Demand Registrations. (a) At any time after the first anniversary of the date of this Agreement, if the Company receives in writing a request that the Company effect the registration under the Securities Act of Registrable Securities, of with a minimum aggregate offering price of $20,000,000 (as determined with reference to the number of shares proposed to be sold in such registration multiplied by the average closing price, or if no closing price is available, the mean of the bid and asked prices, over the fifteen trading days preceding the date of such written demand), the Company will: (i) promptly give written notice of the proposed registration to all other Holders; and (ii) as soon as practicable, prepare and file and use commercially reasonable efforts to cause to become effective such registration statement as may be so requested and as would permit or facilitate the sale and distribution of such portion of the Registrable Securities as is specified in such request, together with such additional portion of the Registrable Securities of any Holder(s) joining in such request as may be specified in a written request given to the Company within twenty days after receipt of the written notice from the Company specified in Section 1.3(a)(i). (b) If the underwriter managing the offering advises the Holders who have requested inclusion of their Registrable Securities in such registration statement that marketing considerations require a limitation on the number of shares offered, such limitation shall be imposed pro rata among such Holders who requested inclusion of Registrable Securities in such registration statement according to the number of shares of Registrable Securities owned by each. Neither the Company nor any other stockholder may include shares in such registration statement without the consent of Holders of a majority of the Registrable Securities included therein if the underwriter managing such offering advises the Holders who have included Registrable Securities in such registration statement that the inclusion of such additional shares may either limit the number of Registrable Securities which can be sold or adversely affect the price at which such Registrable Securities can be sold. (c) Notwithstanding Section 1.3(b), the Company shall have the right, exercisable by written notice to the initiating Holder(s) within thirty days after receipt of a request to effect a registration under the Securities Act, to include the Company's shares in such registration, in which event such registration shall be deemed to be a Company-initiated registration, and the Holders shall have the right to include their Registrable Securities and shares of Class A Common Stock, as the case may be, therein to the extent permitted under Section 1.2. (d) The Company shall not be obligated to effect more than ten registrations under this Section 1.3. Such registrations shall be on Form S-3 when the Company is eligible to use that form under SEC rules, but otherwise may be on Form S-1. No registration statement initiated by Holders hereunder shall count as a registration under this Section 1.3 unless and until it shall have been declared effective. Any registration requested under this Section 1.3 which shall not become effective solely by reason of the refusal of the Holders participating therein to proceed with the registration shall count as a registration effected under this Section 1.3 unless and until the Company shall have been reimbursed for the Registration Expenses incurred by it in connection therewith.
Appears in 3 contracts
Samples: Standstill and Registration Rights Agreement (Optical Communication Products Inc), Standstill and Registration Rights Agreement (Optical Communication Products Inc), Registration Rights Agreement (Optical Communication Products Inc)
Demand Registrations. (ai) At Subject to Section 2.1(d), at any time beginning 180 days after the first anniversary date on which the Partnership, the General Partner or any other Alternative IPO Entity (as defined in Section 4.11) (each an “Issuer”) shall have effected the registration under the Securities Act of any Registrable Securities, one or more Holders shall have the right to require the Issuer to file a registration statement on Form S-1 or Form S-11, as applicable, or any successor forms thereto (each, a “Long-Form Registration”) or on Form S-3 or any successor form thereto (each, a “Short-Form Registration” and together with the Long-Form Registrations, the “Demand Registrations”) under the Securities Act covering all or a portion of the then outstanding Registrable Securities beneficially owned by the Holders, by delivering a written request therefor to the Issuer specifying the number of Registrable Securities to be included in such registration by such Holders and the intended method of distribution thereof. All such requests by any Holder pursuant to this Section 2.1(a)(i) are referred to as “Demand Registration Requests,” and the Holders making such demand for registration are referred to as the “Initiating Holders.” As promptly as practicable, but no later than 10 days after receipt of a Demand Registration Request, the Issuer shall give written notice (a “Demand Exercise Notice”) of such Demand Registration Request to all other Holders.
(ii) The Issuer, subject to Sections 2.3 and 2.6, shall include in a Demand Registration (A) the Registrable Securities of the Initiating Holders and (B) the Registrable Securities of any other Holder of Registrable Securities that shall have validly made a written request to the Partnership Parties within the time limits specified below for inclusion in such registration (together with the Initiating Holders, the “Participating Holders”). Any such request from the other Holders must be delivered to the Issuer within 15 days after the receipt of the Demand Exercise Notice and must specify the maximum number of Registrable Securities intended to be disposed of by such other Holders.
(iii) The Issuer, as expeditiously as possible but subject to Section 2.1(d), shall use their commercially reasonable efforts to file a Registration Statement, and cause such Registration Statement to be declared effective after the filing thereof under the Securities Act, covering all of the Registrable Securities that the Holders have requested to register for distribution in accordance with such intended method of distribution.
(b) Registrations under this Section 2.1 shall be on such appropriate registration form of the SEC for the disposition of such Registrable Securities in accordance with the intended method of disposition thereof, which form shall be selected by the Issuer and shall be reasonably acceptable to the Majority Participating Holders.
(c) Without limiting the foregoing, within ten Business Days after the Issuer becomes eligible to file a shelf registration statement that permits sales of Registrable Securities on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration Statement”), the Issuer shall give written notice (the “Shelf Notice”) to all Holders and shall include in such registration all Registrable Securities of the Holders. The Issuer shall as promptly as practicable, and in any event within twenty Business Days after the giving of the Shelf Notice, file with the SEC a Shelf Registration Statement with respect to such Registrable Securities to be included in accordance with the foregoing sentence and shall amend such Shelf Registration Statement at such times and as reasonably requested by Holders so as to permit the inclusion of any Registrable Securities therein. With respect to any Shelf Registration Statement covering Registrable Securities, the Issuer shall use their commercially reasonable efforts (if the Issuer is not eligible to use an automatic shelf registration statement as defined in Rule 405 under the Securities Act (an “automatic shelf registration statement”) to keep such Shelf Registration Statement continuously effective under the Securities Act in order to permit the prospectus forming a part thereof to be usable by the applicable Holder until the date as of which all Registrable Securities included in such Shelf Registration Statement either (1) have been sold pursuant to the Shelf Registration Statement or another Registration Statement filed under the Securities Act (but in no event prior to the applicable period referred to in Section 4(a)(3) of the Securities Act and Rule 174 thereunder), or (2) cease to be Registrable Securities.
(d) The Demand Registration rights granted in Section 2.1(a) to the Holders are subject to the following limitations:
(i) the Issuer shall not be required to cause a registration pursuant to Section 2.1(a) to be filed within 90 days or to be declared effective within a period of 180 days after the effective date of any other registration statement of the Issuer filed pursuant to the Securities Act;
(ii) if in the opinion of outside counsel to the Issuer, any registration of Registrable Securities would require disclosure of information not otherwise then required by law to be publicly disclosed and, in the good faith judgment of the board of directors of the Issuer, such disclosure is reasonably likely to adversely affect any material financing, acquisition, corporate reorganization or merger or other material transaction or event involving the Issuer or otherwise have a material adverse effect on the Issuer (a “Valid Business Reason”), the Issuer may postpone or withdraw a filing of a registration statement relating to a Demand Registration Request until such Valid Business Reason no longer exists, but in no event shall the Issuer avail itself of such right for more than 90 days, in the aggregate, in any period of 365 consecutive days (such period of postponement or withdrawal under this clause (ii), the “Postponement Period”); and the Issuer shall give notice of its determination to postpone or withdraw a registration statement and of the fact that the Valid Business Reason for such postponement or withdrawal no longer exists, in each case, promptly after the occurrence thereof; and
(iii) In connection with the provisions of this Section 2, the Holders shall have three Demand Registration Requests, in each case with respect to Long-Form Registrations which they are permitted to deliver (or cause to be delivered) to the Issuer hereunder. The Holders shall have an unlimited number of Demand Registration Requests with respect to Short-Form Registrations which they are permitted to deliver (or cause to be delivered) to the Issuer hereunder. If the Issuer shall give any notice of postponement or withdrawal of any registration statement pursuant to clause (ii) above, the Issuer shall not register any equity security of the Issuer during the period of postponement or withdrawal. Each Holder of Registrable Securities agrees that, upon receipt of any notice from the Issuer that the Issuer has determined to withdraw any registration statement pursuant to clause (ii) above, such Holder will discontinue its disposition of Registrable Securities pursuant to such registration statement. If the Issuer shall have withdrawn or prematurely terminated a registration statement filed under Section 2.1(a)(i), the Issuer shall not be considered to have effected an effective registration for the purposes of this Agreement until the Issuer shall have filed a new registration statement covering the Registrable Securities covered by the withdrawn registration statement and such registration statement shall have been declared effective and shall not have been withdrawn. If the Issuer shall give any notice of withdrawal or postponement of a registration statement, at such time as the Valid Business Reason that caused such withdrawal or postponement no longer exists (but in no event more than 90 days after the date of this Agreementthe postponement or withdrawal), if the Company receives in writing a request that the Company Issuer shall use its commercially reasonable efforts to effect the registration under the Securities Act of the Registrable SecuritiesSecurities covered by the withdrawn or postponed registration statement in accordance with this Section 2.1.
(e) The Issuer, subject to Sections 2.3 and 2.6, may elect to include in any registration statement and offering made pursuant to Section 2.1(a)(i), (i) authorized but unissued Common Units of with a minimum aggregate offering price of $20,000,000 the Partnership and (as determined with reference to the number of shares proposed ii) any other Common Units that are requested to be sold included in such registration multiplied pursuant to the exercise of piggyback rights granted by the average closing priceIssuer that are not inconsistent with the rights granted in, or otherwise conflict with the terms of, this Agreement (“Additional Piggyback Rights”); provided, however, that such inclusion shall be permitted only to the extent pursuant to and subject to the terms of the underwriting agreement or arrangements, if no closing price is availableany, entered into by the Participating Holders.
(f) A Holder may withdraw its Registrable Securities from a Demand Registration at any time. If all such Holders do so, the mean Issuer shall cease all efforts to secure registration and such registration nonetheless shall be deemed a Demand Registration for purposes of this Section 2.1 unless (i) the withdrawal is made following withdrawal or postponement of such registration by the Issuer pursuant to a Valid Business Reason as contemplated by Section 2.1(d), (ii) the withdrawal is based on the reasonable determination of the bid and asked pricesHolders who requested such registration that there has been, over the fifteen trading days preceding since the date of the Demand Registration Request, a material adverse change in the business or prospects of the Issuer or (iii) the Holders who requested such written demand), registration shall have paid or reimbursed the Company will:Issuer for all of the reasonable out-of-pocket fees and expenses incurred by the Issuer in connection with the withdrawn registration.
(g) A Demand Registration shall not be deemed to have been effected and shall not count as such (i) promptly give written notice unless a registration statement with respect thereto has become effective and has remained effective for a period of at least 180 days or such shorter period during which all Registrable Securities covered by such Registration Statement either (x) have been sold or withdrawn, (y) cease to be Registrable Securities or, (z) if such Registration Statement relates to an underwritten offering, such longer period as, in the proposed registration to all other Holders; and
opinion of counsel for the underwriter(s), is required by law for delivery of a prospectus in connection with the sale of Registrable Securities by an underwriter or dealer, (ii) as soon as practicableif, prepare and file and use commercially reasonable efforts to cause to become effective such after the registration statement as may be so requested and as would permit with respect thereto has become effective, it becomes subject to any stop order, injunction or facilitate the sale and distribution of such portion other order or requirement of the Registrable Securities SEC or other governmental agency or court for any reason, (iii) if it is withdrawn by the Issuer pursuant to a Valid Business Reason as is contemplated by Section 2.1(d) or (iv) if the conditions to closing specified in such request, together the purchase agreement or underwriting agreement entered into in connection with such additional portion Demand Registration are not satisfied, other than solely by reason of some act or omission of the Registrable Securities of any Holder(s) joining in such request as may be specified in a written request given to the Company within twenty days after receipt of the written notice from the Company specified in Section 1.3(a)(i)Participating Holders.
(bh) If In connection with any Demand Registration, the Majority Participating Holders may designate the lead managing underwriter managing the offering advises the Holders who have requested inclusion of their Registrable Securities in connection with such registration statement that marketing considerations require a limitation on the number of shares offered, such limitation shall be imposed pro rata among such Holders who requested inclusion of Registrable Securities in such registration statement according to the number of shares of Registrable Securities owned by each. Neither the Company nor any and each other stockholder may include shares in such registration statement without the consent of Holders of a majority of the Registrable Securities included therein if the managing underwriter managing such offering advises the Holders who have included Registrable Securities in such registration statement that the inclusion of such additional shares may either limit the number of Registrable Securities which can be sold or adversely affect the price at which such Registrable Securities can be sold.
(c) Notwithstanding Section 1.3(b), the Company shall have the right, exercisable by written notice to the initiating Holder(s) within thirty days after receipt of a request to effect a registration under the Securities Act, to include the Company's shares in for such registration, provided, that, in which event each case, each such registration shall be deemed underwriter is reasonably satisfactory to be a Company-initiated registrationthe Issuer. Notwithstanding the foregoing, and the Holders shall Issuer will have the right to include their Registrable Securities and shares designate the underwriters in connection with any registration of Class A Common Stock, as the case may be, therein equity securities to the extent permitted under Section 1.2.
(d) The Company shall not be obligated to effect more than ten registrations under this Section 1.3. Such registrations shall be on Form S-3 when the Company is eligible to use that form under SEC rules, but otherwise may be on Form S-1. No registration statement initiated by Holders hereunder shall count as a registration under this Section 1.3 unless and until it shall have been declared effective. Any registration requested under this Section 1.3 which shall not become effective solely by reason of the refusal of the Holders participating therein to proceed with the registration shall count as a registration effected under this Section 1.3 unless and until the Company shall have been reimbursed sold for the Registration Expenses incurred by it in connection therewithaccount of any Issuer.
Appears in 3 contracts
Samples: Registration Rights Agreement (Mack Cali Realty L P), Preferred Equity Investment Agreement (Mack Cali Realty L P), Registration Rights Agreement (Mack Cali Realty L P)
Demand Registrations. (a) At any time after the first anniversary of the date of this Agreement, if the Company receives in writing a request that the Company effect the registration under the Securities Act of Registrable Securities, of with a minimum aggregate offering price of $20,000,000 (as determined with reference to the number of shares proposed to be sold in such registration multiplied If requested by the average closing price, or if no closing price is available, the mean of the bid and asked prices, over the fifteen trading days preceding the date of such written demand), the Company will:
(i) promptly give written notice of the proposed registration underwriters for any Underwritten Offering requested by any Participating Holder pursuant to all other Holders; and
(ii) as soon as practicable, prepare and file and use commercially reasonable efforts to cause to become effective such registration statement as may be so requested and as would permit or facilitate the sale and distribution of such portion of the Registrable Securities as is specified in such request, together with such additional portion of the Registrable Securities of any Holder(s) joining in such request as may be specified in a written request given to the Company within twenty days after receipt of the written notice from the Company specified in Registration under Section 1.3(a)(i).
(b) If the underwriter managing the offering advises the Holders who have requested inclusion of their Registrable Securities in such registration statement that marketing considerations require a limitation on the number of shares offered, such limitation shall be imposed pro rata among such Holders who requested inclusion of Registrable Securities in such registration statement according to the number of shares of Registrable Securities owned by each. Neither the Company nor any other stockholder may include shares in such registration statement without the consent of Holders of a majority of the Registrable Securities included therein if the underwriter managing such offering advises the Holders who have included Registrable Securities in such registration statement that the inclusion of such additional shares may either limit the number of Registrable Securities which can be sold or adversely affect the price at which such Registrable Securities can be sold.
(c) Notwithstanding Section 1.3(b)2.01, the Company shall have the rightenter into an underwriting agreement with such underwriters for such offering, exercisable by written notice such agreement to be reasonably satisfactory in substance and form to the initiating Holder(s) within thirty days after receipt Company, each Participating Holder and the underwriters, and to contain such representations and warranties by the Company and such other terms as are generally prevailing in agreements of a request that type, including indemnities no less favorable to effect a registration under the Securities Act, recipient thereof than those provided in Section 2.09. Each Participating Holder shall cooperate reasonably with the Company in the negotiation of such underwriting agreement and shall give consideration to include the Company's shares in such registration, in which event such registration reasonable suggestions of the Company regarding the form thereof. The Participating Holders shall be deemed parties to be a Company-initiated registrationsuch underwriting agreement, which underwriting agreement shall (i) contain such representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of such Participating Holders as are customarily made by issuers to selling stockholders in secondary underwritten public offerings and (ii) provide that any or all of the conditions precedent to the obligations of such underwriters under such underwriting agreement also shall have be conditions precedent to the right obligations of such Participating Holders. Any such Participating Holder shall not be required to include their make any representations or warranties to, or agreements with, the Company or the underwriters in connection with such underwriting agreement other than customary representations, warranties or agreements regarding such Participating Holder (but not such Participating Holder’s knowledge about the Company), such Participating Holder’s title to the Registrable Securities, such Participating Holder’s authority to sell the Registrable Securities, such Participating Holder’s intended method of distribution, absence of liens with respect to the Registrable Securities, receipt of all required consents and approvals with respect to the entry into such underwriting agreement and the sale of such Registrable Securities and shares any other representations required to be made by such Participating Holder under applicable law, rule or regulation, and the aggregate amount of Class A Common Stock, as the case may be, therein to the extent permitted under Section 1.2.
(d) The Company liability of such Participating Holder in connection with such underwriting agreement shall not be obligated to effect more than ten registrations under this Section 1.3. Such registrations shall be on Form S-3 when the Company is eligible to use that form under SEC rules, exceed such Participating Holder’s net proceeds after underwriting commissions and discounts (but otherwise before any taxes and expenses which may be on Form S-1. No registration statement initiated payable by Holders hereunder shall count as a registration under this Section 1.3 unless and until it shall have been declared effective. Any registration requested under this Section 1.3 which shall not become effective solely by reason of the refusal of the Holders participating therein to proceed with the registration shall count as a registration effected under this Section 1.3 unless and until the Company shall have been reimbursed for the Registration Expenses incurred by it in connection therewithsuch Participating Holder) from such Underwritten Offering.
Appears in 3 contracts
Samples: Registration Rights Agreement (Denbury Inc), Registration Rights Agreement (Pacific Drilling S.A.), Registration Rights Agreement (Eagle Bulk Shipping Inc.)
Demand Registrations. (a) At 2.1 If the Company shall receive at any time commencing six (6) months after the first anniversary effective date of the date of this AgreementIPO, if the Company receives in writing a written request from Initiating Holders, that the Company effect file a registration statement under the Act for the registration under the Securities Act of all or part of their Registrable Securities, of with a minimum aggregate offering price of $20,000,000 (as determined with reference to the number of shares proposed to be sold in such registration multiplied by the average closing price, or if no closing price is available, the mean of the bid and asked prices, over the fifteen trading days preceding the date of such written demand), then the Company will:
(i) shall promptly give written notice of such request to the proposed registration to all other Holders; and
(ii) , and the Company shall effect as soon as practicable, prepare and file and in any event shall use commercially reasonable its best efforts to cause to become effective such registration statement as may be so requested and as would permit or facilitate effect, within sixty (60) days of the sale and distribution receipt of such portion request of the Initiating Holders, the registration under the Act of all Registrable Securities (i) which the Initiating Holders requested to be registered as aforesaid and (ii) of all Holders who wish to participate in such demand registration and provide the Company with written requests for inclusion therein within twenty (20) days after the receipt of the Company’s notice. No more than two (2) requests shall be made pursuant to this Section 2.1. In no event shall the Company be required to effect more than one demand registration in each six (6) month period.
2.2 If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as is specified a part of their request made pursuant to this Section 2 and the Initiating Holders shall have the right to propose the managing underwriter in any underwritten offering (and such request, together with such additional portion proposal shall include in general the proposed terms of the Registrable Securities of any Holder(s) joining in such request as may be specified in a written request given to the Company within twenty days after receipt underwriting agreement and pricing of the written notice from the Company specified in Section 1.3(a)(itransaction).
(b) If the underwriter managing the offering advises the Holders who have requested inclusion of their Registrable Securities in such registration statement that marketing considerations require a limitation on the number of shares offered, such limitation shall be imposed pro rata among such Holders who requested inclusion of Registrable Securities in such registration statement according subject to the number of shares of Registrable Securities owned by each. Neither the Company nor any other stockholder may include shares in such registration statement without the consent of Holders of a majority the Company, which consent shall not be unreasonably withheld, and shall not be withheld if it is the lead or co-lead from the IPO or other prior registered offering or one of the Registrable Securities included therein if top twenty underwriters by volume of deals in the underwriter managing such offering advises preceding twelve months. In the Holders who have included Registrable Securities in such registration statement event that the inclusion of such additional shares may either limit Initiating Holders do not propose a managing underwriter or the number of Registrable Securities which can be sold or adversely affect Company reasonably withholds consent to the price at which such Registrable Securities can be sold.
(c) Notwithstanding Section 1.3(b)proposed managing underwriter, the Company shall have the rightright to designate the managing underwriter(s) in any underwritten offering, exercisable by written notice subject to the initiating Holder(s) within thirty days after receipt consent of a request to effect a registration under the Initiating Holders, which consent shall not be unreasonably withheld.
2.3 If the underwriter of such offering determines that the number of shares requested by the Holders is greater than the number of shares that may be underwritten, the number of Registrable Securities Act, to include the Company's shares that may be included in such registration, in which event such registration shall be deemed to be a Company-initiated registrationreduced accordingly, and the Holders there shall have the right to include their Registrable Securities and shares of Class A Common Stock, as the case may be, therein be excluded from such registration to the extent permitted under Section 1.2.
necessary to satisfy such limitation, first shares held by shareholders other than the Holders, then shares which the Company may wish to register for its own account, and thereafter, to the extent necessary, shares held by the Holders (dpro rata to the respective number of Registrable Shares then outstanding held by such Holders) The Company and any Registrable Securities excluded from such underwriting shall be withdrawn from the registration. A registration statement shall not be obligated to effect more than ten registrations under counted as a request for the purpose of this Section 1.3. Such registrations shall 2 if, as a result of an exercise of the underwriter’s cut-back provisions set forth herein, less than 30% of the total number of Registrable Securities that Holders have requested to be on Form S-3 when the Company is eligible to use that form under SEC rules, but otherwise may be on Form S-1. No included in such registration statement initiated by Holders hereunder shall count as a registration under this Section 1.3 unless and until it shall have been declared effective. Any registration requested under this Section 1.3 which shall not become effective solely by reason of the refusal of the Holders participating therein to proceed with the registration shall count as a registration effected under this Section 1.3 unless and until the Company shall have been reimbursed for the Registration Expenses incurred by it in connection therewithare actually included.
Appears in 3 contracts
Samples: Series A1 Preferred Share Purchase Agreement (Negevtech Ltd.), Series A1 Preferred Share Purchase Agreement (Negevtech Ltd.), Shareholders Rights Agreement (Negevtech Ltd.)
Demand Registrations. (a) At If on any time two occasions after the first date hereof, the Company shall receive from one or more Initiating Holders a written request that the Company effect the registration of such persons' Registrable Securities, or if on any one occasions after the earlier of (i) the fifth anniversary of the effective date of this AgreementAgreement or (ii) the date which is six months following the date of consummation of the IPO, if the Company receives in writing shall receive from one or more Initiating Management Holders a request that the Company effect the registration under the Securities Act of such persons' Registrable Securities, in either case with the Registrable Securities as to which registration has been requested representing at least ten percent (10%) of with a minimum the Registrable Securities then outstanding or issuable (or any lesser percentage if the reasonably anticipated aggregate offering price of $20,000,000 (as determined with reference to the number public of shares proposed the Registrable Securities to be sold included in such registration multiplied would exceed $10 million), in connection with a firm commitment underwriting managed by the average closing price, or if no closing price is available, the mean of the bid and asked prices, over the fifteen trading days preceding the date of such written demand)a nationally recognized underwriter, the Company will:
(i) promptly give written notice of the proposed registration to all other Holders; and
(ii) as soon as practicable, prepare and file and use all commercially reasonable efforts to cause to become effective effect such registration statement as may be so requested and as would permit or facilitate the sale and distribution of such portion of the such Registrable Securities as is are specified in such request, together with such additional portion of the Registrable Securities of any Holder(s) Holder or Holders joining in such request as may be are specified in a written request given to the Company within twenty thirty days after receipt of the such written notice from the Company specified in Section 1.3(a)(i).
(b) Company. If the underwriter managing the offering advises the Holders who have requested inclusion of their Registrable Securities in such registration statement that marketing considerations require a limitation on the number of shares offered, such limitation shall be imposed first upon Holders other than the Institutional Investors and their transferees until the total of the aggregate proceeds received by all Institutional Investors and their transferees from the sale of equity securities of the Company to the public equals $13.0 million, second upon Holders other than the Management Investors and their transferees until the total of the aggregate proceeds received by all Management investors and their transferees from the sale of equity securities of the Company to the public equals $1.0 million, and thereafter pro rata among such all Holders who requested inclusion of Registrable Securities in such registration statement according to the number of shares of Registrable Securities owned by eacheach such Holder requested to be included in such registration. Neither the Company nor any other stockholder shareholder may include shares in such a registration statement effected under this Section 8.2 without the consent of the Holders of holding a majority of the Registrable Securities sought to be included therein if the underwriter managing such offering advises the Holders who have included Registrable Securities in such registration statement that if the inclusion of such additional shares may either by the Company or the other shareholders would limit the number of Registrable Securities which can be sold or adversely affect the price at which such Registrable Securities can be sold.
(c) Notwithstanding Section 1.3(b), the Company shall have the right, exercisable by written notice to the initiating Holder(s) within thirty days after receipt of a request to effect a registration under the Securities Act, to include the Company's shares in such registration, in which event such registration shall be deemed sought to be a Company-initiated registration, and included by the Holders shall have or reduce the right to include their Registrable Securities and shares of Class A Common Stock, as the case may be, therein to the extent permitted under Section 1.2.
(d) The Company shall not be obligated to effect more than ten registrations under this Section 1.3. Such registrations shall be on Form S-3 when the Company is eligible to use that form under SEC rules, but otherwise may be on Form S-1offering price thereof. No registration statement initiated by any Holders hereunder shall count as a registration under this Section 1.3 8.2 unless and until it shall have been declared effective. Any registration requested under this Section 1.3 which shall not become effective solely by reason of the refusal of the Holders participating therein to proceed with the registration shall count as a registration effected under this Section 1.3 unless and until the Company shall have been reimbursed for the Registration Expenses incurred by it in connection therewith.
Appears in 2 contracts
Samples: Series a Preferred Stock, Common Stock and Junior Subordinated Note Purchase Agreement (Ameripath Inc), Series a Preferred Stock, Common Stock and Junior Subordinated Note Purchase Agreement (Ameripath Inc)
Demand Registrations. (a) At any time after Subject to the first anniversary provisions of this Section 5 (including the restrictions set forth in Section 5A(d)), each of the date of this Agreement, if Requesting Holders shall have the Company receives in writing a right (the “Demand Right”) to request that the Company effect the registration under the Securities Act of all or any portion of the Registrable SecuritiesSecurities held by such Requesting Holder(s) by delivering a written notice to the principal business office of the Company, of with a minimum aggregate offering price of $20,000,000 (as determined with reference to which notice identifies the Requesting Holders and specifies the number of shares proposed Registrable Securities to be sold included in such registration multiplied by (the average closing price, or if no closing price is available, the mean of the bid and asked prices, over the fifteen trading days preceding the date “Registration Request”). The Company shall give prompt written notice of such written demand), Registration Request (the “Registration Notice”) to all other holders of Registrable Securities and shall thereupon use its best efforts to effect the registration (a “Demand Registration”) under the Securities Act on any form available to the Company willof:
(i) promptly give the Registrable Securities requested to be registered by the Requesting Holder and all other Registrable Securities which the Company has received a written notice request to register within 15 days after the Registration Notice is given;
(ii) any securities of the Company proposed to be included in such registration to all other Holdersby the Company for its own account; and
(iiiii) as soon as practicable, prepare and file and use commercially reasonable efforts any Common Stock of the Company proposed to cause to become effective be included in such registration statement as may be so requested and as would permit or facilitate by the sale and distribution of such portion of the Registrable Securities as is specified in such request, together with such additional portion of the Registrable Securities holders of any Holder(s) joining in such request as may be specified in a written request given registration rights granted other than pursuant to the Company within twenty days after receipt of the written notice from the Company specified in Section 1.3(a)(ithis Agreement (“Other Registration Rights”).
(b) If A registration undertaken by the underwriter managing Company at the offering advises request of the Holders who have requested inclusion Requesting Holder shall not count as a Demand Registration for purposes of their Registrable Securities in such registration statement that marketing considerations require a limitation on the number of shares offeredSection 5A(d):
(i) if, such limitation shall be imposed pro rata among such Holders who requested inclusion of Registrable Securities in such registration statement according pursuant to the number of shares of Registrable Securities owned by each. Neither Demand Right, the Company nor any other stockholder may include shares in such registration statement without the consent of Requesting Holders of a majority fail to register and sell at least 85% of the Registrable Securities requested to be included therein if the underwriter managing such offering advises the Holders who have included Registrable Securities in such registration statement by them; or
(ii) if the Requesting Holders withdraw a Registration Request (1) upon the determination of the Board to postpone the filing or effectiveness of a Registration Statement pursuant to Section 5A(d) or (2) upon the recommendation of the managing underwriter of such offering due to discovery of a material adverse development regarding the Company or its Subsidiaries or general adverse economic or market conditions which, in such underwriter’s opinion and in either case, are reasonably likely to materially and adversely affect the price that could be obtained for such securities or the marketability thereof (provided that the inclusion right of such additional shares the Requesting Holders to withdraw a Registration Request pursuant to this clause (2) for general adverse economic or market conditions may either limit be exercised only once for each Requesting Holder).
(c) If the sole or managing underwriter of a Demand Registration advises the Company in writing that in its opinion the number of Registrable Securities and other securities requested to be included exceeds the number of Registrable Securities and other securities which can be sold or in such offering without adversely affect affecting the distribution of the securities being offered, the price at which that will be paid in such offering, or the marketability of such securities, then the Company shall include in such registration in the following order of priority:
(i) first, the greatest number of Registrable Securities proposed to be registered which in the opinion of such underwriters can be so sold., such amount to be allocated ratably among each Demand Holder based on the amount of Registrable Securities held by each such Demand Holder (or, if any Demand Holder does not request to include its ratable share, such excess shall be allocated ratably among those Requesting Holders requesting to include more than their allocable share);
(cii) Notwithstanding Section 1.3(bsecond, after all of the Registrable Securities that the Demand Holders propose to register, the greatest number of Registrable Securities proposed to be registered by Securityholders (other than Demand Holders) which in the opinion of such underwriters can be so sold, such amount to be allocated ratably among such Securityholders based on the amount of Registrable Securities held by each such Securityholder (or, if any Securityholder does not request to include its ratable share, such excess shall be allocated ratably among those Securityholders requesting to include more than their allocable share);
(iii) third, after all Registrable Securities that the Demand Holders and Securityholders propose to register, the greatest number of securities proposed to be registered by Persons with Other Registration Rights which in the opinion of such underwriters can be so sold, such amount to be allocated ratably among the respective holders thereof based on the amount of securities held by each such holder (or, if any holder does not request to include its ratable share, such excess shall be allocated ratably among those holders requesting to include more than their allocable share); and
(iv) fourth, after all securities that the Demand Holders, Securityholders and the Persons with Other Registration Rights propose to register, the greatest number of securities proposed to be registered by the Company for its own account, which in the opinion of such underwriters can be so sold; provided, however, that the Company shall have the right, exercisable by written notice right (the “Priority Right”) to the initiating Holder(s) within thirty days after receipt receive priority over all holders of a request to effect a registration under the Securities Act, to include the Company's shares in such registration, in which event such registration shall be deemed to be a Company-initiated registration, and the Holders shall have the right to include their Registrable Securities and shares Persons with Other Registration Rights (other than Requesting Holders) in any Demand Registration to be effected under this Section 5A with respect to securities that the Company proposes to include in such registration for its own account by giving written notice of Class A Common Stock, as the case may be, therein its election to exercise such Priority Right to the extent permitted under Section 1.2Requesting Holders; and thereafter, priority will be as set forth in (i)-(iii) above.
(d) The Company shall be obligated to effect (i) a maximum of four Demand Registrations on Form S-1 or Form S-2 (or similar long-form registration forms) and an unlimited number of registrations on Form S-3 (or similar short-form registration forms) for the IPC Holders, (ii) a maximum of one Demand Registration for the Mezzanine Holders, (iii) a maximum of one Demand Registration for the FdG Holders, and (iv) a maximum of one Demand Registration for the Xxxxxxxx Holders. Any Demand Registration requested must be for a firmly underwritten public offering (to be managed by an underwriter or underwriters of recognized national standing selected by the Requesting Holders and reasonably acceptable to the Company). The Company shall not be obligated to effect more than ten registrations under this Section 1.3any Demand Registration within a period of six months after the effective date of any previous Registration Statement. Such registrations The Company shall not be obligated to effect any Demand Registration if it reasonably believes that the aggregate sales price of all securities proposed to be included in such Demand Registration will not equal or exceed $5 million (or $2 million if such Demand Holder exercises its Demand Right with respect to all remaining Registrable Securities held by such Demand Holder) if such registration is effected on Form S-3 (or any successor form) or $20 million if such registration is effected on any other form. The Company shall not be obligated to effect the Demand Registration of the Mezzanine Holders, the FdG Holders or the Xxxxxxxx Holders, as the case may be, until the date that is one year following the consummation of the Company’s Qualified Public Offering. The rights of the Mezzanine Holders, the FdG Holders or the Xxxxxxxx Holders shall not be exercisable (i) prior to the first anniversary of a Qualified Public Offering and (ii) at any time when (1) the Blackstone Holders, the FdG Holders or the Xxxxxxxx Holders, as applicable, owns less than 2% of the Company’s Common Stock (on a fully-diluted basis taking into account all Common Stock Equivalents) and (2) the Registrable Securities held by the Blackstone Holders, the FdG Holders or the Xxxxxxxx Holders, as applicable, are saleable to the public pursuant to Rule 144, without regard to any volume limitations, adopted under the Securities Act. The Company may defer not more than two times for a period not to exceed 90 days in the aggregate during any 12-month period from each receipt of the request to file a Registration Statement for a Demand Registration if the Board in good faith determines that such Demand Registration might reasonably be expected to have a materially adverse effect on any proposal or plan by the Company or any of its Subsidiaries to engage in any acquisition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other material transactions; provided that in such event, the Requesting Holders shall be entitled to withdraw such request and, if such request is eligible to use that form under SEC ruleswithdrawn, but otherwise may be on Form S-1. No registration statement initiated by Holders hereunder such Demand Registration shall not count as a registration under Demand Registration.
(e) In connection with any Demand Registration pursuant to this Section 1.3 unless and until it 5A, each party to this Agreement shall have been declared effective. Any registration requested under this Section 1.3 which shall not become effective solely by reason vote, or cause to be voted, all securities of the refusal Company over which it has the power to vote or direct the voting to effect any stock split which, in the opinion of the Holders participating therein sole or managing underwriter, is necessary to proceed with facilitate the registration shall count as a registration effected under this Section 1.3 unless and until the Company shall have been reimbursed for the Registration Expenses incurred by it in connection therewitheffectiveness of such Demand Registration.
Appears in 2 contracts
Samples: Securityholders Agreement (Vitamin Shoppe, Inc.), Securityholders Agreement (Vs Holdings, Inc.)
Demand Registrations. (a) At Subject to the terms and conditions hereof, at any time after the first anniversary expiration of the date of this AgreementRestricted Period, if any Shareholder or Shareholders who beneficially own in the Company receives aggregate Registrable Securities representing not less than 20% of the then outstanding Common Stock request in writing a Demand Registration, which request that the Company effect the registration under the Securities Act of Registrable Securities, of with a minimum aggregate offering price of $20,000,000 (as determined with reference to specifies the number of shares proposed Registrable Securities requested to be sold in registered, then within ten (10) days after receipt of any such registration multiplied by the average closing price, or if no closing price is available, the mean of the bid and asked prices, over the fifteen trading days preceding the date of such written demand)request, the Company will:
(i) promptly shall give written notice of the proposed registration such requested Demand Registration to all other Holders; andShareholders who are record holders of Registrable Securities and shall include in the Demand Registration all Registrable Securities with respect to which the Company has received written requests for inclusion therein within 15 days after the date of mailing of the Company’s notice.
(iia) as soon as practicableShareholders shall be entitled to not more than three (3) Demand Registrations, prepare in the aggregate. Subject to the limitations set forth in this
Section 4.1 (a) and file and use commercially reasonable efforts to cause to become effective such registration statement as in Section 4.1(c), no more than one Demand Registration may be so requested in any six-month period. The Company shall pay all Registration Expenses (as defined in Section 4.5) in connection with each Demand Registration. No request for a Demand Registration shall be permitted unless the Registrable Securities sought to be included in such Demand Registration have an expected market value of at least $50 million. A Registration shall not count as a Demand Registration until it has become effective, and any Registration shall not count as would permit a Demand Registration unless the initiating Shareholder or facilitate the sale Shareholders and distribution of such portion other Shareholders are able to register and sell at least 50% of the Registrable Securities as is specified requested to be included in such request, together with such additional portion of the Registrable Securities of any Holder(s) joining in such request as may be specified in a written request given to the Company within twenty days after receipt of the written notice from the Company specified in Section 1.3(a)(i)Registration.
(b) If the underwriter managing investment banker(s) or manager(s) of an offering pursuant to a Demand Registration advise the offering advises the Holders who have requested inclusion of Company in writing that in their Registrable Securities in such registration statement that marketing considerations require a limitation on opinion the number of shares offeredRegistrable Securities and other securities requested to be included in such offering, such limitation shall be imposed pro rata among such Holders who requested inclusion exceeds the number of Registrable Securities and other securities, if any, which can be sold in an orderly manner in such registration statement according to offering and/or that the number of shares of Registrable Securities owned by each. Neither proposed to be included in such offering would adversely affect the price per share of the Common Stock, the Company nor any other stockholder may shall include shares in such registration statement without the consent of Holders of a majority of the Registrable Securities included therein if the underwriter managing such offering advises the Holders who have included Registrable Securities in such registration statement that Registration, prior to the inclusion of such additional shares may either limit any securities which are not Registrable Securities, the number of Registrable Securities which requested to be included which, in the opinion of the underwriters, can be sold so sold, pro rata (or adversely affect as may have otherwise been agreed among the price Shareholders of Registrable Securities to be included in such Registration) among the respective Shareholders thereof on the basis of the amount of Registrable Securities requested to be registered by each such Shareholder; provided that if the number of Registrable Securities to be included in the Registration is less than 75% of the aggregate number requested to be so included, the Shareholders of Registrable Securities covered by such Demand Registration shall be entitled to withdraw such request, upon the affirmative vote of Shareholders holding at which least 66% of such Registrable Securities can be soldSecurities, and, if such request is withdrawn, the Demand Registration shall not count as a permitted Demand Registration hereunder, and the Company shall pay all Registration Expenses in connection with the withdrawn Registration. Any Persons who participate in Demand Registrations not at the Company’s expense must pay their share of the Registration Expenses as provided in Section 4.5.
(c) Notwithstanding Section 1.3(b), the Company shall have the right, exercisable by written notice to the initiating Holder(s) within thirty days after receipt of a request to effect a registration under the Securities Act, to include the Company's shares in such registration, in which event such registration shall be deemed to be a Company-initiated registration, and the Holders shall have the right to include their Registrable Securities and shares of Class A Common Stock, as the case may be, therein to the extent permitted under Section 1.2.
