Company may include in any such Demand Registration other Company Securities for sale for its own account or for the account of any other Person, subject to Section 2(c)(iii2(d).
(vi) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration on such appropriate registration form of the Commission (A) as shall be selected by the Company and (B) as shall permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the Demand Notice; provided that if the Company becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to the Company). If at any time a Registration Statement on Form S-3 is effective and a Sponsor Holder provides written notice to the Company that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, the Company will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(vii) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), the Company shall (A) promptly prepare and file or cause to be prepared and filed (1) such additional forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents, as may be necessary or advisable to register or qualify the securities subject to such Demand Registration, including under the securities laws of such jurisdictions as the Sponsor 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 Sponsor Holders to enable the Sponsor 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 Sponsor Holder transfers Registrable Securities included on a Registration Statement and such Registrable Securities remain Registrable Securities following such transfer, at the request of such Sponsor 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 Sponsor Holder, Affiliates of the Sponsor Holder or transferees of the Sponsor 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 Sponsor Holder, Affiliates of the Sponsor Holder or transferees of the Sponsor Holder.
Appears in 1 contract
Samples: Registration Rights Agreement (Fortis Minerals, LLC)
Demand Registration. Notwithstanding anything herein to the contrary, and in addition to its obligations under Section 3(a) hereinabove, the Company shall:
(i) At any time after the expiration receipt of the Lock-Up Period, any Holder shall have the option and right, exercisable by delivering a written notice to request from the Holder requesting that the Company (effect a “Demand Notice”), to require the Company to, pursuant to the terms of and subject to the limitations contained in this Agreement, prepare and file with the Commission a Registration Statement registering the offering and sale of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice, which may include sales on a delayed or continuous basis pursuant to Rule 415 pursuant to a Shelf Registration Statement registration (a “Demand Registration”). The Demand Notice must set forth the number of Registrable Securities that the Initiating Holder intends to include in such Demand Registration and the intended methods of disposition thereof. Notwithstanding anything to the contrary herein, in no event shall the Company be required to effectuate a Demand Registration unless the Registrable Securities to be included therein have an aggregate value, based on the VWAP as of the date of the Demand Notice, of at least $25 million (the “Minimum Amount”).
(ii) Within fifteen Business Days after the receipt of the Demand Notice (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, within forty-five days thereof), the Company shall, subject to the limitations of this Section 2(a), file a Registration Statement in accordance with the terms and conditions of the Demand Notice. The Company shall use all commercially reasonable efforts to cause such Registration Statement to become and remain effective under the Securities Act until all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect (A) a Demand Registration within 90 days after the closing of any Requested Underwritten Offering or (B) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all or part of the Registrable Securities held by such Holder which specifies the Initiating Holder shall have become intended method or methods of disposition thereof, as expeditiously as is possible, but in any event no later than 90 days after receipt of a written request for a Demand Registration, file with the SEC and remains use its reasonable best efforts to cause to be declared effective under the Securities Act and is sufficient as soon as reasonably practicable, a registration statement (a “Demand Registration Statement”) relating to permit offers and sales of the number and type all shares of Registrable Securities on which the terms and conditions specified in Company has been so requested to register by the Demand Notice Holder for sale, to the extent required to permit the disposition (in accordance with the intended timing and method or methods thereof, as aforesaid) of distribution thereof specified in the Demand NoticeRegistrable Securities so registered.
(ivii) 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 a Holder to the effect that the Holder is withdrawing an amount of its Registrable Shares from the Demand Registration such that the remaining amount of Registrable Shares to be included in the Demand Registration is below the Minimum Amount, If the Company shall cease all efforts is eligible to secure effectiveness of the applicable Registration Statement.
(v) The Company may include in any such Demand Registration other Company Securities for sale for its own account or for the account of any other Personuse Form S-3, subject to Section 2(c)(iii).
(vi) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration on such appropriate registration form of the Commission (A) as shall Statement may be selected required by the Company and (B) as shall permit Holder to be in an appropriate form under the disposition Securities Act relating to any or all of the Registrable Securities in accordance with the intended method or methods of disposition specified and distribution set forth in the Demand Notice; provided that if the Company becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form and Rule 415 under the Securities Act (if available the “Shelf Registration”). Any such demand to file a Form S-3 shall require the use of one Demand Registration. The Holder shall be entitled to an aggregate of two registrations of Registrable Securities.
(iii) The Company shall not be required to effect a registration pursuant to this Section 3:
(1) pursuant to a written opinion of counsel for the Company, all the Registrable Securities can be sold pursuant to Rule 144 in any three month period (such date being the “144 Sale Date”); or
(2) during the period starting with the date 45 days prior to the Company). If at ’s estimated date of filing of, and ending on the date 90 days immediately following the effective date of, any time a Registration Statement on Form S-3 is effective and a Holder provides written notice registration statement pertaining to an underwritten public offering of newly issued securities of the Company that it intends with respect to effect an offering which the Holder has the right to request inclusion of all or part of the Registrable Securities included on such Registration Statement, the Company will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(vii) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), the Company shall (A) promptly prepare and file or cause to be prepared and filed (1) such additional forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents, as may be necessary or advisable to register or qualify the securities subject to such Demand Registration, including under the securities laws of such jurisdictions as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, the Company would become subject to general service of process or to taxation or qualification to do business in such jurisdiction solely as a result of registration and (2) such forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents as may be necessary to apply for listing or to list the Registrable Securities subject to such Demand Registration on the Trading Market and (B) do any and all other acts and things that may be reasonably necessary or appropriate or reasonably requested by the Holders to enable the Holders to consummate a public sale of such Registrable Securities in accordance with the intended timing and method or methods of distribution thereof.
(viii) In the event a Holder transfers Registrable Securities included on a Registration Statement and such Registrable Securities remain Registrable Securities following such transfer, at the request of such Holder, the Company shall amend or supplement such Registration Statement as may be necessary in order to enable such transferee to offer and sell such Registrable Securities pursuant to such Registration Statement; Section 3, provided that in no event shall the Company be required is actively employing in good faith commercially reasonable efforts to file a post-effective amendment cause such registration 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 Holderbecome effective.
Appears in 1 contract
Samples: Registration Rights Agreement (Digital Lifestyles Group Inc)
Demand Registration. (i) At 2.1.1 Subject to the Subscription Agreement and the rules and regulations of the Commission, at any time after the expiration of the Lockand from time to time, Purchaser may make a one-Up Period, any Holder shall have the option and right, exercisable by delivering a time written notice to demand upon the Company to file, within sixty (60) days after such written demand is made, a “Demand Notice”), to require registration statement covering the Company to, pursuant to the terms resale of and subject to the limitations contained in this Agreement, prepare and file with the Commission a Registration Statement registering the offering and sale all of 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”). The Demand Notice must set forth the number of Registrable Securities that the Initiating Holder intends to include in such Demand Registration and the intended methods of disposition thereof. Notwithstanding anything to the contrary herein, in no event shall the Company be required to effectuate a Demand Registration unless the Registrable Securities to be included therein have an aggregate value, based on the VWAP as of the date of the Demand Notice, of at least $25 million (the “Minimum Amount”).
(ii) Within fifteen Business Days after the receipt of the Demand Notice (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3S-1, within forty-five days thereof), the Company shall, subject to the limitations of this Section 2(a), file a Registration Statement in accordance X-0 xx S-3 as appropriate with the terms and conditions of Commission (the "Demand NoticeRegistration Statement"). The Company shall use all commercially its reasonable best efforts to cause such Registration Statement to become effective as soon after filing as practicable and remain effective under the Securities Act until all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect (A) a Demand Registration within 90 days after the closing of any Requested Underwritten Offering or (B) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering cause all of the Registrable Securities held by to be qualified in such state jurisdictions as the Initiating Holder holders may request.
2.1.2 Except as set forth herein, the Company shall have become take all reasonable steps necessary to keep the Registration Statement current and remains effective until the lesser of: (i) two years and (ii) until the Registrable Securities are transferable pursuant to Rule 144 under the Securities Act and is sufficient without the volume limitations set forth in such rule.
2.1.3 The Company shall be entitled to permit offers and sales of the number and type require that a holder or holders of Registrable Securities on refrain from effecting any public sales or distributions of 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 pursuant to a Registration Statement that has been declared effective by the Commission or otherwise, if the board of directors of the Company reasonably determines that such public sales or distributions would interfere in a Demand Registration from such Demand Registration at any time prior material respect with any transaction involving the Company that the board of directors reasonably determines to be material to the effectiveness Company. The board of directors shall, as promptly as practicable, give the holders of the applicable Registration StatementRegistrable Securities written notice of any such development. Upon receipt In the event of a notice from a Holder to request by the effect board of directors of the Company that the Holder is withdrawing an amount of its Registrable Shares from the Demand Registration such that the remaining amount holders of Registrable Shares to be included in Securities refrain from effecting any public sales or distributions of the Demand Registration is below the Minimum AmountRegistrable Securities, the Company shall cease all efforts be required to secure effectiveness of the applicable Registration Statement.
(v) The Company may include in any lift such Demand Registration other Company Securities for sale for its own account restrictions regarding effecting public sales or for the account of any other Person, subject to Section 2(c)(iii).
(vi) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration on such appropriate registration form of the Commission (A) as shall be selected by the Company and (B) as shall permit the disposition distributions of the Registrable Securities in accordance with as soon as reasonably practicable after the intended method board of directors shall reasonably determine public sales or methods of disposition specified in distributions by the Demand Notice; provided that if the Company becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to the Company). If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Company that it intends to effect an offering of all or part holders of the Registrable Securities included on shall not interfere with such transaction, provided, that in no event shall any requirement that the holders of Registrable Securities refrain from effecting public sales or distributions if the Registrable Securities extend for more than ninety (90) days.