(d) The Company shall not be obligated to effect any Demand Registration within six months after the effective date of a Registration in which the Shareholders were given Piggyback Registration (as defined in Section 4.2) rights pursuant to Section 4.2. The Company may, not more than ten registrations under this Section 1.3. Such registrations twice in any 12-month period, postpone for up to 90 days the filing or the effectiveness of a registration statement for a Demand Registration if the Board determines in good faith that (i) such postponement is necessary in order to avoid premature disclosure of a matter the Board has determined would not be in the best interest of the Company to be disclosed at such time, (ii) the Demand Registration would materially and adversely impact the Company or (iii) the Demand Registration would adversely affect the price per share of the Common Stock; provided, that in such event, the Shareholders of Registrable Securities covered by the Demand Registration shall be on Form S-3 entitled, upon the affirmative vote of holders holding at least 66% of such Registrable Securities, to withdraw such request and, if such request is withdrawn, the Demand Registration shall not count as a permitted Demand Registration hereunder, and the Company shall pay all Registration Expenses in connection with the withdrawn Registration; provided further, that upon the election of the Company and upon notice to the Shareholders of Registrable Securities to be included in such Registration, one such postponement may be extended to not more than 120 days at the sole discretion of the Company. In addition, if any request for a Demand Registration is delivered at a time when the Company is eligible planning to use that form under SEC rules, but otherwise may be on Form S-1. No file a registration statement initiated by Holders hereunder shall count as with respect to an underwritten primary offering of Common Stock, the Company may require the Shareholders to postpone a registration under this Section 1.3 unless and request for Demand Registration until it shall have been declared effective. Any registration requested under this Section 1.3 which shall not become effective solely by reason the expiration of the refusal 180-day period following the effective date of the Holders participating therein to proceed such registration.
(d) In connection with the registration shall count as a registration effected under this Section 1.3 unless and until Demand Registration, the Company shall have been reimbursed for select the Registration Expenses incurred by it in connection therewithinvestment banker(s) and manager(s) to administer the offering.
Appears in 2 contracts
Samples: Shareholders Agreement (US BioEnergy CORP), Shareholders Agreement (US BioEnergy CORP)
Demand Registrations. (a) At any time 180 days after the first anniversary date when any of the date of this AgreementClass A Common Stock is registered under the Securities Act, if any Holder requests the Company receives in writing to file a request that the Company effect the registration statement under the Securities Act for a firm commitment underwritten public offering of not less than 20% of the Registrable Securities, of with a minimum Securities (or any lesser percentage if the anticipated aggregate offering price of such offering, net of underwriting discounts and commissions, exceeds $20,000,000 (as determined with reference to the number of shares proposed to be sold in such registration multiplied by the average closing price, or if no closing price is available, the mean of the bid and asked prices, over the fifteen trading days preceding the date of such written demand15,000,000), the Company will:
shall (iA) promptly give written notice within 10 days notify all Holders of the proposed registration to all other Holders; and
such request, and (iiB) as soon as practicable, prepare and file and use its commercially reasonable efforts to cause to become effective such registration statement as may be so requested and as would permit or facilitate register under the sale and distribution of such portion of Securities Act the Registrable Securities as is specified in such request, together with such additional portion of initially requested to be registered and the Registrable Securities of any Holder(s) joining in such all other Holders who request as may be specified in a written request given to the Company within twenty 10 days after receipt of receiving the written Company’s notice from that their Registrable Securities be included therein. The Company shall not be obligated to effect more than two such demand registrations requested by the Company specified in Section 1.3(a)(i)Holders.
(b) If the underwriter managing the offering advises determines that, because of marketing considerations, not all of the Registrable Securities requested to be registered may be included in the offering, then all Holders who have requested inclusion of registration in the offering shall have their Registrable Securities in such registration statement that marketing considerations require a limitation on the number of shares offered, such limitation shall be imposed reduced pro rata among such Holders who requested inclusion of Registrable Securities in such registration statement according to the number of shares of Registrable Securities owned by each. Neither the Company nor any other stockholder may include shares in such registration statement without the consent of Holders of a majority of the Registrable Securities included therein if the underwriter managing such offering advises the Holders who have included Registrable Securities in such registration statement that the inclusion of such additional shares may either limit based upon the number of Registrable Securities which can that they have requested to be sold or adversely affect the price at which such Registrable Securities can be soldso registered.
(c) Notwithstanding Section 1.3(b), If the Company shall have includes in any registration required under this Section 2 a number of shares other than Registrable Securities that exceeds the rightnumber of Registrable Securities to be included, exercisable by written notice to the initiating Holder(s) within thirty days after receipt of a request to effect a registration under the Securities Act, to include the Company's shares in such registration, in which event then such registration shall be deemed to be a Company-initiated registrationregistration under Section 3 instead of this Section 2. In all other cases where the Company includes in such registration any shares other than Registrable Securities, and the such registration shall remain subject to this Section 2, provided that in no event shall other shares be included if such inclusion would (A) prevent Holders shall have the right to include their from registering all Registrable Securities and shares of Class A Common Stockrequested by them, as or (B) adversely affect the case may be, therein to the extent permitted under Section 1.2.
(d) The Company shall not be obligated to effect more than ten registrations under this Section 1.3. Such registrations shall be on Form S-3 when the Company is eligible to use that form under SEC rules, but otherwise may be on Form S-1. No registration statement initiated by Holders hereunder shall count as a registration under this Section 1.3 unless and until it shall have been declared effective. Any registration requested under this Section 1.3 which shall not become effective solely by reason offering price of the refusal of the Holders participating therein to proceed with the registration shall count as a registration effected under this Section 1.3 unless and until the Company shall have been reimbursed for the Registration Expenses incurred by it Registrable Securities in connection therewithsuch registration.
Appears in 2 contracts
Samples: Registration Rights Agreement (Brilliant Earth Group, Inc.), Registration Rights Agreement (Brilliant Earth Group, Inc.)
Demand Registrations. (a) At any time after the first anniversary of If, following the date hereof, the Company is unable to file, cause to be effective or maintain the effectiveness of a Shelf Registration Statement as required under Section 2.1, the Holders’ Representative shall have the right by delivering a written notice to the Company (a “Demand Notice”) to require the Company to, pursuant to the terms of this Agreement, register under and in accordance with the provisions of the Securities Act the number of Registrable Securities Beneficially Owned by any Holders and requested by such Demand Notice to be so registered (a “Demand Registration”); provided, however, that a Demand Notice may only be made if the Company receives sale of the Registrable Securities requested to be registered by the Holders’ Representative is reasonably expected to result in writing aggregate gross cash proceeds in excess of $70,000,000 (without regard to any underwriting discount or commission). A Demand Notice shall also specify the expected method or methods of disposition of the applicable Registrable Securities. Following receipt of a request that Demand Notice, the Company effect shall use its reasonable best efforts to file, as promptly as reasonably practicable, but not later than 45 days after receipt by the registration Company of such Demand Notice (subject to paragraph (d) of this Section 2.2), a Registration Statement relating to the offer and sale of the Registrable Securities requested to be included therein by the Holders thereof in accordance with the methods of distribution elected by such Holders (a “Demand Registration Statement”) and shall use its reasonable best efforts to cause such Registration Statement to be declared effective under the Securities Act as promptly as practicable after the filing thereof.
(b) If any of the Registrable Securities registered pursuant to a Demand Registration are to be sold in a firm commitment underwritten offering, and the managing underwriter(s) of such underwritten offering advise the Holders in writing that it is their good faith opinion that the total number or dollar amount of Registrable Securities, of with a minimum aggregate offering price of $20,000,000 (as determined with reference to the number of shares Securities proposed to be sold in such registration multiplied offering, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the average closing total number or dollar amount of such securities that can be sold without having an adverse effect on the price, timing or if no closing price is available, the mean distribution of the bid Registrable Securities to be so included together with all such Other Securities, then there shall be included in such firm commitment underwritten offering the number or dollar amount of Registrable Securities and asked prices, over such Other Securities that in the fifteen trading days preceding the date opinion of such written demand)managing underwriter(s) can be sold without so adversely affecting such offering, the Company willand such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
(i) promptly give written notice first, the Registrable Securities for which inclusion in such underwritten offering was requested by the Holders and any Other Securities proposed to be included by the Stockholders, pro rata (if applicable), based on the number of the proposed registration to Registrable Securities Beneficially Owned by each such Holder and any Other Securities Beneficially Owned by each such Stockholder until all other Holderssuch securities have been allocated for inclusion; and
(ii) as soon as practicablesecond, prepare and file and use commercially reasonable efforts to cause to become effective such registration statement as may be so requested and as would permit or facilitate the sale and distribution among any other holders of such portion of the Registrable Securities as is specified in such requestOther Securities, together with such additional portion of the Registrable Securities of any Holder(s) joining in such request as may be specified in a written request given to the Company within twenty days after receipt of the written notice from the Company specified in Section 1.3(a)(i).
(b) If the underwriter managing the offering advises the Holders who have requested inclusion of their Registrable Securities in such registration statement that marketing considerations require a limitation pro rata, based on the number of shares offered, Other Securities Beneficially Owned by each such limitation shall be imposed pro rata among such Holders who requested inclusion holder of Registrable Securities in such registration statement according to the number of shares of Registrable Securities owned by each. Neither the Company nor any other stockholder may include shares in such registration statement without the consent of Holders of a majority of the Registrable Securities included therein if the underwriter managing such offering advises the Holders who have included Registrable Securities in such registration statement that the inclusion of such additional shares may either limit the number of Registrable Securities which can be sold or adversely affect the price at which such Registrable Securities can be soldOther Securities.
(c) Notwithstanding Section 1.3(b)In the event of a Demand Registration, the Company shall have be required to maintain the right, exercisable by written notice to continuous effectiveness of the initiating Holder(s) within thirty applicable Registration Statement for a period of at least 180 days after receipt of a request to effect a registration under the effective date thereof or such shorter period in which all Registrable Securities Act, to include the Company's shares included in such registration, in which event such registration shall be deemed to be a Company-initiated registration, and the Holders shall Registration Statement have the right to include their Registrable Securities and shares of Class A Common Stock, as the case may be, therein to the extent permitted under Section 1.2actually been sold.
(d) The Company shall be entitled to postpone (but not be obligated to effect more than ten registrations twice in any 12-month period), for a reasonable period of time not in excess of 90 days, the filing or initial effectiveness of, or suspend the use of, a Demand Registration Statement if the Company delivers to the Holders’ Representative a certificate signed by both the Chief Executive Officer and Chief Financial Officer of the Company certifying that, in the good faith judgment of the Board of Directors of the Company, such registration, offering or use would reasonably be expected to materially adversely affect or materially interfere with any bona fide material financing of the Company or any material transaction under this Section 1.3consideration by the Company or would require the disclosure of information that has not been, and is not otherwise required to be, disclosed to the public, the premature disclosure of which would materially adversely affect the Company. Such registrations certificate shall be on Form S-3 when contain a statement of the reasons for such postponement or suspension and an approximation of the anticipated delay.
(e) The Holders’ Representative shall have the right to notify the Company is eligible that it has determined that the Registration Statement relating to use that form under SEC rulesa Demand Registration be abandoned or withdrawn, but otherwise may be on Form S-1. No registration statement initiated by Holders hereunder shall count as a registration under this Section 1.3 unless and until it shall have been declared effective. Any registration requested under this Section 1.3 in which shall not become effective solely by reason of the refusal of the Holders participating therein to proceed with the registration shall count as a registration effected under this Section 1.3 unless and until event the Company shall have been reimbursed for the promptly abandon or withdraw such Registration Expenses incurred by it in connection therewith.Statement
Appears in 2 contracts
Samples: Securities Purchase Agreement (Colfax CORP), Registration Rights Agreement (Colfax CORP)
Demand Registrations. (a) At any time after the first anniversary expiration of the period during which the lead managing underwriter of the Qualified IPO shall have prohibited the Company from effecting any other public sale or distribution of securities (but in no event more than 180 days after the effective date of this Agreementthe registration statement), if Founder and GS (each, a “Demanding Stockholder”) may each make a written request to register, and the Company receives in writing a request that the Company shall effect the registration under the Securities Act of Registrable Securitiesof, of with a minimum aggregate offering price of $20,000,000 (as determined with reference to the number of shares proposed to be sold in such registration multiplied by the average closing price, any or if no closing price is available, the mean of the bid and asked prices, over the fifteen trading days preceding the date of such written demand), the Company will:
(i) promptly give written notice of the proposed registration to all other Holders; and
(ii) as soon as practicable, prepare and file and use commercially reasonable efforts to cause to become effective such registration statement as may be so requested and as would permit or facilitate the sale and distribution of such portion of the Registrable Securities as held by such Demanding Stockholder, the other Founder Stockholders (if Founder is specified in such request, together with such additional portion of the Registrable Securities of any Holder(sDemanding Stockholder) joining in such request as may be specified in a written request given to or GS Stockholders (if GS is the Company within twenty days after receipt of the written notice from the Company specified in Section 1.3(a)(i).
(b) If the underwriter managing the offering advises the Holders who have requested inclusion of their Registrable Securities in such registration statement that marketing considerations require a limitation on the number of shares offered, such limitation shall be imposed pro rata among such Holders who requested inclusion of Registrable Securities in such registration statement according to the number of shares of Registrable Securities owned by each. Neither the Company nor any other stockholder may include shares in such registration statement without the consent of Holders of a majority of the Registrable Securities included therein if the underwriter managing such offering advises the Holders who have included Registrable Securities in such registration statement that the inclusion of such additional shares may either limit the number of Registrable Securities which can be sold or adversely affect the price at which such Registrable Securities can be sold.
(c) Notwithstanding Section 1.3(bDemanding Stockholder), the Company shall have the right, exercisable by written notice to the initiating Holder(s) within thirty days after receipt of a request to effect a registration under the Securities Act, to include the Company's shares in and their Permitted Transferees (such registration, in which event such registration shall be deemed to be a Company-initiated registration“Demand Registration”); provided, and that the Holders shall have the right to include their Registrable Securities and shares of Class A Common Stock, as the case may be, therein to the extent permitted under Section 1.2.
(d) The Company shall not be obligated to effect a Demand Registration unless the aggregate gross proceeds expected to be received from the sale of Registrable Securities requested to be included in such Demand Registration equals or exceeds $20 million; provided, further, that the Company shall not be obligated to effect (i) more than ten registrations under two Demand Registrations at the request of Founder and (ii) more than five Demand Registrations at the request of GS.
(b) No Demand Registration shall be deemed to have occurred for purposes of this Section 1.3. Such registrations 2.3 if the registration statement relating thereto (i) does not become effective, or (ii) is not maintained for at least 180 days after the effective date thereof or such shorter period during which all Registrable Securities included in such registration statement have actually been sold (provided, that such period shall be on Form S-3 when extended for a period of time equal to the period the holder of Registrable Securities refrains from selling any securities included in such registration statement at the request of the Company or any underwriter pursuant to the provisions of this Agreement).
(c) If any of the Registrable Securities registered pursuant to a Demand Registration are to be sold in a firm commitment underwritten offering, and the managing underwriter or underwriters advise the holders of such Registrable Securities in writing that in its view the total number or dollar amount of Registrable Securities proposed to be sold in such offering is such as to adversely affect the success of such offering such that the shares will be sold below an acceptable price to the Demanding Stockholder (including securities proposed to be included by other holders of securities entitled to include securities in such registration statement pursuant to Section 2.2), then there shall be included in such firm commitment underwritten offering the number or dollar amount of Registrable Securities that in the opinion of such managing underwriter can be sold without adversely affecting such offering, and such number of Registrable Securities shall be allocated in accordance with Section 2.2(b).
(d) To the extent the Company is eligible to file a registration statement on Form S-3 or is a well-known seasoned issuer (as defined in Rule 405 under the Securities Act) (a “WKSI”) at the time any Demand Registration request is submitted to the Company, such Demanding Stockholder shall have the right to further request pursuant to such Demand Registration that the Company file a shelf registration statement (a “Shelf Registration Statement”) on Form S-3, and the Company shall file a Shelf Registration Statement that covers those Registrable Securities that are requested to be registered pursuant to Section 2.3(a). The Company shall use its reasonable best efforts (i) to remain eligible to file a registration statement on Form S-3 and, as applicable, (ii) to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405 under the Securities Act)) during the period during which such Shelf Registration Statement is required to remain effective. If the Company does not pay the filing fee covering the Registrable Securities at the time the Shelf Registration Statement is filed, the Company agrees to pay such fee at such time or times as the Registrable Securities are to be sold. If the Shelf Registration Statement has been outstanding for at least three years, at the end of the third year the Company shall re-file a new Shelf Registration Statement covering the Registrable Securities. If at any time when the Company is required to re-evaluate its WKSI status the Company determines that it is not a WKSI, the Company shall use its reasonable best efforts to maintain an effective registration statement during the period during which such registration statement is required to be kept effective, including filing post-effective amendments to the existing shelf registration statement or filing a new shelf registration statement on Form S-3 and, if such form under SEC rulesis not available, but otherwise may Form S-1. Similarly, at any time when the Company maintains a non-automatic shelf registration statement on Form S-3, if the Company determines it is no longer eligible to use Form S-3, the Company shall use its reasonable best efforts to maintain an effective registration statement during the period during which such registration statement is required to be kept effective, including filing a new registration statement on Form S-1. No If the Company files any Shelf Registration Statement for the benefit of the holders of any of its securities other than the Stockholders, the Company agrees that it shall include in such registration statement initiated such disclosures as may be required by Holders Rule 430B under the Securities Act (referring to the unnamed selling security holders in a generic manner by identifying the initial offering of the securities to the Stockholders) in order to ensure that the Stockholders may be added to such Shelf Registration Statement at a later time through the filing of a prospectus supplement rather than a post-effective amendment.
(e) In no event shall the Company be required to effect more than one Demand Registration hereunder within any three-month period, other than pursuant to Section 2.3(d).
(f) Upon receipt of a valid request to effect a Demand Registration, the Company shall as expeditiously as possible prepare and file with the SEC a registration statement on any form for which the Company then qualifies, and shall use its commercially reasonable efforts to cause such registration statement to become effective as soon as possible thereafter.
(g) Upon notice to the Demanding Stockholder, the Company may postpone effecting a registration pursuant to this Section 2.3 on one occasion during any period of twelve consecutive months for a reasonable time specified in the notice, but not exceeding 90 days, if based on the reasonable judgment of the Board of Directors, (i) the filing or effectiveness of the registration statement would materially adversely affect or materially interfere with a bona fide material financing of the Company or any of its subsidiaries or any material transaction under consideration by the Company or (ii) such postponement or withdrawal is necessary in order to avoid premature disclosure of a matter the Board of Directors has determined would not be in the best interest of the Company to be disclosed at such time because its disclosure would materially adversely affect the Company; provided that if the Company exercises its right to withdraw the filing or the effectiveness of a registration statement for a Demand Registration then the Demanding Stockholder may withdraw its request for such demand (and such request will not count as one of the Demanding Stockholder’s Demand Registrations).
(h) Notwithstanding anything to the contrary in this Agreement, if any Demanding Stockholder wishes to engage in an underwritten block trade or similar transaction with a two-day (or shorter) marketing period (collectively, an “Underwritten Block Trade”) off of a Shelf Registration Statement (either through filing an automatic Shelf Registration Statement or through a take-down from an already existing Shelf Registration Statement), then such Demanding Stockholder shall provide reasonable advance notice (and no less than 24 hours’ notice) to the Company and the other Demanding Stockholder of the Underwritten Block Trade prior to the day such offering is to commence, and the other Demanding Stockholder must notify the first Demanding Stockholder on the day such offering is to commence as to its election whether or not to participate pro rata (or less), and the Company shall as expeditiously as possible, but subject to Sections 2.3(d) and 2.3(e), use its commercially reasonable efforts to facilitate such Underwritten Block Trade (which may close as early as three Business Days after the date it commences); provided that the Demanding Stockholder requesting such Underwritten Block Trade, and, if it has elected to participate, the other Demanding Stockholder, shall each use its commercially reasonable efforts to work with the Company and the underwriters in order to facilitate preparation of the registration statement, prospectus and other offering documentation related to the Underwritten Block Trade and provide all closing and other customary documentation. In the event a Demanding Stockholder requests such an Underwritten Block Trade, notwithstanding anything to the contrary in this Agreement, any holder of Registrable Securities other than a Demanding Stockholder shall have no right to notice of or to participate in such Underwritten Block Trade. Notwithstanding anything to the contrary herein, an Underwritten Block Trade shall not count as a registration under this Section 1.3 unless Demand Registration and until it shall have been declared effective. Any registration requested under this Section 1.3 which shall not become effective solely by reason of the refusal of the Holders participating therein to proceed with the registration shall count as a registration effected under this Section 1.3 unless and until the Company shall have been reimbursed for the Registration Expenses incurred by it in connection therewithrequire any minimum anticipated offering price.
Appears in 2 contracts
Samples: Stockholders Agreement (Sterling Check Corp.), Stockholders Agreement (Sterling Check Corp.)
Demand Registrations. (a) At any time after Subject to the first provisions and limitations of this Section 2.1, if following the six month anniversary of the date hereof the Corporation shall receive a written request (a “Demand Registration Notice”) from the BlackRock Members or the Highfields Members (an “Initiating Holder”) that the Corporation effect a Registration Statement under the Securities Act of the Registrable Securities held by such Sponsor Members on the date thereof (a “Demand Registration”), then the Corporation shall, subject to the limitations of this AgreementSection 2.1, if the Company receives in writing a request that the Company use its commercially reasonable efforts to effect the registration under the Securities Act of all Registrable Securities, of with a minimum aggregate offering price of $20,000,000 Securities that such Initiating Holder requests to be registered.
(as determined with reference to b) A Demand Registration Notice shall specify (i) the number of shares proposed Registrable Securities requested to be sold in registered, (ii) the anticipated per share price range for such offering (which range may be revised from time to time by the Initiating Holder by written notice to the Corporation to that effect), (iii) the intended methods of disposition and the name of the lead underwriter, if available, and (iv) subject to Section 2.1(f), whether such registration multiplied by shall be a “shelf” registration pursuant to Rule 415 under the average closing price, or if no closing price is availableSecurities Act (a “Shelf Registration”).
(c) Within 10 days after receipt of a Demand Registration Notice, the mean of the bid and asked prices, over the fifteen trading days preceding the date of such written demand), the Company will:
(i) promptly Corporation shall give written notice (a “Registration Notice”) of the proposed requested registration to all other Holders that are holders of Registrable Securities (the “Other Holders; and
(ii”) and shall include in such registration all Registrable Securities with respect to which the Corporation has received written requests indicating the Other Holder and the number of Registrable Securities that such Other Holder elects to include in such registration within 20 days after the receipt of the Registration Notice. The Corporation shall, as soon as practicable, prepare and in any event within 90 days after the date of the Demand Registration Notice, file and use commercially reasonable efforts a Registration Statement under the Securities Act covering all Registrable Securities that the Initiating Holder requested to cause be registered, any additional Registrable Securities requested to become effective be included in such registration statement by any Other Holders, as specified by notice given timely by each such Other Holders to the Corporation, and any securities of the Corporation proposed to be included in such registration by holders of registration rights granted other than pursuant to this Agreement (“Other Registration Rights”).
(d) A Demand Registration Notice (other than a Demand Registration Notice with respect to a Demand Registration that constitutes a Shelf Registration on Form S-3) shall only be binding on the Corporation if the sale of all Registrable Securities requested to be registered (pursuant to such Demand Registration Notice and in response to the Demand Registration Notice) is reasonably expected to result in aggregate gross proceeds in excess of $25,000,000.
(e) If the managing underwriter advises the Corporation, in writing, that in its opinion the number of Registrable Securities and, if permitted hereunder, other securities requested to be included in such offering exceeds the number of Registrable Securities and other securities, if any, which can be sold therein without adversely affecting the Corporation or the marketability of the offering, the Corporation shall include in such registration (i) first, the quantity of Registrable Securities requested to be included in such Demand Registration, pro rata among the respective holders thereof on the basis of the number of Registrable Securities requested to be included in such registration by each such holder and (ii) second, other securities requested to be included in such registration, which in the opinion of such underwriters can be sold without adversely affecting the Corporation or the marketability of the offering, pro rata among the respective holders thereof on the basis of the number of shares requested to be included in such registration by each such holder. Any Person (other than Holders of Registrable Securities) that participates in Demand Registrations which are not at the Corporation’s expense must pay their share of any Registration Expenses.
(f) Notwithstanding any other provisions of this Section 2.1, in no event shall either the BlackRock Members or the Highfields Members be permitted to (i) request more than three Demand Registrations in any twelve-month period or within 120 days after the effective date of a Registration Statement filed by the Corporation; provided that no Demand Registration may be so requested prohibited for such 120-day period more than once in a twelve-month period; or (ii) request a Demand Registration if, at the time such request is made, a Shelf Registration is effective and as would permit or facilitate the sale and distribution of such portion of the Registrable Securities as is specified in such request, together with such additional portion both includes all of the Registrable Securities of any Holder(s) joining in such request as may be specified in a written request given to the Company within twenty days after receipt Sponsor Member and permits an underwritten offering of the written notice from the Company specified in Section 1.3(a)(i)such Registrable Securities.
(bg) If The Corporation shall be entitled to postpone (but not more than once in any twelve-month period), for a reasonable period of time not in excess of 60 days, the underwriter managing filing of a Registration Statement (including Shelf Registration) if the offering advises Corporation delivers to the Holders who have requested inclusion Initiating Holder a resolution of their Registrable Securities the Board that, in the good faith judgment of the Board, such registration statement and offering would reasonably be expected to materially adversely affect any bona fide material financing of the Corporation or any material transaction under consideration by the Corporation or would require disclosure of information that marketing considerations require a limitation on the number of shares offered, such limitation shall be imposed pro rata among such Holders who requested inclusion of Registrable Securities in such registration statement according has not been disclosed to the number of shares of Registrable Securities owned by each. Neither the Company nor any other stockholder may include shares in such registration statement without the consent of Holders of a majority of the Registrable Securities included therein if the underwriter managing such offering advises the Holders who have included Registrable Securities in such registration statement public and is not otherwise required to be disclosed at that the inclusion of such additional shares may either limit the number of Registrable Securities which can time that would reasonably be sold or expected to materially adversely affect the price at which Corporation. Such Board resolution shall contain a statement of the reasons for such Registrable Securities can be sold.
(c) Notwithstanding Section 1.3(b)postponement and an approximation of the anticipated delay. The Holders receiving such resolution shall keep the information contained in such resolution confidential. If the Corporation shall so postpone the filing of a Registration Statement, the Company Holder who made the Demand Registration shall have the right, exercisable right to withdraw the request for registration by giving written notice to the initiating Holder(sCorporation within 20 days of the anticipated termination date of the postponement period, as provided in such resolution delivered to the Holders, and in the event of such withdrawal, such request shall not be counted for purposes of the number of Demand Registrations to which such Holder is entitled pursuant to the terms herein.
(h) within thirty If the Corporation has filed a Shelf Registration Statement and has included Registrable Securities therein, the Corporation shall be entitled to suspend (but not more than an aggregate of 90 days in any twelve-month period), for a reasonable period of time not in excess of 90 days, the offer or sale of Registrable Securities pursuant to such Registration Statement by any Holder of Registrable Securities if (i) a “road show” is not then in progress with respect to a proposed offering of Registrable Securities by such Holder pursuant to such Registration Statement and such Holder has not executed an underwriting agreement with respect to a pending sale of Registrable Securities pursuant to such Registration Statement and (ii) the Corporation delivers to the Holders included in such Registration Statement a resolution of the Board that, in the good faith judgment of the Board, such offer or sale would reasonably be expected to materially adversely affect any bona fide material financing of the Corporation or any material transaction under consideration by the Corporation or would require disclosure of information that has not been disclosed to the public and is not otherwise required to be disclosed at that time that would reasonably be expected to materially adversely affect the Corporation. Such Board resolution shall contain a statement of the reasons for such postponement and an approximation of the anticipated delay. The Holders receiving such resolution shall keep the information contained in such certificate confidential.
(i) The Corporation shall be required to maintain the effectiveness of a Registration Statement (except in the case of a Shelf Registration) with respect to any Demand Registration for a period of at least 180 days after receipt the effective date thereof or such shorter period in which all Registrable Securities included in such Registration Statement have actually been sold; provided, however, that such period shall be extended for a period of time equal to the period the Holder of Registrable Securities refrains from selling any securities included in such registration at the request of (x) an underwriter or (y) the Corporation pursuant to the provisions herein. The Corporation shall be required to maintain the effectiveness of a request Registration Statement that is a Shelf Registration with respect to effect a registration under any Demand Registration at all times after the effective date thereof until all Registrable Securities Act, to include the Company's shares included in such registrationRegistration Statement have actually been sold; provided, however, that any Holder of Registrable Securities whose shares have been included in such Shelf Registration may request that such Registrable Securities be removed from such Registration Statement, in which event the Corporation shall promptly either withdraw such registration Registration Statement or file a post-effective amendment to such Registration Statement removing such Registrable Securities.
(j) Notwithstanding anything contained herein to the contrary, the Corporation hereby agrees that (i) each Demand Registration that is a Shelf Registration shall contain all language (including on the Prospectus cover sheet, the principal stockholders’ table and the plan of distribution) as may be deemed reasonably requested by a Holder of Registrable Securities to be allow for a Company-initiated registrationdistribution to, and resale by, the direct and indirect partners, members or stockholders of a Holder of Registrable Securities (a “Partner Distribution”) and (ii) the Corporation shall, at the reasonable request of any Holder of Registrable Securities seeking to effect a Partner Distribution, file any prospectus supplement or post-effective amendments and otherwise take any action reasonably necessary to include such language, if such language was not included in the initial Registration Statement, or revise such language if deemed reasonably necessary by such Holder to effect such Partner Distribution.
(k) The Initiating Holders shall have the right to include their Registrable Securities select the investment banker and shares of Class A Common Stockmanager to administer the offering relating to such Demand Registration, as the case may be, therein subject to the extent permitted under Section 1.2approval of the Board, which shall not be unreasonably withheld, delayed or conditioned.
(dl) The Company For purposes of this Section 2.1, a registration shall not be obligated to effect more than ten registrations under this Section 1.3. Such registrations counted as “effected” and shall not be on Form S-3 when the Company is eligible to use that form under SEC rulesconsidered a Demand Registration if, but otherwise may be on Form S-1. No registration statement initiated by Holders hereunder shall count as a registration under this Section 1.3 unless and until it shall have been declared effective. Any registration requested under this Section 1.3 which shall not become effective solely by reason result of an exercise of any cutback, fewer than a majority of the refusal total number of Registrable Securities that the Holders participating therein Initiating Holder has requested to proceed with the registration shall count as a registration effected under this Section 1.3 unless and until the Company shall have been reimbursed for the be included in such Registration Expenses incurred by it in connection therewithStatement are actually included.
Appears in 2 contracts
Samples: Registration Rights Agreement (Pennymac Financial Services, Inc.), Registration Rights Agreement (Pennymac Financial Services, Inc.)
Demand Registrations. (a) At any time after the first anniversary of the date of this Agreement, if the Company receives in writing a request that the Company effect the registration under the Securities Act of Registrable Securities, of with a minimum aggregate offering price of $20,000,000 (as determined with reference to the number of shares proposed to be sold in such registration multiplied If requested by the average closing price, or if no closing price is available, the mean of the bid and asked prices, over the fifteen trading days preceding the date of such written demand), the Company will:
(i) promptly give written notice of the proposed registration underwriters for any Underwritten Offering requested by any Participating Holder pursuant to all other Holders; and
(ii) as soon as practicable, prepare and file and use commercially reasonable efforts to cause to become effective such registration statement as may be so requested and as would permit or facilitate the sale and distribution of such portion of the Registrable Securities as is specified in such request, together with such additional portion of the Registrable Securities of any Holder(s) joining in such request as may be specified in a written request given to the Company within twenty days after receipt of the written notice from the Company specified in Registration under Section 1.3(a)(i).
(b) If the underwriter managing the offering advises the Holders who have requested inclusion of their Registrable Securities in such registration statement that marketing considerations require a limitation on the number of shares offered, such limitation shall be imposed pro rata among such Holders who requested inclusion of Registrable Securities in such registration statement according to the number of shares of Registrable Securities owned by each. Neither the Company nor any other stockholder may include shares in such registration statement without the consent of Holders of a majority of the Registrable Securities included therein if the underwriter managing such offering advises the Holders who have included Registrable Securities in such registration statement that the inclusion of such additional shares may either limit the number of Registrable Securities which can be sold or adversely affect the price at which such Registrable Securities can be sold.
(c) Notwithstanding Section 1.3(b)2.01, the Company shall have the rightenter into an underwriting agreement with such underwriters for such offering, exercisable by written notice such agreement to be reasonably satisfactory in substance and form to the initiating Holder(s) within thirty days after Company, each Participating Holder and the underwriters, and to contain such representations and warranties by the Company and such other terms as are generally prevailing in agreements of that type, including indemnities no less favorable to the recipient thereof than those provided in Section 2.09. Each Participating Holder shall cooperate reasonably with the Company in the negotiation of such underwriting agreement and shall give consideration to the reasonable suggestions of the Company regarding the form thereof. Any such Participating Holder shall be required to make representations or warranties to, and other agreements with, the Company and the underwriters in connection with such underwriting agreement as are customarily made by selling stockholders in secondary underwritten public offerings, including representations, warranties or agreements regarding such Participating Holder (but not such Participating Holder’s knowledge about the Company), such Participating Holder’s title to the Registrable Securities, such Participating Holder’s authority to sell the Registrable Securities, such Participating Holder’s intended method of distribution, absence of liens with respect to the Registrable Securities, receipt of a request all required consents and approvals with respect to effect a registration under the entry into such underwriting agreement and the sale of such Registrable Securities Act, to include the Company's shares in such registration, in which event such registration shall be deemed and any other representations required to be a Company-initiated registrationmade by such Participating Holder under applicable law, rule or regulation, and the Holders shall have aggregate amount of the right to include their Registrable Securities and shares liability of Class A Common Stock, as the case may be, therein to the extent permitted under Section 1.2.
(d) The Company such Participating Holder in connection with such underwriting agreement shall not be obligated to effect more than ten registrations under this Section 1.3. Such registrations shall be on Form S-3 when the Company is eligible to use that form under SEC rules, exceed such Participating Holder’s net proceeds after underwriting commissions and discounts (but otherwise before any taxes and expenses which may be on Form S-1. No registration statement initiated payable by Holders hereunder shall count as a registration under this Section 1.3 unless and until it shall have been declared effective. Any registration requested under this Section 1.3 which shall not become effective solely by reason of the refusal of the Holders participating therein to proceed with the registration shall count as a registration effected under this Section 1.3 unless and until the Company shall have been reimbursed for the Registration Expenses incurred by it in connection therewithsuch Participating Holder) from such Underwritten Offering.
Appears in 2 contracts
Samples: Registration Rights Agreement (SEACOR Marine Holdings Inc.), Registration Rights Agreement (Seacor Holdings Inc /New/)
Demand Registrations. (a) At If requested by the underwriters for any time after the first anniversary of the date of this Agreement, if the Company receives in writing a request that the Company effect the registration under the Securities Act Underwritten Offering requested by Holders of Registrable Securities, of with Securities pursuant to a minimum aggregate offering price of $20,000,000 (as determined with reference to the number of shares proposed to be sold in such registration multiplied by the average closing price, Demand Registration under Section 5.1 or if no closing price is available, the mean of the bid and asked prices, over the fifteen trading days preceding the date of such written demand)5.2, the Company will:
(i) promptly give written notice of the proposed registration to all other Holders; and
(ii) as soon as practicable, prepare and file and use commercially reasonable efforts to cause to become effective such registration statement as may be so requested and as would permit or facilitate the sale and distribution of such portion of the Registrable Securities as is specified in such request, together shall enter into an underwriting agreement with such additional portion of the Registrable Securities of any Holder(s) joining underwriters for such offering, such agreement to be satisfactory in such request as may be specified in a written request given substance and form to the Company within twenty days after receipt of the written notice from the Company specified in Section 1.3(a)(i).
(b) If the underwriter managing the offering advises the Holders who have requested inclusion of their Registrable Securities in such registration statement that marketing considerations require a limitation on the number of shares offered, such limitation shall be imposed pro rata among such Holders who requested inclusion of Registrable Securities in such registration statement according to the number of shares of Registrable Securities owned by each. Neither the Company nor any other stockholder may include shares in such registration statement without the consent of Holders of a majority of the Registrable Securities to be included therein if in such underwriting, and to contain such representations and warranties by the underwriter managing Company and such offering advises other terms as are generally prevailing in agreements of that type, including indemnities no less favorable to the recipient thereof than those provided in Section 5.3. The Holders who have included of the Registrable Securities proposed to be distributed by such underwriters shall cooperate with the Company in such registration statement that the inclusion negotiation of such additional shares may either limit the number underwriting agreement and shall give consideration to the reasonable suggestions of the Company regarding the form thereof. Such Holders of Registrable Securities to be distributed by such underwriters shall be parties to such underwriting agreement, which can be sold or adversely affect underwriting agreement shall (i) contain such representations and warranties by, and the price at which such Registrable Securities can be sold.
(c) Notwithstanding Section 1.3(b)other agreements on the part of, the Company shall have to and for the right, exercisable benefit of such Holders of Registrable Securities as are customarily made by written notice issuers to selling stockholders in secondary underwritten public offerings and (ii) provide that any or all of the conditions precedent to the initiating Holder(s) within thirty days after receipt obligations of a request to effect a registration such underwriters under the Securities Act, to include the Company's shares in such registration, in which event such registration underwriting agreement also shall be deemed conditions precedent to the obligations of such Holders of Registrable Securities. Any such Holder of Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters other than representations, warranties or agreements regarding such Holder, such Holder’s title to the Registrable Securities, such Holder’s intended method of distribution and any other representations required to be a Company-initiated registrationmade by the Holder under applicable law, and the Holders shall have aggregate amount of the right to include their Registrable Securities and shares liability of Class A Common Stock, as the case may be, therein to the extent permitted under Section 1.2.
(d) The Company such Holder shall not be obligated exceed such Holder’s net proceeds from such Underwritten Offering and with respect to effect more than ten registrations under this Section 1.3. Such registrations liability for information, shall be on Form S-3 when limited to information provided by such Holder in writing for use in the Company is eligible to use that form under SEC rules, but otherwise may be on Form S-1. No registration statement initiated by Holders hereunder shall count as a registration under this Section 1.3 unless related Prospectus and until it shall have been declared effective. Any registration requested under this Section 1.3 which shall not become effective solely by reason of the refusal of the Holders participating therein to proceed with the registration shall count as a registration effected under this Section 1.3 unless and until the Company shall have been reimbursed for the Registration Expenses incurred by it in connection therewithStatement.
Appears in 2 contracts
Samples: Shareholder Agreements, Joint Written Consent (Hawker Beechcraft Notes Co)
Demand Registrations. (a) At any time, and from time after to time, following the first anniversary of six month period following the date of this AgreementCompany’s Initial Public Offering, if the Company receives Micrologix may request in writing a request that the Company effect the registration under the Securities Act of Registrable Securities, all or part of with its Restricted Shares (a minimum aggregate offering price of $20,000,000 (as determined with reference to “Demand Registration”). Each request for a Demand Registration shall specify the approximate number of shares proposed Restricted Shares requested to be sold in registered and the anticipated per share price range for such registration multiplied by the average closing price, or if no closing price is available, the mean of the bid and asked prices, over the fifteen trading days preceding the date of such written demandoffering. Subject to Section 7.2(c), the Company will:
(i) promptly give written notice of the proposed registration to all other Holders; and
(ii) as soon as practicable, prepare and file and use commercially reasonable efforts to cause to become effective will include in such registration statement as may be so requested and as would permit or facilitate prospectus all Restricted Shares with respect to which the sale and distribution of such portion of the Registrable Securities as is specified in such request, together with such additional portion of the Registrable Securities of any Holder(s) joining in such request as may be specified in Company has received a written request given to the Company for inclusion within twenty 15 days after the receipt of the written notice from Company’s notice. All registrations and qualifications requested pursuant to this Section 7.2(a) are referred to herein as “Demand Registrations.” Subject to Section 7.2(c), Micrologix will be entitled to request two Demand Registrations, for which the Company specified in Section 1.3(a)(i)shall pay all registration expenses to the fullest extent permitted by law, other than any underwriting fees, expenses and discounts, which shall be borne by Micrologix.
(b) The Company will not include in any Demand Registration any securities which are not Restricted Shares without the prior written consent of Micrologix, which shall not be unreasonably withheld or delayed. If a Demand Registration is an underwritten offering and the underwriter managing underwriters advise the offering advises the Holders who have requested inclusion Company in writing (with a copy to each party hereto requesting registration or qualification for distribution by prospectus of Restricted Shares) that, in their Registrable Securities in such registration statement that marketing considerations require a limitation on good faith opinion, the number of shares offeredRestricted Shares and, such limitation shall if permitted hereunder, other securities requested to be imposed pro rata among such Holders who requested inclusion of Registrable Securities included in such registration statement according to offering, exceeds the number of shares of Registrable Securities owned by each. Neither the Company nor any Restricted Shares and other stockholder may include shares in such registration statement without the consent of Holders of a majority of the Registrable Securities included therein securities, if the underwriter managing such offering advises the Holders who have included Registrable Securities in such registration statement that the inclusion of such additional shares may either limit the number of Registrable Securities any, which can be sold or therein without adversely affect affecting the price at marketability of the offering, the Company will include in such offering, prior to the inclusion of any securities which are not Restricted Shares, the number of Restricted Shares requested to be included which, in the opinion of such Registrable Securities underwriters, can be soldsold without adversely affecting the marketability of the offering.
(c) Notwithstanding Section 1.3(b), The Company will not be obligated to effect any Demand Registration within six (6) months after the Company shall have the right, exercisable by written notice to the initiating Holder(s) within thirty days after effective date or date of final receipt of a request previous Demand Registration. The Company may, on no more than one occasion during any 12-month period, postpone for up to effect an aggregate of 90 days the filing of a prospectus or the effectiveness of a registration under statement for a Demand Registration if the Securities ActCompany concludes, following consultation with, and after obtaining the approval of, the board of directors of the Company, that such Demand Registration would reasonably be expected to have a materially adverse effect on any proposal or plan by the Company to engage in any material acquisition of assets (other than in the ordinary course of business) or any financing transaction, merger, amalgamation, consolidation, tender offer or similar transaction or otherwise would have a material adverse effect on the business, assets, operations, or financial condition of the Company; provided, however, that in such event, the requesting party will be entitled to withdraw such request and, if such request is withdrawn promptly, such Demand Registration will not count as one of the permitted Demand Registrations hereunder and the Company will pay, to include the Company's shares fullest extent permitted by applicable law, all registration expenses in such registration, in which event connection with such registration or prospectus, other than any underwriting fees, expenses and discounts, which shall be deemed to be a Company-initiated registration, and borne by the Holders shall have the right to include their Registrable Securities and shares of Class A Common Stock, as the case may be, therein to the extent permitted under Section 1.2requesting party or parties.
(d) The Company shall On any Demand Registration, Micrologix, at its sole expense, will have the right to select the investment banker(s) and manager(s) from firms of national reputation in the U.S. to administer the offering, subject to the Company’s approval which will not be obligated to effect more than ten registrations under this Section 1.3. Such registrations shall be on Form S-3 when the Company is eligible to use that form under SEC rules, but otherwise may be on Form S-1. No registration statement initiated by Holders hereunder shall count as a registration under this Section 1.3 unless and until it shall have been declared effective. Any registration requested under this Section 1.3 which shall not become effective solely by reason of the refusal of the Holders participating therein to proceed with the registration shall count as a registration effected under this Section 1.3 unless and until the Company shall have been reimbursed for the Registration Expenses incurred by it in connection therewithunreasonably withheld or delayed.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Spring Bank Pharmaceuticals, Inc.), Stock Purchase Agreement (Spring Bank Pharmaceuticals, Inc.)
Demand Registrations. (a) At any time From and after 180 days after the first anniversary effective date of the date initial public offering of this Agreementthe Company's Common Stock, if the Company receives in writing a request that the Company effect the registration under the Securities Act of Registrable Securities, of with a minimum aggregate offering price which at least 10% of $20,000,000 (as determined with reference to the number of shares proposed to then outstanding Registrable Securities shall be sold included in such registration multiplied by (which offering must have a per share price of not less than $5.00 per share (as adjusted for stock dividends, splits, combinations, reclassification and the average closing price, or if no closing price is available, the mean of the bid and asked prices, over the fifteen trading days preceding the date of such written demandlike)), the Company will:
(i) promptly give written notice of the proposed registration to all other Holders; and
(ii) as soon as practicable, prepare and file and use commercially its reasonable best efforts to cause to become effective such registration statement as may be so requested and as would permit or facilitate the sale and distribution of such portion of the Registrable Securities as is specified in such request, together with such additional portion of the Registrable Securities of any Holder(s) joining in such request as may be specified in a written request given to the Company within twenty thirty (30) days after receipt of the written notice from the Company specified in Section 1.3(a)(i)clause (i) above.
(b) If the underwriter managing the offering advises the Holders who have requested inclusion of their Registrable Securities in such registration statement that marketing considerations require a limitation on the number of shares offered, such limitation shall be imposed pro rata among such Holders who requested inclusion of Registrable Securities in such registration statement according to the number of shares of Registrable Securities owned by each. Neither the Company nor any other stockholder shareholder may include shares in such registration statement without the consent of Holders of a majority of the Registrable Securities included therein if the underwriter managing such offering advises the Holders who have included Registrable Securities in such registration statement that the inclusion of such additional shares may either limit the number of Registrable Securities which can be sold or adversely affect the price at which such Registrable Securities can be sold.
(c) Notwithstanding Section 1.3(b)) above, the Company shall have the right, exercisable by written notice to the initiating Holder(s) Holders within thirty (30) days after receipt of a their request to effect a registration under the Securities Act, to include the Company's shares in such registration, in which event such registration shall be deemed to be a Company-initiated registration, and the Holders shall have the right to include their Registrable Securities and shares of Class A Common Stock, as the case may be, therein to the extent permitted under Section 1.21.2 above.
(d) The Company shall not be obligated to effect more than ten three (3) registrations under this Section 1.3. Such registrations shall be on Form S-3 when the Company is eligible to use that form under SEC rules, but otherwise may be on Form S-1. No registration statement initiated by Holders hereunder shall count as a registration under this Section 1.3 unless and until it shall have been declared effective. Any registration requested under this Section 1.3 which shall not become effective solely by reason of the refusal of the Holders participating therein to proceed with the registration shall count as a registration effected under this Section 1.3 unless and until the Company shall have been reimbursed for the Registration Expenses incurred by it in connection therewith.
Appears in 2 contracts
Samples: Registration Rights Agreement (Penson Worldwide Inc), Registration Rights Agreement (Penson Worldwide Inc)
Demand Registrations. (ai) At Subject to Section 2.2(c), at any time or from time to time after the first three-month anniversary of the date of this Agreementhereof, if the Company receives in writing a request that the Company effect the registration under the Securities Act of Registrable Securities, of with a minimum aggregate offering price of $20,000,000 (as determined with reference to the number of shares proposed to be sold in such registration multiplied by the average closing price, one or if no closing price is available, the mean of the bid and asked prices, over the fifteen trading days preceding the date of such written demand), the Company will:
(i) promptly give written notice of the proposed registration to all other Holders; and
(ii) as soon as practicable, prepare and file and use commercially reasonable efforts to cause to become effective such registration statement as may be so requested and as would permit or facilitate the sale and distribution of such portion of the Registrable Securities as is specified in such request, together with such additional portion of the Registrable Securities of any Holder(s) joining in such request as may be specified in a written request given to the Company within twenty days after receipt of the written notice from the Company specified in Section 1.3(a)(i).
(b) If the underwriter managing the offering advises the Holders who have requested inclusion of their Registrable Securities in such registration statement that marketing considerations require a limitation on the number of shares offered, such limitation shall be imposed pro rata among such Holders who requested inclusion of Registrable Securities in such registration statement according to the number of shares of Registrable Securities owned by each. Neither the Company nor any other stockholder may include shares in such registration statement without the consent of Holders of a majority of the Registrable Securities included therein if the underwriter managing such offering advises the Holders who have included Registrable Securities in such registration statement that the inclusion of such additional shares may either limit the number of Registrable Securities which can be sold or adversely affect the price at which such Registrable Securities can be sold.
(c) Notwithstanding Section 1.3(b), the Company shall have the right, exercisable by written notice to the initiating Holder(s) within thirty days after receipt of a request to effect a registration under the Securities Act, to include the Company's shares in such registration, in which event such registration shall be deemed to be a Company-initiated registration, and the more Original Holders shall have the right to include their require the Company to file a registration statement under the Securities Act covering Registrable Securities with an aggregate value of $20 million or greater (based on the market price of the A Shares as of the date of the Demand Registration Request (as defined below)), by delivering a written request therefor to the Company specifying the number of Registrable Securities to be included in such registration by such Original Holders and shares the intended method of Class A Common Stock, distribution thereof. All such requests by any Original Holder pursuant to this Section 2.2(a)(i) are referred to as “Demand Registration Requests,” the registrations so requested are referred to as “Demand Registrations” and the Original Holders making such demand for registration are referred to as the case may be“Initiating Holders.” As promptly as practicable, therein but no later than ten days after receipt of a Demand Registration Request, the Company shall give written notice (a “Demand Exercise Notice”) of such Demand Registration Request to all Holders of record of Registrable Securities other than the extent permitted under Section 1.2Initiating Holders.
(dii) The Company shall, subject to Sections 2.4 and 2.8, include in a Demand Registration (A) the Registrable Securities of the Initiating Holders and (B) the Registrable Securities of any other Holder that shall have made a written request to the Company within the time limits specified below for inclusion in such registration. Any such request from the other Holders must be delivered to the Company within 15 days after the receipt of the Demand Exercise Notice and must specify the maximum number of Registrable Securities intended to be disposed of by such other Holder.
(iii) The Company, as expeditiously as possible but subject to Section 2.2(c), shall use its commercially reasonable efforts to effect such Demand Registration.
(b) Registrations under this Section 2.2 shall be on such appropriate registration form of the SEC for the disposition of such Registrable Securities in accordance with the intended method of disposition thereof, which form shall be selected by the Company.
(c) The Demand Registration rights granted in Section 2.2(a) to the Original Holders are subject to the following limitations:
(i) the Company shall not be required to cause a registration pursuant to Section 2.2(a) to be filed within 90 days, or to be declared effective within a period of 180 days, after the effective date of any other registration statement of the Company filed pursuant to the Securities Act;
(ii) if any registration of Registrable Securities of an Original Holder would require disclosure of information not otherwise then required by law to be publicly disclosed and, in the good faith judgment of the board of directors of the Company, such disclosure is reasonably likely to adversely affect any material financing, acquisition, corporate reorganization or merger or other material transaction or event involving the Company or otherwise have a material adverse effect on the Company (a “Valid Business Reason”), the Company may postpone the filing of or withdraw a registration statement relating to a Demand Registration Request until such Valid Business Reason no longer exists, but in no event shall the Company avail itself of such right for more than 120 days, in the aggregate, in any period of 365 consecutive days (such period of postponement or withdrawal under this clause (ii), the “Postponement Period”); and the Company shall give notice to the Participating Holder(s) of its determination to postpone or withdraw a registration statement and of the fact that the Valid Business Reason for such postponement or withdrawal no longer exists, in each case, promptly after the occurrence thereof; and
(iii) the Company shall not be obligated to effect more than ten registrations five Demand Registrations under this Section 1.32.2(a). Such registrations shall be on Form S-3 when If the Company is eligible to use that form under SEC rules, but otherwise may be on Form S-1. No shall give any notice of postponement or withdrawal of any registration statement initiated by Holders hereunder pursuant to clause (ii) above, the Company shall count as not register any equity security of the Company during the period of postponement or withdrawal. Each Original Holder agrees that, upon receipt of any notice from the Company that the Company has determined to withdraw any registration statement pursuant to clause (ii) above, such Original Holder will discontinue its disposition of Registrable Securities pursuant to such registration statement. If the Company shall have withdrawn or prematurely terminated a registration statement filed under this Section 1.3 unless and until it shall have been declared effective. Any registration requested under this Section 1.3 which 2.2(a)(i), the Company shall not become be considered to have effected an effective solely by reason registration for the purposes of the refusal of the Holders participating therein to proceed with the registration shall count as a registration effected under this Section 1.3 unless and Agreement until the Company shall have filed a new registration statement covering the Registrable Securities covered by the withdrawn registration statement and such registration statement shall have been declared effective and shall not have been withdrawn. If the Company shall give any notice of withdrawal or postponement of a registration statement pursuant to clause (ii) above, at such time as the Valid Business Reason that caused such withdrawal or postponement no longer exists (but in no event more than 180 days after the date of the postponement or withdrawal), the Company shall use its commercially reasonable efforts to effect the registration under the Securities Act of the Registrable Securities covered by the withdrawn or postponed registration statement in accordance with this Section 2.2.
(d) The Company may, subject to Sections 2.4 and 2.8, elect to include in any registration statement and offering made pursuant to Section 2.2(a), (i) authorized but unissued A Shares or A Shares held by the Company as treasury shares and/or (ii) any other A Shares that are requested to be included in such registration pursuant to the exercise of piggyback rights granted by the Company that are not inconsistent with the rights granted in, or that do not otherwise conflict with the terms of, this Agreement (“Additional Piggyback Rights”); provided, however, that such inclusion shall be permitted only to the extent that it is pursuant to and subject to the terms of the underwriting agreement or arrangements, if any, entered into by the Participating Holders.
(e) Any Holder may withdraw its Registrable Securities from a Demand Registration at any time. If all such Holders do so, the Company shall cease all efforts to secure registration and such registration nonetheless shall be deemed a Demand Registration for purposes of this Section 2.2 unless (i) the withdrawal is made following withdrawal or postponement of such registration by the Company pursuant to a Valid Business Reason as contemplated by Section 2.2(c)(ii), (ii) the withdrawal is based on the reasonable determination of the Initiating Holders that there has been, since the date of the Demand Registration Request, a material adverse change in the business or prospects of the Company or (iii) the Initiating Holders have paid or reimbursed the Company for all of the reasonable out-of-pocket fees and expenses incurred by the Company in connection with the withdrawn registration.
(f) A Demand Registration shall not be deemed to have been effected and shall not count as such (i) unless a registration statement with respect thereto has become effective and has remained effective for a period of at least 180 days or such shorter period during which all Registrable Securities covered by such registration statement have been sold or withdrawn, or, if such registration statement relates to an underwritten offering, such longer period as, in the reasonable opinion of counsel for the Registration Expenses incurred underwriter(s), is required by it law for delivery of a prospectus in connection therewithwith the sale of Registrable Securities by an underwriter or dealer, (ii) if, after the registration statement with respect thereto has become effective, it becomes subject to any stop order, injunction or other order or requirement of the SEC or other governmental agency or court for any reason, (iii) if it is withdrawn by the Company pursuant to a Valid Business Reason as contemplated by Section 2.2(c) or (iv) if the conditions to closing specified in the purchase agreement or underwriting agreement entered into in connection with such Demand Registration are not satisfied, other than solely by reason of some act or omission of the Participating Holders.
(g) In connection with any Demand Registration, the Initiating Holders may designate the lead managing underwriter in connection with such registration and each other managing underwriter for such registration, provided, that, in each case, each such underwriter is reasonably satisfactory to the Company.
Appears in 2 contracts
Samples: Registration Rights Agreement (Eros International PLC), Registration Rights Agreement (Eros International PLC)
Demand Registrations. (a) At any time after the first anniversary expiration of 180 days after the closing of a Public Offering, one or more Holders representing in the aggregate in excess of 50% of the date of this AgreementRegistrable Shares then held by all Holders, if the Company receives may request, in writing a request writing, that the Company file a Registration Statement under the Securities Act. Upon receipt of any such request, the Company shall promptly give written notice of such proposed registration to all Holders. Each Holder shall have the right, by giving written notice to the Company within 15 days after the Company provides its notice, to elect to have included in such registration such of its Registrable Shares as such Holder may request in such notice of election. Thereupon, the Company shall, as expeditiously as possible, use its best efforts to effect the registration under the Securities Act of all Registrable Securities, of with a minimum aggregate offering price of $20,000,000 (as determined with reference to the number of shares proposed to be sold in such registration multiplied by the average closing price, or if no closing price is available, the mean of the bid and asked prices, over the fifteen trading days preceding the date of such written demand), Shares which the Company will:
(i) promptly give written notice of the proposed registration has been requested so to all other Holders; and
(ii) as soon as practicable, prepare and file and use commercially reasonable efforts to cause to become effective such registration statement as may be so requested and as would permit or facilitate the sale and distribution of such portion of the Registrable Securities as is specified in such request, together with such additional portion of the Registrable Securities of any Holder(s) joining in such request as may be specified in a written request given to the Company within twenty days after receipt of the written notice from the Company specified in Section 1.3(a)(i)register.
(b) If the Holders initiating the registration request hereunder (the "Initiating Holders") intend to distribute the Registrable Shares covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2 and the Company shall include such information in the written notice referred to in Section 2(a) hereof. In such event, the right of any Holder to include his or its Registrable Shares in such registration shall be conditioned upon the inclusion of such Holder's Registrable Shares in the underwriting. All Holders proposing to distribute their securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding any other provision of this Section 2(b), if the managing underwriter with respect to the proposed offering advises the Holders who have requested inclusion of their proposing to sell Registrable Securities Shares that would otherwise be included in such registration statement the underwriting that marketing considerations factors require a limitation on the number of shares offeredto be underwritten, such limitation shall be imposed pro rata among such Holders who requested inclusion of Registrable Securities in such registration statement according to the number of shares of Registrable Securities owned by each. Neither the Company nor any other stockholder may include shares in such registration statement without the consent of Holders of a majority of the Registrable Securities included therein if the underwriter managing such offering advises the Holders who have included Registrable Securities in such registration statement that the inclusion of such additional shares may either limit the number of Registrable Securities which can Shares that may be sold or adversely affect included in the price at which underwriting shall be allocated among all such Holders, including the Initiating Holders, in proportion (as nearly as practicable) to the amount of Registrable Securities can Shares proposed to be soldincluded in the Registration Statement by each such Holder.
(c) Notwithstanding Section 1.3(b), the Company shall have the right, exercisable by written notice to the initiating Holder(s) within thirty days after receipt of a request to effect a registration under the Securities Act, to include the Company's shares in such registration, in which event such registration shall be deemed to be a Company-initiated registration, and the Holders shall have the right to include their Registrable Securities and shares of Class A Common Stock, as the case may be, therein to the extent permitted under Section 1.2.
(d) The Company shall not be obligated required to effect more than ten three registrations under of Registrable Shares pursuant to Section 2(a) hereof.
(d) At the time of any request to register Registrable Shares pursuant to this Section 1.32, the Company may at its option direct that such request be delayed for a period not in excess of three months if, in the opinion of the Company's Board of Directors, the filing of such Registration Statement would adversely affect the Company's ability to complete any pending or proposed material transaction, provided that such right to delay a request may be exercised by the Company not more than once in any twelve-month period.
(e) The Initiating Holders of any Registration Statement filed pursuant to this Section 2 shall designate the method of distribution of the Registrable Shares. Such registrations The Initiating Holders may designate the managing underwriter (who shall be on Form S-3 when the lead underwriter) for any Registration Statement filed pursuant to this Section, provided such designee is reasonably satisfactory to the Company, and the Company may designate a co-managing underwriter in such offering, provided such designee is eligible reasonably satisfactory to use that form under SEC rules, but otherwise may be on Form S-1. No registration statement initiated by Holders hereunder shall count as representing a registration under this Section 1.3 unless and until it shall have been declared effective. Any registration requested under this Section 1.3 which shall not become effective solely by reason majority of the refusal of the Holders participating therein Registrable Shares to proceed with the registration shall count as a registration effected under this Section 1.3 unless and until the Company shall have been reimbursed for the Registration Expenses incurred by it in connection therewith.be included in
Appears in 1 contract
Samples: Registration Rights Agreement (State Communications Inc)
Demand Registrations. (ai) At Subject to Section 2.1(c), at any time or from time to time after the first six-month anniversary of the first date of this Agreement, if on which the Company receives in writing a request that the Company effect shall have effected the registration under the Securities Act of Registrable Securities, of with a minimum aggregate offering price of $20,000,000 (as determined with reference to the number of shares proposed to be sold in such registration multiplied by the average closing price, or if no closing price is available, the mean of the bid and asked prices, over the fifteen trading days preceding the date of such written demand), the Company will:
(i) promptly give written notice of the proposed registration to all other Holders; and
(ii) as soon as practicable, prepare and file and use commercially reasonable efforts to cause to become effective such registration statement as may be so requested and as would permit or facilitate the sale and distribution of such portion of the Registrable Securities as is specified in such request, together with such additional portion of the Registrable Securities of any Holder(s) joining in such request as may be specified in a written request given to the Company within twenty days after receipt of the written notice from the Company specified in Section 1.3(a)(i).
(b) If the underwriter managing the offering advises the Holders who have requested inclusion of their Registrable Securities in such registration statement that marketing considerations require a limitation on the number of shares offered, such limitation shall be imposed pro rata among such Holders who requested inclusion of Registrable Securities in such registration statement according to the number of shares of Registrable Securities owned by each. Neither the Company nor any other stockholder may include shares in such registration statement without the consent of Holders of a majority of the Registrable Securities included therein if the underwriter managing such offering advises the Holders who have included Registrable Securities in such registration statement that the inclusion of such additional shares may either limit the number of Registrable Securities which can be sold Common Stock, one or adversely affect the price at which such Registrable Securities can be sold.
(c) Notwithstanding Section 1.3(b), the Company shall have the right, exercisable by written notice to the initiating Holder(s) within thirty days after receipt of a request to effect a registration under the Securities Act, to include the Company's shares in such registration, in which event such registration shall be deemed to be a Company-initiated registration, and the more Holders shall have the right to include their require the Company to file a registration statement under the Securities Act covering Registrable Securities with an aggregate value of $10,000,000 or greater (based on the market price of the Common Stock as of the date of the Demand Registration Request (as defined below)), by delivering a written request therefor to the Company specifying the number of Registrable Securities to be included in such registration by such Holders and shares the intended method of Class A Common Stock, distribution thereof. All such requests by any Holder pursuant to this Section 2.1(a)(i) are referred to as “Demand Registration Requests,” the registrations so requested are referred to as “Demand Registrations” and the Holders making such demand for registration are referred to as the case may be“Initiating Holders.” As promptly as practicable, therein but no later than ten days after receipt of a Demand Registration Request, the Company shall give written notice (a “Demand Exercise Notice”) of such Demand Registration Request to the extent permitted under Section 1.2all Holders of record of Registrable Securities.
(dii) The Company, subject to Sections 2.3 and 2.7, shall include in a Demand Registration (A) the Registrable Securities of the Initiating Holders and (B) the Registrable Securities of any other Holder that shall have made a written request to the Company within the time limits specified below for inclusion in such registration. Any such request from the other Holders must be delivered to the Company within 15 days after the receipt of the Demand Exercise Notice and must specify the maximum number of Registrable Securities intended to be disposed of by such other Holder.
(iii) The Company, as expeditiously as possible but subject to Section 2.1(c), shall use its commercially reasonable efforts to effect such Demand Registration.
(b) Registrations under this Section 2.1 shall be on such appropriate registration form of the SEC for the disposition of such Registrable Securities in accordance with the intended method of disposition thereof, which form shall be selected by the Company and shall be reasonably acceptable to the Majority Participating Holders.
(c) The Demand Registration rights granted in Section 2.1(a) to the Holders are subject to the following limitations:
(i) the Company shall not be required to cause a registration pursuant to Section 2.1(a) to be filed within 90 days or to be declared effective within a period of 180 days after the effective date of any other registration statement of the Company filed pursuant to the Securities Act;
(ii) if in any registration of Registrable Securities would require disclosure of information not otherwise then required by law to be publicly disclosed and, in the good faith judgment of the board of directors of the Company, such disclosure is reasonably likely to adversely affect any material financing, acquisition, corporate reorganization or merger or other material transaction or event involving the Company or otherwise have a material adverse effect on the Company (a “Valid Business Reason”), the Company may postpone or withdraw a filing of a registration statement relating to a Demand Registration Request until such Valid Business Reason no longer exists, but in no event shall the Company avail itself of such right for more than 180 days, in the aggregate, in any period of 365 consecutive days (such period of postponement or withdrawal under this clause (ii), the “Postponement Period”); and the Company shall give notice to the Participating Holder(s) of its determination to postpone or withdraw a registration statement and of the fact that the Valid Business Reason for such postponement or withdrawal no longer exists, in each case, promptly after the occurrence thereof; and
(iii) the Company shall not be obligated to effect more than ten registrations three Demand Registrations under Section 2.1(a) for the benefit of transferees of the Original Holder granted demand registration rights by the Original Holder pursuant to this Section 1.3Agreement. Such registrations shall be on Form S-3 when If the Company is eligible to use that form under SEC rules, but otherwise may be on Form S-1. No shall give any notice of postponement or withdrawal of any registration statement initiated by Holders hereunder pursuant to clause (ii) above, the Company shall count as not register any equity security of the Company during the period of postponement or withdrawal. Each Holder agrees that, upon receipt of any notice from the Company that the Company has determined to withdraw any registration statement pursuant to clause (ii) above, such Holder will discontinue its disposition of Registrable Securities pursuant to such registration statement. If the Company shall have withdrawn or prematurely terminated a registration statement filed under this Section 1.3 unless and until it shall have been declared effective. Any registration requested under this Section 1.3 which 2.1(a)(i), the Company shall not become be considered to have effected an effective solely by reason registration for the purposes of the refusal of the Holders participating therein to proceed with the registration shall count as a registration effected under this Section 1.3 unless and Agreement until the Company shall have filed a new registration statement covering the Registrable Securities covered by the withdrawn registration statement and such registration statement shall have been declared effective and shall not have been withdrawn. If the Company shall give any notice of withdrawal or postponement of a registration statement pursuant to clause (ii) above, at such time as the Valid Business Reason that caused such withdrawal or postponement no longer exists (but in no event more than 180 days after the date of the postponement or withdrawal), the Company shall use its commercially reasonable efforts to effect the registration under the Securities Act of the Registrable Securities covered by the withdrawn or postponed registration statement in accordance with this Section 2.1.
(d) The Company, subject to Sections 2.3 and 2.7, may elect to include in any registration statement and offering made pursuant to Section 2.1(a)(i), (i) authorized but unissued shares of Common Stock or shares of Common Stock held by the Company as treasury shares and/or (ii) any other shares of Common Stock that are requested to be included in such registration pursuant to the exercise of piggyback rights granted by the Company that are not inconsistent with the rights granted in, or otherwise conflict with the terms of, this Agreement (“Additional Piggyback Rights”); provided, however, that such inclusion shall be permitted only to the extent that it is pursuant to and subject to the terms of the underwriting agreement or arrangements, if any, entered into by the Participating Holders.
(e) A Holder may withdraw its Registrable Securities from a Demand Registration at any time. If all such Holders do so, the Company shall cease all efforts to secure registration and such registration nonetheless shall be deemed a Demand Registration for purposes of this Section 2.1 unless (i) the withdrawal is made following withdrawal or postponement of such registration by the Company pursuant to a Valid Business Reason as contemplated by Section 2.1(c)(ii), (ii) the withdrawal is based on the reasonable determination of the Initiating Holders that there has been, since the date of the Demand Registration Request, a material adverse change in the business or prospects of the Company or (iii) the Initiating Holders have paid or reimbursed the Company for all of the reasonable out-of-pocket fees and expenses incurred by the Company in connection with the withdrawn registration.
(f) A Demand Registration shall not be deemed to have been effected and shall not count as such (i) unless a registration statement with respect thereto has become effective and has remained effective for a period of at least 180 days or such shorter period during which all Registrable Securities covered by such registration statement have been sold or withdrawn, or, if such registration statement relates to an underwritten offering, such longer period as, in the opinion of counsel for the Registration Expenses incurred underwriter(s), is required by it law for delivery of a prospectus in connection therewithwith the sale of Registrable Securities by an underwriter or dealer, (ii) if, after the registration statement with respect thereto has become effective, it becomes subject to any stop order, injunction or other order or requirement of the SEC or other governmental agency or court for any reason, (iii) if it is withdrawn by the Company pursuant to a Valid Business Reason as contemplated by Section 2.1(c) or (iv) if the conditions to closing specified in the purchase agreement or underwriting agreement entered into in connection with such Demand Registration are not satisfied, other than solely by reason of some act or omission of the Participating Holders.
(g) In connection with any Demand Registration, the Company may designate the lead managing underwriter in connection with such registration and each other managing underwriter for such registration, provided, that, in each case, each such underwriter is reasonably satisfactory to the Majority Participating Holders.
Appears in 1 contract
Demand Registrations. (a) At any time after and from time to time commencing on the first earlier of (i) the fifth anniversary of the Closing Date, and (ii) the date which is six months after the Initial Public Offering, upon the written request of this Agreement, if the Company receives in writing a request Holders of at least 30% of the Registrable Securities (the "Initiating Holders") that the Company effect the registration Registration under the Securities Act (such a written request being hereinafter referred to as a "Demand Registration") of any of the Registrable Securities, of with a minimum aggregate offering price of $20,000,000 (as determined with reference to the number of shares proposed to be sold in such registration multiplied by the average closing price, or if no closing price is available, the mean of the bid and asked prices, over the fifteen trading days preceding the date of such written demand), the Company will:
(i) will promptly give written notice of the proposed registration to all other Holders; and
(ii) as soon as practicable, prepare and file and use commercially reasonable efforts to cause to become effective such registration statement as may be so requested and as would permit or facilitate the sale and distribution Holders of Registrable Securities that a Demand Registration has been received. For a period of 20 days following delivery of such portion notice, the other Holders of the Registrable Securities as is specified in may request that the Company also register their Registrable Securities and after the expiration of such request20 day period, together with such additional portion the Company shall notify all Holders of the Registrable Securities of any Holder(s) joining in such request as may be specified in a written request given to the Company within twenty days after receipt of the written notice from the Company specified in Section 1.3(a)(i).
(b) If the underwriter managing the offering advises the Holders who have requested inclusion of their Registrable Securities in such registration statement that marketing considerations require a limitation on the number of shares offered, such limitation shall be imposed pro rata among such Holders who requested inclusion of Registrable Securities in such registration statement according to the number of shares of Registrable Securities owned by each. Neither the Company nor any other stockholder may include shares in such registration statement without the consent of Holders of a majority of the Registrable Securities included therein if the underwriter managing such offering advises the Holders who have included Registrable Securities in such registration statement that the inclusion of such additional shares may either limit the number of Registrable Securities which can to be sold or adversely affect the price at which such Registrable Securities can be sold.
(c) Notwithstanding Section 1.3(b)registered. Thereupon, the Company shall have will use its reasonable best efforts to cause the right, exercisable by written notice to the initiating Holder(s) within thirty days after receipt of a request to effect a registration prompt Registration under the Securities Act, subject to include the provisions of this Section 10, of all Registrable Securities which the Holders thereof have requested the Company to register, and in connection therewith, prepare and file on such appropriate form as the Company, in its reasonable discretion, shall determine, a Registration Statement under the Securities Act to effect such Registration. With respect to any Registration Statement filed, or to be filed, pursuant to this Section 10.01(a) or Section 10.03 below, if the Company shall furnish to the Holders of Registrable Securities a certified resolution of the Board of Directors stating that in the Board of Directors' good faith judgment it would (because of the existence of, or in anticipation of, any acquisition or financing, merger, sale of assets, recapitalization or other similar corporate activity, or the unavailability for reasons beyond the Company's shares in control of any required audited financial statements, or any other event or condition of similar significance to the Company) be materially disadvantageous (a "Disadvantageous Condition") to the Company or its stockholders for such registration, in which event such registration shall be deemed a Registration Statement to be a Company-initiated registrationmaintained Effective, or to be filed and become Effective, and setting forth the Holders shall have the right to include their Registrable Securities and shares of Class A Common Stockgeneral reasons for such judgment, as the case may be, therein to the extent permitted under Section 1.2.
(d) The Company shall not be obligated to effect more than ten registrations under this Section 1.3. Such registrations shall be on Form S-3 when the Company is eligible to use that form under SEC rules, but otherwise may be on Form S-1. No registration statement initiated by Holders hereunder shall count as a registration under this Section 1.3 unless and until it shall have been declared effective. Any registration requested under this Section 1.3 which shall not become effective solely by reason of the refusal of the Holders participating therein to proceed with the registration shall count as a registration effected under this Section 1.3 unless and until the Company shall have be entitled to cause such Registration Statement to be withdrawn and the effectiveness of such Registration Statement terminated, or, in the event no Registration Statement has yet been reimbursed filed, shall be entitled not to file any such Registration Statement, until such Disadvantageous Condition no longer exists (notice of which the Company shall promptly deliver to all Holders of Registrable Securities); provided that the Company shall be entitled to withdraw or delay the filing of a Registration Statement in connection with a Disadvantageous Condition for a period of not more than 90 days and only once during any twelve month period. Upon receipt of any such notice of a Disadvantageous Condition, such Holders of Registrable Securities will forthwith discontinue use of the disclosure document contained in such Registration Statement and, if so directed by the Company, each such Holder will deliver to the Company all copies, other than permanent file copies then in such Holder's possession, of the disclosure document then covering such Registrable Securities current at the time of receipt of such notice, and, in the event no Registration Statement has yet been filed, all drafts of the disclosure document covering such Registrable Securities. In the event that the Company shall give any notice of a Disadvantageous Condition, the Company shall at such time as it in good xxxxx xxxxx appropriate file a new Registration Statement covering the Registrable Securities that were covered by such withdrawn Registration Statement, and shall use its reasonable best efforts to file such new Registration Statement within 90 days of receipt of the resolution by the Holders of Registrable Securities, and such Registration Statement shall be maintained Effective for such time as may be necessary so that the period of effectiveness of such new Registration Statement, when aggregated with the period during which such initial Registration Statement was Effective, shall be such time as may be otherwise required by Section 10.01(c). The Holders of at least 66% of the Registrable Securities requested to be registered may, at any time prior to the Effective Date of the Registration Expenses incurred Statement relating to such Registration, revoke such request, without liability to any of the other Holders of Registrable Securities, by it in connection therewithproviding a written notice to the Company revoking such request.
Appears in 1 contract
Demand Registrations. (a) At Subject to the terms and conditions hereof, at any time after the first anniversary expiration of the date of this AgreementRestricted Period, if any Shareholder or Shareholders who beneficially own in the Company receives aggregate Registrable Securities representing not less than 20% of the then outstanding Common Stock request in writing a Demand Registration, which request that the Company effect the registration under the Securities Act of Registrable Securities, of with a minimum aggregate offering price of $20,000,000 (as determined with reference to specifies the number of shares proposed Registrable Securities requested to be sold in registered, then within ten (10) days after receipt of any such registration multiplied by the average closing price, or if no closing price is available, the mean of the bid and asked prices, over the fifteen trading days preceding the date of such written demand)request, the Company will:
(i) promptly shall give written notice of the proposed registration such requested Demand Registration to all other Holders; andShareholders who are record holders of Registrable Securities and shall include in the Demand Registration all Registrable Securities with respect to which the Company has received written requests for inclusion therein within 15 days after the date of mailing of the Company’s notice.
(iia) as soon as practicableShareholders shall be entitled to not more than three (3) Demand Registrations, prepare in the aggregate. Subject to the limitations set forth in this Section 4.1(a) and file and use commercially reasonable efforts to cause to become effective such registration statement as in Section 4.1(c), no more than one Demand Registration may be so requested in any six-month period. The Company shall pay all Registration Expenses (as defined in Section 4.5) in connection with each Demand Registration. No request for a Demand Registration shall be permitted unless the Registrable Securities sought to be included in such Demand Registration have an expected market value of at least $50 million. A Registration shall not count as a Demand Registration until it has become effective, and any Registration shall not count as would permit a Demand Registration unless the initiating Shareholder or facilitate the sale Shareholders and distribution of such portion other Shareholders are able to register and sell at least 50% of the Registrable Securities as is specified requested to be included in such request, together with such additional portion of the Registrable Securities of any Holder(s) joining in such request as may be specified in a written request given to the Company within twenty days after receipt of the written notice from the Company specified in Section 1.3(a)(i)Registration.
(b) If the underwriter managing investment banker(s) or manager(s) of an offering pursuant to a Demand Registration advise the offering advises the Holders who have requested inclusion of Company in writing that in their Registrable Securities in such registration statement that marketing considerations require a limitation on opinion the number of shares offeredRegistrable Securities and other securities requested to be included in such offering, such limitation shall be imposed pro rata among such Holders who requested inclusion exceeds the number of Registrable Securities and other securities, if any, which can be sold in an orderly manner in such registration statement according to offering and/or that the number of shares of Registrable Securities owned by each. Neither proposed to be included in such offering would adversely affect the price per share of the Common Stock, the Company nor any other stockholder may shall include shares in such registration statement without the consent of Holders of a majority of the Registrable Securities included therein if the underwriter managing such offering advises the Holders who have included Registrable Securities in such registration statement that Registration, prior to the inclusion of such additional shares may either limit any securities which are not Registrable Securities, the number of Registrable Securities which requested to be included which, in the opinion of the underwriters, can be sold so sold, pro rata (or adversely affect as may have otherwise been agreed among the price Shareholders of Registrable Securities to be included in such Registration) among the respective Shareholders thereof on the basis of the amount of Registrable Securities requested to be registered by each such Shareholder; provided that if the number of Registrable Securities to be included in the Registration is less than 75% of the aggregate number requested to be so included, the Shareholders of Registrable Securities covered by such Demand Registration shall be entitled to withdraw such request, upon the affirmative vote of Shareholders holding at which least 66% of such Registrable Securities can be soldSecurities, and, if such request is withdrawn, the Demand Registration shall not count as a permitted Demand Registration hereunder, and the Company shall pay all Registration Expenses in connection with the withdrawn Registration. Any Persons who participate in Demand Registrations not at the Company’s expense must pay their share of the Registration Expenses as provided in Section 4.5.
(c) Notwithstanding Section 1.3(b), the Company shall have the right, exercisable by written notice to the initiating Holder(s) within thirty days after receipt of a request to effect a registration under the Securities Act, to include the Company's shares in such registration, in which event such registration shall be deemed to be a Company-initiated registration, and the Holders shall have the right to include their Registrable Securities and shares of Class A Common Stock, as the case may be, therein to the extent permitted under Section 1.2.
(d) The Company shall not be obligated to effect any Demand Registration within six months after the effective date of a Registration in which the Shareholders were given Piggyback Registration (as defined in Section 4.2) rights pursuant to Section 4.2. The Company may, not more than ten registrations under this Section 1.3. Such registrations twice in any 12-month period, postpone for up to 90 days the filing or the effectiveness of a registration statement for a Demand Registration if the Board determines in good faith that (i) such postponement is necessary in order to avoid premature disclosure of a matter the Board has determined would not be in the best interest of the Company to be disclosed at such time, (ii) the Demand Registration would materially and adversely impact the Company or (iii) the Demand Registration would adversely affect the price per share of the Common Stock; provided, that in such event, the Shareholders of Registrable Securities covered by the Demand Registration shall be on Form S-3 entitled, upon the affirmative vote of holders holding at least 66% of such Registrable Securities, to withdraw such request and, if such request is withdrawn, the Demand Registration shall not count as a permitted Demand Registration hereunder, and the Company shall pay all Registration Expenses in connection with the withdrawn Registration; provided further, that upon the election of the Company and upon notice to the Shareholders of Registrable Securities to be included in such Registration, one such postponement may be extended to not more than 120 days at the sole discretion of the Company. In addition, if any request for a Demand Registration is delivered at a time when the Company is eligible planning to use that form under SEC rules, but otherwise may be on Form S-1. No file a registration statement initiated by Holders hereunder shall count as with respect to an underwritten primary offering of Common Stock, the Company may require the Shareholders to postpone a registration under this Section 1.3 unless and request for Demand Registration until it shall have been declared effective. Any registration requested under this Section 1.3 which shall not become effective solely by reason the expiration of the refusal 180-day period following the effective date of the Holders participating therein to proceed such registration.
(d) In connection with the registration shall count as a registration effected under this Section 1.3 unless and until Demand Registration, the Company shall have been reimbursed for select the Registration Expenses incurred by it in connection therewithinvestment banker(s) and manager(s) to administer the offering.