2.1.4 Notwithstanding the foregoing, the one-time demand registration rights provided in this Section 2.1 shall be subject to the following additional limitations:
(i) Company shall not be obligated to file such Registration StatementStatement on a Form S-2 or S-3 if it does not then meet the requirements (including the financial statement requirements) of such Form, and if the Company is required to file a Form S-1, it should not be obligated to file the Form S-1 until it shall have prepared current financial statements as required by Form S-1;
(ii) If, upon receipt of any request for registration of Registrable Securities pursuant to this Section 2.1, the Company will amend has then engaged a reputable and nationally or supplement such Registration Statement as may be necessary in order to enable such regionally recognized securities or investment banking firm for a registered public offering to take place.
(vii) Without limiting Section 3of Shares of Common Stock, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), then the Company shall give notice of such negotiations to all holders of Registrable Securities within fifteen (A15) promptly prepare days of the date upon which the Company received such holder's request and file or cause to be prepared and filed the Company shall not, for sixty (160) days after giving 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 notice to such Demand Registrationholders, including under be required to undertake a required registration of the securities laws of Registrable Securities pursuant to this Section 2.1 in response to such jurisdictions as the Holders shall reasonably holder's request; provided, however, that no if such qualification shall be required in any jurisdiction where, as a result thereof, registration statement of such proposed public offering is not filed within sixty (60) days after the Company would become subject gives such notice to general service holders 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 HolderSecurities, the Company shall amend or supplement such Registration Statement as may be necessary in order respond to enable such transferee to offer and sell the holder's request for registration of Registrable Securities and, unless otherwise required by the provisions of this Section 2.1, register such Registrable Securities pursuant to Securities, no later than twenty (20) days after the expiration of such Registration Statement; sixty (60) day period and as 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 Holderherein.
Appears in 1 contract
Samples: Registration Rights Agreement (Intelect Communications Inc)
Demand Registration. (a) Holders holding at least 20% of the Registrable Securities (the “Requesting Holders”) may make a written request for registration under the Securities Act on Form S-3 of an amount of Registrable Securities not less than the lesser of (i) At any time after the expiration 5% of the Lock-Up Period, any Holder shall have the option and right, exercisable by delivering a written notice to the Company then outstanding Common Stock or (a “Demand Notice”), to require the Company to, pursuant to the terms of and subject to the limitations contained in this Agreement, prepare and file with the Commission a Registration Statement registering the offering and sale of the number and type of ii) all 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”). The Demand Notice must set forth the number of Registrable Securities ; provided that the Initiating Holder intends Company shall not be obligated to include effect more than one Demand Registration in any 12-month period from the date of written request for registration or more than an aggregate of four Demand Registrations pursuant to this Section 2(a). Upon receipt of such a request, the Company will use commercially reasonable best efforts to effect the registration provided the Company is then eligible to use Form S-3. A registration will not count as a Demand Registration until the registration statement filed pursuant to such Demand Registration has been declared effective by the Commission and remains effective for the intended methods period specified in Section 4(b). The Requesting Holders shall have the right to review the registration statement to be filed pursuant to this Section 2 before it is filed with the Commission.
(b) If the Requesting Holders so elect, the offering of disposition thereofsuch Registrable Securities pursuant to a Demand Registration shall be in the form of an underwritten offering. The Requesting Holders shall select a nationally recognized investment banking firm or firms to manage any such underwritten offering; provided that such managing underwriters must be reasonably satisfactory to the Company.
(c) Neither the Company or any of its security holders (other than the Holders with respect to their Registrable Securities) shall be entitled to include any of the Company’s securities in a registration statement initiated as a Demand Registration under Section 2(a) without the consent of the Requesting Holders.
(d) Notwithstanding anything to the contrary herein, in no event shall the Company be required to effectuate a Demand Registration unless the Registrable Securities to be included therein have an aggregate value, based on the VWAP as of the date of the Demand Notice, of at least $25 million (the “Minimum Amount”).
(ii) Within fifteen Business Days after the receipt of the Demand Notice (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, within forty-five days thereof), the Company shall, subject to the limitations of this Section 2(a), file a Registration Statement in accordance with the terms and conditions of the Demand Notice. The Company shall use all commercially reasonable efforts to cause such Registration Statement to become and remain effective under the Securities Act until all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, the Company is not obligated hereunder Company’s obligation under Section 2(a) to effect (A) file a Demand Registration within 90 days after registration statement, or cause such registration statement to become and remain effective, shall be suspended, at the closing of any Requested Underwritten Offering or (B) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all option of the Registrable Securities held by the Initiating Holder shall have become and remains effective under the Securities Act and is sufficient Company, for a period not 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 exceed 60 days 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 a Holder to the effect that the Holder is withdrawing an amount of its Registrable Shares from the Demand Registration such that the remaining amount of Registrable Shares to be included in the Demand Registration is below the Minimum Amount, the Company shall cease all efforts to secure effectiveness of the applicable Registration Statement.
(v) The Company may include in any such Demand Registration other Company Securities for sale for its own account or for the account of any other Person, subject to Section 2(c)(iii).
(vi) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration on such appropriate registration form of the Commission (A) as shall be selected by the Company and (B) as shall permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the Demand Notice; provided that 24-month period if the Company becomes, and is determines in its good faith judgment that (i) there exists at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to the Company). If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice material non-public information relating to the Company that it intends deems inadvisable to effect disclose publicly, or (ii) an offering of all event has occurred or part of a condition exists that results in a registration statement’s misstating or omitting a material fact. In the Registrable Securities included on event such Registration Statementmaterial non-public information is later disclosed, or the Company will amend registration statement no longer misstates 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)omits a material fact, 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 notify the Holders shall reasonably request; provided, however, that no such qualification of Registrable Securities and the Company’s obligations under Section 2(a) 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 thereofreinstated.
(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: Registration Rights Agreement (McMoran Exploration Co /De/)
Demand Registration. (ia) At any time after during the expiration period commencing at the later of January 2, 2001 and the completion of the IPO Lock-Up Period, any Holder shall have the option and rightending three (3) years thereafter, exercisable by delivering Cerner may make 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, prepare and file with the Commission a Registration Statement registering the offering and sale of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice, which may include sales on a delayed or continuous basis pursuant to Rule 415 pursuant to a Shelf Registration Statement (a “Demand Registration”). The Demand Notice must set forth the number of Registrable Securities that the Initiating Holder intends to include in such Demand Registration and the intended methods of disposition thereof. Notwithstanding anything to the contrary herein, in no event shall the Company be required to effectuate a Demand Registration unless the Registrable Securities to be included therein have an aggregate value, based on the VWAP as of the date of the Demand Notice, of at least $25 million (the “Minimum Amount”).
(ii) Within fifteen Business Days after the receipt of the Demand Notice (except if the Company is not then eligible to register request for resale the Registrable Securities on Form S-3, within forty-five days thereof), the Company shall, subject to the limitations of this Section 2(a), file a Registration Statement in accordance with the terms and conditions of the Demand Notice. The Company shall use all commercially reasonable efforts to cause such Registration Statement to become and remain effective registration under the Securities Act until all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect (A) a Demand Registration within 90 days after the closing of any Requested Underwritten Offering or (B) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of the Registrable Securities held by the Initiating Holder shall have become and remains effective under the Securities Act and is sufficient to permit offers and sales of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice in accordance with the intended timing and method or methods of distribution thereof specified in the Demand Notice.
(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 a Holder to the effect that the Holder is withdrawing an amount of its Registrable Shares from the Demand Registration such that the remaining amount of Registrable Shares to be included in the Demand Registration is below the Minimum Amount, the Company shall cease all efforts to secure effectiveness of the applicable Registration Statement.
(v) The Company may include in any such Demand Registration other Company Securities for sale for its own account or for the account of any other Person, subject to Section 2(c)(iii).
(vi) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration on such appropriate registration form of the Commission (A) as shall be selected by the Company and (B) as shall permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the Demand Notice; provided that if the Company becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to the Company). If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Company that it intends to effect an offering of all or part of the its Registrable Securities included on (a "Demand Registration") for the disposition of 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 Registrable Securities 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 requestan underwritten public offering; provided, however, that no such qualification the Company shall not be required in any jurisdiction whereobligated to effect more than two Demand Registrations; and provided, further, however, that each Demand Registration cover at least the Minimum Registration Amount. A request for a Demand Registration will specify the number of shares of Registrable Securities proposed to be sold. A registration will not count 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 until the Trading Market and (B) do any and all other acts and things that may be reasonably necessary or appropriate or reasonably requested by registration statement relating thereto has become effective. Cerner shall not request a Demand Registration during the Holders six-month period following the effective date of the registration statement relating 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 thereofprior Demand Registration.
(viiib) In Notwithstanding any other provision hereof to 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 Holdercontrary, the Company shall amend or supplement such Registration Statement as be entitled, in its sole discretion, to elect once with respect to each of the Demand Registrations it may be necessary requested to effect to delay the filing of a registration statement pursuant to the terms hereof for up to 120 days from the date of the request therefor under Section 4.01(a).
(c) The Company shall have the right to select the managing underwriter or underwriters for the underwritten public offering to which each Demand Registration relates, subject to the approval of the Cerner, which shall not be unreasonably withheld.
(d) If the managing underwriter or underwriters shall advise the Company and Cerner that, in order to enable the view of such transferee to offer and sell such underwriters, Cerner shall have requested the registration of a number of Registrable Securities pursuant to that exceeds the maximum number of securities that can be sold without having an adverse effect on a Demand Registration, including the price at which such Registration Statement; provided that in no event shall securities can be sold, the Company shall not be required to file a postregister shares in excess of such maximum number.
(e) The Company shall co-effective amendment operate fully, and provide such assistance as Cerner and its advisors shall reasonably require, to the Registration Statement unless (A) such Registration Statement includes only Registrable Securities held by the Holderachieve each Demand Registration. Such co-operation and assistance shall include, Affiliates of the Holder or transferees of the Holder or (B) without limitation, providing information about the Company has received written consent therefor from and making representatives available to Cerner and its advisers for such assistance or as is reasonably necessary to market and implement a Person for whom Registrable Securities have been registered on successful Demand Registration.
(but not yet sold underf) such The Company shall pay all Registration Statement, other than the Holder, Affiliates of the Holder or transferees of the HolderExpenses in connection with each Demand Registration.
Appears in 1 contract
Demand Registration. (i) At any time after the expiration of the 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, prepare and file with the Commission a Registration Statement registering the offering and sale of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice, which may include sales on a delayed or continuous basis pursuant to Rule 415 pursuant to a Shelf Registration Statement (a “Demand Registration”). The Demand Notice must set forth 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 thereofthereof 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 of the Holders and their respective Affiliates to be included therein have an aggregate value, based on the VWAP as of the date of the Demand Notice, of at least $25 [●] million (the “Minimum Amount”).
(ii) Within fifteen Business Days after the receipt of the Demand Notice (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, within forty-five days thereof), the Company shall, subject to the limitations of this Section 2(a), file a Registration Statement in accordance with the terms and conditions of the Demand Notice. The Company shall use all commercially reasonable efforts to cause such Registration Statement to become and remain effective under the Securities Act until all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect (A) a Demand Registration within 90 days after the closing of any Requested Underwritten Offering or (B) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of the Registrable Securities held by the Initiating Holder shall have become and remains effective under the Securities Act and is sufficient to permit offers and sales of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice in accordance with the intended timing and method or methods of distribution thereof specified in the Demand Notice.
(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 from the Demand Registration such that the remaining amount of Registrable Shares to be included in the Demand Registration is below the Minimum Amount, the Company shall cease all efforts to secure effectiveness of the applicable Registration Statement.
(v) The Company may include in any such Demand Registration other Company Securities for sale for its own account or for the account of any other Person, subject to Section 2(c)(iii3(c)(iii).
(vi) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration on such appropriate registration form of the Commission (A) as shall be selected by the Company and (B) as shall permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the Demand Notice; provided that if the Company becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to the Company). If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Company that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, the Company will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(vii) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), the Company shall (A) promptly prepare and file or cause to be prepared and filed (1) such additional forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents, as may be necessary or advisable to register or qualify the securities subject to such Demand Registration, including under the securities laws of such jurisdictions as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, the Company would become subject to general service of process or to taxation or qualification to do business in such jurisdiction solely as a result of registration and (2) such forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents as may be necessary to apply for listing or to list the Registrable Securities subject to such Demand Registration on the Trading Market and (B) do any and all other acts and things that may be reasonably necessary or appropriate or reasonably requested by the Holders to enable the Holders to consummate a public sale of such Registrable Securities in accordance with the intended timing and method or methods of distribution thereof.
(viii) In the event a Holder transfers Registrable Securities included on a Registration Statement and such Registrable Securities remain Registrable Securities following such transfer, at the request of such Holder, the Company shall amend or supplement such Registration Statement as may be necessary in order to enable such transferee to offer and sell such Registrable Securities pursuant to such Registration Statement; provided that in no event shall the Company be required to file a post-effective amendment to the Registration Statement unless (A) such Registration Statement includes only Registrable Securities held by the Holder, Affiliates of the Holder or transferees of the Holder or (B) the Company has received written consent therefor from a Person for whom Registrable Securities have been registered on (but not yet sold under) such Registration Statement, other than the Holder, Affiliates of the Holder or transferees of the Holder.
Appears in 1 contract
Samples: Registration Rights Agreement (Solaris Oilfield Infrastructure, Inc.)
Demand Registration. (ia) At any time after following the expiration earlier to occur of (x) the Closing (as defined in the Purchase Agreement) and (y) the termination of the Lock-Up PeriodPurchase Agreement, any Holder shall have the option and rightShareholder may, exercisable by delivering a providing written notice to the Company (a “Demand NoticeRegistration Request”) to the Company, request to sell all or a portion of the Registrable Securities Beneficially Owned by the Shareholder pursuant to a Registration Statement in the manner specified in such notice (a ”Demand Registration”), . Each Demand Registration Request shall specify the number of Registrable Securities intended to require the Company to, be offered and sold pursuant to the terms Demand Registration and the intended method of and subject to disposition thereof, including whether the limitations contained in this Agreement, prepare and file with the Commission registration requested is for an underwritten offering. A Demand Registration shall be effected by way of a Registration Statement on Form S-3 or any similar short-form registration to the extent the Company is permitted to use such form at such time (or to the extent the Company is not permitted to use such form, on Form S-1 or a similar long-form registration). A Demand Registration may be, at the option of the Shareholder, (i) a request to file a Registration Statement (including a Shelf Registration Statement) which will be used to offer the Registrable Securities, or (ii) a request to provide a prospectus supplement for an already effective Registration Statement. If the Company is then ASR Eligible, the Company shall use its commercially reasonable efforts to cause the Registration Statement to be an ASRS containing a Prospectus naming the Shareholder as the selling shareholder and registering the offering and sale of the number and type of Registrable Securities on by the terms and conditions specified in the Demand Notice, which may include sales Shareholder on a delayed or continuous basis pursuant to Rule 415 415. The Company shall use its commercially reasonable efforts to cause any Registration Statement (or prospectus supplement, as applicable) relating to a Demand Registration (A) to be filed with the SEC as promptly as reasonably practicable following the receipt of the Demand Registration Request, and in no event more than ten (10) days after receipt of a Demand Registration Request and all necessary information regarding the Shareholder that is required to be included in such Registration Statement (or prospectus supplement, as applicable) provided pursuant to Section 2.10, (B) to be declared effective by the SEC or otherwise become effective under the Securities Act as promptly as reasonably practicable after the filing thereof and (C) to remain continuously effective during the Effectiveness Period.
(b) The Shareholder shall have the right to request up to a total of two (2) Demand Registrations in any twelve (12)-month period pursuant to this Section 2.1; provided, that such obligation shall be deemed satisfied (and such request shall count as one Demand Registration Request for the Shareholder) only when a Registration Statement covering all the Registrable Securities specified in the Demand Registration Request shall have become effective and (i) if the method of disposition thereof is a firm commitment Public Offering, all of such Registrable Securities requested to be sold, after giving effect to any Underwriter Cutback (described in Section 2.1(e)), shall have been sold pursuant thereto, and (ii) in any other case, such Registration Statement shall have remained effective for the Effectiveness Period. The Shareholder may revoke a request for a Demand Registration by notifying the Company prior to the effective date of the applicable Registration Statement or the filing of any prospectus supplement with respect to any particular underwritten offering; provided that such request shall count as one of the Shareholder’s requests for a Demand Registration unless the Shareholder (A) provides such notice of revocation (x) within five (5) Business Days after requesting such Demand Registration, or (y) pursuant to Section 2.4(c) as a result of a Notice of Suspension, or (B) reimburses the Company for all reasonable and documented out-of-pocket expenses (including Registration Expenses) actually incurred by the Company relating to such Demand Registration.
(c) On the business day following the Closing Date (as defined in the Purchase Agreement), the Company shall prepare and file with the SEC a Shelf Registration Statement on Form S-3 (such Shelf Registration Statement shall be an ASRS to the extent that the Company is then ASR Eligible) with respect to the registration under the Securities Act of the resale of up to 37,795,948 Common Shares (the “Transaction Shelf Registration Statement”) (such Transaction Shelf Registration Statement shall include a prospectus sufficient to permit the resale of all such Common Shares by the Shareholder); provided that, in the event the SEC does not permit such number of Common Shares to be registered under the Transaction Shelf Registration Statement, the number of Common Shares that shall be registered under the Transaction Shelf Registration Statement shall be the maximum number of Common Shares permitted by the SEC. The Company shall use its commercially reasonable efforts to cause such Transaction Shelf Registration Statement to become effective as promptly as practicable upon filing and to keep the Transaction Shelf Registration Statement continuously effective subject to the Securities Act and the provisions of Section 2.4. For a period of two (2) years following the date hereof, any Common Shares which have been registered on the Transaction Shelf Registration Statement may be included in any underwritten offering conducted by the Company upon the proper exercise of a demand or piggyback right hereunder pursuant to and in accordance with Section 2.1 or Section 2.2, as applicable, subject to compliance with the notice and cutback procedures contained herein. In the event that the Purchase Agreement is terminated in accordance with its terms prior to the Closing (as defined in the Purchase Agreement), the number of Common Shares to be registered on the Transaction Shelf Registration Statement shall be 4,932,825 and such Transaction Shelf Registration Statement shall be filed no later than three (3) Business Days after such termination.
(d) If a Demand Registration is a Public Offering, the Shareholder shall have the right to select the investment banking firm(s) to act as the managing underwriter(s) and counsel for the Shareholder in connection with such offering (including in any underwritten offering under a Shelf Registration Statement or any Underwritten Block Trade).
(e) In no event shall any Person, including the Company or any other holder of Capital Stock (other than the Shareholder), be entitled to include any securities of the Company in any Registration Statement or offering requested pursuant to this Section 2.1 without the prior written consent of the Shareholder. In the event the managing underwriter shall be of the opinion that the number of Common Shares requested to be included in a Public Offering pursuant to a Demand Registration Request would adversely affect the marketing of such offering (including the price at which the securities of the Company may be sold), then the number of securities of the Company to be included in such underwritten offering will be reduced (an “Underwriter Cutback”), with the securities of the Company to be included in such offering based on the following priority: (i) first, the number of Common Shares requested to be included on behalf of the Shareholder up to the number that, in the opinion of the managing underwriter, would not adversely affect the marketing of the offering (including the price at which the Common Shares may be sold); and (ii) second, in addition to the Common Shares included pursuant to the preceding clause (i), the number of the securities of the Company requested to be included, with the prior written permission of the Shareholder, on behalf of each participating Person up to the number that, in the opinion of the managing underwriter, would not adversely affect the marketing of the offering (including the price at which the securities of the Company (including the Common Shares) may be sold). The Company may not file a Registration Statement or commence an offering of securities on behalf of any of the other holders of Capital Stock until the expiration of the Effectiveness Period of a Demand Registration.