Appears in 1 contract
Demand Registrations. (a) At any time after six months following the first anniversary of the date of this AgreementEffective Date, if upon written notice to the Company receives in writing a request from any Holder of Registrable Securities identified on Annex B hereto (the "Initiating Holder") requesting that the Company effect, pursuant to this Section 2, the registration of such Initiating Holder's Registrable Securities under the Securities Act having a market value at the time of such notice of not less than $5,000,000 (which notice shall specify the Registrable Securities so requested to be registered, the proposed amounts thereof (which shall be Registrable Securities having a market value of at least $5,000,000) and the intended method or methods of disposition by such Initiating Holder (including whether or not the proposed offering is to be underwritten)), the Company shall promptly (but in any event within 20 days) give written notice of such requested registration to all Holders, and thereupon the Company shall, as expeditiously as possible, use its best efforts to effect the registration under the Securities Act of Registrable Securities, of with a minimum aggregate offering price of $20,000,000 (as determined with reference to the number of shares proposed to be sold in such registration multiplied by the average closing price, or if no closing price is available, the mean of the bid and asked prices, over the fifteen trading days preceding the date of such written demand), the Company willof:
(iA) promptly give written the Registrable Securities that the Initiating Holder has requested the Company to register, for disposition in accordance with the intended method or methods of disposition stated in their notice of to the proposed registration to all other HoldersCompany; and
(iiB) as soon as practicable, prepare and file and use commercially reasonable efforts to cause to become effective such registration statement as may be so requested and as would permit or facilitate the sale and distribution of such portion of the all other Registrable Securities as is specified in such request, together with such additional portion the Holders of the Registrable Securities of any Holder(s) joining in such request as may be specified in which shall have made a written request given to the Company for registration thereof (which request shall specify such Registrable Securities and the proposed amounts thereof) within twenty 15 days after the receipt of the such written notice from the Company specified in Section 1.3(a)(i).
(b) If Company, all to the underwriter managing extent requisite to permit the offering advises disposition by Holders of the Holders who have requested inclusion of their securities then constituting Registrable Securities in such registration statement that marketing considerations require a limitation on so to be registered; provided, however, notwithstanding the number foregoing provisions of shares offered, such limitation shall be imposed pro rata among such Holders who requested inclusion of Registrable Securities in such registration statement according to the number of shares of Registrable Securities owned by each. Neither the Company nor any other stockholder may include shares in such registration statement without the consent of Holders of a majority of the Registrable Securities included therein if the underwriter managing such offering advises the Holders who have included Registrable Securities in such registration statement that the inclusion of such additional shares may either limit the number of Registrable Securities which can be sold or adversely affect the price at which such Registrable Securities can be sold.
(c) Notwithstanding this Section 1.3(b-------- ------- 2(a), the Company shall have the right, exercisable by written notice to the initiating Holder(s) within thirty days after receipt of a request to effect a registration under the Securities Act, to include the Company's shares in such registration, in which event such registration Holders listed on Annex C shall be deemed treated as one Holder for purposes of determining the amount to be a Company-initiated registration, registered pursuant to this Section 2(a) and if the Holders shall have listed on Annex C request that the right to include their Registrable Company register for sale all the remaining aggregate Registerable Securities and shares then held by such Holders, the market value of Class A Common Stock, as the case may be, therein to the extent permitted under Section 1.2.
(d) The Company shall not be obligated to effect more than ten registrations under this Section 1.3. Such registrations such securities shall be on Form S-3 when the Company is eligible to use that form under SEC rulesnot less than $2,000,000, but otherwise may be on Form S-1. No registration statement initiated by Holders hereunder shall count rather than $5,000,000 as a registration under this Section 1.3 unless and until it shall have been declared effective. Any registration requested under this Section 1.3 which shall not become effective solely by reason of the refusal of the Holders participating therein to proceed with the registration shall count as a registration effected under this Section 1.3 unless and until the Company shall have been reimbursed for the Registration Expenses incurred by it in connection therewithspecified above.
Appears in 1 contract
Samples: Registration Rights Agreement (Healthcare Financial Partners Inc)
Demand Registrations. (a) At any time From and after 180 days following an IPO, Holder may request in a written notice (the first anniversary of the date of this Agreement, if the Company receives in writing a request "Request") that the Company effect the registration under the Securities Act of Registrable Securities, of with a minimum aggregate offering price of $20,000,000 (as determined with reference to the number of shares proposed to be sold in such registration multiplied by the average closing price, all or if no closing price is available, the mean of the bid and asked prices, over the fifteen trading days preceding the date of such written demand), the Company will:
(i) promptly give written notice of the proposed registration to all other Holders; and
(ii) as soon as practicable, prepare and file and use commercially reasonable efforts to cause to become effective such registration statement as may be so requested and as would permit or facilitate the sale and distribution of such portion any part of the Registrable Securities owned by Holder. Following the receipt of the Request, the Company will (i) within ten days notify all other Stockholders having registration rights of such Request in writing and (ii) thereupon, will as is expeditiously as practicable, use its reasonable best efforts to effect the registration under the Securities Act of any or all Registrable Securities of Holder as are specified in the Request and any Registrable Securities of any other Stockholder having registration rights as are specified in a subsequent Request received by the Company, within ten days after the Company has given such requestnotice, together with and will cause such additional portion registration statement to remain effective for a period of not less than 180 days; provided, however, that the Company will not be required to effect more than one registration pursuant to this Section 3, unless the Holder is unable to sell all of the Registrable Securities of any Holder(s) joining requested be included in such request as may be specified in a written request given to the Company within twenty days after receipt offering solely because of the written notice from the Company specified participation by BDPI and any other Stockholders (other than Holder) in Section 1.3(a)(i)such offering, in which case Holder will be entitled to make one additional Request.
(b) If the underwriter managing the offering advises the Holders who have requested inclusion of their Registrable Securities in such registration statement that marketing considerations require a limitation The Company and Holder will reasonably mutually agree on the number managing underwriter of shares offered, such limitation shall be imposed pro rata among such Holders who requested inclusion of Registrable Securities any underwritten offering effected under this Section 3.
(c) If a registration pursuant to this Section 3 involves an underwritten offering and the managing underwriter or underwriters in such registration statement according to the number of shares of Registrable Securities owned by each. Neither good faith advise the Company nor any other stockholder may include shares in such registration statement without the consent of Holders of a majority of the Registrable Securities included therein if the underwriter managing such offering advises the Holders who have included Registrable Securities writing that, in such registration statement that the inclusion of such additional shares may either limit their opinion, the number of Registrable Securities which Holder and any other Stockholders intend to include in such registration exceeds the largest number of securities which can be sold or adversely affect in such offering without having an adverse effect on such offering (including, but not limited to, the price at which such Registrable Securities the securities can be sold.
(c) Notwithstanding Section 1.3(b), then the Company shall have the right, exercisable by written notice number of Registrable Securities of each Stockholder to the initiating Holder(s) within thirty days after receipt of a request to effect a registration under the Securities Act, to include the Company's shares be included in such registration, in which event such registration shall offering will be deemed determined on the basis of the relative percentage relationships of (x) the number of Registrable Securities to be a Company-initiated registration, included by such Stockholder and (y) the Holders shall have the right to include their number of Registrable Securities and shares of Class A Common Stock, as the case may be, therein to the extent permitted under Section 1.2be included by all other Stockholders.
(d) The Company shall not be obligated to effect more than ten registrations under this Section 1.3. Such registrations shall be on Form S-3 when the Company is eligible to use that form under SEC rules, but otherwise may be on Form S-1. No registration statement initiated by Holders hereunder shall count as a registration under this Section 1.3 unless and until it shall have been declared effective. Any registration requested under this Section 1.3 which shall not become effective solely by reason of the refusal of the Holders participating therein to proceed with the registration shall count as a registration effected under this Section 1.3 unless and until the Company shall have been reimbursed for the Registration Expenses incurred by it in connection therewith.
Appears in 1 contract
Demand Registrations. (a) At any time after the first earlier of (i) the 3rd anniversary of the date hereof or (ii) the date of this Agreementthe Company's initial public offering of its Common Stock pursuant to an effective registration under the Securities Act (the "IPO"), if a Majority Interest of the Investors may notify the Company receives in writing a that they intend to offer or cause to be offered for public sale, and request that the Company register under the Securities Act for public sale, all or any portion of the Registrable Securities held by the Investors in the manner specified in such notice; provided, however, that in the case of such a request pursuant to clause -------- ------- (ii) above, such registration may not become effective prior to the date which is the earlier of six (6) months after the date of the Company's IPO and the date that any applicable Holdback Period (as defined hereinafter) or other lockup period applicable to such IPO expires. Upon receipt of such request, the Company shall promptly deliver notice of such request to all Persons holding Registrable Securities who shall then have thirty (30) days to notify the Company in writing of their desire to have Registrable Securities held by them included in such registration (which response shall specify the number of Registrable Securities proposed to be included in such registration). If the request for registration contemplates an underwritten public offering, the Company shall state such in the written notice and in such event the right of any Person to include Registrable Securities in such registration shall be conditioned upon such Person's participation in such underwritten public offering and the inclusion of such Person's Registrable Securities in the underwritten public offering to the extent provided herein. The Company will use its commercially reasonable best efforts to expeditiously effect the registration under the Securities Act of all Registrable SecuritiesSecurities of each holder who requested inclusion of such holders Registrable Securities in such registration and to qualify such Registrable Securities for sale under any state blue sky law; provided, however, that the Company shall not be required to -------- ------- effect more than two (2) registrations pursuant to requests under this Section 2(a). Notwithstanding anything to the contrary contained herein, no request may be made under this Section 2 within sixty (60) days after the effective date of a registration statement filed by the Company covering a firm commitment underwritten public offering. The Company may postpone the filing or the effectiveness of any registration statement required to be filed pursuant to this Section 2 for a reasonable time period, provided that such postponements -------- shall not exceed sixty (60) days in the aggregate during any twelve (12) month period, if (i) the Company has been advised by legal counsel that such filing or effectiveness would require disclosure of a material financing, acquisition or other corporate transaction, and the Board of Directors determines in good faith that such disclosure is not in the best interests of the Company and its stockholders or (ii) the Company is then in possession of material non-public information the disclosure of which the Board of Directors has determined would have a material adverse effect upon the Company or its then current business plans. A registration will not count as a requested registration under this Section 2(a) unless and until the registration statement relating to such registration has been declared effective by the Commission at the request of the initiating holders; provided, however, that a majority in interest of the -------- ------- participating holders of Registrable Securities may request, in writing, that the Company withdraw a registration statement which has been filed under this Section 2(a) but not yet been declared effective, and a majority in interest of such holders may thereafter request the Company to reinstate such Registration Statement, if permitted under the Securities Act, or to file another registration statement, in accordance with a minimum aggregate offering price of $20,000,000 (as determined with reference to the procedures set forth herein and without reduction in the number of shares proposed to be sold in such registration multiplied by the average closing price, or if no closing price is available, the mean of the bid and asked prices, over the fifteen trading days preceding the date of such written demanddemand registrations permitted under this Section 2(a), the Company will:
(i) promptly give written notice of the proposed registration to all other Holders; and
(ii) as soon as practicable, prepare and file and use commercially reasonable efforts to cause to become effective such registration statement as may be so requested and as would permit or facilitate the sale and distribution of such portion of the Registrable Securities as is specified in such request, together with such additional portion of the Registrable Securities of any Holder(s) joining in such request as may be specified in a written request given to the Company within twenty days after receipt of the written notice from the Company specified in Section 1.3(a)(i).;
(b) If a requested registration involves an underwritten public offering and the managing underwriter managing the of such offering advises the Holders who have requested inclusion of their Registrable Securities determines in such registration statement good faith that marketing considerations require a limitation on the number of shares offeredsecurities sought to be offered should be limited due to market conditions, then the number of securities to be included in such limitation underwritten public offering shall be imposed pro rata among reduced to a number, reasonably deemed satisfactory by such Holders who requested inclusion of managing underwriter, provided that the securities to be -------- excluded shall be determined in the following sequence: (i) first, securities held by any other Persons (other than Persons holding Registrable Securities) having contractual, incidental or "piggy-back" registration rights, (ii) second, securities sought to be registered by the Company and (iii) third, Registrable Securities held by the Investors, it being understood that no shares shall be registered for the account of the Company or any shareholder other than the Investors unless all Registrable Securities for which Investors have requested registration have been registered. If there is a reduction in such registration statement according to the number of shares of Common Stock or Registrable Securities owned by each. Neither to be registered pursuant to clauses (i), (ii) or (iii) above, such reduction shall be made within each tranche on a pro rata basis (based upon the Company nor any other stockholder may include aggregate number of shares in such registration statement without the consent of Holders of a majority of the Common Stock or Registrable Securities included therein if held by the underwriter managing holders in each such offering advises tranche and subject to the Holders who have included Registrable Securities priorities set forth in such registration statement that the inclusion of such additional shares may either limit the number of Registrable Securities which can be sold or adversely affect the price at which such Registrable Securities can be soldpreceding sentence).
(c) Notwithstanding With respect to a request for registration pursuant to Section 1.3(b)2(a) which is for an underwritten public offering, the Company managing underwriter shall have be chosen by the rightCompany, exercisable by written notice subject to the initiating Holder(s) within thirty days after receipt of a request to effect a registration under the Securities ActInvestors' consent, to include the Company's shares in such registration, in which event such registration shall be deemed to be a Company-initiated registration, and the Holders shall have the right to include their Registrable Securities and shares of Class A Common Stock, as the case may be, therein to the extent permitted under Section 1.2.
(d) The Company consent shall not be obligated to effect more unreasonably withheld. The Company may not cause any other registration of securities for sale for its own account (other than ten registrations under this Section 1.3. Such registrations shall be on Form S-3 when the Company is eligible to use that form under SEC rules, but otherwise may be on Form S-1. No registration statement initiated by Holders hereunder shall count as a registration under this Section 1.3 unless and until it shall have been declared effective. Any registration requested under this Section 1.3 which shall not become effective solely by reason of the refusal of the Holders participating therein to proceed with the registration shall count as a registration effected under solely to implement an employee benefit plan or a transaction to which Rule 145 of the Securities Act is applicable) to become effective within one hundred eighty (180) days following the effective date of any registration required pursuant to this Section 1.3 unless and until the Company shall have been reimbursed for the Registration Expenses incurred by it in connection therewith2.
Appears in 1 contract
Demand Registrations. (a1) At any time and from time to time after the first anniversary of the date of Closing and during the Registration Period, any Subscriber (and any other Holder to whom a Subscriber has specifically transferred its rights under this Agreement, if Section 2.1) shall have the right to require the Company receives to file a registration statement under the Securities Act covering all or any part of their respective Registrable Securities, by delivering a written request therefor to the Company specifying the number of Registrable Securities to be included in writing such registration by such Holder(s), a request price range acceptable to such Holder for the sale of such Registrable Securities and the intended method of distribution thereof. All such requests pursuant to this Section 2.1(a) are referred to herein as "Demand Registration Requests" and the registrations so requested are referred to herein as "Demand Registrations" (with respect to any Demand Registration, the Holder making such demand for registration being referred to as the "Initiating Holder" and, in the case that the Initiating Holder is a Subscriber, such initiating Holder, together with the other Subscribers, the "Initiating Holder Group"). As promptly as practicable, but no later than 10 Business Days after receipt of a Demand Registration Request, the Company shall give written notice (the "Demand Exercise Notice") of such Demand Registration Request to all Holders of record of Registrable Securities.
(2) The Company shall include in a Demand Registration (i) the Registrable Securities of the Initiating Holder and the other members of the Initiating Holder Group that shall have made a written request to the Company for inclusion thereof in such registration (which request shall specify the maximum number of Registrable Securities intended to be disposed of by such other members) within the time period specified below and (ii) the Registrable Securities of any other Holder (other than members of the Initiating Holder Group) (collectively, the "Other Holders") that shall have made a written request to the Company for inclusion thereof in such registration (which request shall specify the maximum number of Registrable Securities intended to be disposed of by such Holder(s)) within 30 days after the receipt of the Demand Exercise Notice.
(3) The Company shall, as expeditiously as practicable following a Demand Registration Request, use its best efforts to (i) effect the registration under the Securities Act (including by means of Registrable Securities, of with a minimum aggregate offering price of $20,000,000 (as determined with reference shelf registration pursuant to Rule 415 under the number of shares proposed to be sold in such registration multiplied Securities Act if so requested by the average closing price, or Initiating Holder and if no closing price is available, the mean of the bid and asked prices, over the fifteen trading days preceding the date of such written demand), the Company will:
(iis then eligible to use such a registration) promptly give written notice of the proposed registration to all other Holders; and
(ii) as soon as practicable, prepare and file and use commercially reasonable efforts to cause to become effective such registration statement as may be so requested and as would permit or facilitate the sale and distribution of such portion of the Registrable Securities as is specified in such request, together with such additional portion of the Registrable Securities of any Holder(s) joining in such request as may be specified in a written request given to which the Company within twenty days after receipt of has been so requested to register by the written notice from the Company specified in Section 1.3(a)(i).
(b) If the underwriter managing the offering advises the Holders who have requested inclusion of their Registrable Securities in such registration statement that marketing considerations require a limitation on the number of shares offered, such limitation shall be imposed pro rata among such Holders who requested inclusion of Registrable Securities in such registration statement according to the number of shares of Registrable Securities owned by each. Neither the Company nor any other stockholder may include shares in such registration statement without the consent of Holders of a majority of the Registrable Securities included therein if the underwriter managing such offering advises the Holders who have included Registrable Securities in such registration statement that the inclusion of such additional shares may either limit the number of Registrable Securities which can be sold or adversely affect the price at which such Registrable Securities can be sold.
(c) Notwithstanding Section 1.3(b), the Company shall have the right, exercisable by written notice to the initiating Holder(s) within thirty days after receipt of a request to effect a registration under the Securities Act, to include the Company's shares in such registration, in which event such registration shall be deemed to be a Company-initiated registration, Initiating Holder Group and the Other Holders shall have the right to include their Registrable Securities and shares of Class A Common Stock, as the case may be, therein (to the extent permitted under Section 1.2to be included in accordance with the terms hereof), for distribution, in accordance with such intended method of distribution, and (ii) if requested by the Initiating Holder, obtain acceleration of the effective date of the registration statement relating to such registration.
(d4) The rights of Holders of Registrable Securities to request Demand Registrations pursuant to Section 2.1(a) are subject to the following limitations: (i) in no event shall the Company be required to effect more than four Demand Registrations pursuant to this Agreement; (ii) the Company shall not be required to take any action to effect any Demand Registration within the six-month period following the effective date of a previous Demand Registration; and (iii) the Company shall not be obligated to effect more than ten registrations one Demand Registration under which the aggregate number of Registrable Securities to be included in such Demand Registration would not exceed 10% of the Subscribers' Initial Interest.
(5) A registration requested pursuant to this Section 1.3. Such registrations 2.1 will not be deemed to have been effected unless the relevant registration statement has become effective; provided that if, after it has become effective, the offering of Registrable Securities pursuant to such registration is subject to any stop order, injunction or other order or requirement of the SEC or other governmental agency or court for an aggregate of more than 30 days in the 180 days following the date of effectiveness, such registration will be deemed not to have been effected.
(6) If a requested registration pursuant to this Section 2.1 involves an underwritten offering, the Initiating Holder shall have the right to select in good faith an investment banker or bankers and managers of nationally recognized standing to administer the offering; provided, however, that such investment banker or bankers and managers shall be on Form S-3 when reasonably satisfactory to the Company. The Company shall notify the Initiating Holder if the Company is eligible objects to use that form under SEC rules, but otherwise may be on Form S-1. No registration statement initiated any investment banker or manager selected by Holders hereunder shall count as a registration under the Initiating Holder pursuant to this Section 1.3 unless and until it 2.1(f) within 10 Business Days after the Initiating Holder has notified the Company of such selection.
(7) If the managing underwriter of any underwritten offering shall have been declared effective. Any registration requested under this Section 1.3 which shall not become effective solely by reason of the refusal of advise the Holders participating therein to proceed with in a Demand Registration that the Registrable Securities covered by the registration statement cannot be sold in such offering within a price range acceptable to the Initiating Holder, then the Initiating Holder shall count as a have the right to notify the Company that it has determined that the registration effected under this Section 1.3 unless and until statement be abandoned or withdrawn, in which event the Company shall have been reimbursed for abandon or withdraw such registration statement. If a requested registration pursuant to this Section 2.1 involves an underwritten offering and the Registration Expenses incurred managing underwriter advises the Company that, in its opinion, the number of securities requested to be included in such registration (including securities of the Company which are not Registrable Securities) exceeds the number which can be sold in such offering within a price range reasonably acceptable to the Initiating Holder, the Company will include in such registration only the Registrable Securities requested to be included in such registration pursuant to this Section 2.1. In the event that the number of Registrable Securities requested to be included in such registration exceeds the number which, in the opinion of such managing underwriter, can be sold in such offering within a price range acceptable to the Initiating Holder, the Company shall include in such registration the number of Registrable Securities proposed to be sold by it the Initiating Holder Group (to the extent the managing underwriter believes that such Registrable Securities can be sold in connection therewithsuch offering within such price range, and if they cannot and the Initiating Holder chooses not to exercise its rights provided in the first sentence of this paragraph, such smaller number of Registrable Securities of the members of the Initiating Holder Group as specified by the Initiating Holder) and, to the extent the managing underwriter believes that additional Registrable Securities can be sold in such offering within such price range, the number of Registrable Securities proposed to be sold by the Other Holders, allocated pro rata among the Other Holders on the basis of the relative number of shares of Registrable Securities requested to be registered pursuant to clause (ii) of Section 2.1(b) by each such Holder. In the event that the number of Registrable Securities requested by all Holders to be included in such registration is less than the number which, in the opinion of the managing underwriter, can be sold, the Company or other holders who are entitled to exercise "piggyback" or similar registration rights may include in such registration a number of securities that the Company proposes to sell up to the number of securities that, in the opinion of the managing underwriter, can be sold in such offering within a price range acceptable to the Initiating Holder.
(8) If the Company at any time grants to any other holders of Voting Shares (or securities that are convertible, exchangeable or exercisable into Voting Shares) any rights to request the Company to effect the registration under the Securities Act of any such Voting Shares (or any such securities) on terms (other than with respect to the number of demands permitted to be requested) more favorable to such holders than the terms set forth in this Section 2.1, then the Holders shall be entitled to such more favorable rights and benefits.
Appears in 1 contract
Samples: Registration Rights Agreement (Danka Business Systems PLC)
Demand Registrations. (a) At any time after six months following the first anniversary Effective Date, upon written notice to the Company from one or more Holders (the "Initiating Holders") of Registrable Securities holding in the aggregate the greater of (i) 10% of the date initial Registrable Securities and (ii) an amount of this AgreementRegistrable Securities consisting of at least 250,000 shares of Common Stock or securities issued or issuable in respect of or in exchange for such shares of Common Stock by way of a stock dividend or other distribution on the Common Stock, if the Company receives in writing a request stock split or combination of shares, recapitalization, reclassification, merger or exchange offer, requesting that the Company effect, pursuant to this SECTION 3, the registration of any of such Initiating Holders' Registrable Securities under the Securities Act (which notice shall specify the Registrable Securities so requested to be registered which amount of Registrable Securities to be so registered shall be equal to or greater than 10% of the initial Registrable Securities, the proposed amounts thereof and the intended method or methods of disposition by such Initiating Holders (including whether or not the proposed offering is to be underwritten)), the Company shall promptly (but in any event within 15 days) give written notice of such requested registration to all Holders, and thereupon the Company shall use its best efforts to effect the registration under the Securities Act of Registrable Securities, of with a minimum aggregate offering price of $20,000,000 (as determined with reference to the number of shares proposed to be sold in such registration multiplied by the average closing price, or if no closing price is available, the mean of the bid and asked prices, over the fifteen trading days preceding the date of such written demand), the Company willof:
(iA) promptly give written the Registrable Securities that the Initiating Holders have requested the Company to register, for disposition in accordance with the intended method or methods of disposition stated in their notice of to the proposed registration to all other HoldersCompany; and
(iiB) as soon as practicable, prepare and file and use commercially reasonable efforts to cause to become effective such registration statement as may be so requested and as would permit or facilitate the sale and distribution of such portion of the all other Registrable Securities as is specified in such request, together with such additional portion the Holders of the Registrable Securities of any Holder(s) joining in such request as may be specified in which shall have made a written request given to the Company for registration thereof (which request shall specify such Registrable Securities and the proposed amounts thereof) within twenty 15 days after the receipt of the such written notice from the Company specified Company; as expeditiously as possible (but in Section 1.3(a)(i).
(b) If the underwriter managing the offering advises the Holders who have requested inclusion of their Registrable Securities in any event shall file such registration statement that marketing considerations require a limitation on the number of shares offered, such limitation shall be imposed pro rata among such Holders who requested inclusion of Registrable Securities in such registration statement according to the number of shares of Registrable Securities owned by each. Neither the Company nor any other stockholder may include shares in such registration statement without the consent of Holders of a majority within 45 days of the Registrable Securities included therein if the underwriter managing such offering advises the Holders who have included Registrable Securities in such registration statement that the inclusion receipt of such additional shares may either limit the number of Registrable Securities which can be sold or adversely affect the price at which such Registrable Securities can be sold.
(c) Notwithstanding Section 1.3(brequest), the Company shall have the right, exercisable by written notice to the initiating Holder(s) within thirty days after receipt of a request to effect a registration under the Securities Act, to include the Company's shares in such registration, in which event such registration shall be deemed to be a Company-initiated registration, and the Holders shall have the right to include their Registrable Securities and shares of Class A Common Stock, as the case may be, therein all to the extent permitted under Section 1.2.
(d) The Company shall not be obligated requisite to effect more than ten registrations under this Section 1.3. Such registrations shall be on Form S-3 when permit the Company is eligible to use that form under SEC rules, but otherwise may be on Form S-1. No registration statement initiated disposition by Holders hereunder shall count as a registration under this Section 1.3 unless and until it shall have been declared effective. Any registration requested under this Section 1.3 which shall not become effective solely by reason of the refusal of the Holders participating therein securities then constituting Registrable Securities so to proceed with the registration shall count as a registration effected under this Section 1.3 unless and until the Company shall have been reimbursed for the Registration Expenses incurred by it in connection therewithbe registered.
Appears in 1 contract
Demand Registrations. (a) At On any time six (6) occasions after the date which is one hundred eighty (180) days after the date of the execution of this Agreement, subject to the conditions set forth in this Agreement, one or more Holders holding at least forty percent (40%) of the Registrable Securities then held by all Holders (the "Demand Threshold") may request (the "Initiating Holders") that the Company cause to be filed with the Commission and cause to become effective a registration statement (a "Demand Registration Statement") under the Securities Act relating to the sale by such Holders of their Registrable Securities in accordance with the terms hereof; provided, however, that until the first anniversary of the date of this Agreementhereof, if only a Richmont Party can make any such demand; and provided further that any Richmont Party may request the Company receives in writing to file and cause to become effective a Demand Registration Statement if such request is for the registration of all of such Richmont Party's Registrable Securities, notwithstanding the fact that such Richmont Party's Registrable Securities are less than the Demand Threshold. Upon receipt of any such request, the Company effect the shall give written notice of such proposed registration under the Securities Act to all Holders of Registrable Securities. Such Holders shall have the right, by giving written notice to the Company within fifteen (15) business days after such notice referred to in the preceding sentence has been given by the Company, to elect to have included in the Demand Registration Statement such of their Registrable Securities as each Holder may request in such notice of election. Thereupon, the Company shall as soon as practicable thereafter cause such Demand Registration Statement to be filed and declared effective by the Commission for all Registrable Securities which the Company has been requested to register. The Company shall in no event be obligated to effect under this Section 2 more than six (6) demand registrations. If the managing underwriter of an underwritten offering with a minimum aggregate offering price of $20,000,000 (as determined with reference respect to which registration has been requested by any Holder pursuant to this Section 2 has advised the Company that, in such underwriter's good faith judgment, the number of shares proposed securities to be sold in such registration multiplied offering by the average closing priceCompany and persons other than the Company (collectively, "Selling Stockholders") is greater than the number which can be offered without adversely affecting such offering, then the Company may reduce the number of securities to be included in such offering to a number deemed satisfactory by the managing under writer, provided, however, that the securities to be excluded shall be determined in the following order of priority: first, securities held by any Selling Stockholder not having contractual, incidental registration rights; second, securities held by any Selling Stockholder (not including the Holders) participating in such offering pursuant to the exercise of contractual piggyback registration rights (other than pursuant to the Merkxxx Xxxeement or if no closing price is availablethe Monroe Agreement), as determined on a pro rata basis (based upon the mean aggregate number of securities held by such Selling Stockholders); third, securities the Company proposes to sell and other securities of the bid and asked pricesCompany included in such registration and; fourth, over securities held by any Holder participating in such registration pursuant to the fifteen trading days preceding the date of such written demand), the Company will:
(i) promptly give written notice exercise of the proposed demand registration to all other Holders; and
(ii) as soon as practicablerights set forth in this Section 2, prepare and file and use commercially reasonable efforts to cause to become effective such registration statement as may be so requested and as would permit or facilitate the sale and distribution of such portion of the Registrable Securities as is specified any Selling Stockholder participating in such request, together with such additional portion of the Registrable Securities of any Holder(s) joining in such request as may be specified in a written request given offering pursuant to the Company within twenty days after receipt exercise of piggyback registration rights under the written notice from Merkxxx Xxxeement or the Company specified in Section 1.3(a)(iMonroe Agreement, as determined on a pro rata basis (based upon the aggregate number of securities held by such Holders or Selling Stockholders, as the case may be).
(b) If a requested registration pursuant to this Section 2 involves an underwritten offering, the underwriter managing the offering advises or underwriters thereof shall be selected by the Holders who have requested inclusion of their Registrable Securities in such registration statement that marketing considerations require at least a limitation on the majority (by number of shares offered, such limitation shall be imposed pro rata among such Holders who requested inclusion of Registrable Securities in such registration statement according to the number of shares of Registrable Securities owned by each. Neither the Company nor any other stockholder may include shares in such registration statement without the consent of Holders of a majority shares) of the Registrable Securities included therein as to which registration has been requested; provided, however, that if any Richmont Party is an Initiating Holder, then such underwriter or underwriters shall be selected by the underwriter managing such offering advises Richmont Party (or, if more than one Richmont Party, by the Holders who have included Registrable Securities in such Richmont Party requesting the registration statement that of the inclusion of such additional shares may either limit the largest number of Registrable Securities which can be sold or adversely affect the price at which such Registrable Securities can be soldSecurities).
(c) Notwithstanding Section 1.3(b), the Company shall have the right, exercisable by written notice to the initiating Holder(s) within thirty days after receipt of a request to effect a registration under the Securities Act, to include the Company's shares in such registration, in which event such registration shall be deemed to be a Company-initiated registration, and the Holders shall have the right to include their Registrable Securities and shares of Class A Common Stock, as the case may be, therein to the extent permitted under Section 1.2.
(d) The Company shall not be obligated to effect more than ten registrations under this Section 1.3. Such registrations shall be on Form S-3 when the Company is eligible to use that form under SEC rules, but otherwise may be on Form S-1. No registration statement initiated by Holders hereunder shall count as a registration under this Section 1.3 unless and until it shall have been declared effective. Any registration requested under this Section 1.3 which shall not become effective solely by reason of the refusal of the Holders participating therein to proceed with the registration shall count as a registration effected under this Section 1.3 unless and until the Company shall have been reimbursed for the Registration Expenses incurred by it in connection therewith.
Appears in 1 contract
Demand Registrations. (a) At any time after Unless the first anniversary shelf registration contemplated by Section 1.2 or the piggy-back registration contemplated by Section 1.4 has been filed and declared effective by the SEC, covers all then outstanding Registrable Securities and is then currently in effect, then the Company shall, at the request of the date Holders of this Agreement, if the Company receives in writing a request that the Company effect the registration under the Securities Act at least 250,000 shares of Registrable Securities, of prepare and use its commercially reasonable efforts to file with a minimum aggregate offering price of $20,000,000 (the SEC as determined with reference to the number of shares proposed to be sold in such registration multiplied by the average closing price, or if no closing price is available, the mean of the bid and asked prices, over the fifteen trading days preceding the date of such written demand), the Company will:
(i) promptly give written notice of the proposed registration to all other Holders; and
(ii) as soon as practicable, prepare and file and but in any event within 45 days of such request, a registration statement on Form S-3 covering the resale of the Registered Securities requested to be covered by such demand. The Company shall use its commercially reasonable efforts to cause to become effective such registration statement to be filed not later than 45 days following the receipt of the notice of demand for registration under this Section 1.3, and shall use its commercially reasonable efforts to cause such registration statement to be declared effective under the Act (including filing with the SEC a request for acceleration of effectiveness in accordance with Rule 12d1-2 promulgated under the 0000 Xxx) as promptly as practicable after the filing thereof, but in any event prior to the Effectiveness Due Date, and to keep such registration statement continuously effective under the Act until the date on which all Registrable Securities covered by such registration statement have been sold or cease to be Registrable Securities, or such earlier time that the Holders may be so requested and as would permit or facilitate sell all their Registrable Securities within a single 90-day period under Rule 144 (such period, the sale and distribution "Effectiveness Period"); provided that the Company shall provide the Holders with written notice of its intent to terminate the effectiveness of such portion registration statement not fewer than three (3) business days prior to such termination. Notwithstanding the foregoing, if at the time the Holders deliver to the Company a notice requesting registration of Registrable Securities pursuant to this Section 1.3(a) the Holders are able to sell pursuant to Rule 144, within the 90 day period commencing on the date that the demand notice is received by the Company, all of the Registrable Securities as is specified that are then not covered by an effective registration statement, then the Company shall not be required to file a registration statement pursuant to this Section 1.3 in response to such requestdemand, together with such additional portion of the Registrable Securities of any Holder(s) joining in and such request as may shall not be specified in deemed a written request given to the Company within twenty days after receipt demand registration for purposes of the written notice from the Company specified in Section 1.3(a)(i)1.3(f) of this Agreement.
(b) If Notwithstanding the underwriter managing the offering advises the Holders who have requested inclusion of their Registrable Securities in such registration statement that marketing considerations require a limitation on the number of shares offeredforegoing, such limitation shall be imposed pro rata among such Holders who requested inclusion of Registrable Securities in such registration statement according to the number of shares of Registrable Securities owned by each. Neither if the Company nor any other stockholder may include shares shall furnish to Holders participating in such the registration statement without pursuant to this Section 1.3 a certificate signed by the consent of Holders of a majority President of the Registrable Securities included therein if the underwriter managing such offering advises the Holders who have included Registrable Securities Company stating that a Blackout Period is in such registration statement that the inclusion of such additional shares may either limit the number of Registrable Securities which can be sold or adversely affect the price at which such Registrable Securities can be sold.
(c) Notwithstanding Section 1.3(b)effect, the Company shall have the rightright to defer such filing or sales under the registration statement filed pursuant to this Section 1.3 during the term of such Blackout Period; PROVIDED, exercisable by written notice HOWEVER, that the Company may utilize such deferral (including any such deferral that may be declared pursuant to Section 1.2(b)) not more than once in any 12-month period.
(c) If, at any time during the initiating Holder(s) within thirty days after receipt of a request Effectiveness Period, the Company is not eligible to effect register its securities on Form S-3, the Company shall prepare and file a registration under statement on Form S-1 or S-2 (or other available form for the Securities Act, general registration of securities) as may be necessary to include the Company's shares in such registration, in which event such registration shall be deemed to be a Company-initiated registration, and the Holders shall have the right to include their register all Registrable Securities in accordance with the terms and shares of Class A Common Stock, as the case may be, therein to the extent permitted under conditions set forth in this Section 1.21.3.
(d) The Company may propose to include Additional Securities in any registration statement to be filed pursuant to this Section 1.3. The Holders shall have the right to reduce the number of Additional Securities requested to be registered by the Company pursuant to this Section 1.3(d) (including, if necessary, to zero) if, in the good faith opinion of the underwriter or underwriters of such offering, the inclusion of such Additional Securities would materially and adversely affect the marketability or price of the Registrable Securities to be offered by the Holders in such registration.
(e) The Holders shall have the right to select the underwriter or underwriters, if any, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed, that will undertake the sale and distribution from time to time of the Registrable Securities included in a registration statement filed under the provisions of this Section 1.3.
(f) The Company shall be obligated to effect more than ten only one (1) such demand registrations under pursuant to this Section 1.3.
(g) The Holders of Registrable Securities may withdraw their demand for any proposed offering pursuant to a demand registration by giving written notice from a majority of such Holders to the Company of their election to withdraw prior to the effectiveness of the registration statement with the SEC. Such registrations If such withdrawing Holders pay all registration expenses incurred in connection with such demand registration, then no demand registration shall be on Form S-3 when deemed to have been made for purposes of Section 1.3(f). If such withdrawing Holders do not pay all registration expenses set forth in Section 1.7 of this Agreement incurred by the Company is eligible to use that form under SEC rulesin connection with such demand registration, but otherwise may be on Form S-1. No registration statement initiated by Holders hereunder shall count as a registration under this Section 1.3 unless and until it shall have been declared effective. Any registration requested under this Section 1.3 which shall not become effective solely by reason of the refusal of the Holders participating therein to proceed with the then such withdrawn registration shall count as be deemed a demand registration effected under this for purposes of Section 1.3 unless and until the Company shall have been reimbursed for the Registration Expenses incurred by it in connection therewith1.3(f) above.
Appears in 1 contract
Demand Registrations. (ai) At any time after the first anniversary expiration of the date Lockup Period, the Designated Holders holding a majority of this Agreement, if the Company receives in writing a then Registrable Securities may request that the Company effect the registration under the Securities Act of Registrable Securities, of with a minimum aggregate offering price of $20,000,000 (as determined with reference to the number of shares proposed to be sold in such registration multiplied by the average closing price, all or if no closing price is available, the mean of the bid and asked prices, over the fifteen trading days preceding the date of such written demand), the Company will:
(i) promptly give written notice of the proposed registration to all other Holders; and
(ii) as soon as practicable, prepare and file and use commercially reasonable efforts to cause to become effective such registration statement as may be so requested and as would permit or facilitate the sale and distribution of such any portion of the Registrable Securities as is specified in such request, together with such additional portion of the Registrable Securities of any Holder(s) joining in such request as may be specified in a written request given to the Company within twenty days after receipt of the written notice from the Company specified in Section 1.3(a)(i).
(b) If the underwriter managing the offering advises the Holders who have requested inclusion of their Registrable Securities in such registration statement that marketing considerations require accordance with the provisions of this Section 6(b). All registrations requested pursuant to this Section 6(b) are referred to herein as "Demand Registrations." Each request for a limitation on Demand Registration shall specify the number of shares offeredRegistrable Securities requested to be registered. Within ten days after receipt of any such request, the Company shall give written notice of such limitation shall be imposed pro rata among such Holders who requested inclusion registration to all other holders of Registrable Securities and shall include in such registration statement according all Registrable Securities with respect to which the number Company has received written requests for inclusion therein within fifteen (15) days after the receipt of shares the Company's notice.
(ii) The Designated Holders of Registrable Securities owned by eachshall be entitled to request no more than three Demand Registrations in accordance with this Section 6(b). Neither The aggregate offering value of the Company nor Registrable Securities requested to be registered in any other stockholder may include shares Demand Registration must, in such the good faith judgment of the holders thereof, equal at least $5,000,000. A registration statement without shall not count as one of the consent of Holders permitted Demand Registrations until it has become effective (unless the holders of a majority of the Registrable Securities included therein if the underwriter managing such offering advises the Holders who have included Registrable Securities in such registration have agreed to abandon such registration after a registration statement has been filed with the Commission).
(iii) If a Demand Registration is an underwritten offering and the managing underwriters advise the Company in writing that the inclusion of such additional shares may either limit in their opinion the number of Registrable Securities and other securities requested to be included in such offering exceeds the number of Registrable Securities and other securities, if any, which can be sold or adversely affect in an orderly manner in such offering within a price range acceptable to the price at which such holders of a majority of the Registrable Securities can be sold.
(c) Notwithstanding Section 1.3(b)included in such registration, the Company shall have the right, exercisable by written notice include in such registration prior to the initiating Holder(s) within thirty days after receipt inclusion of a request to effect a registration under any securities which are not Registrable Securities the number of Registrable Securities Act, to include the Company's shares in such registration, in which event such registration shall be deemed requested to be a Company-initiated registrationincluded which in the opinion of such underwriters can be sold in an orderly manner within the price range of such offering, and pro rata among the Holders shall have respective holders thereof on the right basis of the amount of securities requested to include their Registrable Securities and shares of Class A Common Stock, as the case may be, be included therein to the extent permitted under Section 1.2by each such holder.