(f) Notwithstanding any other provision of this Article II, but subject to Section 2.4, if the Shareholder wishes to engage in an underwritten block trade or similar transaction or other transaction with a one-day or less marketing period, including overnight bought deals (collectively, an “Underwritten Block Trade”), pursuant to a Shelf Registration Statement (either through filing an ASRS or through a “Demand Registration”take-down from an already effective Shelf Registration Statement). The Demand Notice must set forth , then notwithstanding any other time periods in this Article II, the number Shareholder shall notify the Company of Registrable Securities that the Initiating Holder intends to include in such Demand Registration and the intended methods of disposition thereof. Notwithstanding anything Underwritten Block Trade three (3) Business Days prior to the contrary hereindate such Underwritten Block Trade is to commence. As expeditiously as possible, in no event shall the Company be required shall use its commercially reasonable efforts to effectuate a Demand Registration unless the Registrable Securities to be included therein have an aggregate value, based on the VWAP facilitate such Underwritten Block Trade (which may close as of the date of the Demand Notice, of at least $25 million early as three (the “Minimum Amount”).
(ii3) Within fifteen Business Days after the receipt of the Demand Notice (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, within forty-five days thereofdate it commences), the Company shall, subject to the limitations of this Section 2(a), file a Registration Statement in accordance with the terms and conditions of the Demand Notice. The Company Shareholder shall use all commercially reasonable efforts to cause such Registration Statement to become and remain effective under the Securities Act until all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect (A) a Demand Registration within 90 days after the closing of any Requested Underwritten Offering or (B) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of the Registrable Securities held by the Initiating Holder shall have become and remains effective under the Securities Act and is sufficient to permit offers and sales of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice in accordance work 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 a Holder to the effect that the Holder is withdrawing an amount of its Registrable Shares from the Demand Registration such that the remaining amount of Registrable Shares to be included in the Demand Registration is below the Minimum Amount, the Company shall cease all efforts to secure effectiveness of the applicable Registration Statement.
(v) The Company may include in any such Demand Registration other Company Securities for sale for its own account or for the account of any other Person, subject to Section 2(c)(iii).
(vi) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration on such appropriate registration form of the Commission (A) as shall be selected by the Company and the underwriters (Bincluding by disclosing the maximum number of Common Shares proposed to be the subject of such Underwritten Block Trade) as shall permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the Demand Notice; provided that if the Company becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to the Company). If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Company that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, the Company will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(vii) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), the Company shall (A) promptly prepare and file or cause to be prepared and filed (1) such additional forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents, as may be necessary or advisable to register or qualify the securities subject to such Demand Registration, including under the securities laws facilitate preparation 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 including filing of an ASRS), Prospectus and other offering documentation related to 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 HolderUnderwritten Block Trade.
Appears in 1 contract
Demand Registration. (i) At any time after Upon the expiration of the Lock-Up Period, any Holder shall have the option and right, exercisable by delivering a written notice request delivered to the Company (a “Demand Notice”)) of the Holders of at least one-third (1/3) of the Shares of the then-outstanding and fully vested Registrable Securities, to require the Company to, pursuant to the terms of and subject to the limitations contained in this Agreement, prepare and shall file with the Commission Commission, as soon as reasonably practicable following the receipt of the Notice, a Registration Statement registering under the offering and sale Securities Act providing for the resale of the number and type of Registrable Securities on (which may, at the terms and conditions specified in option of the Demand Holders giving such Notice, which may include sales on be a delayed or continuous basis Registration Statement under the Securities Act that provides for the resale of the Registrable Securities pursuant to Rule 415 pursuant from time to a Shelf Registration Statement (a “Demand Registration”time by the Holders). The Demand Notice must set forth the number of Registrable Securities that the Initiating Holder intends to include in such Demand Registration and the intended methods of disposition thereof. Notwithstanding anything to the contrary herein, in no event shall the Company be required to effectuate a Demand Registration unless the Registrable Securities to be included therein have an aggregate value, based on the VWAP as of the date of the Demand Notice, of at least $25 million (the “Minimum Amount”).
(ii) Within fifteen Business Days after the receipt of the Demand Notice (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, within forty-five days thereof), the Company shall, subject to the limitations of this Section 2(a), file a Registration Statement in accordance with the terms and conditions of the Demand Notice. The Company shall use all its commercially reasonable efforts to cause such Registration Statement to become be declared effective by the Commission as soon as reasonably practicable after the initial filing of the Registration Statement. Any Registration Statement shall provide for the resale pursuant to any method or combination of methods legally available to, and remain effective under requested by, the Holders of any and all Registrable Securities Act covered by such Registration Statement. The Company shall use its commercially reasonable efforts to cause each Registration Statement filed pursuant to this Section 2 to be continuously effective, supplemented and amended to the extent necessary to ensure that it is available for the resale of all Registrable Securities by the Holders until all Registrable Securities covered by such Registration Statement have been sold ceased to be Registrable Securities (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect (A) a Demand Registration within 90 days after the closing of any Requested Underwritten Offering or (B) a subsequent Demand Registration pursuant to a Demand Notice if a . Each Registration Statement covering when effective (and the documents incorporated therein by reference) shall comply in all material respects as to form with all applicable requirements 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 shall not contain an untrue statement of a notice from material fact or omit to state a Holder to the effect that the Holder is withdrawing an amount of its Registrable Shares from the Demand Registration such that the remaining amount of Registrable Shares material fact required to be included in stated therein or necessary to make the Demand Registration is below the Minimum Amount, the statements therein not misleading. The Company shall cease all efforts to secure effectiveness of the applicable Registration Statement.
(v) The Company may include in any such Demand Registration other Company Securities for sale for its own account or for the account of any other Person, subject to Section 2(c)(iii).
(vi) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration on such appropriate registration form of the Commission (A) as shall be selected by the Company and (B) as shall permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the Demand Notice; provided that if the Company becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to the Company). If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Company that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, the Company will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(vii) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), the Company shall (A) promptly prepare and file or cause to be prepared and filed (1) such additional forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents, as may be necessary or advisable to register or qualify the securities subject to such Demand Registration, including under the securities laws of such jurisdictions as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, the Company would become subject to general service of process or to taxation or qualification to do business in such jurisdiction solely as a result of registration and (2) such forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents as may be necessary to apply for listing or to list the Registrable Securities subject to such Demand Registration on the Trading Market and (B) do any and all other acts and things that may be reasonably necessary or appropriate or reasonably requested by the Holders to enable the Holders to consummate a public sale of such Registrable Securities in accordance with the intended timing and method or methods of distribution thereof.
(viii) In the event a Holder transfers Registrable Securities included on a Registration Statement and such Registrable Securities remain Registrable Securities following such transfer, at the request of such Holder, the Company shall amend or supplement such Registration Statement as may be necessary in order to enable such transferee to offer and sell such Registrable Securities pursuant to such Registration Statement; provided that in no event shall the Company be required to file a post-effective amendment to the no more than two Registration Statement unless (A) such Registration Statement includes only Registrable Securities held Statements requested 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.Holders..
Appears in 1 contract
Samples: Registration Rights Agreement (Technology Research Corp)
Demand Registration. (ia) At Upon the written request from the Holders of at least a majority of the Additional Registrable Securities then outstanding(the “Requisite Shareholders”), delivered at any time and from time to time after the expiration of the Lock-Up Perioddate hereof, 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, shall prepare and file with the Commission a Demand Registration Statement registering covering the offering and sale resale of the number and type of Additional Registrable Securities then outstanding on or prior to 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”)applicable Filing Date. The Demand Notice must set forth the number of Registrable Securities that the Initiating Holder intends to include in such Demand Registration and the intended methods of disposition thereof. Notwithstanding anything to the contrary herein, in no event Statement shall the Company be required to effectuate a Demand Registration unless the Registrable Securities to be included therein have an aggregate value, based on the VWAP as of the date of the Demand Notice, of at least $25 million (the “Minimum Amount”).
(ii) Within fifteen Business Days after the receipt of the Demand Notice Form S-3 (except if the Company is not then eligible to register for resale the Additional Registrable Securities on Form S-3, within forty-five days thereof), the Company shall, subject to the limitations of this Section 2(a), file a Registration Statement in which case such registration shall be on another appropriate form in accordance with the terms and conditions of the Demand Noticeherewith). The Company shall use all its commercially reasonable best efforts to cause such each Additional Registration Statement to become be declared effective under the Securities Act as soon as possible but, in any event, no later than the applicable Effectiveness Date, and remain shall use its commercially reasonable best efforts to cause each Additional Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than the applicable Effectiveness Date, and shall use its commercially reasonable best efforts to keep each Demand Registration Statement continuously effective under the Securities Act until the earliest of: (i) the date when all of the Additional Registrable Securities covered by such Demand Registration Statement have been sold or may be sold without volume restrictions pursuant to Rule 144(k) or (ii) the date when all of the Additional Registrable Securities covered by such Demand Registration Statement have been sold or may be sold in any 90 day period in reliance on Rule 144 (the “Subsequent Effectiveness Period”).
. Notwithstanding the foregoing, the Requisite Shareholders shall not be entitled to demand that the Company cause more than two (iii2) Subject such demand registrations in any consecutive 12 month period to become effective pursuant to this Section 4(a) if such registrations have been declared or ordered and remain effective (it being understood that for purposes of a third demand pursuant to this Section 4(a), such 12 month period shall begin on the date the first demand was made and for purposes of any other limitations contained in demand pursuant to this AgreementSection 4(a), such 12 month period shall begin on the date the penultimate demand was made). Further, notwithstanding the foregoing, the Company is not obligated hereunder to effect (A) a Demand Registration within 90 days after the closing of any Requested Underwritten Offering or (B) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of the Registrable Securities held by the Initiating Holder shall have become and remains effective under the Securities Act and is sufficient to permit offers and sales of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice in accordance with the intended timing and method or methods of distribution thereof specified in the Demand Notice.