(div) The Company shall not be obligated to effect more than ten registrations under this Section 1.3. Such registrations shall be on Form S-3 when the Company is eligible to use that form under SEC rulesone Demand Registration in any twelve-month period, but otherwise may be on Form S-1. No registration statement initiated by Holders hereunder shall count as a registration under this Section 1.3 unless and until it shall have been declared effective. Any registration requested under this Section 1.3 which shall not become effective solely by reason of the refusal of the Holders participating therein to proceed with the registration shall count as a registration effected under this Section 1.3 unless and until the Company shall not be obligated to effect any Demand Registration within 60 days after the effective date of a previous offering of Common Stock registered under the Securities Act. The Company may postpone for up to 180 days the filing or the effectiveness of a registration statement for a Demand Registration if the Company's board of directors determines in its reasonable good faith judgment that such Demand Registration would reasonably be expected to have been reimbursed for a material adverse effect on any proposal or plan by the Company or any of its subsidiaries to engage in any acquisition (other than in the ordinary course of business) or any merger, consolidation, tender offer, reorganization or similar transaction; PROVIDED THAT (a) the Company may exercise its right to delay a Demand Registration only once in any twelve-month period and (b) if a Demand Registration is delayed hereunder, the holders of Registrable Securities initially requesting such Demand Registration shall be entitled to withdraw such request and, if such request is withdrawn, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder and the Company shall pay all Registration Expenses incurred by it in connection therewithwith such registration. Notwithstanding anything to the contrary in this Section 6(b)(iv), (x) the Company may not prevent, delay or postpone any Demand Registration and (y) the Securityholders shall not be subject to any lockup or similar agreements following any Demand Registration for more than 270 days during any 360-day period.
(v) The Designated Holders shall have the right to select the investment banker(s) and manager(s) to administer the offering, subject to the approval of the Company in its sole discretion.
Appears in 1 contract
Demand Registrations. (a) At any time after The Investors may request the first anniversary of the date of this Agreement, if the Company receives in writing a request that the Company effect the registration under the Securities Act of Registrable Securities, of with a minimum aggregate offering price of $20,000,000 (as determined with reference Parent to the number of shares proposed to be sold in such registration multiplied by the average closing price, or if no closing price is available, the mean of the bid and asked prices, over the fifteen trading days preceding the date of such written demand), the Company will:
(i) promptly give written notice of the proposed registration to all other Holders; and
(ii) as soon as practicable, prepare and file and use commercially reasonable efforts to cause effect a Registration of all or part of their Registrable Shares (such Registration being hereinafter referred to become effective such as a "Demand Registration") by filing a registration statement as may be so requested under the U.S. Securities Act and as would permit or facilitate the sale and distribution of such portion a prospectus under Canadian Securities Acts (including, if eligible, a shelf registration statement under Rule 415 of the Registrable U.S. Securities as is specified Act and a shelf prospectus under National Instrument 44-102 - Shelf Distributions). Any such request shall be made by notice in writing (a "Demand Registration Request") to the Parent. To the extent such request, together with such additional portion of Demand Registration Request seeks to register Common Shares that the Registrable Securities Investors have acquired or have the right to acquire upon exchange or conversion of any Holder(sPurchased Series B Preferred Shares (such Common Shares, "Investor Series B Demand Shares"), within five (5) joining in such request as may be specified in a written request given to the Company within twenty days Business Days after receipt of such Demand Registration Request, the Parent will give written notice of such request to the Oaktree Investors and, subject to Section 5.2(b), will include in such registration all Common Shares that the Oaktree Investors have acquired or have the right to acquire upon exchange or conversion of the Series B-1 Preferred Shares and Series B-2 Preferred Shares purchased by the Oaktree Investors on the date hereof and purchased by the Oaktree Investors on the exercise of the Series B-2 Sale Option, respectively, that have not been registered pursuant to a registration statement under the U.S. Securities Act (such Common Shares, the "Oaktree Series B Demand Shares") with respect to which the Parent has received from the Company specified Oaktree Investors written requests for inclusion within ten (10) Business Days after delivery of the Parent's notice to the Oaktree Investors, specifying the number of Oaktree Series B Demand Shares intended to be registered, provided that such number requested to be registered by the Oaktree Investors may not exceed the Oaktree Pro Rata Percentage of the number of Investor Series B Demand Shares requested to be registered by the Investors in the Demand Registration Request. Subject to Section 1.3(a)(i5.2(b), the Parent shall be entitled to include for sale in any prospectus or registration statement filed pursuant to a Demand Registration any securities of the Parent to be sold by the Parent for its own account.
(b) If the lead underwriter managing or underwriters in any underwritten Demand Registration advise the offering advises the Holders who have requested inclusion of their Registrable Securities Parent in such registration statement that marketing considerations require a limitation on the number of shares offered, such limitation shall be imposed pro rata among such Holders who requested inclusion of Registrable Securities in such registration statement according to the number of shares of Registrable Securities owned by each. Neither the Company nor any other stockholder may include shares in such registration statement without the consent of Holders of a majority of the Registrable Securities included therein if the underwriter managing such offering advises the Holders who have included Registrable Securities in such registration statement writing that the inclusion of such additional shares all the securities requested to be included in a Demand Registration, including securities offered by the Parent for its own account, as applicable, may either limit have a material adverse effect on the distribution or sales price of the securities being offered unless the number of such securities is reduced (such reduced offering size, the "Maximum Offering Size"), the Parent will include in such registration, in the priority listed below, in the aggregate up to the Maximum Offering Size: first, all Registrable Shares requested to be registered in the Demand Registration by the Investors, second, the Oaktree Series B Demand Shares requested to be registered by the Oaktree Investors, and third, securities offered by the Parent for its own account. The Parent shall as soon as practical, and in any event within 65 days, in the case of a registration statement to be filed on Form S-1, and 45 days, in the case of a registration statement to be filed on Form S-3 or a prospectus to be filed under Canadian Securities which can Acts, of receipt of a Demand Registration Request, file a registration statement covering all of the Registrable Shares that the Investors requested to be sold or adversely affect registered and, as applicable, the price at which Oaktree Series B Demand Shares requested to be registered, and, as applicable, any securities offered by the Parent for its own account, and use its commercially reasonable efforts to cause such Registrable Securities can be soldregistration statement to become effective as soon as practicable.
(c) Notwithstanding Section 1.3(b), the Company shall have the right, exercisable by written notice to the initiating Holder(s) within thirty days after receipt of a request to effect a registration under the Securities Act, to include the Company's shares in such registration, in which event such registration shall be deemed to be a Company-initiated registration, and the Holders shall have the right to include their Registrable Securities and shares of Class A Common Stock, as the case may be, therein to the extent permitted under Section 1.2.
(d) The Company Parent shall not be obligated obliged to effect effect:
(i) more than ten registrations one Demand Registration in any one 12-month period (provided, however, that a registration shall not be deemed "effected" for purposes of this section until such time as the applicable registration statement has been declared effective by the SEC and the applicable final prospectus has been receipted by the relevant Canadian Securities Commission);
(ii) a Demand Registration in the event the Parent determines in good faith that either (A) the effect of the filing of a prospectus or registration statement could impede the ability of the Parent to consummate a significant transaction (including, without limitation, a financing, an acquisition, a restructuring or a merger) or proceed with negotiations or discussions in relation thereto, or (B) there exists at the time material non-public information relating to the Parent or its subsidiaries the disclosure of which the Parent believes would be materially adverse to the Parent and its subsidiaries, taken as a whole; in which case the Parent's obligations under this Section 1.3. Such registrations shall be on Form S-3 when the Company is eligible to use that form under SEC rules, but otherwise may be on Form S-1. No registration statement initiated by Holders hereunder shall count as a registration under this Section 1.3 unless and until it shall have been declared effective. Any registration requested under this Section 1.3 which shall not become effective solely by reason of the refusal of the Holders participating therein to proceed with the registration shall count as a registration effected under this Section 1.3 unless and until the Company shall have been reimbursed for the Registration Expenses incurred by it in connection therewith.Section
Appears in 1 contract
Demand Registrations. Subject to Section 6.1:
(a) At any time, and from time to time, Pequot shall have the right, by written notice delivered to the Company, to require the Company to register under the Securities Act (including, but not limited to, by means of a shelf registration under Rule 415 promulgated under the Securities Act) Registrable Securities having an aggregate offering price (before deducting of underwriting discounts and commissions) to the public in excess of $5,000,000 (a “Demand Notice”). Within ten business days after the Company’s receipt of a Demand Notice, the Company shall give written notice thereof (a “Piggyback Notice”) to all other holders of securities of the Company (“Piggyback Holders”) to whom the Company has granted registration rights that are triggered by the Company’s receipt of a Demand Notice (“Piggyback Rights”), which Piggyback Notice shall state that the Piggyback Holders have the right, subject to the cutback described in Section 4.1(b) below, to register for resale all or a portion of their securities that are subject to Piggyback Rights (“Piggyback Securities”). Subject to the remainder of this Section 4.1, the Company shall effect, as expeditiously as reasonably possible, the registration under the Securities Act of all Registrable Securities that Pequot requests to be registered as well as (i) all Piggyback Securities as to which the Company has received a written notice of exercise of Piggyback Rights and (ii) all securities of the Company that the Company desires to register (“Company Securities”).
(b) If Pequot intends to distribute the Registrable Securities covered by its request by means of an underwriting, Pequot shall so advise the Company as a part of its Demand Notice or any request made pursuant to Section 4.3. In such event, Pequot, all Piggyback Holders as to which the Company has received a written notice of exercise of Piggyback Rights and, if the Company desires to register securities, the Company shall enter into an underwriting agreement in customary form with an underwriter or underwriters selected for such underwriting by Pequot (which underwriter or underwriters shall be reasonably acceptable to the Company) but in no event shall any indemnity and/or contribution provisions therein provide that the indemnity and/or contribution of Pequot or any such Piggyback Holder exceed the net proceeds of the offering received by Pequot or such Piggyback Holder, as the case may be. Notwithstanding any other provision of this Section 4.1 or Section 4.3, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities) then the Company shall so advise Pequot and all such Piggyback Holders, and the number of shares that may be included in the underwriting shall be allocated, first, to Pequot, second, to the Company, and third, on a pro rata basis to all such Piggyback Holders. Any Registrable Securities, Piggyback Securities and Company Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 4.1:
(i) prior to the first anniversary of the date of this Agreement, if the Company receives in writing a request that the Company effect the registration under the Securities Act of Registrable Securities, of with a minimum aggregate offering price of $20,000,000 (as determined with reference to the number of shares proposed to be sold in such registration multiplied by the average closing price, or if no closing price is available, the mean of the bid and asked prices, over the fifteen trading days preceding the date of such written demand), the Company will:
(i) promptly give written notice of the proposed registration to all other Holders; and;
(ii) as soon as practicableafter the Company has effected at least two registrations pursuant to this Section 4.1, prepare and file such registrations have been declared or ordered effective;
(iii) if the Company shall furnish to Pequot a certificate signed by the President or Chief Executive Officer of the Company stating that in the good faith judgment of the Company’s Board of Directors, it would be seriously detrimental to the Company and use commercially reasonable efforts to cause to become effective its stockholders for such registration statement as may to be so requested and as would permit or facilitate the sale and distribution of effected at such portion of the Registrable Securities as is specified time, in such request, together with such additional portion of the Registrable Securities of any Holder(s) joining in such request as may be specified in a written request given to which event the Company within twenty shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the written notice from Pequot’s request; provided that such right to delay a request shall be exercised by the Company specified not more than once in Section 1.3(a)(i).any twelve (12) month period; or
(biv) If the underwriter managing the offering advises the Holders who have requested inclusion of their Registrable Securities in such registration statement that marketing considerations require a limitation on the number of shares offered, such limitation shall be imposed pro rata among such Holders who requested inclusion of Registrable Securities in such registration statement according if Pequot proposes to the number dispose of shares of Registrable Securities owned by each. Neither the Company nor any other stockholder that may include shares in such registration statement without the consent of Holders of a majority of the Registrable Securities included therein if the underwriter managing such offering advises the Holders who have included Registrable Securities in such registration statement that the inclusion of such additional shares may either limit the number of Registrable Securities which can be sold or adversely affect the price at which such Registrable Securities can be sold.
(c) Notwithstanding Section 1.3(b), the Company shall have the right, exercisable by written notice to the initiating Holder(s) within thirty days after receipt of a request to effect a registration under the Securities Act, to include the Company's shares in such registration, in which event such registration shall be deemed to be a Company-initiated registration, and the Holders shall have the right to include their Registrable Securities and shares of Class A Common Stock, as the case may be, therein to the extent permitted under Section 1.2.
(d) The Company shall not be obligated to effect more than ten registrations under this Section 1.3. Such registrations shall be registered on Form S-3 when the Company is eligible pursuant to use that form under SEC rules, but otherwise may be on Form S-1. No registration statement initiated by Holders hereunder shall count as a registration under this request made pursuant to Section 1.3 unless and until it shall have been declared effective. Any registration requested under this Section 1.3 which shall not become effective solely by reason of the refusal of the Holders participating therein to proceed with the registration shall count as a registration effected under this Section 1.3 unless and until the Company shall have been reimbursed for the Registration Expenses incurred by it in connection therewith4.3 below.
Appears in 1 contract
Demand Registrations. (ai) At In the event the Acquired Shares have not then previously been registered either by Purchaser of its own volition or pursuant to Section 9(d), then upon the written request of MEI or any time permitted (pursuant to Section 9(a) hereof) transferee of all the Acquired Shares (a "Requesting Holder") given at anytime on or after May 1, 1997, the first anniversary of Purchaser, to the date of this Agreementextent permitted by law and subject to the terms hereof, if shall register the Company receives in writing Acquired Shares pursuant to an effective registration statement (a request that the Company effect the registration "Registration") under the Securities Act of Registrable Securities, of with Act. Any such Registration pursuant to this Section 9(c) is hereinafter referred to as a minimum aggregate offering price of $20,000,000 (as determined with reference to the number of shares proposed to be sold in such registration multiplied by the average closing price, or if no closing price is available, the mean of the bid and asked prices, over the fifteen trading days preceding the date of such written demand), the Company will:
(i) promptly give written notice of the proposed registration to all other Holders; and"Demand Registration."
(ii) as soon as practicableIf a Demand Registration is an underwritten offering, prepare no securities other than the Acquired Shares shall be included among the securities covered by such Demand Registration unless (i) the managing underwriters in such Demand Registration advise the Purchaser and file and use commercially reasonable efforts to cause to become effective such registration statement as may be so requested and as would permit or facilitate the sale and distribution of such portion Requesting Holder in writing that in their opinion the inclusion of the Registrable Securities as is specified securities requested to be included in such request, together with Demand Registration by other persons would not materially adversely affect such additional portion of the Registrable Securities of any Holder(s) joining in such request as may be specified in a written request given to the Company within twenty days after receipt of the written notice from the Company specified in Section 1.3(a)(i)offering.
(b) If the underwriter managing the offering advises the Holders who have requested inclusion of their Registrable Securities in such registration statement that marketing considerations require a limitation on the number of shares offered, such limitation shall be imposed pro rata among such Holders who requested inclusion of Registrable Securities in such registration statement according to the number of shares of Registrable Securities owned by each. Neither the Company nor any other stockholder may include shares in such registration statement without the consent of Holders of a majority of the Registrable Securities included therein if the underwriter managing such offering advises the Holders who have included Registrable Securities in such registration statement that the inclusion of such additional shares may either limit the number of Registrable Securities which can be sold or adversely affect the price at which such Registrable Securities can be sold.
(ciii) Notwithstanding Section 1.3(b)the foregoing, the Company shall have the right, exercisable by written notice to the initiating Holder(s) within thirty days after receipt of a request to effect a registration under the Securities Act, to include the Company's shares in such registration, in which event such registration shall be deemed to be a Company-initiated registration, and the Holders Purchaser shall have the right to include their Registrable Securities delay any such Demand Registration for up to twenty (20) business days if Purchaser's counsel has advised Purchaser (which advice shall be given as soon as practicable) that certain material information (the "Required Information") must be included in the registration statement and shares Purchaser's Board of Class A Common StockDirectors has in good faith, in view of pending negotiations or other developments regarding Purchaser not otherwise required to be made public, determined that disclosure of the Required Information is not in the best interest of Purchaser. Under no circumstances will one or more delays pursuant to this clause extend beyond thirty (30) calendar days from the date Purchaser receives a Requesting Holder's request for a Demand Registration. The Company agrees to use reasonable commercial efforts to resolve any pending negotiations or other developments referred to in this clause as the case may be, therein soon as reasonably practicable. Notice of Purchaser's postponement of a Demand Registration pursuant to this Clause shall be given to the extent permitted under Section 1.2.
Requesting Holder within ten (d10) The Company shall not be obligated to effect more than ten registrations under this Section 1.3. Such registrations shall be on Form S-3 when the Company is eligible to use that form under SEC rules, but otherwise may be on Form S-1. No registration statement initiated by Holders hereunder shall count as a registration under this Section 1.3 unless and until it shall have been declared effective. Any registration requested under this Section 1.3 which shall not become effective solely by reason business days of the refusal receipt of the Holders participating therein to proceed with the registration shall count as notice requesting a registration effected under this Section 1.3 unless and until the Company shall have been reimbursed for the Registration Expenses incurred by it in connection therewithDemand Registration.
Appears in 1 contract
Demand Registrations. (a) At any time after the first anniversary expiration of 180 days after the closing of the date Company's initial Public Offering, one or more Investor Holders representing in the aggregate in excess of this Agreement30% of the Registrable Shares then held by all Investor Holders, if the Company receives may request, in writing a request writing, that the Company file a Registration Statement under the Securities Act. Upon receipt of any such request, the Company shall promptly give written notice of such proposed registration to all Holders. Each Investor Holder shall have the right, by giving written notice to the Company within 15 days after the Company provides its notice, to elect to have included in such registration such of its Registrable Shares as such Investor Holder may request in such notice of election. Thereupon, the Company shall, as expeditiously as possible, use its best efforts to effect the registration under the Securities Act of all Registrable Securities, of with a minimum aggregate offering price of $20,000,000 (as determined with reference to the number of shares proposed to be sold in such registration multiplied by the average closing price, or if no closing price is available, the mean of the bid and asked prices, over the fifteen trading days preceding the date of such written demand), Shares which the Company will:
(i) promptly give written notice of the proposed registration has been requested so to all other Holders; and
(ii) as soon as practicable, prepare and file and use commercially reasonable efforts to cause to become effective such registration statement as may be so requested and as would permit or facilitate the sale and distribution of such portion of the Registrable Securities as is specified in such request, together with such additional portion of the Registrable Securities of any Holder(s) joining in such request as may be specified in a written request given to the Company within twenty days after receipt of the written notice from the Company specified in Section 1.3(a)(i)register.
(b) If the Investor Holders initiating the registration request hereunder (the "INITIATING HOLDERS") intend to distribute the Registrable Shares covered by their request by means of an underwriting, they shall so advise the Company as part of their request made pursuant to this Section 2 and the Company shall include such information in the written notice referred to in Section 2(a) hereof in such event, the right of any Investor Holder to include his or its Registrable Shares in such registration shall be conditioned upon the inclusion of such Investor Holder's Registrable Shares in the underwriting. All Investor Holders proposing to distribute their securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding any other provision of this Section 2(b), if the managing underwriter with respect to the proposed offering advises the Investor Holders who have requested inclusion of their proposing to sell Registrable Securities Shares that would otherwise be included in such registration statement the underwriting that marketing considerations factors require a limitation on the number of shares offeredto be underwritten, such limitation shall be imposed pro rata among such Holders who requested inclusion of Registrable Securities in such registration statement according to the number of shares Registrable Shares that may be included in the underwriting shall be allocated among all such Investor Holders, including the Initiating Holders, in proportion (as nearly as practicable) to the amount of Registrable Securities owned Shares proposed to be included in the Registration Statement by eacheach such Investor Holder. Neither the The Company nor any other stockholder may include shares for sale for its own account in such any registration statement without pursuant to this Section 2 only with the consent of Holders the holders of a majority two-thirds of the Registrable Securities included therein in such registration; provided, however, that if the managing underwriter managing such with respect to the proposed offering advises the Investor Holders who have proposing to sell Registrable Shares that would otherwise be included Registrable Securities in such registration statement the underwriting that the inclusion of such additional shares may either limit marketing factors require a limitation on the number of shares to be underwritten and the Company has included shares for sale for its own account, then the number of shares that may be included by the Company in the underwriting shall be reduced prior to the reduction of any Registrable Securities which can be sold or adversely affect the price at which such Registrable Securities can be soldShares of Investor Holders.
(c) Notwithstanding Section 1.3(b), the Company shall have the right, exercisable by written notice to the initiating Holder(s) within thirty days after receipt of a request to effect a registration under the Securities Act, to include the Company's shares in such registration, in which event such registration shall be deemed to be a Company-initiated registration, and the Holders shall have the right to include their Registrable Securities and shares of Class A Common Stock, as the case may be, therein to the extent permitted under Section 1.2.
(d) The Company shall not be obligated to effect, or take any action to effect, any registration pursuant to this Section 2:
(i) After the Company has effected three registrations pursuant to this Section 2 and such registrations have been declared or ordered effective;
(ii) If within 12 months prior to such registration request, a registration of securities of the Company has been effected in which Investor Holders of Registrable Shares had the right to participate on at least a pro rata basis relative to all stockholders of the Company entitled to participate in such earlier registration;
(iii) If the Company receives such request for registration within 180 days preceding the anticipated effective date of a proposed underwritten public offering of securities of the Company approved by the Board of Directors prior to the Company's receipt of such request;
(iv) If the Board of Directors reasonably determines in good faith that effecting such a demand registration at such time would have a material adverse effect upon a proposed sale of all or substantially all of the assets of the Company, or a merger, reorganization, recapitalization, or similar transaction materially affecting the capital structure or equity ownership of the Company which is actively being negotiated with another party; provided, however, that the Company may only delay a demand registration for this reason for a period not exceeding six months (or until such earlier time as such transaction is consummated or no longer proposed); or
(v) If such request for registration includes only Registrable Shares which may be sold by Holder(s) thereof who may sell all of such Holder's Registrable Shares in the public market under Rule 144 in a three month period.
(d) At the time of any request to register Registrable Shares pursuant to this Section 2, the Company may at its option direct that such request be delayed for a period not in excess of three months if, in the opinion of the Company's Board of Directors, the filing of such Registration Statement would have a material adverse effect on the Company's ability to complete any pending or proposed material transaction, provided that such right to delay a request may be exercised by the Company not more than ten registrations under once in any twelve-month period.
(e) The Initiating Holders of any Registration Statement filed pursuant to this Section 1.3shall designate the method of distribution of the Registrable Shares. Such registrations The Initiating Holders may designate the managing underwriter (who shall be on Form S-3 when the lead underwriter) for any Registration Statement filed pursuant to this Section, provided such designee is reasonably satisfactory to the Company, and the Company may designate a co-managing underwriter in such offering, provided such designee is eligible reasonably satisfactory to use that form Holders representing a majority of the Registrable Shares to be included in the Registration. The Company shall afford the underwriters, their accountants and attorneys full access to its personnel and offices for the purpose of confirming the accuracy and completeness of the Registration Statement.
(f) If in the opinion of the underwriters selected to manage the underwriting, more Common Stock could be sold than is represented by the Registrable Shares included in the registration without adversely affecting the price per share, or with the consent of Holders representing two-thirds of the Registrable Shares to be included, the Company shall be entitled to expand the offering to include newly issued Common Stock or Common Stock held by third parties. If the Common Stock so included represents more than half of all Common Stock to be offered in the Registration Statement, the registration may, at the option of the Initiating Holders, be deemed to be an incidental registration under SEC rulesSection 3, but otherwise may be on Form S-1. No registration statement initiated by Holders hereunder shall count as rather than a required registration under this Section 1.3 unless 2, and until it shall have been declared effective. Any the registration requested under this Section 1.3 which shall not become effective solely by reason of the refusal rights of the Holders participating therein to proceed with provided in Section 2(a) shall remain fully available as if the registration shall count as a registration effected had originated under Section 3 rather than under Section 2.
(g) Notwithstanding anything set forth elsewhere in this Section 1.3 unless and until 2, the Company shall have no responsibility to cause a Registration Statement to become effective (i) at a time when it would be required under the rules and regulations of the Securities and Exchange Commission to prepare and file audited financial statements for a period other than a completed fiscal year, or (ii) when the Company would be required to prepare and file audited financial statements for a completed fiscal year prior to 90 days following the end of such year.
(h) If any Registration Statement prepared pursuant to this Section 2 is not filed or does not become effective as a result of the decision of the Initiating Holders or any underwriter designated by them, the obligation of the Company to prepare and file a Registration Statement at the request of such Initiating Holders shall nevertheless have been reimbursed for satisfied; provided that if the decision not to file the Registration Expenses incurred Statement or to withdraw the Registration Statement prior to it becoming effective is the result of a material adverse change in the business of the Company, the registration rights of the Holders provided in Section 2(a) shall remain fully available as if the registration had not been requested by it the Initiating Holders. If the Registration Statement otherwise fails to become effective, the registration rights of the Holders provided in connection therewithSection 2(a) remain fully available as if the registration had not been requested by the Initiating Holders.
Appears in 1 contract
Demand Registrations. (a) At Subject to the conditions of this Section 2, any time after the first anniversary member of the date Holder Group may send to the Company a written request on behalf of this Agreementall Holders (a “Demand Notice”) that the Company file a registration statement (including, if the Company receives in writing is so eligible, a demand to file a Shelf Registration Statement) under the Securities Act, which request that shall specify the intended method of distribution of the Common Stock. Upon receipt of a Demand Notice, the Company effect shall then use its reasonable best efforts to file, as expeditiously as reasonably possible, a registration statement in respect of the requested distribution that includes all Registrable Securities the Holders request to be registered and will use reasonable best efforts to cause such registration statement to be declared effective under the Securities Act as promptly thereafter as is reasonably possible.
(b) Subject to the conditions of this Section 2, any member of the Holder Group may, at any time and from time to time after a Shelf Registration Statement in respect of Registrable SecuritiesSecurities has been declared effective, of with a minimum aggregate offering price of $20,000,000 (as determined with reference send to the number Company a written request on behalf of shares proposed all Holders (a “Takedown Notice”) to be sold sell in such registration multiplied by the average closing price, an underwritten offering (including an “at-the-market offering” or if no closing price is available, the mean of the bid and asked prices, over the fifteen trading days preceding the date of such written demand), the Company will:
(ia “registered direct offering”) promptly give written notice of the proposed registration to all other Holders; and
(ii) as soon as practicable, prepare and file and use commercially reasonable efforts to cause to become effective such registration statement as may be so requested and as would permit or facilitate the sale and distribution of such a portion of the Registrable Securities as is specified that are included in such requestthe Shelf Registration Statement (a “Shelf Takedown”). The Company shall then use its reasonable best efforts to cooperate with the Holders and the underwriter(s) to effect the Shelf Takedown, together with such additional portion of including taking the actions contemplated by Section 2(c) and Section 5.
(c) If the Holders intend to distribute the Registrable Securities covered by their request by means of any Holder(san underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2 and the Company shall include such information in its written notice to Holders referred to in Section 2(a) joining or Section 2(b), as applicable, and shall use their reasonable best efforts to cooperate with the Holders and the underwriters selected by the Holders in effecting that offering, including taking the actions contemplated by this Section 2(c) and Section 5. The Company and all Holders proposing to distribute their securities through such request as may underwriting shall enter into an underwriting agreement in customary form with an underwriter or underwriters of nationally recognized standing selected for such underwriting by the Holders (which underwriter or underwriters shall be specified in a written request given reasonably acceptable to the Company within twenty days after receipt Company). Notwithstanding any other provision of this Section 2, if the written notice from managing underwriter(s) advise the Company specified in Section 1.3(a)(i).
(b) If the underwriter managing the offering advises the Holders who have requested inclusion of their Registrable Securities in such registration statement that marketing considerations require a limitation on the number of shares offered, such limitation shall be imposed pro rata among such Holders who requested inclusion of Registrable Securities in such registration statement according to the number of shares of Registrable Securities owned Common Stock sought to be offered exceeds the number that can be sold into the market without adversely affecting the offering (including with regard to price), then the number of shares of Common Stock to be included in such underwriting shall be reduced to an amount deemed satisfactory by each. Neither such managing underwriter(s), and the Company nor shall include in such registration shares of Common Stock in the following priority: (i) first, the shares of Holders participating in the requested registration, (ii) second, any shares to be sold by the Company and (iii) third, any shares to be sold by any other stockholder may include shares in exercising piggyback registration rights with respect to such registration statement without the consent of Holders of a majority of the Registrable Securities included therein if the underwriter managing such offering advises the Holders who have included Registrable Securities in such registration statement that the inclusion of such additional shares may either limit the number of Registrable Securities which can be sold or adversely affect the price at which such Registrable Securities can be sold.
(c) Notwithstanding Section 1.3(b), the Company shall have the right, exercisable by written notice to the initiating Holder(s) within thirty days after receipt of a request to effect a registration under the Securities Act, to include the Company's shares in such registration, in which event such registration shall be deemed to be a Company-initiated registration, and the Holders shall have the right to include their Registrable Securities and shares of Class A Common Stock, as the case may be, therein to the extent permitted under Section 1.2Shares.
(d) The Company shall not be obligated required to effect more than ten registrations under a registration or a Shelf Takedown pursuant to this Section 1.3. Such registrations shall be 2:
(i) prior to the earlier of (A) one year following the date of this agreement or (B) the first date on Form S-3 when which the Average Closing Price either exceeds $10.50 per share or is less than $3.00 per share;
(ii) during any Blackout Period; provided, that the Company provides the Holders with written notice of such Blackout Period;
(iii) if the expected price to the public in the registration or Shelf Takedown is eligible less than $10 million;
(iv) within three months after the effectiveness of an earlier demand registration or piggy-back registration or “pricing” of any Shelf Takedown, in each case that was an Effective Registration; or
(v) if within three business days of receipt of a Demand Notice or a Takedown Notice, the Company gives written notice to use that form under SEC rules, but otherwise may be on Form S-1. No registration statement initiated by the Holders hereunder shall count as a registration under this Section 1.3 unless and until it shall have been declared effective. Any registration requested under this Section 1.3 which shall not become effective solely by reason of the refusal of Company’s intention to effect a Piggyback Registration within the Holders participating therein to proceed with the registration shall count as a registration effected under this Section 1.3 unless and until the Company shall have been reimbursed for the Registration Expenses incurred by it in connection therewithnext succeeding 30 days.
Appears in 1 contract
Samples: Registration Rights Agreement (Red Lion Hotels CORP)
Demand Registrations. (a) At any time From and after 180 days following an IPO, Holder may request in a written notice (the first anniversary of the date of this Agreement, if the Company receives in writing a request "Request") that the Company effect the registration under the Securities Act of Registrable Securities, of with a minimum aggregate offering price of $20,000,000 (as determined with reference to the number of shares proposed to be sold in such registration multiplied by the average closing price, all or if no closing price is available, the mean of the bid and asked prices, over the fifteen trading days preceding the date of such written demand), the Company will:
(i) promptly give written notice of the proposed registration to all other Holders; and
(ii) as soon as practicable, prepare and file and use commercially reasonable efforts to cause to become effective such registration statement as may be so requested and as would permit or facilitate the sale and distribution of such portion any part of the Registrable Securities owned by Holder. Following the receipt of the Request, the Company will (i) within ten days notify all other Stockholders having registration rights of such Request in writing and (ii) thereupon, will as is specified in such requestexpeditiously as practicable, together with such additional portion effect the registration under the Securities Act of all or any part of the Registrable Securities of Holder as are specified in the Request and any Holder(s) joining in such request Registrable Securities of any other Stockholder having registration rights as may be are specified in a written request given to subsequent Request received by the Company, within ten days after the Company within twenty days after receipt has given such notice, and will cause such registration statement to remain effective for a period of not less than 180 days; provided, however, that the Company will not be required to effect more than one registration pursuant to this Section 3, unless the Holder is unable to sell all of the written notice from Registrable Securities requested be included in such offering because of the Company specified participation by Holdings and any other Stockholders (other than Holder) in Section 1.3(a)(i)such offering, in which case Holder will be entitled to make one additional Request.
(b) If the underwriter managing the offering advises the Holders who have requested inclusion of their Registrable Securities in such registration statement that marketing considerations require a limitation The Company and Holder will reasonably mutually agree on the number managing underwriter of shares offered, such limitation shall be imposed pro rata among such Holders who requested inclusion of Registrable Securities any underwritten offering effected under this Section 3.
(c) If a registration pursuant to this Section 3 involves an underwritten offering and the managing underwriter or underwriters in such registration statement according to the number of shares of Registrable Securities owned by each. Neither good faith advise the Company nor any other stockholder may include shares in such registration statement without the consent of Holders of a majority of the Registrable Securities included therein if the underwriter managing such offering advises the Holders who have included Registrable Securities writing that, in such registration statement that the inclusion of such additional shares may either limit their opinion, the number of Registrable Securities which Holder and any other Stockholders intend to include in such registration exceeds the largest number of securities which can be sold or adversely affect in such offering without having an adverse effect on such offering (including, but not limited to, the price at which such Registrable Securities the securities can be sold.
(c) Notwithstanding Section 1.3(b), then the Company shall have the right, exercisable by written notice number of Registrable Securities of each Stockholder to the initiating Holder(s) within thirty days after receipt of a request to effect a registration under the Securities Act, to include the Company's shares be included in such registration, in which event such registration shall offering will be deemed determined on the basis of the relative percentage relationships of (x) the number of Registrable Securities to be a Company-initiated registration, included by such Stockholder and (y) the Holders shall have the right to include their number of Registrable Securities and shares of Class A Common Stock, as the case may be, therein to the extent permitted under Section 1.2be included by all other Stockholders.
(d) The Company shall not be obligated to effect more than ten registrations under this Section 1.3. Such registrations shall be on Form S-3 when the Company is eligible to use that form under SEC rules, but otherwise may be on Form S-1. No registration statement initiated by Holders hereunder shall count as a registration under this Section 1.3 unless and until it shall have been declared effective. Any registration requested under this Section 1.3 which shall not become effective solely by reason of the refusal of the Holders participating therein to proceed with the registration shall count as a registration effected under this Section 1.3 unless and until the Company shall have been reimbursed for the Registration Expenses incurred by it in connection therewith.
Appears in 1 contract
Samples: Acquisition Agreement (Imperial Home Decor Group Holdings I LTD)
Demand Registrations. The Stockholder shall have the right upon written request (aa "REQUEST") At any time after the first anniversary of the date of this Agreement, if the Company receives in writing a to request that the Company effect the following registrations under the Securities Act:
(i) one demand registration, which may be effected by means of a firm commitment underwritten public offering (an "UNDERWRITTEN OFFERING"); and
(ii) piggy-back registration rights on any registration under the Securities Act of Common Stock in an Underwritten Offering of at least $100 million (whether or not for the account of the Company or for any stockholder of the Company) in a manner that would permit the registration under the Securities Act of Registrable Securities, of with a minimum aggregate offering price of $20,000,000 (as determined with reference Securities for sale to the number public (a "STOCKHOLDER PIGGY-BACK REGISTRATION"); PROVIDED that the Company shall have no obligation under this clause (ii) with respect to any registration on Form S-4 (or any other Registration Statement registering shares in a merger, consolidation, acquisition or similar transaction) or Form S-8 or any successor or comparable forms, or a Registration Statement filed in connection with an exchange offer or otherwise pursuant to a dividend reinvestment plan, stock purchase plan or other employee benefit plan. If the Company proposes a Stockholder Piggy-Back Registration, the Company shall give notice to the Stockholder of shares proposed its intention to be sold do so not later than fifteen (15) days prior to the anticipated filing date of the applicable Registration Statement. The Stockholder may elect to participate in such registration multiplied with respect to Registrable Securities owned by the average closing price, or if no closing price is available, the mean of the bid and asked prices, over the fifteen trading days preceding Stockholder on the date of such notice on the same basis as the planned method of distribution contemplated by the proposed registration by delivering written demand)notice of its election to the Company within five (5) days after the receipt of the Company's notice pursuant hereto. The Stockholder's election pursuant hereto must (1) specify the amount of Registrable Securities desired to be included in such registration by the Stockholder and (2) include any other information that the Company reasonably requested be included in such Registration Statement. Upon its receipt of the Stockholder's election pursuant hereto, the Company will:
(i) promptly give written notice of , subject to the proposed registration to all other Holders; and
(ii) as soon as practicablecutback rights described below in Section 2(b), prepare and file and use commercially its reasonable best efforts to cause to become effective such registration statement as may be so requested and as would permit or facilitate the sale and distribution of such portion of the Registrable Securities as is specified in such request, together with such additional portion of the Registrable Securities of any Holder(s) joining in such request as may be specified in a written request given to the Company within twenty days after receipt of the written notice from the Company specified in Section 1.3(a)(i).
(b) If the underwriter managing the offering advises the Holders who have requested inclusion of their Registrable Securities include in such registration statement that marketing considerations require a limitation on the number of shares offered, such limitation shall be imposed pro rata among such Holders who requested inclusion of all Registrable Securities in such registration statement according to the number of shares of Registrable Securities owned by each. Neither the Company nor any other stockholder may include shares in such registration statement without the consent of Holders of a majority of the Registrable Securities included therein if the underwriter managing such offering advises the Holders who have included Registrable Securities in such registration statement that the inclusion of such additional shares may either limit the number of Registrable Securities which can be sold or adversely affect the price at which such Registrable Securities can be sold.
(c) Notwithstanding Section 1.3(b), the Company shall have the right, exercisable by written notice to the initiating Holder(s) within thirty days after receipt of a request to effect a registration under the Securities Act, to include the Company's shares in such registration, in which event such registration shall be deemed requested to be a Company-initiated registration, and the Holders shall have the right to include their Registrable Securities and shares of Class A Common Stock, as the case may be, therein to the extent permitted under Section 1.2included.
(d) The Company shall not be obligated to effect more than ten registrations under this Section 1.3. Such registrations shall be on Form S-3 when the Company is eligible to use that form under SEC rules, but otherwise may be on Form S-1. No registration statement initiated by Holders hereunder shall count as a registration under this Section 1.3 unless and until it shall have been declared effective. Any registration requested under this Section 1.3 which shall not become effective solely by reason of the refusal of the Holders participating therein to proceed with the registration shall count as a registration effected under this Section 1.3 unless and until the Company shall have been reimbursed for the Registration Expenses incurred by it in connection therewith.