(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 suspend the effectiveness of the applicable Registration Statement. Upon receipt of a notice from a Holder to the effect that the Holder is withdrawing an amount of its Registrable Shares from the Demand Registration such that the remaining amount of Registrable Shares to be included in the Demand Registration is below the Minimum Amount, the Company shall cease all efforts to secure effectiveness of the applicable Registration Statement.
(v) The Company may include in any such Demand Registration other Company Securities for sale for its own account or for the account of any other Person, subject to Section 2(c)(iii).
(vi) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration on such appropriate registration form of the Commission (A) as shall be selected Statement by the Company and (B) as shall permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the Demand Notice; provided that if the Company becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to the Company). If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Company that it intends Holders for a period not to effect exceed an offering aggregate of all or part 30 days in any 60-day period (each such period, a “Suspension Period”) if (x) an event occurs and is continuing as a result of the Registrable Securities included on such which any Demand Registration Statement, the Company will amend Prospectus, any amendment or supplement thereto, or any document incorporated by reference therein would, in the Company’s judgment, 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, and (y) the Company determines in good faith that the disclosure of such Registration Statement as may event at such time would be necessary materially detrimental to the Company and its subsidiaries, provided, that Suspension Periods shall not exceed an aggregate of 90 days in order any 360-day period. The Company shall not be required to enable such offering specify in the written notice to take placethe Holders the nature of the event giving rise to the Suspension Period.
(viib) Without limiting The demand rights granted under this Section 34 shall terminate on the 180th day immediately following the Call Termination Date; provided, in connection with such termination shall not relieve the Company of its obligation to keep effective the Initial and any Demand Registration pursuant to and in accordance with this Section 2(a), Statement for the Company shall (A) promptly prepare and file Initial or cause to be prepared and filed (1) such additional forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documentsSubsequent Effectiveness Period, as the case may be necessary or advisable to register or qualify the securities subject to such Demand Registrationbe, 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 thereoffiled prior thereto.
(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: Registration Rights Agreement (Nu Skin Enterprises Inc)
Demand Registration. (ia) At any time immediately after the expiration of the Lock-Up PeriodClosing Date, any Holder shall have the option and right(each, exercisable by delivering a written notice to the Company (a an “Demand NoticeInitiating Holder”), to require the Company tomay demand registration (each, pursuant to the terms of and subject to the limitations contained in this Agreement, prepare and file with the Commission a Registration Statement registering the offering and sale of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice, which may include sales on a delayed or continuous basis pursuant to Rule 415 pursuant to a Shelf Registration Statement (a “Demand Registration”) under the Securities Act, of all or any portion of the Registrable Securities owned by such Initiating Holder. In order to accomplish such demand, the Initiating Holder shall send a written request of the demand to the Company (which request shall specify, subject to the limitations set forth in Section 2(c) hereof, the Registrable Securities intended to be disposed of by such Holder or its transferees and the intended method of distribution thereof). The Company shall, within ten (10) calendar days of the receipt thereof, give written notice of such request to all Holders, giving such Holders ten (10) calendar days after receipt of such notice to request in writing to participate in such Demand Notice must set forth Registration Statement. The Company shall thereafter use its reasonable best efforts to file as soon as practicable, and in any event within forty-five (45) calendar days’ receipt of a request from an Initiating Holder, a registration statement under the Securities Act covering the applicable Registrable Securities of the Initiating Holder and such other Holders who have requested to participate (each, a “Demand Registration Statement”). Such Demand Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the “Plan of Distribution” attached hereto as Annex A.
(b) The Company shall use its commercially reasonable efforts to cause a Demand Registration Statement to be declared effective under the Securities Act as promptly as possible after the filing thereof, but in any event prior to the Effective Date, and to keep such Demand Registration Statement continuously effective under the Securities Act (including the filing of any necessary amendments, post-effective amendments and supplements) during the Effectiveness Period.
(c) Notwithstanding anything to the contrary provided for herein: (i) in no event shall the Company be obligated to effect, throughout the term of this Agreement, more than two Demand Registrations for the OZ Holders and more than two Demand Registrations for the Keywin Holders (except that two or more registration statements filed in response to one demand shall be counted as one Demand Registration); and (ii) the Company shall not be obligated to register in any twelve (12) month period, Registrable Securities equaling in excess of twenty-five percent (25%) of the Company’s fully diluted share capital (as determined from time to time and after giving effect to the full conversion of the New Notes and the full exercise of the Keywin Options). If the Initiating Holder and the other participating Holders combined request the registration of more Registrable Securities that are permitted under this Section 2(c)(ii), then the Company shall reduce the amount of Registrable Securities to be included in such Demand Registration pro rata based on the number of Registrable Securities owned by each such Holder; provided, however, that the number of Registrable Securities shall not be reduced unless all other securities of the Company are first entirely excluded from the registration.
(d) If, pursuant to Section 2(a), the Initiating Holder Holders intends to distribute the Registrable Securities covered by their request by means of an underwriting, it shall so advise the Company as a part of their request made pursuant to Section 2(a), and the Company shall include such information in the written notice provided to the other Holders in accordance with Section 2(a). The underwriter(s) will be selected by the Initiating Holders holding a majority of the Registrable Securities to be registered under such Demand Registration, subject only to the reasonable approval of the Company. If the Demand Registration is underwritten and the managing underwriters advise the Company in writing that in their reasonable good faith judgment the number of Registrable Securities requested to be included exceeds the number that can be sold in such offering, at a price reasonably related to fair value, then the Company shall include in such registration only the aggregate amount of Registrable Securities that the underwriter believes may be sold and shall reduce the amount of Registrable Securities to be included in such registration, first, as to the Company, second as to each of the security holders of the Company that is not a Holder, third as to the Holders pro rata. A registration shall not be considered to be a Demand Registration under Section 2, if: (i) as a result of the foregoing allocation, the Initiating Holders are not able to register and sell in the intended methods Demand Registration at least 75% of disposition thereof. the Registrable Securities sought to be included in the Demand Registration Statement by such Holder, subject to clause (ii) of Section 2(c) hereof; (ii) the gross proceeds of the securities included in the registration on behalf of the Company constitute at least 20% of the total gross proceeds of the Demand Registration; (iii) the Demand Registration Statement requested by the Initiating Holders does not become effective for any reason within one hundred and twenty (120) calendar days of the request for Demand Registration by an Initiating Holder pursuant to Section 2(a); (iv) after the Demand Registration has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable to such Initiating Holder and such interference is not thereafter eliminated; or (v) the conditions specified in the underwriting agreement, if any, entered into in connection with such Demand Registration are not satisfied or waived, other than by reason of a failure by such Initiating Holders.
(e) If any holder of the Company’s securities that is not a Holder under this Agreement exercises demand registration rights to have the Company register its securities under the Securities Act (a “Third Party Demand Registration”) within a period of thirty (30) calendar days before or after the time the Holder shall have requested a Demand Registration, then the Holder’s Demand Registration shall have priority over such Third Party Demand Registration.
(f) Notwithstanding anything to the contrary herein, in no event shall the Company be required to effectuate a Demand Registration unless the Registrable Securities to be included therein have an aggregate value, based on the VWAP if after such time as of the date of the Demand Notice, of at least $25 million (the “Minimum Amount”).
(ii) Within fifteen Business Days after the receipt of the Demand Notice (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, within forty-five days thereof), the Company shall, subject to the limitations of this Section 2(a), file a Registration Statement in accordance with the terms and conditions of the Demand Notice. The Company shall use all commercially reasonable efforts to cause such Registration Statement to become and remain effective under the Securities Act until all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect (A) a Demand Registration within 90 days after the closing of any Requested Underwritten Offering or (B) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of the Registrable Securities held by the Initiating Holder shall have become and remains effective under the Securities Act and is sufficient OZ Holders may be sold without any restrictions pursuant 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 a Holder to the effect that the Holder is withdrawing an amount of its Registrable Shares from the Demand Registration such that the remaining amount of Registrable Shares to be included in the Demand Registration is below the Minimum AmountRule 144, the Company OZ Holders shall cease all efforts still have the right to secure effectiveness of the applicable Registration Statement.
(v) The Company may include request in any such Demand Registration other Company Securities for sale for its own account or for the account of any other Person, subject to Section 2(c)(iii).
(vi) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration on such appropriate registration form of the Commission (A) as shall be selected by the Company and (B) as shall permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the Demand Notice; provided that if the Company becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to the Company). If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Company that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, the Company will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(vii) Without limiting Section 3, in connection with any writing Demand Registration pursuant to and in accordance with this Section 2(a) hereof (subject to the limitations set forth in Section 2(c)), 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 each OZ Holder(s) participating in a Demand Registration under this Section 2(f) shall be required in any jurisdiction where, as a result thereof, bear its pro rata share of the Company would become subject to general service expenses 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 Statement based 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 proportion of such its 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 covered under 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 Demand Registration Statement, other than including its pro rata share of any Registration Expenses set forth in Section 6 hereof. To the Holderextent that any Registration Expenses are incurred, Affiliates assumed or paid by the Company that are otherwise payable by an OZ Holder under this Section 2(f), such OZ Holder shall reimburse the Company for the full amount of the Holder Registration Expenses so incurred, assumed or transferees paid as promptly as practical after receipt of the Holdera documented request therefor.
Appears in 1 contract
Demand Registration. (i) At any time on or after the expiration ------------------- Commencement Date, but prior to the Expiration Date, the Holders of a number of Warrants or the holders of Warrant Shares equivalent to at least a majority of the Lock-Up Periodtotal of (1) all Warrant Shares then subject to purchase upon exercise of the Warrants pursuant to Section 2(a) hereof, any Holder shall and (2) all Warrant Shares then outstanding have the option and right, exercisable by delivering right hereunder to make a written notice request to the Company to effect one registration (a “"Demand Notice”)Registration") under the Securities Act of the Warrant Shares. Within 20 days after the receipt of such written request for a Demand Registration, to require the Company toshall notify the Holders of all Warrants and the holders of all Warrant Shares that a Demand Registration has been requested. In addition, pursuant the Company shall (1) prepare, file with the Commission and use its best efforts to cause to become effective under the terms Securities Act within 150 days of such demand a Registration Statement with respect to such Warrant Shares, and subject to the limitations contained in this Agreement, prepare and file with the Commission a such amendments and supplements to such Registration Statement registering and the offering prospectus used in connection therewith as may be necessary to keep such Registration Statement effective and sale to comply with the provisions of the number and type Securities Act with respect to the sale or other disposition 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 all securities covered by such Registration Statement and (a “Demand Registration”)2) keep such Registration Statement continuously effective until the earlier to occur of (A) the date that is 60 days after such effectiveness (the "Effectiveness Period") and (B) such period of time as all of the Warrant Shares included in such Registration Statement shall have been sold thereunder. The Demand Notice must set forth Any such request will specify the number of Registrable Securities that the Initiating Holder intends Warrant Shares proposed to include in such Demand Registration be sold and will also specify the intended methods method of disposition thereof. Notwithstanding anything Within 30 days after receipt by any Holder of Warrants or holder of Warrant Shares of such notice from the Company, such Holder or holder may request in writing that such Holder's or holder's Warrant Shares be included in such Registration Statement and the Company shall include in such Registration Statement the Warrant Shares of any such Holder or holder requested to be so included, provided that, with respect to any Holder of Warrants, such Warrants are duly and timely exercised with respect to the contrary herein, in no event shall the Company be required to effectuate a Demand Registration unless the Registrable Securities Warrant Shares requested to be included therein have an aggregate value, based on the VWAP as of the date of the Demand Notice, of at least $25 million registered (the “Minimum Amount”"Included Shares"). Each such request by such other Holders or holders shall specify the number of Included Shares proposed to be sold and the intended method of disposition thereof.
(ii) Within fifteen Business Days after If such a requested registration occurs during the receipt of the Demand Notice "lock up" or "black out" period (except if not to exceed 180 days) imposed on the Company is not then eligible pursuant to register or in connection with any underwriting or purchase agreement relating to an underwritten Rule 144A or registered public offering of Common Stock or securities convertible into or exchangeable or exercisable for resale the Registrable Securities on Form S-3, within forty-five days thereof)Common Stock, the Company shall, subject shall not be required to so notify holders of Warrants and Warrant Shares and file such Demand Registration Statement prior to the limitations end of this Section 2(a)such "lock up" or "black out" period, file a Registration Statement in accordance with which event the terms and conditions of the Demand Notice. The Company shall will use all commercially reasonable its best efforts to cause such Demand Registration Statement to become effective no later than the later of (1) 150 days after such demand or (2) 30 days after the end of such "lock up" or "black out" period. In the event of any "lock up" or "black out" period or any underwriting or other purchase agreement, the Company shall so notify the holders of Warrants and Warrant Shares.
(iii) A Registration Statement shall not be deemed to have been effected as a Demand Registration Statement unless it shall have been declared effective by the Commission, no later than the later of (1) 150 days after the request for a Demand Registration or (2) 30 days after the end of any "lock up" or "black out" period described in the preceding paragraph, and the Company has complied in all material respects with all of its obligations under this Warrant with respect thereto; provided, however, that if, after such Registration Statement has become effective, the offering of Warrant Shares pursuant to such Registration Statement is or becomes the subject of any stop order, injunction or other order or requirement of the Commission or any other governmental, judicial or administrative order or requirement that prevents, restrains or otherwise limits the sale of the Warrant Shares pursuant to such Registration Statement for any reason not attributable to any Selling Holder participating in such registration, and such Registration Statement has not become effective within a reasonable time period thereafter, such Registration Statement shall be deemed not to have been effected. If (1) a registration requested pursuant to this Section 14(a) is deemed not to have been effected or (2) a Demand Registration does not remain effective under the Securities Act until at least the earlier of (A) an aggregate of 60 days (subject to Section 14(c) hereof) after the effective date thereof or (B) the consummation of the distribution by the Selling Holders of all Registrable Securities of the Warrant Shares covered by thereby, then such Demand Registration shall not count towards determining if the Company has satisfied its obligation to effect one Demand Registration pursuant to this Section 14(a). For purposes of calculating the 60-day period referred to in the preceding sentence, any period of time during which such Registration Statement have been sold (the “Effectiveness Period”).
(iii) Subject was not in effect shall be excluded. The holders of Warrant Shares shall be permitted to the other limitations contained in this Agreementwithdraw all or any part of such Warrant Shares from a Demand Registration. Notwithstanding any such withdrawal by a holder of Warrant Shares, if the Company is not obligated has complied with all of its obligations hereunder to effect (A) and has effected a Demand Registration within 90 150 days after the closing of any Requested Underwritten Offering or (B) a subsequent Demand Registration pursuant to request for a Demand Notice if a Registration Statement covering all of Registration, such withdrawal shall not require the Registrable Securities held by the Initiating Holder shall have become and remains effective under the Securities Act and is sufficient Company to permit offers and sales of the number and type of Registrable Securities on the terms and conditions specified in the effect any additional Demand Notice in accordance with the intended timing and method or methods of distribution thereof specified in the Demand NoticeRegistrations.
(iv) A Each 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 a Holder to the effect that the Holder is withdrawing an amount of its Registrable Warrants and Warrant Shares from the Demand Registration such that the remaining amount of Registrable whose Warrant Shares to be included in the Demand Registration is below the Minimum Amount, the Company shall cease all efforts to secure effectiveness of the applicable Registration Statement.
(v) The Company may include in any such Demand Registration other Company Securities for sale for its own account or for the account of any other Person, subject to Section 2(c)(iii).
(vi) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration on such appropriate registration form of the Commission (A) as shall be selected are covered by the Company and (B) as shall permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the Demand Notice; provided that if the Company becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to the Company). If at any time a Registration Statement on Form S-3 is effective filed pursuant to this Section 14(a) and a Holder provides written notice are to be sold thereunder agrees, if and to the Company that it intends extent reasonably requested by the managing underwriter or underwriters in an underwritten public offering of such Warrant Shares, not to effect an offering any public sale or distribution of all Warrant Shares or part of securities of the Registrable Securities Company of the same class as any securities included on in such Registration Statement, including a sale pursuant to Rule 144 (except as part of such underwritten offering), during the 30-day period prior to, and during the 180-day period beginning on, the closing date of each underwritten offering made pursuant to such Registration Statement, to the extent timely notified in writing by the Company will amend or supplement such Registration Statement as may be necessary in order managing underwriter or underwriters. The foregoing provisions of Section 14(a)(iv) shall not apply to enable any Holders of Warrant Shares if such offering to take place.
(vii) Without limiting Section 3, in connection with Holder is prevented by applicable statute or regulation from entering into 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 requestagreement; provided, however, that no any such qualification Holder shall be required undertake, in its request to participate in any jurisdiction wheresuch underwritten offering, as not to effect any public sale or distribution of any Warrant Shares commencing on the date of sale of such Warrant Shares unless it has provided 45 days' prior written notice of such sale or distribution by the managing underwriter or underwriters.
(v) If a result thereofmajority of the holders of the Warrant Shares to be registered so elect, the Company would become subject to general service offering 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 Warrant Shares pursuant to such Demand Registration on shall be in the Trading Market and (B) do any and all other acts and things that may form of an underwritten offering. The holders making such Demand Registration shall select one or more nationally recognized firms of investment bankers, who shall be reasonably necessary acceptable to the Company, to act as the managing underwriter or appropriate or reasonably requested by the Holders underwriters in connection with such offering and shall select any additional investment bankers and managers to enable the Holders to consummate a public sale of such Registrable Securities be used in accordance connection with the intended timing and method or methods of distribution thereofoffering.
(viiivi) In The Company will pay all Registration Expenses (as hereinafter defined) in connection with the event a Holder transfers Registrable Securities included on registration requested pursuant to Section 14(a) hereof. Each holder of Warrant Shares being registered shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such holder's Warrant Shares pursuant to 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 requested 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 Holderthis Section 14(a).
Appears in 1 contract
Samples: Warrant Agreement (Convergent Communications Inc /Co)
Demand Registration. (ia) At If at any time after the expiration date of this Agreement the Company receives a request from a Holder of Registrable Securities that the Company file a Registration Statement on Form S-1 covering the resale of the Lock-Up PeriodRegistrable Securities held by such Holder (a "Demand Notice"), any Holder shall have the option and right, exercisable by delivering a written notice to then the Company shall (a “i) within five (5) days after the date it receives the Demand Notice”), give notice thereof to require all other Holders and (ii) as soon as reasonably practicable, but in no event later than the Company toFiling Date, pursuant to the terms of and subject to the limitations contained in this Agreement, prepare and file with the Commission a Registration Statement registering on Form S-1 covering the offering and sale resale of all Registrable Securities of the number Holder that provided the Demand Notice and type of any additional Registrable Securities on requested by the terms other Holders to be included therein, as specified by each such other Holder within twenty (20) days after such Holder has received notice from the Company pursuant to clause (i); provided that such Registration Statement need not include Registrable Securities already covered by an existing and conditions specified in the Demand Notice, which may include sales effective Registration Statement The Registration Statement shall be for an offering to be made on a delayed or continuous basis pursuant to Rule 415 pursuant to a Shelf 415. The Registration Statement (a “Demand Registration”). The Demand Notice must set forth the number of Registrable Securities that the Initiating Holder intends to include in such Demand Registration and the intended methods of disposition thereof. Notwithstanding anything to the contrary herein, in no event shall the Company be required to effectuate a Demand Registration unless the Registrable Securities to be included therein have an aggregate value, based on the VWAP as of the date of the Demand Notice, of at least $25 million (the “Minimum Amount”).