Appears in 1 contract
Demand Registrations. (a) At any time after the first earlier of (i) the 3rd anniversary of the date hereof or (ii) the date of this Agreementthe Company's initial public offering of its Common Stock pursuant to an effective registration under the Securities Act (the "IPO"), if a Majority Interest of the Stockholders may notify the Company receives in writing a that they intend to offer or cause to be offered for public sale, and request that the Company register under the Securities Act for public sale, all or any portion of the Registrable Securities held by the Stockholders in the manner specified in such notice; provided, however, that in the case of such a request pursuant to clause (ii) above, such registration may not become effective prior to the date which is the earlier of six (6) months after the date of the Company's IPO and the date that any applicable Holdback Period (as defined hereinafter) or other lockup period applicable to such IPO expires. Upon receipt of such request, the Company shall promptly deliver notice of such request to all Persons holding Registrable Securities who shall then have thirty (30) days to notify the Company in writing of their desire to have Registrable Securities held by them included in such registration (which response shall specify the number of Registrable Securities proposed to be included in such registration). If the request for registration contemplates an underwritten public offering, the Company shall state such in the written notice and in such event the right of any Person to include Registrable Securities in such registration shall be conditioned upon such Person's participation in such underwritten public offering and the inclusion of such Person's Registrable Securities in the underwritten public offering to the extent provided herein. The Company will use its commercially reasonable best efforts to expeditiously effect the registration under the Securities Act of all Registrable SecuritiesSecurities of each holder who requested inclusion of such holders Registrable Securities in such registration and to qualify such Registrable Securities for sale under any state blue sky law; provided, however, that the Company shall not be required to effect more than two (2) registrations pursuant to requests under this Section 2(a). Notwithstanding anything to the contrary contained herein, no request may be made under this Section 2 within sixty (60) days after the effective date of a registration statement filed by the Company covering a firm commitment underwritten public offering. The Company may postpone the filing or the effectiveness of any registration statement required to be filed pursuant to this Section 2 for a reasonable time period, provided that such postponements shall not exceed sixty (60) days in the aggregate during any twelve (12) month period, if (i) the Company has been advised by legal counsel that such filing or effectiveness would require disclosure of a material financing, acquisition or other corporate transaction, and the Board of Directors determines in good faith that such disclosure is not in the best interests of the Company and its stockholders or (ii) the Company is then in possession of material non-public information the disclosure of which the Board of Directors has determined would have a material adverse effect upon the Company or its then current business plans. A registration will not count as a requested registration under this Section 2(a) unless and until the registration statement relating to such registration has been declared effective by the Commission at the request of the initiating holders; provided, however, that a majority in interest of the participating holders of Registrable Securities may request, in writing, that the Company withdraw a registration statement which has been filed under this Section 2(a) but not yet been declared effective, and a majority in interest of such holders may thereafter request the Company to reinstate such Registration Statement, if permitted under the Securities Act, or to file another registration statement, in accordance with a minimum aggregate offering price of $20,000,000 (as determined with reference to the procedures set forth herein and without reduction in the number of shares proposed to be sold in such registration multiplied by the average closing price, or if no closing price is available, the mean of the bid and asked prices, over the fifteen trading days preceding the date of such written demanddemand registrations permitted under this Section 2(a), the Company will:
(i) promptly give written notice of the proposed registration to all other Holders; and
(ii) as soon as practicable, prepare and file and use commercially reasonable efforts to cause to become effective such registration statement as may be so requested and as would permit or facilitate the sale and distribution of such portion of the Registrable Securities as is specified in such request, together with such additional portion of the Registrable Securities of any Holder(s) joining in such request as may be specified in a written request given to the Company within twenty days after receipt of the written notice from the Company specified in Section 1.3(a)(i).;
(b) If a requested registration involves an underwritten public offering and the managing underwriter managing the of such offering advises the Holders who have requested inclusion of their Registrable Securities determines in such registration statement good faith that marketing considerations require a limitation on the number of shares offeredsecurities sought to be offered should be limited due to market conditions, then the number of securities to be included in such limitation underwritten public offering shall be imposed pro rata among reduced to a number, reasonably deemed satisfactory by such Holders who requested inclusion of managing underwriter, provided that the securities to be excluded shall be determined in the following sequence: (i) first, securities held by any other Persons (other than Persons holding Registrable Securities) having contractual, incidental or "Piggy-Back" registration rights, (ii) second, securities sought to be registered by the Company and (iii) third, Registrable Securities held by the Stockholders, it being understood that no shares shall be registered for the account of the Company or any shareholder other than the Stockholders unless all Registrable Securities for which Stockholders have requested registration have been registered. If there is a reduction in such registration statement according to the number of shares of Common Stock or Registrable Securities owned by each. Neither to be registered pursuant to clauses (i), (ii) or (iii) above, such reduction shall be made within each tranche on a pro rata basis (based upon the Company nor any other stockholder may include aggregate number of shares in such registration statement without the consent of Holders of a majority of the Common Stock or Registrable Securities included therein if held by the underwriter managing holders in each such offering advises tranche and subject to the Holders who have included Registrable Securities priorities set forth in such registration statement that the inclusion of such additional shares may either limit the number of Registrable Securities which can be sold or adversely affect the price at which such Registrable Securities can be sold.preceding sentence);
(c) Notwithstanding With respect to a request for registration pursuant to Section 1.3(b)2(a) which is for an underwritten public offering, the Company managing underwriter shall have be chosen by the rightCompany, exercisable by written notice subject to the initiating Holder(s) within thirty days after receipt of a request to effect a registration under the Securities ActStockholders' consent, to include the Company's shares in such registration, in which event such registration shall be deemed to be a Company-initiated registration, and the Holders shall have the right to include their Registrable Securities and shares of Class A Common Stock, as the case may be, therein to the extent permitted under Section 1.2.
(d) The Company consent shall not be obligated to effect more unreasonably withheld or delayed. The Company may not cause any other registration of securities for sale for its own account (other than ten registrations under this Section 1.3. Such registrations shall be on Form S-3 when the Company is eligible to use that form under SEC rules, but otherwise may be on Form S-1. No registration statement initiated by Holders hereunder shall count as a registration under this Section 1.3 unless and until it shall have been declared effective. Any registration requested under this Section 1.3 which shall not become effective solely by reason of the refusal of the Holders participating therein to proceed with the registration shall count as a registration effected under solely to implement an employee benefit plan or a transaction to which Rule 145 of the Securities Act is applicable) to become effective within one hundred eighty (180) days following the effective date of any registration required pursuant to this Section 1.3 unless and until the Company shall have been reimbursed for the Registration Expenses incurred by it in connection therewith2.
Appears in 1 contract
Demand Registrations. (a) At any time after the first anniversary initial public offering of the date of this Agreement, if the Company receives in writing a request that the Company effect the Company’s Common Stock pursuant to an effective registration under the Securities Act of Registrable Securities, of with a minimum aggregate offering price of $20,000,000 (as determined with reference to the number of shares proposed to be sold in such registration multiplied by the average closing price, or if no closing price is available, the mean of the bid and asked prices, over the fifteen trading days preceding the date of such written demand“IPO”), a Majority Interest may request that the Company will:
(i) promptly give written notice of register under the proposed registration to Securities Act all other Holders; and
(ii) as soon as practicable, prepare and file and use commercially reasonable efforts to cause to become effective such registration statement as may be so requested and as would permit or facilitate the sale and distribution of such any portion of the Registrable Securities as is specified in held by such Majority Interest; provided that such registration shall not become effective prior to the six month anniversary of the effectiveness of the Company’s IPO. Upon receipt of such request, together with the Company shall promptly deliver notice of such additional portion request to all Holders, who shall then have thirty (30) days to notify the Company in writing of their desire to be included in such registration. If the request for registration contemplates an underwritten public offering, the Company shall state such in the written notice and in such event the right of any Holder to participate in such registration shall be conditioned upon their participation in such underwritten public offering and the inclusion of their Registrable Securities in the underwritten public offering to the extent provided herein. The Company will use its best efforts to effect expeditiously the registration of all Registrable Securities whose holders request, pursuant to this Section 2, participation in such registration under the Securities Act and to qualify such Registrable Securities for sale under any state blue sky law; provided, however, that the Company shall not be required to effect registration pursuant to a request under this Section 2 more than two (2) times for the holders of the Registrable Securities as a group. Notwithstanding anything to the contrary contained herein, no request may be made under this Section 2 within ninety (90) days after the effective date of a registration statement filed by the Company covering a firm commitment underwritten public offering. The Company may postpone the filing or the effectiveness of any Holder(sregistration statement pursuant to this Section 2 for a reasonable time period, provided that such postponements shall not exceed ninety (90) joining days in the aggregate during any twelve (12) month period, if (i) the Company has been advised by legal counsel that such filing or effectiveness would require disclosure of a material financing, acquisition or other corporate transaction, and the Board of Directors determines in good faith that such disclosure is not in the best interests of the Company and its stockholders or (ii) the Board of Directors determines in good faith that there is a valid business purpose or reason for delaying filing or effectiveness. A registration will not count as a requested registration under this Section 2(a) until the registration statement relating to such registration has been declared effective by the Commission at the request of the initiating Investors; provided, however, that if the Investors holding not less than a majority of the participating Registrable Securities owned by all Investors shall request, in writing, that the Company withdraw a registration statement that has been filed under this Section 2(a) but has not yet been declared effective, a majority in interest of such Investors may thereafter request the Company to reinstate such registration statement, if permitted under the Securities Act, or to file another registration statement, in accordance with the procedures set forth herein. In addition, a registration will not count as a requested registration under this Section 2(a) in the event that any Registrable Securities sought to be included by the Investors in such request as may be specified registration are excluded from such registration in a written request given to the Company within twenty days after receipt of the written notice from the Company specified in accordance with Section 1.3(a)(i)2(b) or Section 4.
(b) If a requested registration involves an underwritten public offering and the managing underwriter managing the of such offering advises the Holders who have requested inclusion of their Registrable Securities determines in such registration statement good faith that marketing considerations require a limitation on the number of shares offeredsecurities sought to be offered should be limited due to market conditions, then the number of securities to be included in such limitation underwritten public offering shall be imposed pro rata among reduced to a number deemed satisfactory by such Holders who requested inclusion managing underwriter; provided, however, that the shares to be excluded shall be determined in the following sequence: (i) first, securities held by any Persons not having contractual, incidental registration rights, (ii) second, shares sought to be registered by the Company, (iii) third, securities held by any Person having contractual, incidental registration rights pursuant to an agreement other than this Agreement and (iv) fourth, the Registrable Securities sought to be included by the Management Stockholders and the Registrable Securities sought to be included by the Investors. If there is a reduction of the number of Registrable Securities in registered pursuant to clauses (i), (iii) or (iv) such registration statement according to reduction shall be made on a pro rata basis (based upon the aggregate number of shares of Common Stock or Registrable Securities owned held by eachthe holders in each tranche and subject to the priorities set forth in the preceding sentence). Neither To facilitate the allocation of shares in accordance with the above provisions, the Company nor or the managing underwriter may round the shares allocated to any other stockholder may include shares in such Holder to the nearest one hundred (100) shares.
(c) With respect to a request for registration statement without pursuant to Section 2(a) that is for an underwritten public offering, the consent of Holders of managing underwriter shall be chosen by the Investors holding not less than a majority of the Registrable Securities included therein if the underwriter managing such offering advises the Holders who have included Registrable Securities to be sold by all Investors in such registration statement that the inclusion of such additional shares may either limit the number of Registrable Securities which can be sold or adversely affect the price at which such Registrable Securities can be sold.
(c) Notwithstanding Section 1.3(b)offering, the Company shall have the right, exercisable by written notice subject to the initiating Holder(s) within thirty days after receipt of a request to effect a registration under the Securities ActCompany’s consent, to include the Company's shares in such registration, in which event such registration shall be deemed to be a Company-initiated registration, and the Holders shall have the right to include their Registrable Securities and shares of Class A Common Stock, as the case may be, therein to the extent permitted under Section 1.2.
(d) The Company consent shall not be obligated to effect more unreasonably withheld. The Company may not cause any other registration of securities for sale for its own account (other than ten registrations under this Section 1.3. Such registrations shall be on Form S-3 when the Company is eligible to use that form under SEC rules, but otherwise may be on Form S-1. No registration statement initiated by Holders hereunder shall count as a registration under this Section 1.3 unless and until it shall have been declared effective. Any registration requested under this Section 1.3 which shall not become effective solely by reason of the refusal of the Holders participating therein to proceed with the registration shall count as a registration effected under solely to implement an employee benefit plan or a transaction to which Rule 145 of the Securities Act is applicable) to become effective within one hundred eighty (180), days following the effective date of any registration required pursuant to this Section 1.3 unless and until 2 or such lesser period as may be consented to by the Company shall have been reimbursed for the Registration Expenses incurred by it in connection therewithmanaging underwriter.
Appears in 1 contract
Samples: Registration Rights Agreement (Open Link Financial, Inc.)
Demand Registrations. (a) At any time after the first anniversary of following the date on which the Investor takes possession of this Agreementany Registrable Securities pursuant to the Loan Documents, if the Company receives in writing a one or more Holders may request that the Company effect the registration under the Securities Act of such Registrable SecuritiesSecurities on Form S-1 or any similar long-form registration (“Long-Form Registrations”) or on Form S-3 or any similar short-form registration, if available (“Short-Form Registrations”). Within ten days after receipt of with a minimum aggregate offering price of $20,000,000 (as determined with reference to the number of shares proposed to be sold in any such registration multiplied by the average closing price, or if no closing price is available, the mean of the bid and asked prices, over the fifteen trading days preceding the date of such written demand)request, the Company will:
(i) promptly will give written notice of the proposed such requested registration to all other Holders; and
(ii) as soon as practicable, prepare if any, and file and use commercially reasonable efforts to cause to become effective will include in such registration statement as all Registrable Securities with respect to which the Company has received written requests for inclusion therein within 20 days after the receipt of the Company’s notice. Only two registrations may be so requested demanded pursuant to this section (each, a “Demand Registration”), and only one of which may be a Long-Form Registration. A registration shall not be treated as would permit or facilitate a Demand Registration unless the sale and distribution holders of such portion Registrable Securities are able to include, in accordance with the following provisions, at least 75% of the Registrable Securities as is specified requested to be included in such requestregistration and until (i) the applicable registration statement under the Securities Act (the “Registration Statement”) has been filed with the Securities and Exchange Commission (the “SEC”) with respect to such Demand Registration and been declared effective and (ii) such Registration Statement shall have been maintained continuously effective for a period of at least 120 days or such shorter period when all Registrable Securities included therein have been sold thereunder in accordance with the manner of distribution set forth in such registration statement. The Company may postpone for up to six months the filing or the effectiveness (which may include the withdrawal of an effective registration statement) of a Registration Statement pursuant to this Section 2.1 if the Company’s board of directors reasonably determines in its good faith judgment that, together with such additional portion because of the Registrable Securities existence of any Holder(sproposal or plan by the Company or any of its subsidiaries to engage in any acquisition or financing activity (other than in the ordinary course of business) joining in such request as may or the unavailability for reasons beyond the Company’s control of any required financial statements, or any other event or condition of similar significance to the Company, it would be specified in a written request given materially disadvantageous to the Company within twenty days after receipt of the written notice from the for such a Registration Statement to be maintained effective, or to be filed and become effective. The Company specified may include in Section 1.3(a)(i).
(b) a Demand Registration any securities that are not Registrable Securities. If the underwriter managing the offering advises the Holders who have requested inclusion of their Registrable Securities in such registration statement that marketing considerations require a limitation on the number of shares offered, such limitation shall be imposed pro rata among such Holders who requested inclusion of Registrable Securities in such registration statement according to the number of shares of Registrable Securities owned by each. Neither the Company nor any other stockholder may include shares in such registration statement without the consent of Holders holders of a majority of the Registrable Securities included therein if the underwriter managing sought to be registered in a Demand Registration request that such offering advises the Holders who have included Registrable Securities in such registration statement that the inclusion of such additional shares may either limit the number of Registrable Securities which can Demand Registration be sold or adversely affect the price at which such Registrable Securities can be sold.
(c) Notwithstanding Section 1.3(b)an underwritten offering, then the Company shall have the rightuse its best efforts to acquire a nationally recognized underwriter or underwriters to manage and administer such offering, exercisable by written notice to the initiating Holder(s) within thirty days after receipt of a request to effect a registration under the Securities Act, to include the Company's shares in such registration, in which event such registration shall be deemed to be a Company-initiated registration, and the Holders shall have the right to include their Registrable Securities and shares of Class A Common Stockunderwriter or underwriters, as the case may be, therein to be subject to the extent permitted under Section 1.2.
(d) The Company shall not reasonable approval of holders of a majority of the Registrable Securities. If a Demand Registration is an underwritten offering and the managing underwriter determines and advises in writing that the inclusion of all the Registrable Securities and other securities proposed to be obligated to effect more than ten registrations under this Section 1.3. Such registrations included in the underwritten public offering would interfere with the successful marketing of such Registrable Securities, then the number of such Registrable Securities that the managing underwriter believes in good faith may be sold in such underwritten public offering shall be on Form S-3 when the Company is eligible to use that form under SEC rules, but otherwise may be on Form S-1. No registration statement initiated by Holders hereunder shall count as a registration under this Section 1.3 unless and until it shall have been declared effective. Any registration requested under this Section 1.3 which shall not become effective solely by reason of the refusal of the Holders participating therein to proceed with the registration shall count as a registration effected under this Section 1.3 unless and until the Company shall have been reimbursed allocated for inclusion in the Registration Expenses incurred Statement in the following order of priority: (x) Registrable Securities being offered by it the Holders, on a pro rata basis, based upon the number of Registrable Securities sought to be registered by each such Holder; and (y) other securities sought to be included in connection therewith.the Demand Registration. 2
Appears in 1 contract
Samples: Registration Rights Agreement (Entrust Financial Services Inc)
Demand Registrations. (a) At any time after Subject to the first anniversary of the date provisions and limitations of this AgreementSection 2.1, if the Company receives in writing Corporation shall receive a written request (a “Demand Registration Notice”) from one or several Holders of Registrable Securities (the “Initiating Holder(s)”) that the Company Corporation file a Registration Statement under the Securities Act for Registrable Securities the sale of which is expected to result in aggregate gross proceeds in excess of $15,000,000 million based on the average closing price of the Common Stock over 20 trading days preceding the Demand Registration Notice (the “Demand Registrable Securities”) held by such Initiating Holder(s) on the date thereof (a “Demand Registration”), then the Corporation shall, subject to the limitations of this Section 2.1, use its commercially reasonable efforts to effect the registration under the Securities Act of all such Demand Registrable Securities that such Initiating Holder(s) request(s) to be registered.
(b) The Demand Registration Notice shall specify (i) the number of Registrable Securities requested to be registered, (ii) the anticipated per share price range for such offering (which range may be revised from time to time by the Initiating Holder(s) by written notice to the Corporation to that effect), (iii) the intended methods of disposition and the name of the lead underwriter, if any, and (iv) subject to Section 2.1(e), whether such registration shall be a “shelf” registration pursuant to Rule 415 under the Securities Act (a “Shelf Registration”).
(c) Within 10 days after receipt of a Demand Registration Notice, the Corporation shall give written notice (a “Registration Notice”) of the requested registration to all other Holders of Registrable Securities (the “Other Holders” and, together with the Initiating Holder(s), the “Demanding Holders”). The Registration Notice shall describe the amount and type of securities being registered, the intended method(s) of distribution and the name of the proposed managing underwriter, if any. The Corporation shall include in such registration all Registrable Securities of the same class as the Demand Registrable Securities with respect to which the Corporation has received written requests from Other Holders (each of which requests shall specify the Other Holder, the number of Registrable Securities that such Other Holder elects to include in such registration and the intended method of disposition of such Registrable Securities) within 10 days after the receipt of the Registration Notice. The Corporation shall, as promptly as practicable, and in any event within 120 days after the date of the Demand Registration Notice, file a Registration Statement under the Securities Act covering (i) all Demand Registrable Securities, (ii) any additional Registrable Securities requested to be included in such registration by any Other Holders, as specified by notice given timely by each such Other Holders to the Corporation (the “Member Registrable Securities”), (iii) any newly issued or treasury securities of with the Corporation of the same class as the Demand Registrable Securities which the Corporation seeks to have included in such registration (the “Corporation Registrable Securities”), and (iv) any securities of the Corporation of the same class as the Demand Registrable Securities proposed to be included in such registration by holders of registration rights granted other than pursuant to this Agreement (the “Other Holder Registrable Securities”).
(d) If a minimum aggregate offering price Demand Registration pursuant to this Section 2.1 involves an Underwritten Offering and the managing underwriter or underwriters advise the Corporation, in writing, that in its or their opinion the total number or dollar amount of $20,000,000 (as determined with reference Registrable Securities and, if permitted hereunder, other securities requested to be included in such Underwritten Offering exceeds the number of shares proposed Registrable Securities and other securities, if any, which can be sold therein without adversely affecting the Corporation or the marketability of the Underwritten Offering (an “Adverse Effect”), the Corporation may exclude such number of Registrable Securities as necessary or desirable to negate such Adverse Effect, in which case it shall include in such registration: (i) first, subject to the below, all Demand Registrable Securities and Member Registrable Securities, (ii) second, all Other Holder Registrable Securities, in each case pro rata based on the amount of all such Other Holder Registrable Securities requested to be sold included, and (iii) third, all Company Registrable Securities. If such managing underwriter or underwriters advise the Corporation that only a portion of the Registrable Securities in clause (i) above may be included in such registration multiplied without such Adverse Effect, the Corporation shall include the Registrable Securities in such clause on a pro rata basis based on the relative number of Registrable Securities of each Holder requested to be so included in a registration (provided that any such amount thereby allocated to any such Holder that exceeds such Holder’s request shall be reallocated among the remaining requesting Holders in a like manner). Any Person (other than Holders of Registrable Securities) that participates in Demand Registrations which are not at the Corporation’s expense must pay their share of any Registration Expenses.
(e) Notwithstanding any other provisions of this Section 2.1, in no event shall the Holder(s) collectively be permitted to (i) request more than one (1) Demand Registration in any twelve (12)-month period; provided that in no event shall the Corporation be obligated to file a Registration Statement relating to any registration request under this Section 2.1 within a period of 180 days after the effective date of any other Registration Statement relating to any registration request under this Section 2.1 or any other registration effected by the average closing priceCorporation (other than on Form S-4 or Form S-8 or any similar or successor form), including under Section 2.2; or (ii) request a Demand Registration if, at the time such request is made, a Shelf Registration or other Registration Statement is effective which includes all of the Registrable Securities of such Holders and also permits an Underwritten Offering of such Registrable Securities.
(f) The Corporation shall be entitled to postpone (but not more than once in any twelve-month period), for a reasonable period of time not in excess of 120 days, the filing of a Registration Statement (including a Shelf Registration) if the Corporation delivers to the Holders requesting registration a resolution of the Board that, in the good faith judgment of the Board, such registration and offering would reasonably be expected to materially adversely affect any bona fide material financing of the Corporation or any material transaction under consideration by the Corporation (including an acquisition) or would require disclosure of information that has not been disclosed to the public and is not otherwise required to be disclosed at that time that would reasonably be expected to materially adversely affect the Corporation or a transaction contemplated by the Corporation. Such Board resolution shall contain a summary statement of the reasons for such postponement and an approximation of the anticipated delay. The Holders receiving such resolution shall keep the information contained in such resolution confidential. If the Corporation shall so postpone the filing of a Registration Statement, the Initiating Holder(s) shall have the right to withdraw the request for registration by giving written notice to the Corporation within 20 days of the anticipated termination date of the postponement period, as provided in such resolution delivered to the Holders, and in the event of such withdrawal, such request shall not be counted for purposes of the number of Demand Registrations to which the Holders are entitled pursuant to the terms herein. In addition, a Holder of Registrable Securities may not use a Shelf Registration Statement to effect the sale of any such Registrable Securities unless such Holder has given the Corporation at least three (3) Business Days advance written notice of the date or dates of a proposed sale of such securities by such Holder pursuant to such Shelf Registration Statement (which notice may be given as often as such Holder desires), and upon receipt of such a notice, the Corporation agrees to provide prompt written notice to such Holder if such Shelf Registration Statement is not then usable (whether for reasons described above or otherwise).
(g) If the Corporation has filed a Shelf Registration Statement and has included Registrable Securities therein, the Corporation shall be entitled to suspend (but not more than an aggregate of 120 days in any twelve-month period), for a reasonable period of time not in excess of 120 days, the offer or sale of Registrable Securities pursuant to such Shelf Registration Statement by any Holder of Registrable Securities if (i) a “road show” is not then in progress with respect to a proposed offering of Registrable Securities by such Holder pursuant to such Shelf Registration Statement and such Holder has not executed an underwriting agreement with respect to a pending sale of Registrable Securities pursuant to such Shelf Registration Statement and (ii) the Corporation delivers to the Holders included in such Shelf Registration Statement a resolution of the Board that, in the good faith judgment of the Board, such offer or sale would reasonably be expected to materially adversely affect any bona fide material financing of the Corporation or any material transaction under consideration by the Corporation (including an acquisition) or would require disclosure of information that has not been disclosed to the public and is not otherwise required to be disclosed at that time that would reasonably be expected to materially adversely affect the Corporation. Such Board resolution shall contain a statement of the reasons for such postponement and an approximation of the anticipated delay. The Holders receiving such resolution shall keep the information contained in such certificate confidential.
(h) The Corporation shall be required to maintain the effectiveness of a Registration Statement (except in the case of a Shelf Registration) with respect to any Demand Registration for a period of at least 180 days after the effective date thereof or such shorter period in which all Registrable Securities included in such Registration Statement have actually been sold; provided, however, that such period shall be extended for a period of time equal to the period the Holder of Registrable Securities refrains from selling any securities included in such registration at the request of (x) an underwriter or (y) the Corporation pursuant to the provisions herein. The Corporation shall be required to maintain the effectiveness of a Registration Statement that is a Shelf Registration with respect to any Demand Registration at all times after the effective date thereof until all Registrable Securities included in such Shelf Registration Statement have actually been sold; provided, however, that any Holder of Registrable Securities whose securities have been included in such Shelf Registration may request that such Registrable Securities be removed from such Registration Statement, in which event the Corporation shall promptly either withdraw such Registration Statement if the Registrable Securities of such Holder are the only securities still covered by such Registration Statement or file a post-effective amendment to such Registration Statement removing such Registrable Securities.
(i) Notwithstanding anything contained herein to the contrary, the Corporation hereby agrees that (i) each Demand Registration that is a Shelf Registration shall contain all language (including on the Prospectus cover sheet, the principal stockholders’ table and the plan of distribution) as may be reasonably requested by a Holder of Registrable Securities to allow for a distribution to, and resale by, the direct and indirect partners, members or stockholders of a Holder of Registrable Securities (a “Partner Distribution”) and (ii) the Corporation shall, at the reasonable request of any Holder of Registrable Securities seeking to effect a Partner Distribution, file any prospectus supplement or post-effective amendments and otherwise take any action reasonably necessary to include such language, if such language was not included in the initial Registration Statement, or revise such language if no closing price is availabledeemed reasonably necessary by such Holder to effect such Partner Distribution.
(j) At the election of the Initiating Holder(s), a requested registration pursuant to this Section 2.1 may involve an Underwritten Offering and, in such case, the mean Initiating Holder(s), in consultation with the Other Holders, shall have the right to select the investment banker and manager to administer the offering relating to such Demand Registration, subject to the approval of the bid Board, which shall not be unreasonably withheld, delayed or conditioned.
(k) For purposes of this Section 2.1, a registration shall not be counted as “effected” and asked prices, over the fifteen trading days preceding the date of such written demand), the Company willshall not be considered a Demand Registration:
(i) promptly give written notice unless a Registration Statement with respect thereto has become effective and remained effective in compliance with the provisions of the proposed registration to Securities Act until the earlier of (x) such time as all other Holders; and
(ii) as soon as practicable, prepare and file and use commercially reasonable efforts to cause to become effective such registration statement as may be so requested and as would permit or facilitate the sale and distribution of such portion of the Registrable Securities as is specified in such request, together with such additional portion of the Registrable Securities of any Holder(s) joining in such request as may be specified in a written request given to the Company within twenty days after receipt of the written notice from the Company specified in Section 1.3(a)(i).
(b) If the underwriter managing the offering advises the Holders who have requested inclusion of their Registrable Securities in such registration statement that marketing considerations require a limitation on the number of shares offered, such limitation shall be imposed pro rata among such Holders who requested inclusion of Registrable Securities in such registration statement according to the number of shares of Registrable Securities owned by each. Neither the Company nor any other stockholder may include shares in such registration statement without the consent of Holders of a majority of the Registrable Securities included therein in such Registration Statement have been disposed of in accordance with the intended methods of disposition thereof set forth in such Registration Statement or (y) 180 days after the effective date of such Registration Statement; provided, however, that if the underwriter managing failure of any such offering advises Registration Statement to become or remain effective in compliance with this Section 2.1(k) is due solely to acts or omissions of the Holders who Initiating Holder(s), such registration requested pursuant to this Section 2.1 will be deemed to have included been effected;
(ii) if, after it has become effective, the Registration Statement with respect thereto is subject to any stop order, injunction or other order or requirement of the SEC or other governmental agency or authority prohibiting the sale of Demand Registrable Securities in pursuant to such registration statement that Registration Statement, other than by reason of an act or omission on the inclusion part of such additional shares may either limit the Initiating Holder(s); or
(iii) if, as a result of an exercise of any cutback, a majority of the total number of Registrable Securities which can be sold or adversely affect that the price at which such Registrable Securities can be sold.
(c) Notwithstanding Section 1.3(b), the Company shall have the right, exercisable by written notice to the initiating Initiating Holder(s) within thirty days after receipt of a request had requested to effect a registration under the Securities Act, to include the Company's shares be included in such registration, in which event such registration shall be deemed to be a Company-initiated registration, and the Holders shall have the right to include their Registrable Securities and shares of Class A Common Stock, as the case may be, therein to the extent permitted under Section 1.2Registration Statement are not included.
(d) The Company shall not be obligated to effect more than ten registrations under this Section 1.3. Such registrations shall be on Form S-3 when the Company is eligible to use that form under SEC rules, but otherwise may be on Form S-1. No registration statement initiated by Holders hereunder shall count as a registration under this Section 1.3 unless and until it shall have been declared effective. Any registration requested under this Section 1.3 which shall not become effective solely by reason of the refusal of the Holders participating therein to proceed with the registration shall count as a registration effected under this Section 1.3 unless and until the Company shall have been reimbursed for the Registration Expenses incurred by it in connection therewith.
Appears in 1 contract
Samples: Merger Agreement (Global Partner Acquisition Corp.)
Demand Registrations. (a) At any time, and from time after to time, following the first anniversary of six month period following the date of this AgreementCompany's Initial Public Offering, if the Company receives Micrologix may request in writing a request that the Company effect the registration under the Securities Act of Registrable Securities, all or part of with its Restricted Shares (a minimum aggregate offering price of $20,000,000 (as determined with reference to “Demand Registration”). Each request for a Demand Registration shall specify the approximate number of shares proposed Restricted Shares requested to be sold in registered and the anticipated per share price range for such registration multiplied by the average closing price, or if no closing price is available, the mean of the bid and asked prices, over the fifteen trading days preceding the date of such written demandoffering. Subject to Section 7.2(c), the Company will:
(i) promptly give written notice of the proposed registration to all other Holders; and
(ii) as soon as practicable, prepare and file and use commercially reasonable efforts to cause to become effective will include in such registration statement as may be so requested and as would permit or facilitate prospectus all Restricted Shares with respect to which the sale and distribution of such portion of the Registrable Securities as is specified in such request, together with such additional portion of the Registrable Securities of any Holder(s) joining in such request as may be specified in Company has received a written request given to the Company for inclusion within twenty 15 days after the receipt of the written notice from Company's notice. All registrations and qualifications requested pursuant to this Section 7.2(a) are referred to herein as “Demand Registrations.” Subject to Section 7.2(c), Micrologix will be entitled to request two Demand Registrations, for which the Company specified in Section 1.3(a)(i)shall pay all registration expenses to the fullest extent permitted by law, other than any underwriting fees, expenses and discounts, which shall be borne by Micrologix.
(b) The Company will not include in any Demand Registration any securities which are not Restricted Shares without the prior written consent of Micrologix, which shall not be unreasonably withheld or delayed. If a Demand Registration is an underwritten offering and the underwriter managing underwriters advise the offering advises the Holders who have requested inclusion Company in writing (with a copy to each party hereto requesting registration or qualification for distribution by prospectus of Restricted Shares) that, in their Registrable Securities in such registration statement that marketing considerations require a limitation on good faith opinion, the number of shares offeredRestricted Shares and, such limitation shall if permitted hereunder, other securities requested to be imposed pro rata among such Holders who requested inclusion of Registrable Securities included in such registration statement according to offering, exceeds the number of shares of Registrable Securities owned by each. Neither the Company nor any Restricted Shares and other stockholder may include shares in such registration statement without the consent of Holders of a majority of the Registrable Securities included therein securities, if the underwriter managing such offering advises the Holders who have included Registrable Securities in such registration statement that the inclusion of such additional shares may either limit the number of Registrable Securities any, which can be sold or therein without adversely affect affecting the price at marketability of the offering, the Company will include in such offering, prior to the inclusion of any securities which are not Restricted Shares, the number of Restricted Shares requested to be included which, in the opinion of such Registrable Securities underwriters, can be soldsold without adversely affecting the marketability of the offering.
(c) Notwithstanding Section 1.3(b), The Company will not be obligated to effect any Demand Registration within six (6) months after the Company shall have the right, exercisable by written notice to the initiating Holder(s) within thirty days after effective date or date of final receipt of a request previous Demand Registration. The Company may, on no more than one occasion during any 12-month period, postpone for up to effect an aggregate of 90 days the filing of a prospectus or the effectiveness of a registration under statement for a Demand Registration if the Securities ActCompany concludes, following consultation with, and after obtaining the approval of, the board of directors of the Company, that such Demand Registration would reasonably be expected to have a materially adverse effect on any proposal or plan by the Company to engage in any material acquisition of assets (other than in the ordinary course of business) or any financing transaction, merger, amalgamation, consolidation, tender offer or similar transaction or otherwise would have a material adverse effect on the business, assets, operations, or financial condition of the Company; provided, however, that in such event, the requesting party will be entitled to withdraw such request and, if such request is withdrawn promptly, such Demand Registration will not count as one of the permitted Demand Registrations hereunder and the Company will pay, to include the Company's shares fullest extent permitted by applicable law, all registration expenses in such registration, in which event connection with such registration or prospectus, other than any underwriting fees, expenses and discounts, which shall be deemed to be a Company-initiated registration, and borne by the Holders shall have the right to include their Registrable Securities and shares of Class A Common Stock, as the case may be, therein to the extent permitted under Section 1.2requesting party or parties.
(d) The Company shall On any Demand Registration, Micrologix, at its sole expense, will have the right to select the investment banker(s) and manager(s) from firms of national reputation in the U.S. to administer the offering, subject to the Company's approval which will not be obligated to effect more than ten registrations under this Section 1.3. Such registrations shall be on Form S-3 when the Company is eligible to use that form under SEC rules, but otherwise may be on Form S-1. No registration statement initiated by Holders hereunder shall count as a registration under this Section 1.3 unless and until it shall have been declared effective. Any registration requested under this Section 1.3 which shall not become effective solely by reason of the refusal of the Holders participating therein to proceed with the registration shall count as a registration effected under this Section 1.3 unless and until the Company shall have been reimbursed for the Registration Expenses incurred by it in connection therewithunreasonably withheld or delayed.
Appears in 1 contract
Demand Registrations. Commencing upon the earlier of consummation of an initial public offering of shares of the Company's stock (aan "IPO") At any time after or the first second anniversary of the Closing (but not within six (6) months of the effective date of this Agreementa registration statement), if on any occasion one or more holders of Registrable Shares shall notify the Company receives in writing that it or they intend to offer or cause to be offered for public sale Registrable Shares having an anticipated aggregate offering price of at least $2,000,000 (or $5,000,000 in the case of a request that registration pursuant to this Section 9.2 with respect to an IPO), the Company effect will so notify all holders of Registrable Shares, including all holders who have a right to acquire Registrable Shares. Upon written request of any holder given within twenty (20) days after the registration receipt by such holder from the Company of such notification, the Company will use its best efforts to cause such of the Registrable Shares as may be requested by any holder thereof (including the holder or holders giving the initial notice of intent to offer) to be registered under the Securities Act of Registrable Securities, of with a minimum aggregate offering price of $20,000,000 as expeditiously as possible. The Company shall not be required to effect more than two (as determined with reference 2) registrations pursuant to this Section 9.2. If the number of Company determines to include shares proposed to be sold by it or by other selling shareholders in any registration request pursuant to this Section 9.2, such registration shall be deemed to have been a "piggy back" registration under Section 9.1, and not a "demand" registration under this Section 9.2 if the holders of Registrable Shares are unable to include in any such registration statement at least seventy-five percent (75%) of the Registrable Shares initially requested for inclusion in such registration multiplied statement. The holders of Registrable Shares to be registered in a registered public offering pursuant to this Section 9.2 shall have the right to select the managing underwriter(s) for such offering, provided that in the case of an IPO pursuant to this Section 9.2 such underwriter(s) shall be nationally recognized. If, in connection with any offering involving an underwriting of Common Stock to be issued by the average closing price, or if no closing price is availableCompany, the mean of the bid and asked prices, over the fifteen trading days preceding the date of such written demand), the Company will:
(i) promptly give written notice of the proposed registration to all other Holders; and
(ii) as soon as practicable, prepare and file and use commercially reasonable efforts to cause to become effective such registration statement as may be so requested and as would permit or facilitate the sale and distribution of such portion of the Registrable Securities as is specified in such request, together with such additional portion of the Registrable Securities of any Holder(s) joining in such request as may be specified in a written request given to the Company within twenty days after receipt of the written notice from the Company specified in Section 1.3(a)(i).
(b) If the managing underwriter managing the offering advises the Holders who have requested inclusion of their Registrable Securities in such registration statement that marketing considerations require shall impose a limitation on the number of shares offeredof such Common Stock which may be included in the registration statement because, in its judgment, such limitation is necessary to effect an orderly public distribution, then the Company shall be imposed pro rata among such Holders who requested inclusion of Registrable Securities obligated to include in such registration statement according only such limited portion of the Registrable Shares with respect to the number of shares of Registrable Securities owned by each. Neither which such holder has requested inclusion hereunder; PROVIDED, HOWEVER, that the Company nor shall not so exclude any other stockholder may Registrable Shares unless it has first excluded any securities to be offered and sold by officers and employees of the Company or by holders who do not have contractual rights to include shares such securities in such registration statement without prior to or PARi PASSU with the consent of Holders of a majority of the Registrable Securities included therein if the underwriter managing such offering advises the Holders who have included Registrable Securities in such registration statement that the inclusion of such additional shares may either limit the number holders of Registrable Securities which can be sold or adversely affect the price at which such Registrable Securities can be soldShares.
(c) Notwithstanding Section 1.3(b), the Company shall have the right, exercisable by written notice to the initiating Holder(s) within thirty days after receipt of a request to effect a registration under the Securities Act, to include the Company's shares in such registration, in which event such registration shall be deemed to be a Company-initiated registration, and the Holders shall have the right to include their Registrable Securities and shares of Class A Common Stock, as the case may be, therein to the extent permitted under Section 1.2.
(d) The Company shall not be obligated to effect more than ten registrations under this Section 1.3. Such registrations shall be on Form S-3 when the Company is eligible to use that form under SEC rules, but otherwise may be on Form S-1. No registration statement initiated by Holders hereunder shall count as a registration under this Section 1.3 unless and until it shall have been declared effective. Any registration requested under this Section 1.3 which shall not become effective solely by reason of the refusal of the Holders participating therein to proceed with the registration shall count as a registration effected under this Section 1.3 unless and until the Company shall have been reimbursed for the Registration Expenses incurred by it in connection therewith.
Appears in 1 contract
Samples: Series E 1 Convertible Preferred Stock Purchase Agreement (NeuroMetrix, Inc.)
Demand Registrations. (a) At any time after August 20, 2000, the first anniversary holders of at least 50% of the date of this Agreement, if Registrable Securities (hereinafter the "Majority Holders") may request registration by the Company receives in writing a request that the Company effect the registration under the Securities Act of the resale by such holders of all or any portion of their Registrable Securities, of with a minimum aggregate offering price of $20,000,000 Securities (as determined with reference to an "Immediate Offering Registration"). A request for an Immediate Offering Registration shall specify the approximate number of shares proposed Registrable Securities requested to be sold in such registration multiplied registered by the average closing price, or if no closing price is available, the mean of the bid and asked prices, over the fifteen trading requesting holders. Within 1 0 days preceding the date after receipt of such written demand)request, the Company will:
(i) promptly shall give written notice of the proposed such requested registration to all other Holders; and
(ii) as soon as practicable, prepare holders of Registrable Securities and file and use commercially reasonable efforts to cause to become effective shall include in such registration statement as may be so requested and as would permit or facilitate all Registrable Securities with respect to which the sale and distribution of such portion Company has received written requests for inclusion therein within 15 days after delivery of the Registrable Securities as is specified in such request, together with such additional portion of the Registrable Securities of any Holder(s) joining in such request as may be specified in a written request given to the Company within twenty days after receipt of the written notice from the Company specified in Section 1.3(a)(i)Company's notice.
(b) If At any time after August 20, 2000, the underwriter managing Majority Holders may request registration by the offering advises Company under the Holders who have requested inclusion Securities Act of all or any portion of their Registrable Securities for resale in a delayed or continuous offering to the extent permitted by Rule 415 (or any successor rule thereto) under the Securities Act (a "Shelf Registration"). A registration statement for a Shelf Registration shall provide for resale by the holders in the manner or mariners designated in writing to the Company by them (including, without limitation, one or more underwritten offerings). Within 10 days after the receipt of such request, the Company shall give similar written notice of such requested registration to all other holders of Registrable Securities and shall include in such registration statement that marketing considerations require a limitation on the number of shares offered, such limitation shall be imposed pro rata among such Holders who requested inclusion of all Registrable Securities in such registration statement according with respect to the number of shares of Registrable Securities owned by each. Neither which the Company nor any other stockholder may include shares in such registration statement without the consent of Holders of a majority has received written requests for inclusion therein within 15 days after delivery of the Registrable Securities included therein if the underwriter managing such offering advises the Holders who have included Registrable Securities in such registration statement that the inclusion of such additional shares may either limit the number of Registrable Securities which can be sold or adversely affect the price at which such Registrable Securities can be soldCompany's notice.