(ii) Within fifteen Business Days after the receipt of the Demand Notice contain (except if otherwise required pursuant to written comments received from the Company is not then eligible to register for resale Commission upon a review of such Registration Statement) the Registrable Securities on Form S-3, within forty-five days thereof), the Company shall, subject to the limitations “Plan of this Section 2(a), file a Registration Statement in accordance with the terms and conditions of the Demand Notice. Distribution” attached hereto as Annex A. The Company shall use all commercially its reasonable best efforts to cause such the Registration Statement to become be declared effective under the Securities Act as soon as practicable but, in any event, no later than the Effectiveness Date, and remain shall use its reasonable best efforts to keep the Registration Statement effective under the Securities Act until the date when all Registrable Securities covered by such the Registration Statement have been sold or may be sold without volume restrictions pursuant to Rule 144(b)(i) promulgated under the Securities Act (the “Effectiveness Period”).
(iiib) Subject If for any reason the Commission does not permit all of the Registrable Securities requested by a Holder to be included in the Registration Statement filed pursuant to Section 2(a), or for any other limitations contained in reason any such Registrable Securities are not permitted by the Commission to be included on a Registration Statement filed under this Agreement, then the Company is not obligated hereunder to effect (A) a Demand Registration within 90 days shall prepare and file as soon as possible after the closing date on which such filing may be made, an additional Registration Statement covering the resale of any Requested Underwritten Offering or (B) all of the Registrable Securities requested by Holder not already covered by an existing and effective Registration Statement for an offering to be made on a subsequent Demand Registration continuous basis at the market pursuant to Rule 415 or otherwise as may be acceptable to a Demand Notice Holder whose Registrable Securities were not registered for resale. Each such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the “Plan of Distribution” attached hereto as Annex A. The Company shall use its reasonable best efforts to cause each such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement effective under the Securities Act during the entire Effectiveness Period.
(c) If: (i) a Registration Statement covering all of the Registrable Securities held required to be covered thereby is not filed by the Initiating Holder shall have become and remains effective Company with the Commission on or prior to the Filing Date (or the applicable filing date if the Registration Statement is not the initial Registration Statement required to be filed under the Securities Act and is sufficient to permit offers and sales Section 2(a)), (ii) a Registration Statement covering all of the number and type of Registrable Securities is not declared effective by the Commission on or prior to its required Effectiveness Date (it being understood that if the terms and conditions specified in Company shall not have filed a “final” prospectus for the Demand Notice Registration Statement with the SEC under Rule 424(b) in accordance with Section 2(f) below (whether or not such a prospectus is technically required by such rule), the intended timing and method or methods Company shall not be deemed to have satisfied this clause (ii)), (iii) the Company fails to file a request for the acceleration of distribution thereof specified in the Demand Notice.
Effectiveness Date of the applicable Registration Statement as required by Section 3(c), (iv) A Holder may withdraw there is a suspension or delisting of the Company’s Common Stock (or the Company fails to timely list all the Registrable Securities) on its principal trading market or exchange, (v) after its Effective Date, other than during an Allowable Grace Period (as defined below), such Registration Statement ceases to be effective and available for use by the Holders as to any portion of its Registrable Securities included in a Demand Registration from such Demand Registration to which it is required to cover at any time prior to the effectiveness expiration of its Effectiveness Period for up to no more than 3 consecutive Trading Days (or 20 Trading Days in any 12 month period in the aggregate) (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i)-(iv), on the date on which such Event occurs, or for purposes of clause (v), the date on which the Allowable Grace Period or other specified period is exceeded, being referred to as “Event Date”), then, in addition to any other rights available to the Holders under this Agreement or under applicable law: (x) on each such Event Date the Company shall pay to each Holder an amount in cash, as partial damages and not as a penalty, equal to 1.5% of the applicable Registration Statement. Upon receipt of a notice from a aggregate Investment Amount paid by such Holder pursuant to the effect that Note Conversion Agreement; and (y) on each 30-day anniversary of each such Event Date (if the Holder applicable Event shall not have been cured by such date) until the applicable Event is withdrawing an amount of its Registrable Shares from the Demand Registration such that the remaining amount of Registrable Shares to be included in the Demand Registration is below the Minimum Amountcured, the Company shall cease all efforts pay to secure effectiveness each Holder an amount in cash, as partial damages and not as a penalty, equal to 1.5% of the applicable Registration Statementaggregate Investment Amount paid by such Holder pursuant to the Note Conversion Agreement. The partial damages pursuant to the terms hereof shall apply on a pro rata basis for any portion of a month prior to the cure of an Event. Notwithstanding the foregoing, in no event shall the partial damages under this Section 2(d) exceed an amount equal to 20% of the aggregate Investment Amounts.
(vd) The Company may include in any such Demand Registration other Company Securities for sale for its own account or for the account of any other Person, subject to Section 2(c)(iii).
(vi) Subject Notwithstanding anything to the limitations contrary contained in this Agreement, in the Company shall effect any Demand Registration on such appropriate registration form event the staff of the Commission (Athe “Staff”) or the Commission requires any Holder seeking to sell securities under a Registration Statement filed pursuant to this Agreement to be specifically identified as an “underwriter” in order to permit such Registration Statement to become effective, and such Holder does not consent to being so named as an underwriter in such Registration Statement, then in each such case, the Company shall reduce the total number of Registrable Securities to be selected registered on behalf of such Holder, until such time as the Staff or the Commission does not require such identification or until such Holder accepts such identification and the manner thereof. Any reduction pursuant to this paragraph will first reduce all Registrable Securities other than those issued pursuant to the Note Conversion Agreement and in the event of any reduction pursuant to this paragraph, no Holder shall have any claim against the Company as a result of such reduction and any Event or other delay or breach of this Agreement occurring primarily due to such action by the Staff or the Commission and any such relating reduction shall not require the Company to pay any partial damages pursuant to Section 2(d) hereof or otherwise provide the basis for any claim by any Holder against the Company pursuant to the Transaction Documents (it being understood that the foregoing does not constitute a waiver of Section 3.2(f) of the Note Conversion Agreement by any Holder or the obligations of the Company under this paragraph and elsewhere in relation thereto). In the event of any reduction in Registrable Securities pursuant to this paragraph, an affected Holder shall have the right to require, upon delivery of a written request to the Company signed by the Holder, the Company to file a registration statement within 30 days of such request (Bsubject to any restrictions imposed by Rule 415 or required by the Staff or the Commission) for re-sale by such Holder in a manner acceptable to such Holder, and the Company shall following such request cause to be and keep effective such registration statement in the same manner as shall otherwise contemplated in this Agreement for registration statements hereunder, in each case until such time as: (i) all Registrable Securities held by such Holder have been registered pursuant to an effective Registration Statement in a manner acceptable to such Holder or (ii) the Registrable Securities may be resold by such Holder without restriction (including volume limitations) pursuant to Rule 144(b)(i) of the Securities Act (taking account of any Staff position with respect to “affiliate” status) or (iii) the Holder agrees to be named as an underwriter in any such Registration Statement in a manner acceptable to Holder as to all Registrable Securities held by such Holder and that have not theretofore been included in a Registration Statement under this Agreement (it being understood that the special demand right under this sentence may be exercised by a Holder multiple times and with respect to limited amounts of Registrable Securities in order to permit the disposition re-sale thereof by such Holder as contemplated above).
(e) In the event that Form S-1 is not available for the registration of the resale of Registrable Securities hereunder, the Company shall use reasonable best efforts to (i) register the resale of the Registrable Securities in accordance with on another appropriate form reasonably acceptable to the intended method or methods of disposition specified in Holders and (ii) undertake to register the Demand Notice; Registrable Securities on Form S-1 as soon as such form is available, provided that if the Company becomes, and is at shall use reasonable best efforts to maintain the effectiveness of the Registration Statement then in effect until such time of its receipt of as a Demand Notice, a WKSIRegistration Statement on Form S-1 covering the Registrable Securities has been declared effective by the Commission. In the event the Company becomes eligible to register the Registrable Securities on Form S-3, the Demand Registration for any offering and selling of Company shall use reasonable best efforts to promptly register the Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under S-3, provided that the Securities Act (if available Company shall use reasonable best efforts to maintain the Company). If at any effectiveness of the Registration Statement(s) then in effect until such time as a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Company that it intends to effect an offering of all or part of covering the Registrable Securities included has been declared effective by the Commission.
(f) By 5:30 p.m. on such the Trading Day immediately following the Effective Date of each Registration Statement, the Company will amend or supplement such Registration Statement as may shall file with the Commission in accordance with Rule 424 under the Securities Act the final prospectus to be necessary in order to enable such offering to take place.