(c) Notwithstanding Section 1.3(b)The Majority Holders shall be entitled to request either one (1) Immediate Offering Registration or one (1) Shelf Registration; provided, the Company shall have the right, exercisable by written notice to the initiating Holder(s) within thirty days after receipt of a request to effect a registration under shall not count as one of the Securities Actpermitted Demand Registration until it has become effective. For purposes of this Warrant, an Immediate Offering Registration and a Shelf Registration shall each constitute and be referred to include the Company's shares in such registration, in which event such registration shall be deemed to be a Company-initiated registration, and the Holders shall have the right to include their Registrable Securities and shares of Class A Common Stock, as the case may be, therein to the extent permitted under Section 1.2"Demand Registration."
(d) The Company shall not be obligated to effect more than ten registrations under this Section 1.3. Such registrations shall be on Form S-3 when include in any Demand Registration any securities which are not Registrable Securities without the Company is eligible to use that form under SEC rules, but otherwise may be on Form S-1. No registration statement initiated by Holders hereunder shall count as a registration under this Section 1.3 unless and until it shall have been declared effective. Any registration requested under this Section 1.3 which shall not become effective solely by reason of the refusal prior written consent of the Holders participating therein of at least 75% of the Registrable Securities initially requesting such registration. If a Demand Registration is an underwritten offering and the managing underwriters advise the Company in writing that in their opinion the number of Registrable Securities and, if permitted hereunder, other securities requested to proceed with be included in such offering exceeds the registration shall count as number of shares, if any, which can be sold in an orderly manner in such offering within a registration effected under this Section 1.3 unless and until price range acceptable to the Majority Holders initially requesting registration, subject, however, to the terms of any other agreement entered into prior to the date hereof to which the Company shall have been reimbursed be a party, the Company shall include in such registration prior to the inclusion of any securities which are not Registrable Securities the number of Registrable Securities requested to be included which in the opinion of such underwriters can be sold in an orderly manner within the price range of such offering, pro rata (i) first, among the respective Majority Holders requesting registration, and (ii) second, among the remaining respective holders of Registrable Securities, in each case on the basis of the amount of shares requested for inclusion by each such holder. Then, after the Registration Expenses incurred by it in connection therewithinclusion of all such Shares, the Company shall include any other securities requested for inclusion.
Appears in 1 contract
Demand Registrations. (a) At any time after and from time to time the first anniversary Holders may make a written request of the date Company for registration with the SEC, under and in accordance with the provisions of the Securities Act, of all or part of their Registrable Securities (a “Demand Registration”) by giving written notice to the Company of such demand (a “Demand Notice”); provided, that the Company shall be required to effect only one Demand Registration during any six-month period; provided, further, that the Holders may not exercise the rights provided by this AgreementSection 2.01(a) during the period commencing three months prior to the delivery of a Rights Offering Notice and ending on the closing of the applicable Rights Offering or, if the applicable Rights Offering Notice is not delivered, ninety (90) days after the applicable Rights Offering Trigger Date. The Company receives in writing a request that shall not be required to effect more than the Company effect the registration under the Securities Act Required Number of Registrable Securities, of with a minimum aggregate offering price of $20,000,000 (as determined with reference to Demand Registrations. Each such Demand Notice will specify the number of shares Registrable Securities proposed to be sold in pursuant to such registration multiplied Demand Registration and will also specify the intended method of disposition thereof. The Company shall give written notice, of any Demand Notice by the average closing priceany Holder, or if no closing price is available, the mean of the bid and asked prices, over the fifteen trading days preceding the date of such written demandwhich request complies with this Section 2.01(a), within 5 days after the Company will:
(i) promptly give written notice of the proposed registration receipt thereof, to all other Holders; and
(ii) as soon as practicable, prepare and file and use commercially reasonable efforts to cause to become effective such registration statement as may be so requested and as would permit or facilitate the sale and distribution of such portion of the Registrable Securities as is specified each Holder who did not initially join in such request. Within 10 days after receipt of such notice, together with any such additional portion of Holder may request in writing that its Registrable Securities be included in such registration, and the Company shall include in the Demand Registration the Registrable Securities of any Holder(s) joining in each such Holder requested to be so included, subject to the provisions of Section 2.01(e). Each such request as may be specified in a written request given to the Company within twenty days after receipt of the written notice from the Company specified in Section 1.3(a)(i).
(b) If the underwriter managing the offering advises the Holders who have requested inclusion of their Registrable Securities in such registration statement that marketing considerations require a limitation on the number of shares offered, such limitation shall be imposed pro rata among such Holders who requested inclusion of Registrable Securities in such registration statement according to specify the number of shares of Registrable Securities owned by eachproposed to be sold and the intended method of disposition thereof. Neither Promptly after receipt of any Demand Notice, but in no event later than 60 days after receipt of such Demand Notice, the Company nor shall file a Registration Statement with the SEC with respect to the Registrable Securities included in the Demand Notice and shall use its reasonable best efforts to have such Registration Statement declared effective as promptly as practicable; provided, however, that the Company may postpone the filing of such Registration Statement for a period of up to 90 days (the “Deferral Period”) if the Board of Directors reasonably determines that such a filing would materially adversely affect any proposed material financing, acquisition, divestiture or other material transaction by the Company. The Company shall not be entitled to request more than one such deferral with respect to any Demand Registration within any 365-day period. If the Company does elect to defer any such Demand Registration, the Holders requesting such Demand Registration may, at their election by written notice to the Company, (i) confirm their request to proceed with such Demand Registration upon the expiration of the Deferral Period or (ii) withdraw their request for such Demand Registration in which case no such request for a Demand Registration shall be deemed to have occurred for purposes of this Agreement and no further request for a Demand Registration may be made until prior to the expiration of the Deferral Period.
(b) Except as provided in subsection (c) below, a registration will not be deemed to have been effected as a Demand Registration unless it has been declared effective by the SEC; provided, that if a registration requested pursuant to this Section 2.01 has become effective, (i) the offering of Registrable Securities pursuant to such registration is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other stockholder may include shares in governmental or administrative agency, or if any court prevents or otherwise limits the sale of Registrable Securities pursuant to the registration, or (ii) the registration requested pursuant to this Section 2.01 does not remain continuously effective for a period of at least 90 days beyond the effective date thereof (or such registration statement without shorter period as is required to complete the consent of distribution by the Holders of a majority of the Registrable Securities included therein if the underwriter managing such offering advises the Holders who have included Registrable Securities in such registration statement) (the “Demand Registration Statement”), then such Demand Registration Statement shall not count as a Demand Registration that may be requested by the Demanding Holder(s) and the Company shall continue to be obligated to effect a registration pursuant to this Section 2.01.
(c) The Demanding Holders may withdraw all or any part of the Registrable Securities from a Demand Registration at any time (whether before or after the filing or effective date of the Demand Registration Statement), and if all such Registrable Securities are withdrawn, to withdraw the demand related thereto. Upon such withdrawal by the Demanding Holders, the Company shall withdraw any Demand Registration Statement relating to the withdrawn Registrable Securities and, so long as such Demand Registration statement has not been declared effective by the Commission and the Demanding Holders elect to bear the out-of-pocket expenses associated with such withdrawn registration statement, such withdrawn registration statement shall not count as a Demand Registration; provided, if the Company has not complied with its obligations under this Agreement in connection with such withdrawn registration statement or a Suspension Period is in effect, the Company shall not be entitled to a reimbursement of its out-of-pocket expenses pursuant to this sentence. Notwithstanding the foregoing, any request for a Demand Registration that is withdrawn by the Demanding Holders as a result of information concerning the business or financial condition of the Company that is provided to the Demanding Holders after the date on which a Demand Notice under Section 2.01(a) has been delivered to the Company, shall not count as a Demand Registration.
(d) If the Demanding Holders so elects, the offering of Registrable Securities pursuant to a Demand Registration shall be in the form of an Underwritten Offering. The Demanding Holders shall select (with the consent of the Company, not to be unreasonably withheld) one or more nationally recognized firms of investment bankers to act as the managing underwriter or underwriters in connection with such offering and shall select any additional investment bankers and managers to be used in connection with such offering; provided, that in the event that the inclusion Company and the Demanding Holders are unable to jointly agree on such investment bankers and managers, such investment bankers and managers shall be selected by the Demanding Holders and shall be reasonably satisfactory to the Company. The Company shall (together with all Holders of Registrable Securities proposing to distribute such additional shares may either limit Registrable Securities through such underwriting) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting in the manner set forth above.
(e) If, in any Demand Registration involving an Underwritten Offering the managing underwriter or underwriters thereof advise the Demanding Holders or the Company in writing that in its or their reasonable opinion the number of Registrable Securities which proposed to be sold in such Demand Registration exceeds the number that can be sold in such offering or will adversely affect the success of such offering (including, without limitation, an impact on the selling price at which such or the number of Registrable Securities can be sold.
(c) Notwithstanding Section 1.3(bthat any participant may sell), the Company shall include in such registration only the number of Registrable Securities, if any, which in the opinion of such underwriter or underwriters can be sold without having an adverse effect on the success of the offering and in accordance with the following priority: (i) first, Registrable Securities held by Demanding Holders and (ii) second, pro rata (based upon the number of Registrable Securities requested to be included in such registration by such Holders) among the other Holders of Registrable Securities who have the right, exercisable by written notice to the initiating Holder(s) within thirty days after receipt of a request to effect a registration under the Securities Act, requested to include the Company's shares Registrable Securities in such registration, in which event such registration shall be deemed . If all Registrable Securities requested to be a Company-initiated registrationsold in the Underwritten Offering are included therein, and the Holders shall have the right to Company may include their Registrable Securities and other shares of Class A Common StockStock in such offering in accordance with the following priority, as but not to exceed the case may benumber recommended by the managing underwriter or underwriters: (x) first, therein to the extent permitted under Section 1.2.
(d) The Company shall not be obligated to effect more than ten registrations under this Section 1.3. Such registrations shall be on Form S-3 when pro rata among any other stockholders of the Company is eligible having piggyback or other similar registration rights and (y) second, shares of Stock proposed to use that form under SEC rules, but otherwise may be on Form S-1. No registration statement initiated sold by Holders hereunder shall count as a registration under this Section 1.3 unless and until it shall have been declared effective. Any registration requested under this Section 1.3 which shall not become effective solely by reason or for the account of the refusal of the Holders participating therein to proceed with the registration shall count as a registration effected under this Section 1.3 unless and until the Company shall have been reimbursed for the Registration Expenses incurred by it in connection therewithCompany.
Appears in 1 contract
Samples: Registration Rights Agreement (Lexicon Pharmaceuticals, Inc./De)
Demand Registrations. (a) At any time after A registration shall not be treated as a Demand Registration unless the first anniversary holders of Registrable Securities are able to include, in accordance with the following provisions, at least 75% of the date of this Agreement, if Registrable Securities requested to be included in such registration and until (i) the Company receives in writing a request that the Company effect the applicable registration statement under the Securities Act has been filed with the SEC with respect to such Demand Registration and been declared effective and (ii) such Registrations Statement shall have been maintained continuously effective for a period ending two (2) years from the Effective Time or one hundred twenty (120) days after the effective date of such registration statement, whichever is greater, or such shorter period when all Registrable Securities, Securities included therein have been sold thereunder in accordance with the manner of with a minimum aggregate offering price of $20,000,000 (as determined with reference to the number of shares proposed to be sold distribution set forth in such registration multiplied statement. The Company may include in such Demand Registration other securities held by the average closing pricesecurity holders entitled to registration rights, or if no closing price is available, the mean provided that such securities are of the bid and asked prices, over the fifteen trading days preceding the date of such written demand), the Company will:
(i) promptly give written notice of the proposed registration to all other Holders; and
(ii) same class as soon as practicable, prepare and file and use commercially reasonable efforts to cause to become effective such registration statement as may be so requested and as would permit or facilitate the sale and distribution of such portion of the Registrable Securities as with respect to which such Demand Registration has been made. If, in connection with a Demand Registration, any managing underwriter (or, if such Demand Registration is specified in such requestnot an underwritten offering, together with such additional portion of a nationally recognized independent underwriter selected by the Registrable Securities of any Holder(s) joining in such request as may be specified in a written request given to the Company within twenty days after receipt of the written notice from the Company specified in Section 1.3(a)(i).
(b) If the underwriter managing the offering advises the Holders who have requested inclusion of their Registrable Securities in such registration statement that marketing considerations require a limitation on the number of shares offered, such limitation shall be imposed pro rata among such Holders who requested inclusion of Registrable Securities in such registration statement according to the number of shares of Registrable Securities owned by each. Neither the Company nor any other stockholder may include shares in such registration statement without the consent of Holders holders of a majority of the Registrable Securities sought to be registered in such Demand Registration (which such underwriter shall be reasonably acceptable to the Company and whose fees and expenses shall be borne solely by the Company in the case of the first Demand Registration and borne on a pro rata basis by all holders of securities permitted by such underwriter to be included in any subsequent Demand registration, in proportion to the number of securities included in such Demand Registration)) advises the Company and the holders of the Registrable Securities sought to be included in such Demand Registration that, in its judgement, marketing or other factors dictate that limiting the securities to be included in the Registration Statement is necessary to facilitate public distribution of the Registrable Securities ultimately to be included therein, then the Company shall include in such Registration Statement only such limited portion of the Registrable Securities and other securities sought to be registered therein if as the underwriter managing such offering advises the Holders who have included shall permit in accordance with this paragraph. Any exclusion of Registrable Securities shall be made pro rata among the Shareholders seeking to include Registrable Securities, in such registration statement that the inclusion of such additional shares may either limit proportion to the number of Registrable Securities which can sought to be sold or adversely affect the price at which included by such Registrable Securities can be sold.
(c) Notwithstanding Section 1.3(b)Shareholders; provided, however, that the Company shall have the right, exercisable by written notice to the initiating Holder(s) within thirty days after receipt of a request to effect a registration under the Securities Act, to include the Company's shares in such registration, in which event such registration shall be deemed to be a Company-initiated registration, and the Holders shall have the right to include their Registrable Securities and shares of Class A Common Stock, as the case may be, therein to the extent permitted under Section 1.2.
(d) The Company shall not be obligated to effect more than ten registrations under this Section 1.3. Such registrations shall be on Form S-3 when the Company is eligible to use that form under SEC rules, but otherwise may be on Form S-1. No registration statement initiated by Holders hereunder shall count as a registration under this Section 1.3 unless and until it shall have been declared effective. Any registration requested under this Section 1.3 which shall not become effective solely by reason of the refusal of the Holders participating therein to proceed with the registration shall count as a registration effected under this Section 1.3 unless and until the Company shall have been reimbursed for the Registration Expenses incurred by it in connection therewith.exclude any
Appears in 1 contract
Demand Registrations. (a) At any time after Subject to the first anniversary of the date conditions of this AgreementSection 3.2, if the Company receives in writing shall at any time receive a written request from the Initiating Series C Holders or the Initiating Series B Holders or the Initiating Series A Holders or the Initiating Fund Holders or the Initiating Investor Holders that the Company effect file a registration statement under the Securities Act covering the registration of at least twenty percent (20%) of the shares held by such holders for the first registered offering of the Company (or any lesser percentage if the anticipated aggregate offering price, net of the underwriting discounts and commissions, would exceed $10,000,000), or any amount of Ordinary Shares after the first registered offering of the Company, then the Company shall, within thirty (30) days of the receipt thereof, give written notice of such request to all Holders and Fund Holders, and subject to the limitations of this Section 3.2, use its best efforts to effect, as soon as practicable, the registration under the Securities Act of all Registrable Securities, of with a minimum aggregate offering price of $20,000,000 (as determined with reference to Securities and Fund Shares that the number of shares proposed Holders and Fund Holders request to be sold in such registered. The Company shall only be required to effect one (1) registration multiplied by the average closing price, or if no closing price is available, the mean under this Subsection 3.2(a) for each of the bid Initiating Series C Holders, Initiating Series B Holders, Initiating Series A Holders Initiating Fund Holders and asked prices, over the fifteen trading days preceding the date of such written demand), the Company will:
(i) promptly give written notice of the proposed registration to all other Initiating Investor Holders; and
(ii) as soon as practicable, prepare and file and use commercially reasonable efforts to cause to become effective such registration statement as may be so requested and as would permit or facilitate the sale and distribution of such portion of the Registrable Securities as is specified in such request, together with such additional portion of the Registrable Securities of any Holder(s) joining in such request as may be specified in a written request given to the Company within twenty days after receipt of the written notice from the Company specified in Section 1.3(a)(i).
(b) If the underwriter managing Initiating Series C Holders or the offering advises Initiating Series B Holders or the Initiating Series A Holders who have requested inclusion or the Initiating Fund Holders or the Initiating Investor Holders intend to distribute the Registrable Securities or Fund Shares covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to Section 3.2(a) and the Company shall include such information in the written notice referred to in Section 3.2(a). In such event, the right of any Holder or Fund Holder to include its Registrable Securities or Fund Shares in such registration statement shall be conditioned upon such Holder’s and Fund Holders’ participation in such underwriting and the inclusion of such Holder’s Registrable Securities and Fund Holders’ Fund Shares in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders and Fund Holders proposing to distribute their securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 3.2, if the underwriter advises the Company that marketing considerations factors require a limitation on of the number of securities to be underwritten (including Registrable Securities and Fund Shares) then the Company shall so advise all Holders of Registrable Securities and Fund Holders of Fund Shares which would otherwise be underwritten pursuant hereto, and the number of shares offered, such limitation that may be included in the underwriting shall be imposed allocated to the Holders of such Registrable Securities and Fund Holders of Fund Shares on a pro rata among such Holders who requested inclusion of Registrable Securities in such registration statement according to the number of shares of Registrable Securities owned by each. Neither the Company nor any other stockholder may include shares in such registration statement without the consent of Holders of a majority of the Registrable Securities included therein if the underwriter managing such offering advises the Holders who have included Registrable Securities in such registration statement that the inclusion of such additional shares may either limit basis based on the number of Registrable Securities which can be sold or adversely affect Fund Shares held by all such Holders or Fund Holders (including the price at which such Initiating Holders). Any Registrable Securities can or Fund Shares excluded or withdrawn from such underwriting shall be soldwithdrawn from the registration.
(c) Notwithstanding Section 1.3(b), the Company shall have the right, exercisable by written notice to the initiating Holder(s) within thirty days after receipt of a request to effect a registration under the Securities Act, to include the Company's shares in such registration, in which event such registration shall be deemed to be a Company-initiated registration, and the Holders shall have the right to include their Registrable Securities and shares of Class A Common Stock, as the case may be, therein to the extent permitted under Section 1.2.
(d) The Company shall not be obligated required to effect more than ten registrations under a registration pursuant to this Section 1.3. Such registrations shall be on Form S-3 when 3.2:
(i) prior to six months after the effective date of a registration; or
(ii) after the Company is eligible has effected five (5) registrations pursuant to use that form under SEC rulessubsection 3.2(a), but otherwise may be on Form S-1. No registration statement initiated by Holders hereunder shall count as a registration under this Section 1.3 unless and until it shall such registrations have been declared or ordered effective. Any ; or
(iii) during the period starting with the date of filing of, and ending on the date one hundred eighty (180) days following the effective date of, the registration requested under statement pertaining to the Initial Offering; provided that the Company makes reasonable good faith efforts to cause such registration statement to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 3.2(a), the Company gives notice to the Holders of the Company’s intention to make its Initial Offering within ninety (90) days; or
(v) if the Company shall furnish to Holders and the Funds Holders requesting a registration statement pursuant to this Section 1.3 which shall not become effective solely 3.2, a certificate signed by reason the Chairman of the refusal Board stating that in the good faith judgment of a majority of the Holders participating therein disinterested members of the Board of Directors of the Company, it would be seriously detrimental to proceed with the Company and its shareholders for such registration shall count as a registration statement to be effected under this Section 1.3 unless and until at such time, in which event the Company shall have been reimbursed the right to defer such filing for a period of not more than ninety (90) days after receipt of the Registration Expenses incurred request of the Initiating Holders; provided that such right to delay a request shall be exercised by it the Company not more than once in connection therewithany twelve (12) month period.
Appears in 1 contract
Demand Registrations. (a) At any time (x) on or after December 31, 2015 one or more Holders Beneficially Owning Registrable Securities (A) representing at least fifteen percent (15%) of the then-outstanding shares of Registrable Securities or (B) that are reasonably expected to result in aggregate gross cash proceeds in excess of $50 million (without regard to any underwriting discount or commission), or (y) on or after the first anniversary one hundred and eightieth (180th) day following the occurrence of an Initial Public Offering, the date Pine Brook Shareholders (such Holders, or the Pine Brook Shareholders, as the case may be, the “Demanding Holders”) shall have the right, by delivering written notice to the Company (a “Demand Notice”), to require the Company to, pursuant to the terms of this Agreement, if register under and in accordance with the provisions of the Securities Act the number of Registrable Securities Beneficially Owned by such Holders and requested by such Demand Notice to be so registered (a “Demand Registration”) provided; however, that it shall be a condition to making a Demand Registration that is to be an underwritten offering under clause (y) above that the aggregate offering price of the Registrable Securities to be registered by the Demanding Holders in such underwritten Demand Registration is at least $25,000,000. A Demand Notice shall also specify the expected method or methods of disposition of the applicable Registrable Securities, including whether such Demand Registration is to be an underwritten offering. Upon receipt of such Demand Notice, the Company receives will notify all other Holders (other than the Demanding Holders) in writing a and such other Holders shall have the right to request that the Company effect to include all or a portion of such other Holders’ Registrable Securities in such Demand Registration by written notice delivered to the Company within fifteen (15) calendar days after such notice is given by the Company.
(b) Following receipt of a Demand Notice, subject to Section 2(c), Section 4 and, Section 6 and Section 16(h), the Company will use its reasonable best efforts to file, as promptly as reasonably practicable (but not later than ninety (90) calendar days after receipt by the Company of such Demand Notice in the case of a registration made on Form S-1 or comparable successor form, as applicable, or sixty (60) calendar days in the case of any registration eligible to be made on Form S-3 or comparable successor form, as applicable), a Registration Statement relating to the offer and sale of the Registrable Securities requested to be included therein by the Holders thereof in accordance with the methods of distribution elected by such Demand Holders (to the extent not prohibited by applicable Law) and shall use its reasonable best efforts to cause such Registration Statement to be declared effective under the Securities Act as promptly as practicable after the filing thereof (and in any event in accordance with Section 5), provided that if such Demand Notice relates to a Shelf Registration Statement, the provisions of Section 4 shall apply. The Holders shall have the right to request two (2) registrations per year pursuant to this Section 2. Demanding Holders holding at least a majority of the Registrable Securities held by the Demanding Holders shall have the right to notify the Company that they have determined that the Registration Statement and/or Shelf Registration Statement relating to a Demand Registration be abandoned or withdrawn, in which event the Company shall promptly abandon or withdraw such Registration Statement and/or Shelf Registration Statement. In the event any registration attempted under this Section 2 pursuant to which the Company would be responsible for the Registration Expenses of the Holders is not consummated, then the Company shall pay such expenses and shall remain responsible for such expenses of the Holders with respect to two (2) consummated registrations per year made under this Section 2; provided, however, that if a registration attempted under this Section 2 is not consummated solely as a result of the withdrawal of the Holders requesting such registration, unless such Holders reimburse the Registration Expenses incurred by the Company, such Registration Statement shall count against the two (2) Registration Statements that the Company is required to a consummate per year. In any Demand Registration involving an underwritten offering, the investment banker or investment bankers and manager or managers that will administer the offering will be selected by the Demanding Holders, subject to approval of the Company not to be unreasonably withheld.
(c) A Registration Statement filed pursuant to a Demand Notice may include Other Securities; provided, however, that the Company and any other such requesting holders agree in writing to enter into an underwriting agreement with usual and customary terms and to any lock-up or similar limitations applicable to the Holders. Notwithstanding any other provisions of this Section 2, if the representative of the underwriters advises the Holders and the Company in writing (a “Cutback Notice”) that it is their good faith opinion that the total number or dollar amount of Registrable Securities, of with a minimum aggregate offering price of $20,000,000 (as determined with reference to the number of shares Securities proposed to be sold in such registration multiplied offering, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the average closing total number or dollar amount of such securities that can be sold without having an adverse effect on the price, timing or if no closing price is available, the mean of the bid and asked prices, over the fifteen trading days preceding the date of such written demand), the Company will:
(i) promptly give written notice of the proposed registration to all other Holders; and
(ii) as soon as practicable, prepare and file and use commercially reasonable efforts to cause to become effective such registration statement as may be so requested and as would permit or facilitate the sale and distribution of such portion of the Registrable Securities as is specified to be so included together with all such Other Securities, then there shall be included in such request, together with such additional portion underwritten offering the number or dollar amount of the Registrable Securities and such Other Securities that in the opinion of any such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows: (i) first, to the Holder(s) joining requesting inclusion in such request as may be specified in a written request given to the Company within twenty days after receipt of the written notice from the Company specified in Section 1.3(a)(i).
(b) If the underwriter managing the offering advises the Holders who have requested inclusion of their Registrable Securities in such registration statement that marketing considerations require a limitation on the number of shares offeredregistration, such limitation shall be imposed pro rata among such Holders who requested inclusion Holder(s) on the basis of Registrable Securities in such registration statement according to the number of shares of Registrable Securities owned by each. Neither for which each such Holder has requested registration, (ii) second, to the Company nor for any securities it proposes to sell for its own account, and (iii) third, to the other stockholder may include holders requesting inclusion in the registration, pro rata among the respective holders thereof on the basis of the number of 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 of any such underwriting, such Person shall be excluded therefrom by written notice from the Company, the underwriter or the Holder(s). The securities so excluded shall also be withdrawn from registration. A registration shall not be counted as “consummated” for purposes of the two (2) registrations per year requirement if, as a result of a Cutback Notice, fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have requested to be included in such registration statement without the consent of Holders of a majority of the Registrable Securities included therein if the underwriter managing such offering advises the Holders who have included Registrable Securities in such registration statement that the inclusion of such additional shares may either limit the number of Registrable Securities which can be sold or adversely affect the price at which such Registrable Securities can be sold.
(c) Notwithstanding Section 1.3(b), the Company shall have the right, exercisable by written notice to the initiating Holder(s) within thirty days after receipt of a request to effect a registration under the Securities Act, to include the Company's shares in such registration, in which event such registration shall be deemed to be a Company-initiated registration, and the Holders shall have the right to include their Registrable Securities and shares of Class A Common Stock, as the case may be, therein to the extent permitted under Section 1.2are actually included.
(d) The Company shall not be obligated Except as provided in Section 2(b) with respect to effect more than ten registrations under this Section 1.3. Such registrations shall be on Form S-3 when the Company is eligible to use that form under SEC ruleswithdrawn Registration statements, but otherwise may be on Form S-1. No registration statement initiated by Holders hereunder shall count as a registration under this Section 1.3 unless and until it shall have been declared effective. Any registration requested under this Section 1.3 which shall not become effective solely by reason of the refusal all Registration Expenses of the Holders participating therein incurred in connection with two (2) registrations per year requested pursuant to proceed with the registration shall count as a registration effected under this Section 1.3 unless and until 2 shall be borne by the Company shall have been reimbursed for the Registration Expenses incurred by it in connection therewithCompany.
Appears in 1 contract
Samples: Securities Purchase Agreement (Origin Bancorp, Inc.)
Demand Registrations. (a) At any time after subsequent to the first anniversary date hereof, the holder or holders of at least fifty percent (50%) of the date Registrable Securities then outstanding, on behalf of this Agreement, if the Company receives in writing a request that the Company effect the registration under the Securities Act all holders of Registrable Securities, of with a minimum severally from time to time may notify the Company in writing that such Investor(s) intends to offer for public sale any Registrable Securities (but only if the aggregate offering price of $20,000,000 (as determined with reference to the number of shares proposed of such Registrable Securities to be sold in such registration multiplied by the average closing price, or if no closing price offered for public sale is available, the mean of the bid and asked prices, over the fifteen trading days preceding the date of such written demand), the Company will:
more than fifty percent (i50%) promptly give written notice of the proposed registration to all other Holders; and
(ii) as soon as practicable, prepare and file and use commercially reasonable efforts to cause to become effective such registration statement as may be so requested and as would permit or facilitate the sale and distribution of such portion of the Registrable Securities then outstanding). Upon receipt of such written notice, the Company will use its reasonable best efforts to cause the Registrable Securities as may be requested by the Investors to be included in a registration statement under the Securities Act. The Company shall not be required to file any registration statement for securities other than shares of Common Stock, although any conversion of Series A Preferred may be conditioned upon such registration statement becoming effective to the extent that such conversion or exercise relates to Conversion Shares covered by the Investor's written notice of an intended public offering. In the event any registration attempted under this Section 2 pursuant to which the Company would be responsible for the Registration Expenses of the Investors is specified not consummated, then the Company shall pay such expenses and shall remain responsible for such expenses of the Investors with respect to two (2) consummated registrations made under this Section 2; provided, however, that if a registration attempted under this Section 2 is not consummated solely as a result of the withdrawal of the Investors requesting such registration, unless such Investors reimburse the Registration Expenses incurred by the Company such registration statement shall count against the two (2) registration statements that the Company is required to a consummate. The Investors covered by the registration statement who desire to do so may sell such Registrable Securities in an offering pursuant to this Section 2 that is underwritten ("Underwritten Offering"). In any such requestUnderwritten Offering, together with such additional portion the investment banker or investment bankers and manager or managers that will administer the offering will be selected by the holders of a majority of the Registrable Securities of any Holder(s) joining included in such request as may be specified in a written request given offering, subject to approval of the Company within twenty days after receipt of the written notice from the Company specified in Section 1.3(a)(i)not to be unreasonably withheld.
(b) If A registration statement filed pursuant to the underwriter managing request of the Investors 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 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 Investors shall, on behalf of all entities requesting inclusion in such registration, offer to include such securities in the offering; provided, however, that the Investors may condition any such offer on their 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 customary terms). Notwithstanding any other provisions of this Section 2, if the representative of the underwriters advises the Holders who have requested inclusion of their Registrable Securities Investors in such registration statement writing that marketing considerations factors require a limitation on the number of shares offeredto be underwritten, such limitation the number of shares to be underwritten and included in the registration shall be imposed allocated: (i) first, to the Investor(s) requiring such registration, pro rata among such Holders who requested inclusion Investor(s) on the basis of Registrable Securities in such registration statement according to the number of shares of Registrable Securities owned by eachfor which each such Investor has requested registration, (ii) second, to the Company, and (iii) third, to the other holders requesting inclusion in the registration, pro rata among the respective holders thereof on the basis of the number of shares for which each such requesting holder has requested registration. Neither the Company nor any other stockholder may include shares If a Person who has requested inclusion in such registration statement without as provided above does not agree to the consent terms of Holders of a majority of any such underwriting, such Person shall be excluded therefrom by written notice from the Registrable Securities included therein if Company, the underwriter managing such offering advises or the Holders who have included Registrable Securities in such registration statement that the inclusion of such additional shares may either limit the number of Registrable Securities which can Investor(s). The securities so excluded shall also be sold or adversely affect the price at which such Registrable Securities can be soldwithdrawn from registration.
(c) Notwithstanding Except as provided in Section 1.3(b)2(a) with respect to withdrawn registration statements, all Registration Expenses of the Company Investors incurred in connection with registrations requested pursuant to this Section 2 shall have the right, exercisable be borne by written notice to the initiating Holder(s) within thirty days after receipt of a request to effect a registration under the Securities Act, to include the Company's shares in such registration, in which event such registration shall be deemed to be a Company-initiated registration, and the Holders shall have the right to include their Registrable Securities and shares of Class A Common Stock, as the case may be, therein to the extent permitted under Section 1.2.
(d) The Company shall not be obligated to effect more than ten registrations under this Section 1.3. Such registrations shall be on Form S-3 when the Company is eligible to use that form under SEC rules, but otherwise may be on Form S-1. No registration statement initiated by Holders hereunder shall count as a registration under this Section 1.3 unless and until it shall have been declared effective. Any registration requested under this Section 1.3 which shall not become effective solely by reason of the refusal of the Holders participating therein to proceed with the registration shall count as a registration effected under this Section 1.3 unless and until the Company shall have been reimbursed for the Registration Expenses incurred by it in connection therewith.
Appears in 1 contract
Samples: Registration Rights Agreement (Karts International Inc)
Demand Registrations. (a) At any time after The Investors may request the first anniversary of the date of this Agreement, if the Company receives in writing a request that the Company effect the registration under the Securities Act of Registrable Securities, of with a minimum aggregate offering price of $20,000,000 (as determined with reference Parent to the number of shares proposed to be sold in such registration multiplied by the average closing price, or if no closing price is available, the mean of the bid and asked prices, over the fifteen trading days preceding the date of such written demand), the Company will:
(i) promptly give written notice of the proposed registration to all other Holders; and
(ii) as soon as practicable, prepare and file and use commercially reasonable efforts to cause effect a Registration of all or part of their Registrable Shares (such Registration being hereinafter referred to become effective such as a “Demand Registration”) by filing a registration statement as may be so requested under the U.S. Securities Act and as would permit or facilitate the sale and distribution of such portion a prospectus under Canadian Securities Acts (including, if eligible, a shelf registration statement under Rule 415 of the Registrable U.S. Securities as is specified Act and a shelf prospectus under National Instrument 44-102 – Shelf Distributions). Any such request shall be made by notice in writing (a “Demand Registration Request”) to the Parent. To the extent such request, together with such additional portion of Demand Registration Request seeks to register Common Shares that the Registrable Securities Investors have acquired or have the right to acquire upon exchange or conversion of any Holder(sPurchased Series B Preferred Shares (such Common Shares, “Investor Series B Demand Shares”), within five (5) joining in such request as may be specified in a written request given to the Company within twenty days Business Days after receipt of such Demand Registration Request, the Parent will give written notice of such request to the Oaktree Investors and, subject to Section 5.2(b), will include in such registration all Common Shares that the Oaktree Investors have acquired or have the right to acquire upon exchange or conversion of the Series B-1 Preferred Shares and Series B-2 Preferred Shares purchased by the Oaktree Investors on the date hereof and purchased by the Oaktree Investors on the exercise of the Series B-2 Sale Option, respectively, that have not been registered pursuant to a registration statement under the U.S. Securities Act (such Common Shares, the “Oaktree Series B Demand Shares”) with respect to which the Parent has received from the Company specified Oaktree Investors written requests for inclusion within ten (10) Business Days after delivery of the Parent’s notice to the Oaktree Investors, specifying the number of Oaktree Series B Demand Shares intended to be registered, provided that such number requested to be registered by the Oaktree Investors may not exceed the Oaktree Pro Rata Percentage of the number of Investor Series B Demand Shares requested to be registered by the Investors in the Demand Registration Request. Subject to Section 1.3(a)(i5.2(b), the Parent shall be entitled to include for sale in any prospectus or registration statement filed pursuant to a Demand Registration any securities of the Parent to be sold by the Parent for its own account.
(b) If the lead underwriter managing or underwriters in any underwritten Demand Registration advise the offering advises the Holders who have requested inclusion of their Registrable Securities Parent in such registration statement that marketing considerations require a limitation on the number of shares offered, such limitation shall be imposed pro rata among such Holders who requested inclusion of Registrable Securities in such registration statement according to the number of shares of Registrable Securities owned by each. Neither the Company nor any other stockholder may include shares in such registration statement without the consent of Holders of a majority of the Registrable Securities included therein if the underwriter managing such offering advises the Holders who have included Registrable Securities in such registration statement writing that the inclusion of such additional shares all the securities requested to be included in a Demand Registration, including securities offered by the Parent for its own account, as applicable, may either limit have a material adverse effect on the distribution or sales price of the securities being offered unless the number of such securities is reduced (such reduced offering size, the “Maximum Offering Size”), the Parent will include in such registration, in the priority listed below, in the aggregate up to the Maximum Offering Size: first, all Registrable Shares requested to be registered in the Demand Registration by the Investors, second, the Oaktree Series B Demand Shares requested to be registered by the Oaktree Investors, and third, securities offered by the Parent for its own account. The Parent shall as soon as practical, and in any event within 65 days, in the case of a registration statement to be filed on Form S-1, and 45 days, in the case of a registration statement to be filed on Form S-3 or a prospectus to be filed under Canadian Securities which can Acts, of receipt of a Demand Registration Request, file a registration statement covering all of the Registrable Shares that the Investors requested to be sold or adversely affect registered and, as applicable, the price at which Oaktree Series B Demand Shares requested to be registered, and, as applicable, any securities offered by the Parent for its own account, and use its commercially reasonable efforts to cause such Registrable Securities can be soldregistration statement to become effective as soon as practicable.
(c) Notwithstanding Section 1.3(bThe Parent shall not be obliged to effect:
(i) more than one Demand Registration in any one 12-month period (provided, however, that a registration shall not be deemed “effected” for purposes of this section until such time as the applicable registration statement has been declared effective by the SEC and the applicable final prospectus has been receipted by the relevant Canadian Securities Commission);
(ii) a Demand Registration in the event the Parent determines in good faith that either (A) the effect of the filing of a prospectus or registration statement could impede the ability of the Parent to consummate a significant transaction (including, without limitation, a financing, an acquisition, a restructuring or a merger) or proceed with negotiations or discussions in relation thereto, or (B) there exists at the Company shall have the right, exercisable by written notice time material non-public information relating to the initiating Holder(s) within thirty Parent or its subsidiaries the disclosure of which the Parent believes would be materially adverse to the Parent and its subsidiaries, taken as a whole; in which case the Parent’s obligations under this Section 5.2 shall be deferred for a period of not more than 90 days after from the date of receipt of the Demand Registration Request of the Investors, provided that the Parent shall not be permitted to defer the filing of a request prospectus under this Section 5.2 more than two times in any 12-month period;
(iii) a Demand Registration in respect of a number of Registrable Shares that is expected to effect result in gross proceeds of less than $20 million; or
(iv) a Demand Registration before the 90th day following the date on which (A) a receipt was issued to the Parent with respect to any final prospectus filed by the Parent or (B) a registration under statement filed by the Securities Act, to include the Company's shares in such registration, in which event such registration shall be deemed to be a Company-initiated registration, and the Holders shall have the right to include their Registrable Securities and shares of Class A Common Stock, as the case may be, therein to the extent permitted under Section 1.2Parent became effective.
(d) The Company Investors may request the Parent to use commercially reasonable efforts to effect a shelf registration statement or file and obtain a receipt for a shelf prospectus, which registration statement or prospectus contemplates sales or distributions of Registrable Shares, provided that any such request shall not be obligated to effect more than ten registrations under this Section 1.3. Such registrations constitute a Demand Registration, unless accompanied by a Demand Registration Request.
(e) The lead underwriter or underwriters for any offering in connection with a Demand Registration shall be on Form S-3 when selected by the Company is eligible Investors and shall be reasonably acceptable to use that form under SEC rules, but otherwise may be on Form S-1. No registration statement initiated by Holders hereunder shall count as a registration under this Section 1.3 unless and until it shall have been declared effective. Any registration requested under this Section 1.3 which shall not become effective solely by reason of the refusal of the Holders participating therein to proceed with the registration shall count as a registration effected under this Section 1.3 unless and until the Company shall have been reimbursed for the Registration Expenses incurred by it in connection therewithParent.
Appears in 1 contract
Demand Registrations. (a) At any time after the first anniversary of Commencing on the date on which API becomes eligible to file a Registration Statement on Form S-3 (or any successor “short form” of this Agreementregistration relating to secondary offerings), if the Company receives a Majority Holder may request, in writing (a request “Registration Request”), that API effect, through an underwritten offering, the Company registration of all or a portion of such Holder’s Registrable Securities. Thereupon, API shall, prior to the filing of any Registration Statement relating thereto, give written notice to Holders of its intention to do so, and as expeditiously as practicable, use its reasonable efforts to effect the registration under the Securities Act on Form S-3 of Registrable Securities, of with a minimum aggregate offering price of $20,000,000 (as determined with reference to the number of shares proposed to be sold in such registration multiplied by the average closing price, or if no closing price is available, the mean of the bid and asked prices, over the fifteen trading days preceding the date of such written demand), the Company will:
(i) promptly give written notice of the proposed registration to all other Holders; and
(ii) as soon as practicable, prepare and file and use commercially reasonable efforts to cause to become effective such registration statement as may be so requested and as would permit or facilitate the sale and distribution of such portion of the Registrable Securities as is specified in such request, together with such additional portion of the Registrable Securities of any Holder(s) joining in such request as may be specified in a written request given which API has been requested to the Company within twenty days after receipt of the written notice from the Company specified in Section 1.3(a)(i)so register.