(vii) Without limiting Section 3, used 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 sales 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: Registration Rights Agreement (InsPro Technologies Corp)
Demand Registration. (i) At any time after during the expiration five year period following the Closing Date, the Investor may make a written request (the "Demand Notice") for registration under the Securities Act (a "Demand Registration") of its Registrable Securities. The Demand Notice will specify the number of shares of Registrable Securities proposed to be sold and will also specify the intended method of disposition thereof. Following receipt of a Demand Notice from the Investor, the Company promptly will file a registration statement on any appropriate form which will cover the Registrable Securities that the Company has been so requested to register by the Investor. Unless the Investor shall consent in writing, no party (including the Company) other than DDR, Praedium II Industrial Associates LLC ("Praedium"), MS Real Estate Special Situations Inc. ("MRSE"), certain clients of Morgxx Xxxnxxx Xxxet Management Inc. who have purchased Common Shares of the Lock-Up PeriodCompany (such clients together with MRSE, the "Morgxx Xxxities"), LaSalle Advisors Limited Partnership acting as agent for and on behalf of certain clients ("LaSalle"), or ABKB/LaSalle Securities Limited Partnership ("ABKB" and together with LaSalle, the "LaSalle Entities") shall be permitted to offer securities under any Holder such Demand Registration. The Company shall not be required to effect more than three Demand Registrations under this Section 2(b). A registration requested pursuant to this Section 2(b) will not be deemed to have been effected (and it shall not count as one of the option three Demand Registrations) unless the Registration Statement relating thereto has become effective under the Securities Act; provided, however that if, after such Registration Statement has become effective, the offering of the Registrable Securities pursuant to such registration is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such registration will be deemed not to have been effected (and right, exercisable it shall not count as one of the three Demand Registrations). The Investor may at any time prior to the effective date of the Registration Statement relating to such registration revoke a Demand Notice by delivering providing a written notice to the Company (a “in which case such Demand Notice”Registration shall not count as one of the three Demand Registrations). If the Investor so elects, to require the Company to, pursuant to the terms of and subject to the limitations contained in this Agreement, prepare and file with the Commission a Registration Statement registering the offering and sale of the number and type of Registrable Securities on the terms and conditions specified pursuant to such registration shall be in the Demand Noticeform of an Underwritten Offering. If the managing underwriter or underwriters of such offering advise the Company and the Investor in writing that in their opinion the number of shares of Registrable Securities and shares of DDR, which may Praedium, the Morgxx Xxxities or the LaSalle Entities, if any, requested to be included in such offering is sufficiently large to materially and adversely affect the success of such offering, the Company will include sales on a delayed or continuous basis pursuant to Rule 415 pursuant to a Shelf Registration Statement (a “Demand Registration”). The Demand Notice must set forth in such registration the aggregate number of Registrable Securities that and shares of DDR, Praedium, the Initiating Holder intends to include in such Demand Registration and Morgxx Xxxities or the intended methods of disposition thereof. Notwithstanding anything to the contrary hereinLaSalle Entities, in no event shall the Company be required to effectuate a Demand Registration unless the Registrable Securities if any, requested to be included therein have an aggregate valueincluded, based on the VWAP as of the date of the Demand Notice, of at least $25 million (the “Minimum Amount”).
(ii) Within fifteen Business Days after the receipt of the Demand Notice (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, within forty-five days thereof), the Company shall, subject to the limitations of this Section 2(a), file a Registration Statement in accordance with the terms and conditions of the Demand Notice. The Company shall use all commercially reasonable efforts to cause such Registration Statement to become and remain effective under the Securities Act until all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect (A) a Demand Registration within 90 days after the closing of any Requested Underwritten Offering or (B) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of the Registrable Securities held by the Initiating Holder shall have become and remains effective under the Securities Act and is sufficient to permit offers and sales of the number and type of Registrable Securities on the terms and conditions specified which in the Demand Notice in accordance with the intended timing and method opinion of such managing underwriter 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 a Holder to the effect that the Holder is withdrawing an amount of its Registrable Shares from the Demand Registration such that the remaining amount of Registrable Shares to underwriters can be included in the Demand Registration is below the Minimum Amount, the Company shall cease all efforts to secure effectiveness of the applicable Registration Statement.
(v) The Company may include in sold without any such Demand Registration other Company Securities for sale for its own account or for the account of any other Person, subject to Section 2(c)(iii).
(vi) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration on such appropriate registration form of the Commission (A) as shall be selected by the Company and (B) as shall permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the Demand Notice; provided that if the Company becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to the Company). If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Company that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, the Company will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(vii) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), the Company shall (A) promptly prepare and file or cause to be prepared and filed (1) such additional forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents, as may be necessary or advisable to register or qualify the securities subject to such Demand Registration, including under the securities laws of such jurisdictions as the Holders shall reasonably requestmaterial adverse effect; provided, however, that no Registrable Securities or shares of DDR, Praedium, the Morgxx Xxxities or the LaSalle Entities, if any, may be excluded before all shares proposed to be sold by other parties, including the Company, have been excluded. If any Registrable Securities are excluded, such qualification registration shall not count as one of the three Demand Registrations. If the amount of Registrable Securities proposed to be registered hereunder are required to be excluded pursuant to this paragraph, the number of Registrable Securities of the Investor and the number of shares of DDR, Praedium, the Morgxx Xxxities or the LaSalle Entities, if any, to be included in such Registration 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.reduced
Appears in 1 contract
Samples: Registration Rights Agreement (American Industrial Properties Reit Inc)
Demand Registration. (ia) At Subject to Section 5 hereof, if at any time after the expiration of the Lock-Up Period, any Holder shall have the option and right, exercisable by delivering a written notice to request the Company (a “Demand Notice”), to require the Company to, pursuant to the terms of and subject to the limitations contained in this Agreement, prepare and file with the Commission a Registration Statement registering the offering and sale of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice, which may include sales on a delayed or continuous basis pursuant to Rule 415 pursuant to a Shelf Registration Statement (a “Demand Registration”). The Demand Notice must set forth the number of Registrable Securities that the Initiating Holder intends to include in such Demand Registration and the intended methods of disposition thereof. Notwithstanding anything to the contrary herein, in no event shall the Company be required to effectuate a Demand Registration unless the Registrable Securities to be included therein have an aggregate value, based on the VWAP as of the date of the Demand Notice, of at least $25 million (the “Minimum Amount”).
(ii) Within fifteen Business Days after the receipt of the Demand Notice (except if the Company is not then eligible writing to register for resale the Registrable Securities on Form S-3, within forty-five days thereof), the Company shall, subject to the limitations of this Section 2(a), file a Registration Statement in accordance with the terms and conditions of the Demand Notice. The Company shall use all commercially reasonable efforts to cause such Registration Statement to become and remain effective under the Securities Act until all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect (A) or a Demand Registration within 90 days after the closing of any Requested Underwritten Offering or (B) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all part of the Registrable Securities held by the Initiating such 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 (a "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 a Holder to the effect that the Holder is withdrawing an amount of its Registrable Shares from the Demand Registration such that the remaining amount of Registrable Shares to be included in the Demand Registration is below the Minimum Amount, the Company shall cease all efforts to secure effectiveness of the applicable Registration Statement.
(v) The Company may include in any such Demand Registration other Company Securities for sale for its own account or for the account of any other Person, subject to Section 2(c)(iii).
(vi) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration on such appropriate registration form of the Commission (A) as shall be selected by the Company and (B) as shall permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the Demand Notice; provided that if the Company becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to the Company). If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Company that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, the Company will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(vii) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(aRegistration"), the Company shall (A) promptly prepare and file or use its best efforts to cause to be prepared filed and declared effective as soon as reasonably practicable (but in no event filed (1later than the 60th day after such Holder's request is made) a registration statement, on 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 appropriate form as the Holders Company shall reasonably request; provideddetermine, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, providing for 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 all such Registrable Securities by such Holder. The Company agrees to use its best efforts to keep any such registration statement continuously effective and usable for resale of Registrable Securities until the earlier of (a) the date the Holder whose Registrable Securities are included therein shall request and (b) the expiration of 180 days after such registration statement becomes effective, subject to extension as provided in accordance with the intended timing and method or methods of distribution thereofSection 4(d). The Company shall be obligated to file registration statements pursuant to this Section 2(a) until all Registrable Securities have ceased to be Registrable Securities. Each registration statement filed pursuant to this Section 2(a) is hereinafter referred to as a "Demand Registration Statement." Holders shall be entitled to two effective Demand Registration Statements per year.
(viiib) In The Company agrees (i) not to effect any public or private sale, distribution or purchase of any of its securities which are the event same as or similar to the Registrable Securities, including a Holder transfers Registrable sale pursuant to Regulation D or Regulation S under the Securities included Act, during the 60-day period prior to (or shorter if the Holder's notice precedes the offering by less than 60 days), and during the 90-day period beginning on, the closing date of each underwritten offering under any Demand Registration Statement, and (ii) to use reasonable best efforts to cause each holder of its securities purchased from the Company, at any time on or after the date of this Agreement (other than in a registered public offering) to agree not to effect any public sale or distribution of any such securities during such period, including a sale pursuant to Rule 144 under the Securities Act; it being understood that the registration rights granted hereunder are intended to take precedence over any other registration or distribution rights granted to any other purchasers of the Company's securities.
(c) The Company may postpone for a reasonable period of time, not to exceed 30 days, the filing or the effectiveness of any Demand Registration Statement and such Registrable Securities remain Registrable Securities following such transfer, at if the request Board of such Holder, Directors of 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 good faith determines 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 registration might have a material adverse effect on any plan or proposal by the HolderCompany with respect to any financing, Affiliates of the Holder acquisition, recapitalization, reorganization or transferees of the Holder other material transaction, or (B) the Company has received written consent therefor from is in possession of material non-public information that, if publicly disclosed, could result in a Person for whom material disrup- tion of a major corporate development or transaction then pending or in progress or in other material adverse consequences to the Company.
(d) If at any time any Holder of Registrable Securities to be covered by a Demand Registration Statement desires to sell Registrable Securities in an underwritten offering, such Holder shall have the right to select any nationally recognized investment banking firm(s) to manage the offering, subject to the approval of the Company, which approval shall not be unreasonably withheld, and the Company shall enter into underwriting agreements with the underwriter(s) of such offering, which agreements shall contain such representations and warranties by the Company, and such other terms, conditions and indemnities as are similar to those of the Company contained in the underwriting agreement dated September ____ , 1999 relating to the Offering or otherwise are at the time customarily contained in underwriting agreements for similar offerings.
(e) A Demand Registration Statement requested pursuant to Section 2(a) shall not be deemed to have been registered on effected (but i) if such Demand Registration Statement has not yet sold underbecome effective, (ii) if, after it has become effective, such Demand Registration StatementStatement becomes subject to, any stop order, injunction or other order of the SEC 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 solely by reason of some act or omission by the Holder, Affiliates of the Holder or transferees of the HolderHolders.
Appears in 1 contract
Samples: Registration Rights Agreement (Homeservices Com Inc)