(b) If Notwithstanding any other provision of this Section 5, if the underwriter managing the offering advises the Holders who have requested inclusion of their Registrable Securities in such registration statement a Holder that marketing considerations factors require a limitation on of the number of shares offeredto be underwritten, then such limitation Holder shall be imposed pro rata among such so advise API and API shall so advise all Holders who requested inclusion of Registrable Securities in such registration statement according to that would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the underwriting shall be allocated as follows: (i) to Holders pro rata among the Holders thereof on the basis of the Registrable Securities owned by each. Neither each such Holder and Parent in proportion (as nearly as practicable) to the Company nor any other stockholder may include aggregate amount of Registrable Securities held by the Holders and the amount of Parent Registrable Securities held by Parent, until such Holders and Parent have included in the underwriting all shares requested by such Holders and Parent to be included, but only to the extent, Parent elects to participate in such registration statement without underwritten offering pursuant to the Parent Registration Rights Agreement and (ii) thereafter, among all other holders of Common Stock, if any, that have the right and have elected to participate in such underwritten offering, in proportion (as nearly as practicable) to the amount of shares of Common Stock owned by such holders. Without the consent of a majority in interest of the Holders of Registrable Securities participating in a registration referred to in Section 5(a), no securities other than Registrable Securities and the Parent Registrable Securities shall be covered by such registration if the inclusion of such other securities would result in a reduction of the number of Registrable Securities covered by such registration or included in any underwriting or if, in the opinion of the managing underwriter, the inclusion of such other securities would adversely impact the marketing of such offering.
(c) API shall not be required to accept (i) a Registration Request for less than the total amount of Registrable Securities then held by the Majority Holders if (based on the then current market prices) such securities to be included in the Registration Statement would not either (A) yield gross proceeds of at least $50 million or (B) constitute at least 20% of the Registrable Securities held by the Majority Holders immediately following API’s IPO and (ii) more than two Registration Requests pursuant to Section 5(a) hereof in any 365 calendar-day period; provided however, a Registration Request shall not count as one of the two permitted Registration Requests until the Registration Statement on which the Registrable Securities are registered has become effective and unless the holders of Registrable Securities are able to register and sell at least 75% of the Registrable Securities requested to be included in such registration; provided that in any event API shall pay all Registration Expenses in connection with any registration initiated as an Registration Request whether or not it has become effective and whether or not such registration counts as one of the permitted Registration Requests hereunder. All Registration Requests shall be underwritten registrations, unless otherwise agreed to by API and the holders of a majority of the Registrable Securities included therein if initially requesting such registration.
(d) If, at the underwriter managing such time of any Registration Request provided to API pursuant to this Section 5 or at any time during which a Registration Statement is effective, (i) API is engaged or plans to engage within ninety (90) calendar days of the time of the request in a registered public offering advises the Holders who have included Registrable Securities in such registration statement that the inclusion as to which Investor may include at least 90% of such additional its shares may either limit the number of Registrable Securities which can subject to any such Registration Request pursuant to this Section 5; (ii) API is engaged in any other activity which, in the good faith determination of a majority of API’s Board of Directors, would be sold materially adversely affected by the requested registration (provided that API’s engagement or plan to engage at the time of such Registration Request in a registered public offering shall be deemed not to be such an activity); or (iii) there exist pending negotiations relating to, or consummation of, a transaction or the occurrence of an event (other than in the ordinary course of business), in each case that would require additional disclosure of material information by API in the Registration Statement (such circumstances being hereinafter referred to as a “Suspension Event”) or other filing with any state securities commission that would materially adversely affect the price Company’s ability to cause the Registration Statement or such filing to be made or to become effective or to amend or supplement the Registration Statement; then API may at which such Registrable Securities can be sold.
(c) Notwithstanding Section 1.3(b)its option, the Company shall have the right, exercisable by exercised upon written notice to Holders, direct that such request be delayed for a period not in excess of ninety (90) calendar days from the initiating Holder(s) within thirty days after receipt date of a request to effect a registration under the Securities Act, to include Registration Request or the Company's shares in date of commencement of such registration, in which event such registration shall be deemed to be a Company-initiated registration, and the Holders shall have the right to include their Registrable Securities and shares of Class A Common Stockother material activity, as the case may be, therein such right to the extent permitted under Section 1.2.
(d) The Company shall delay a request to be exercised by API not be obligated to effect more than ten registrations under this Section 1.3one (1) time in any 365 calendar-day period. Such registrations Upon receipt of such written notice from API of a Suspension Event, the holders of Registrable Securities initially making a Registration Request will be entitled to withdraw such request and, if such request is withdrawn, such Registration Request shall be on Form S-3 when treated as if it had never been made in the Company is eligible to use that form under SEC rulesfirst instance, but otherwise may be on Form S-1. No registration statement initiated by Holders hereunder shall count as a registration under this Section 1.3 unless and until it shall have been declared effective. Any registration requested under this Section 1.3 which shall not become effective solely by reason of the refusal of the Holders participating therein to proceed with the registration shall count as a registration effected under this Section 1.3 unless and until the Company shall have been reimbursed for the API will pay any Registration Expenses incurred by it Holders in connection therewith.
(e) Except for this Agreement and the Parent Registration Rights Agreement, neither API nor any of its Subsidiaries has previously entered into any contract granting any registration rights with respect to any of its securities to any person. API will not grant to any persons the right to request that API register any equity securities of API, or any securities convertible into or exchangeable or exercisable for any such securities, without the prior written consent of the Majority Holders.
Appears in 1 contract
Samples: Note Purchase Agreement (Angiotech Pharmaceuticals Inc)
Demand Registrations. (a1) At any time the Company is not eligible to use Form S-3 or any successor thereto, the holders of Warrants or Warrant Shares holding not less than 25% of the Warrant Shares (including Warrants exercisable therefor) not (i) theretofore effectively registered under the Act and disposed of in accordance with the Registration Statement covering any such Warrants and Warrant Shares or (ii) then saleable by the holder thereof pursuant to Rule 144(k) under the Act shall be entitled to make up to four (4) written requests (each, a “Demand”) of the Company to register all or part of their Warrant Shares (including Warrant Shares issuable upon exercise of their Warrants), under the Act (a “Demand Registration”) on a Registration Statement on Form S-1 or any successor thereof for a public offering of all or any portion of the Warrant Shares held by such holder(s) for sale in accordance with the method of disposition specified in such notice, provided, however, that (i) no Demand may be made until at least one hundred eighty (180) calendar days after the first anniversary effective date of a previous S-3 Registration or a previous registration under which the initiating holders had Piggy-Back Registration Rights and (ii) the Company shall have no obligation to register such Warrant Shares pursuant to this Section 14(b) if (based on the Current Market Price) the number of Warrant Shares specified in such notice (or otherwise proposed to be offered in such registration) would not yield gross proceeds to the selling holders of at least $2,000,000 (based on the Current Market Price). Within ten (10) calendar days after receipt of such Demand, the Company will serve written notice thereof (the “Company Notice”) to all other holders of Warrants and Warrant Shares. Subject to the provisions of the date of this Agreementnext succeeding paragraph, if the Company shall include in such Demand Registration all Warrant Shares with respect to which the Company receives in writing a request that written requests for inclusion within fifteen (15) calendar days after the delivery of the Company effect Notice. If any of the registration under the Securities Act of Registrable Securities, of with Warrant Shares registered pursuant to a minimum aggregate offering price of $20,000,000 (as determined with reference to the number of shares proposed Demand Registration are to be sold in such registration multiplied by the average closing price, one or if no closing price is available, the mean of the bid and asked prices, over the fifteen trading days preceding the date of such written demand)more firm commitment underwritten offerings, the Company will:
will also provide written notice to holders of securities of the Company other than the holders of the Warrants and the Warrant Shares, if any, who have piggyback registration rights with respect thereto and will permit all such holders who request to be included in the Demand Registration to include any or all securities of the Company held by such holders in such Demand Registration on the same terms and conditions as the Warrant Shares. Notwithstanding the foregoing, if the managing underwriter or underwriters of the offering to which such Demand Registration relates advises the Company that the total amount of Warrant Shares and securities that such holders of securities of the Company (other than holders of the Warrant Shares) intend to include in such Demand Registration is in the aggregate such as to materially and adversely affect the success of such offering and/or exceeds the number of securities which can be sold in such offering, then (i) promptly give written notice first, the amount of securities to be offered for the account of the proposed registration to all other Holders; and
(ii) as soon as practicable, prepare and file and use commercially reasonable efforts to cause to become effective such registration statement as may be so requested and as would permit or facilitate the sale and distribution holders of such portion other securities of the Registrable Securities as is specified in such requestCompany will be reduced, together with such additional portion of the Registrable Securities of any Holder(s) joining in such request as may be specified in a written request given to the Company within twenty days after receipt of the written notice from the Company specified in Section 1.3(a)(i).
zero if necessary (b) If the underwriter managing the offering advises the Holders who have requested inclusion of their Registrable Securities in such registration statement that marketing considerations require a limitation on the number of shares offered, such limitation shall be imposed pro rata among such Holders who requested inclusion holders on the basis of Registrable Securities in the amount of such registration statement according other securities to be included therein by each such holder), and (ii) second, the number of shares of Registrable Securities owned by each. Neither the Company nor any other stockholder may include shares Warrant Shares included in such registration statement without the consent of Holders of a majority of the Registrable Securities Demand Registration will, if necessary, be reduced and there will be included therein if the underwriter managing such offering advises the Holders who have included Registrable Securities in such registration statement that the inclusion of such additional shares may either limit firm commitment underwritten offering only the number of Registrable Securities Warrant Shares that, in the opinion of such managing underwriter or underwriters, can be sold without materially and adversely affecting the success of such offering and/or exceeding the number of securities which can be sold or adversely affect the price at which such Registrable Securities can be sold.
(c) Notwithstanding Section 1.3(b), the Company shall have the right, exercisable by written notice to the initiating Holder(s) within thirty days after receipt of a request to effect a registration under the Securities Act, to include the Company's shares in such registrationoffering, in which event such registration shall be deemed to be a Company-initiated registration, and allocated pro rata among the Holders shall have the right to include their Registrable Securities and shares of Class A Common Stock, as the case may be, therein to the extent permitted under Section 1.2.
(d) The Company shall not be obligated to effect more than ten registrations under this Section 1.3. Such registrations shall be on Form S-3 when the Company is eligible to use that form under SEC rules, but otherwise may be on Form S-1. No registration statement initiated by Holders hereunder shall count as a registration under this Section 1.3 unless and until it shall have been declared effective. Any registration requested under this Section 1.3 which shall not become effective solely by reason holders of the refusal Warrants and Warrant Shares on the basis of the Holders participating therein to proceed with the registration shall count as a registration effected under this Section 1.3 unless and until the Company shall have been reimbursed for the Registration Expenses incurred number of Warrants or Warrant Shares held by it in connection therewitheach such holder.
Appears in 1 contract
Samples: Warrant Agreement (Inphonic Inc)
Demand Registrations. (a1) At any time after the first anniversary November 30, 2002, a Specified Percentage of the date of this Agreement, if the Company receives Warrant Holders may request in writing a request that the Company Borrower effect the registration under the Securities Act of all or part of such Warrant Holder's or Warrant Holders' Registrable Securities, of with a minimum aggregate offering price of $20,000,000 (as determined with reference to specifying in the request the number and type of shares proposed Registrable Securities to be sold in registered by each such registration multiplied by holder and the average closing priceintended method of disposition thereof (such notice is hereinafter referred to as a "Holder Request"), or if no closing price is availablewith such offering of securities to have a value of at least $3,000,000. Upon receipt of such Holder Request, the mean of the bid and asked prices, over the fifteen trading days preceding the date of such written demand), the Company will:
(i) Borrower will promptly give written notice of the proposed such requested registration to all other Holders; and
(ii) as soon as practicable, prepare and file and use commercially reasonable efforts to cause to become effective such registration statement as may be so requested and as would permit or facilitate the sale and distribution of such portion of the Registrable Securities as is specified in such request, together with such additional portion of the Registrable Securities of any Holder(s) joining in such request as may be specified in a written request given to the Company within twenty days after receipt of the written notice from the Company specified in Section 1.3(a)(i).
(b) If the underwriter managing the offering advises the Holders who have requested inclusion of their Registrable Securities in such registration statement that marketing considerations require a limitation on the number of shares offered, such limitation shall be imposed pro rata among such Holders who requested inclusion holders of Registrable Securities in such registration statement according to the number of shares of Registrable Securities owned by each. Neither the Company nor any Securities, which other stockholder may include shares in such registration statement without the consent of Holders of a majority of the Registrable Securities included therein if the underwriter managing such offering advises the Holders who have included Registrable Securities in such registration statement that the inclusion of such additional shares may either limit the number of Registrable Securities which can be sold or adversely affect the price at which such Registrable Securities can be sold.
(c) Notwithstanding Section 1.3(b), the Company shall have the right, exercisable by written notice to the initiating Holder(s) within thirty days after receipt of a request to effect a registration under the Securities Act, to include the Company's shares in such registration, in which event such registration shall be deemed to be a Company-initiated registration, and the Holders holders shall have the right to include their the Registrable Securities held by them in such registration and shares of Class A Common Stockthereupon each Borrower will, as expeditiously as possible, use its best efforts to effect the case may beregistration under the Securities Act of the Registrable Securities which the Borrower has been so requested to register by such Warrant Holders; provided, therein to however, that the extent permitted under Section 1.2.
(d) The Company Borrower shall not be obligated to effect more than ten two registrations under pursuant to this Section 1.3. Such registrations 16.10(a), and provided, further, that the Borrower shall not be obligated to effect a registration pursuant to this Section 16.10(a) unless the number of Registrable Securities requested to be registered pursuant to all Holder Requests shall be equal to at least thirty percent (30%) of all shares of Common Stock issued or issuable upon the exercise of the Warrants; provided, further, that the Borrower shall be entitled to postpone effecting a registration for up to ninety (90) days once during any twelve-month period.
(2) If the Borrower proposes to effect a registration requested pursuant to this Section 16.10(a) by the filing of a registration statement on Form S-3 when (or any similar short-form registration statement) the Company is eligible Borrower will comply with any request by the managing underwriter to effect such registration on another permitted form if such managing underwriter advises the Borrower that, in its opinion, the use that of another form under SEC rules, but otherwise may be on Form S-1. No of registration statement initiated is of material importance to the success of such proposed offering.
(3) A registration requested pursuant to Section 16.10(a) will not be deemed to have been effected unless it has become effective; provided, that, if after it has become effective, the offering of Registrable Securities pursuant to such registration is interfered with by Holders hereunder shall count as a any stop order, injunction or other order or requirement of the SEC or other governmental agency or court, such registration under will be deemed not to have been effected.
(4) The Borrower will pay all Registration Expenses in connection with each of the registrations of Registrable Securities effected by it pursuant to this Section 1.3 unless and until it shall have been declared effective. Any registration requested under this Section 1.3 which shall not become effective solely by reason of the refusal of the Holders participating therein to proceed with 16.10(a).
(5) The holders requesting the registration shall count as have the right to select the investment banker (or investment bankers) subject to Borrower's approval, not to be unreasonably withheld, that shall manage the offering (collectively, the "managing underwriter").
(6) Whenever a requested registration pursuant to this Section 16.10(a) involves a firm commitment underwriting (an "Underwritten Offering"), the only shares that may be included in such Offering are (i) Registrable Securities, (ii) other shares of Common Stock which are sought to be included by the Borrower in such Offering ("Borrower Securities"), and (iii) other shares of Common Stock issued and outstanding on the date thereof, which are sought to be included by the holders thereof in such Offering ("Additional Securities").
(7) If a registration pursuant to this Section 16.10(a) involves an Underwritten Offering and the managing underwriter shall advise the Borrower that, in its judgment, the number of shares proposed to be included in such Offering should be limited due to market conditions, then the Borrower will promptly so advise each holder of Registrable Securities that has requested registration, and (i) the Additional Securities, if any, shall first be excluded from such Offering pro rata, based on the respective number of shares of Additional Securities as to which registration has been requested by the holders thereof, to the extent necessary to meet such limitation; (ii) if further exclusions are necessary to meet such limitation, Borrower Securities, if any, shall be excluded to the extent necessary to meet such limitation; and (iii) if still further exclusions are necessary to meet such limitation, Registrable Securities held by the Warrant Holders shall be excluded pro rata, based on the respective number of shares of Registrable Securities as to which registration has been requested by such holders.
(8) To the extent that any shares of Common Stock requested to be included in a sale pursuant to this Section 16.10(a) are issuable (but have not been issued) upon the exercise of Warrants, such Warrants shall be exercised and such shares of Common Stock shall be issued upon the sale of the relevant Registrable Securities in connection with an effective registration statement effected under the provisions of this section 16.10(a). The Warrant Holders and the Borrower shall take any action necessary to effect the required exercise of such Warrants for shares of Common Stock to effect such sale. The Borrower will not grant to any Person the right to request the Borrower to register any equity or debt securities of the Borrower which rights are superior or pari passu, or any securities convertible or exchangeable into or exercisable for such securities, without the written consent of the Majority of the Warrant Holders.
(9) If the Borrower shall determine not to register all of the Registrable Securities as requested by a Specified Percentage of the Warrant Holders pursuant to this Section 1.3 unless 16.10(a), it shall give prompt written notice of such determination (the "Determination Notice") to each holder of Registrable Securities within thirty-five (35) days after the initial request for such registration. Following the receipt of the Determination Notice, a Specified Percentage of the Warrant Holders shall submit to the Borrower a list of three (3) investment banking firms of recognized standing, and until the Company Borrower shall have ten (10) days following receipt of such list to select, by written notice to such holders (the "Selection Notice") one of such firms (the "Selected Investment Banking Firm"). The Determination Notice shall contain an irrevocable commitment by the Borrower to purchase all of the Registrable Securities for which demand for registration had been reimbursed so made, at a price per share determined, within sixty (60) days of the Selection Notice by the Selected Investment Banking Firm, to be the estimated "price per share to the public" if such shares and such additional shares representing in the aggregate thirty percent (30%) of the equity ownership of the Borrower had been included in an Underwritten Offering of the Borrower's Common Stock. All costs, fees and expenses of the Selected Investment Banking Firm shall be borne solely by the Borrower. Within thirty-five (35) days after receipt of written notice of such price per share, each Warrant Holder may elect, by written notice to the Borrower, to sell to the Borrower at such price per share any or all of such Warrant Holder's Registrable Securities for the Registration Expenses incurred by it in connection therewithwhich demand for registration had been made pursuant to this Section 16.10(a).
Appears in 1 contract
Samples: Note and Warrant Purchase Agreement (Life Financial Corp)
Demand Registrations. (a) At If, at any time after the first anniversary of the date of this Agreementan IPO, if the Company receives in writing shall receive a request from a Sponsor Stockholder (the "REQUESTING STOCKHOLDER") that the Company effect the registration under the Securities Act of all or any portion of such Requesting Stockholder's Registrable Securities, for the purpose of with offering and selling such securities in an Underwritten Public Offering (each such request, a minimum aggregate offering price of $20,000,000 ("DEMAND REGISTRATION"), then the Company shall use all reasonable efforts to effect, as determined with reference to the number of shares proposed to be sold in such registration multiplied by the average closing price, or if no closing price is availableexpeditiously as possible, the mean of registration under the bid and asked prices, over the fifteen trading days preceding the date of such written demand), the Company willSecurities Act of:
(i) promptly give written notice of all Registrable Securities for which the proposed Requesting Stockholder has requested registration to all other Holders; under this Section, and
(ii) all other Registrable Securities of the same class or series that any other Stockholder has requested the Company to register pursuant to Article 3 hereof, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as soon as practicable, prepare and file and use commercially reasonable efforts to cause to become effective such registration statement as may be so requested and as would permit or facilitate the sale and distribution of such portion aforesaid) of the Registrable Securities as is specified in such requestto be so registered. Notwithstanding the foregoing, together with such additional portion of the Registrable Securities of any Holder(s) joining in such request as may be specified in a written request given to the Company within twenty days after receipt of the written notice from the Company specified (1) shall not be obligated to effect more than one Demand Registration in Section 1.3(a)(i).
(b) If the underwriter managing the offering advises the Holders who have requested inclusion of their Registrable Securities in such registration statement that marketing considerations require a limitation on the number of shares offered, such limitation shall be imposed pro rata among such Holders who requested inclusion of Registrable Securities in such registration statement according to the number of shares of Registrable Securities owned by each. Neither the Company nor any other stockholder may include shares in such registration statement 180-day period without the consent of Holders of a majority of the Registrable Securities included therein if the underwriter managing such offering advises the Holders who have included Registrable Securities in such registration statement that the inclusion of such additional shares may either limit the number of Registrable Securities which can Board and (2) shall not be sold or adversely affect the price at which such Registrable Securities can be sold.
(c) Notwithstanding Section 1.3(b), the Company shall have the right, exercisable by written notice to the initiating Holder(s) within thirty days after receipt of a request obligated to effect a registration under Demand Registration unless (A) the method of disposition shall be an Underwritten Public Offering and (B) the aggregate proceeds expected to be received from the sale of the Registrable Securities Act, to include the Company's shares be included in such registrationDemand Registration equals or exceeds US$25,000,000. Furthermore, in which event such registration shall be deemed to be a Company-initiated registration, and the Holders shall have the right to include their Registrable Securities and shares of Class A Common Stock, as the case may be, therein to the extent permitted under Section 1.2.
(d) The Company shall not be obligated to effect more than ten registrations under this Section 1.3. Such registrations shall be on Form S-3 when (x) five Demand Registrations and/or Underwritten Shelf Takedown Requests, in the Company is eligible aggregate, at the request of the Sponsor Stockholders included in the Blackstone Investor Group, (y) two Demand Registrations and/or Underwritten Shelf Takedown Requests, in the aggregate, at the request of the Sponsor Stockholders included in the GS Investor Group and (z) one Demand Registration and/or Underwritten Shelf Takedown Request, in the aggregate, at the request of the Sponsor Stockholders included in the DLJ Investor Group.
(b) At any time prior to use that form under SEC rules, but otherwise may be on Form S-1. No the effective date of the registration statement initiated by Holders hereunder shall count as relating to a requested registration under this Section 1.3 unless and until it shall have been declared effective. Any registration requested under this Section 1.3 which shall not become effective solely by reason 3.1, the Requesting Stockholder may revoke such request, without liability to the Company or to any of the refusal Participating Stockholders, by providing a notice to the Company revoking such request. Notwithstanding anything in Section 3.1(d) to the contrary (other than Section 3.1(d)(ii)), a request, so revoked, shall be considered to be a Demand Registration and shall count against the Requesting Stockholder's amount under Section 3.1(a) unless (i) such revocation arose out of the Holders participating therein to proceed with fault of the registration shall count as a registration effected under this Section 1.3 unless and until Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request), (ii) the Requesting Stockholder reimburses the Company for all Registration Expenses of such revoked request, (iii) there has been, since the date of the request, a material deterioration in the assets, business, condition (financial or otherwise) or prospects of the Company, or (iv) there has been, since the date of the request, a significant disruption in the financial or capital markets.
(c) To the fullest extent permitted by applicable laws, the Company shall be liable for and pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Demand Registration is effected, except as set forth in Section 3.1(b)(ii).
(d) A Demand Registration shall not be deemed to have occurred (i) except as provided in Section 3.1(b), unless the registration statement relating thereto has become effective under the Securities Act or a previously filed shelf registration statement has been reimbursed designated for use by the Requesting Stockholder and any Participating Stockholders for a period of 90 days (or such shorter period in which all Registrable Securities of the Requesting Stockholder and any Participating Stockholders included in such registration have actually been sold thereunder), PROVIDED that such registration statement shall not be considered a Demand Registration if, after such registration statement becomes effective, such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court prior to the Requesting Stockholder's Registrable Securities being sold thereunder or (ii) if the Maximum Offering Size is reduced in accordance with Section 3.1(e) such that less than 66?% of the Registrable Securities of the Requesting Stockholder and the other members of its Investor Group sought to be included in such registration are so included.
(e) If a Demand Registration involves an Underwritten Public Offering and the managing underwriter advises the Requesting Stockholder that, in its view, the number of Registrable Securities requested to be included in such registration (including any Registrable Securities that any Participating Stockholder proposes to be included and any securities that the Company proposes to be included) exceeds the Maximum Offering Size, the Company shall include in such registration and/or such Underwritten Public Offering, in the priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be registered by the Participating Stockholders that have not specified a minimum price for the sale of their Registrable Securities, that have specified a minimum price that is less than or equal to the price determined by the Requesting Stockholder for such sale or that have otherwise indicated their desire to sell their Registrable Securities on a PRO RATA basis in proportion to the number of Registrable Securities to be sold by the Requesting Stockholder (allocated, if necessary for the offering not to exceed the Maximum Offering Size, PRO RATA among such entities on the basis of the relative number of Registrable Securities owned by such Participating Stockholders), and
(ii) second, any securities proposed to be registered by the Company or any securities proposed to be registered for the account of any other Persons (including the Company), with such priorities among them as the Company shall determine.
(f) With respect to any Demand Registration Expenses incurred by it or Shelf Registration, upon notice to the Requesting Stockholder and all Participating Stockholders, if (i) a majority of the Board (after consultation with the lead managing underwriter, if any, selected in connection therewithaccordance with this Agreement) determines that effecting or continuing any such registration would materially and adversely affect an offering of Company Securities the preparation of which had then been commenced or (ii) a majority of the Board determines that the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company reasonably believes would not be in the best interests of the Company, the Company may postpone effecting or suspend the registration, or suspend the use of any registration statement or prospectus already filed and/or effective, for a reasonable time specified in the notice but not exceeding 60 days (a "BLACKOUT PERIOD") (which period may not be extended or renewed, PROVIDED that there shall not be more than two Blackout Periods in any 365-day period). For the avoidance of doubt, there shall be no limits on the number of days or frequency of Blackout Periods in any registration other than a Demand Registration or Shelf Registration.
Appears in 1 contract
Samples: Registration Rights Agreement (Uici)
Demand Registrations. (a) At any time after the first anniversary expiration of 180 days after the closing of a Public Offering, one or more Holders representing in the aggregate in excess of 30% of the date of this AgreementRegistrable Shares then held by all Holders, if the Company receives may request, in writing a request writing, that the Company file a Registration Statement under the Securities Act. Upon receipt of any such request, the Company shall promptly give written notice of such proposed registration to all Holders. Each Holder shall have the right, by giving written notice to the Company within 15 days after the Company provides its notice, to elect to have included in such registration such of its Registrable Shares as such Holder may request in such notice of election. Thereupon, the Company shall, as expeditiously as possible, use its best efforts to effect the registration under the Securities Act of all Registrable Securities, of with a minimum aggregate offering price of $20,000,000 (as determined with reference to the number of shares proposed to be sold in such registration multiplied by the average closing price, or if no closing price is available, the mean of the bid and asked prices, over the fifteen trading days preceding the date of such written demand), Shares which the Company will:
(i) promptly give written notice of the proposed registration has been requested so to all other Holders; and
(ii) as soon as practicable, prepare and file and use commercially reasonable efforts to cause to become effective such registration statement as may be so requested and as would permit or facilitate the sale and distribution of such portion of the Registrable Securities as is specified in such request, together with such additional portion of the Registrable Securities of any Holder(s) joining in such request as may be specified in a written request given to the Company within twenty days after receipt of the written notice from the Company specified in Section 1.3(a)(i)register.
(b) If the Holders initiating the registration request hereunder (the "Initiating Holders") intend to distribute the Registrable Shares covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2 and the Company shall include such information in the written notice referred to in Section 2(a) hereof. In such event, the right of any Holder to include his or its Registrable Shares in such registration shall be conditioned upon the inclusion of such Holder's Registrable Shares in the underwriting. All Holders proposing to distribute their securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding any other provision of this Section 2(b), if the managing underwriter with respect to the proposed offering advises the Holders who have requested inclusion of their proposing to sell Registrable Securities Shares that would otherwise be included in such registration statement the underwriting that marketing considerations factors require a limitation on the number of shares offeredto be underwritten, such limitation shall be imposed pro rata among such Holders who requested inclusion of Registrable Securities in such registration statement according to the number of shares of Registrable Securities owned by each. Neither the Company nor any other stockholder may include shares in such registration statement without the consent of Holders of a majority of the Registrable Securities included therein if the underwriter managing such offering advises the Holders who have included Registrable Securities in such registration statement that the inclusion of such additional shares may either limit the number of Registrable Securities which can Shares that may be sold or adversely affect included in the price at which underwriting shall be allocated among all such Holders, including the Initiating Holders, in proportion (as nearly as practicable) to the amount of Registrable Securities can Shares proposed to be soldincluded in the Registration Statement by each such Holder.
(c) Notwithstanding Section 1.3(b), the Company shall have the right, exercisable by written notice to the initiating Holder(s) within thirty days after receipt of a request to effect a registration under the Securities Act, to include the Company's shares in such registration, in which event such registration shall be deemed to be a Company-initiated registration, and the Holders shall have the right to include their Registrable Securities and shares of Class A Common Stock, as the case may be, therein to the extent permitted under Section 1.2.
(d) The Company shall not be obligated required to effect more than ten three registrations under of Registrable Shares pursuant to Section 2(a) hereof.
(d) At the time of any request to register Registrable Shares pursuant to this Section 1.32, the Company may at its option direct that such request be delayed for a period not in excess of three months if, in the opinion of the Company's Board of Directors, the filing of such Registration Statement would adversely affect the Company's ability to complete any pending or proposed material transaction, provided that such right to delay a request may be exercised by the Company not more than once in any twelve-month period.
(e) The Initiating Holders of any Registration Statement filed pursuant to this Section 2 shall designate the method of distribution of the Registrable Shares. Such registrations The Initiating Holders may designate the managing underwriter (who shall be on Form S-3 when the lead underwriter) for any Registration Statement filed pursuant to this Section, provided such designee is reasonably satisfactory to the Company, and the Company may designate a co-managing underwriter in such offering, provided such designee is eligible reasonably satisfactory to use that form Holders representing a majority of the Registrable Shares to be included in the Registration. The Company shall afford the underwriters, their accountants and attorneys full access to its personnel and offices for the purpose of confirming the accuracy and completeness of the Registration Statement, in accordance with the provisions of Section 4 hereof.
(f) If in the opinion of the underwriters selected to manage the underwriting, more Common Stock could be sold than is represented by the Registrable Shares included in the registration without adversely affecting the price per share, or with the consent of Holders representing two-thirds of the Registrable Shares to be included, the Company shall be entitled to expand the offering to include newly issued Common Stock or Common Stock held by third parties. If the Common Stock so included represents more than half of all Common Stock to be offered in the Registration Statement, the registration may, at the option of the Initiating Holders, be deemed to be an incidental registration under SEC rulesSection 3, but otherwise may be on Form S-1. No registration statement initiated by Holders hereunder shall count as rather than a required registration under this Section 1.3 unless 2, and until it shall have been declared effective. Any the registration requested under this Section 1.3 which shall not become effective solely by reason of the refusal rights of the Holders participating therein to proceed with provided in Section 2(c) shall remain fully available as if the registration shall count as a registration effected had originated under Section 3 rather than under Section 2.
(g) Notwithstanding anything set forth elsewhere in this Section 1.3 unless and until 2, the Company shall have no responsibility to cause a Registration Statement to become effective (i) at a time when it would be required under the rules and regulations of the Securities and Exchange Commission to prepare and file audited financial statements for a period other than a completed fiscal year, (ii) when the Company would be required to prepare and file audited financial statements for a completed fiscal year prior to 90 days following the end of such year, or (iii) within 180 days of the effective date of any prior Registration Statement filed by the Company in which the Holders could participate.
(h) If any Registration Statement prepared pursuant to this Section 2 is not filed or does not become effective as a result of the decision of the Initiating Holders or any underwriter designated by them, the obligation of the Company to prepare and file a Registration Statement at the request of such Initiating Holders shall nevertheless have been reimbursed for satisfied; provided that if the decision not to file the Registration Expenses incurred Statement or to withdraw the Registration Statement prior to it becoming effective is the result of a material adverse change in the business of the Company, the registration rights of the Holders provided in Section 2(c) shall remain fully available as if the registration had not been requested by it the Initiating Holders. If the Registration Statement otherwise fails to become effective, the registration rights of the Holders provided in connection therewithSection 2(c) remain fully available as if the registration had not been requested by the Initiating Holders.
Appears in 1 contract
Samples: Registration Rights Agreement (State Communications Inc)
Demand Registrations. (a) At Commencing at any time after June 1, 2002, the first anniversary holders of Registrable Shares constituting at least 40% of the date of this Agreement, if Registrable Shares then outstanding may request the Company receives in writing a request that the Company effect the registration to register for sale under the Securities Act of Registrable Securities, of with a minimum aggregate offering price of $20,000,000 (as determined with reference to the number of shares proposed to be sold in such registration multiplied by the average closing price, all or if no closing price is available, the mean of the bid and asked prices, over the fifteen trading days preceding the date of such written demand), the Company will:
(i) promptly give written notice of the proposed registration to all other Holders; and
(ii) as soon as practicable, prepare and file and use commercially reasonable efforts to cause to become effective such registration statement as may be so requested and as would permit or facilitate the sale and distribution of such any portion of the Registrable Securities as is Shares held by such requesting holder or holders for sale in the manner specified in such requestnotice. If, together in connection with a registration requested pursuant to this Section 3 the holder or holders of Registrable Shares are unable to include in such additional portion registration the full number of the Registrable Securities Shares for which registration has been requested, either as a result of any Holder(s) joining in limitation on the registration of shares placed by the managing underwriter or for any other reason, then such request as may registration shall be specified in d eemed to have been a written request given to the Company within twenty days after receipt registration under Section 2 of the written notice from the Company specified in Section 1.3(a)(i)this Agreement.
(b) If Following receipt of any notice under this Section 3, the underwriter managing Company shall immediately notify all holders of Registrable Shares from whom notice has not been received and such holders shall then be entitled within thirty (30) days after receipt of such notice from the offering advises Company to request the Holders who have Company to include in the requested inclusion registration all or any portion of their Registrable Shares. The Company shall use its best efforts to register under the Securities Act, for public sale in accordance with the method of disposition specified in the notice from requesting holders described in paragraph (a) above, the number of Registrable Shares specified in such notice (and in all notices received by the Company from other holders within thirty (30) days after the receipt of such notice by such holders).
(c) If the holders requesting such registration intend to distribute the Registrable Shares covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 3 and the Company shall include such information in the written notice referred to in paragraph (b) above.
(d) A registration statement filed pursuant to this Section 3 may, subject to the following provisions, include (i) shares of Common Stock for sale by the Company for the Company's own account, (ii) shares of Common Stock held by officers or directors of the Company and (iii) shares of Common Stock held by Other Shareholders, in each case for sale in accordance with the method of disposition specified by the requesting holders. If such registration shall be underwritten, the Company, such officers and directors and Other Shareholders proposing to distribute their shares through such underwriting shall enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting. If and to the extent that the managing underwriter determines that marketing considerations factors require a limitation on the number of shares offeredto be included in such registration, then the shares of Common Stock held persons other than the Company, including Registrable Shares, will be reduced in such manner that the securities to be sold shall be allocated among the selling holders pro rata based on the size of their ownership. No Registrable Shares or any other security excluded from the registration and underwriting by reason of the underwriter's marketing limitation shall be imposed pro rata among such Holders who requested inclusion of Registrable Securities included in such registration statement according to the number of shares and underwriting. If any holder of Registrable Securities owned by each. Neither the Company nor any other stockholder may include shares Shares, officer, director or Other Shareholder who has requested inclusion in such registration statement without the consent of Holders of a majority as provided above, disapproves of the Registrable Securities included therein if terms of the underwriter managing underwriting, such offering advises the Holders who have included Registrable Securities in such registration statement that the inclusion holder of such additional shares securities may either limit the number of Registrable Securities which can be sold or adversely affect the price at which such Registrable Securities can be sold.
(c) Notwithstanding Section 1.3(b), the Company shall have the right, exercisable elect to withdraw therefrom by written notice to the initiating Holder(s) within thirty days after receipt of a request to effect a registration under the Securities Act, to include the Company's shares in such registration, in which event such registration shall be deemed to be a Company-initiated registration, Company and the Holders managing underwriter. The securities so withdrawn shall have the right to include their Registrable Securities and shares of Class A Common Stock, as the case may be, therein to the extent permitted under Section 1.2also be withdrawn from registration.
(d) The Company shall not be obligated to effect more than ten registrations under this Section 1.3. Such registrations shall be on Form S-3 when the Company is eligible to use that form under SEC rules, but otherwise may be on Form S-1. No registration statement initiated by Holders hereunder shall count as a registration under this Section 1.3 unless and until it shall have been declared effective. Any registration requested under this Section 1.3 which shall not become effective solely by reason of the refusal of the Holders participating therein to proceed with the registration shall count as a registration effected under this Section 1.3 unless and until the Company shall have been reimbursed for the Registration Expenses incurred by it in connection therewith.
Appears in 1 contract
Samples: Registration Rights Agreement (Uniroyal Technology Corp)
Demand Registrations. (a) At any time after the first anniversary Closing of the date Merger, a holder or holders of this Agreementan aggregate of at least 20% of the Registrable Shares may request, if the Company receives in writing a request writing, that the Company MNAC effect the registration under the Securities Act of Registrable Securities, of with a minimum aggregate offering price of $20,000,000 (as determined with reference to the number of shares proposed to be sold in such registration multiplied by the average closing price, or if no closing price is available, the mean of the bid and asked prices, over the fifteen trading days preceding the date of such written demand), the Company will:
(i) promptly give written notice of the proposed registration to all other Holders; and
(ii) as soon as practicable, prepare and file and use commercially reasonable efforts to cause to become effective such registration statement as may be so requested and as would permit or facilitate the sale and distribution of such portion at least 20% of the Registrable Securities as is specified in such request, together with such additional portion of Shares. If the holder or holders initiating the registration intend to distribute the Registrable Securities Shares by means of any Holder(s) joining an underwriting, they shall so advise MNAC in such request as may be specified in a written request given to their request. In the Company within twenty days after receipt of the written notice from the Company specified in Section 1.3(a)(i).
(b) If the underwriter managing the offering advises the Holders who have requested inclusion of their Registrable Securities in event such registration statement that marketing considerations require a limitation on is underwritten, the number of shares offered, such limitation shall be imposed pro rata among such Holders who requested inclusion of Registrable Securities in such registration statement according to the number of shares of Registrable Securities owned by each. Neither the Company nor any other stockholder may include shares in such registration statement without the consent of Holders holders of a majority of the Registrable Securities Shares requested to be registered shall be entitled to select the managing underwriter of such offering, subject to MNAC's approval, and the right of other holders of Registrable Shares to participate shall be conditioned on such holders' participation in such underwriting. Upon receipt of any such request, MNAC shall promptly give written notice of such proposed registration to all holders of Registrable Shares. Such holders of Registrable Shares shall have the right, by giving written notice to MNAC within 30 days after MNAC provides its notice, to elect to have included therein if in such registration such of their Registrable Shares as such holders may request in such notice of election, subject to the approval of the underwriter managing such the offering as provided below. Thereupon, MNAC shall, as expeditiously as possible, use its best efforts to effect the registration of all Registrable Shares which MNAC has been requested to so register. Notwithstanding any other provision of this Section 3.1, if the managing underwriter advises the Holders who have holders of Registrable Shares initiating the registration in writing that the number of Registrable Shares requested to be included Registrable Securities in such registration statement exceeds the number which can be sold without adversely affecting the marketability of the offering, then the holders of Registrable Shares initiating the registration shall so advise all holders of Registrable Shares which would otherwise be included in the underwriting and the number of Registrable Shares that may be included in the inclusion underwriting shall be allocated among all such holders of Registrable Shares, including the holders of Registrable Shares initiating the registration, in proportion (as nearly as practicable) to the amount of Registrable Shares owned by each such additional shares may either holder. If the managing underwriter does not limit the number of Registrable Securities which can Shares to be sold underwritten, MNAC or other holders of securities of MNAC who have registration rights similar to those set forth in Section 3.2 hereof may include Common Stock for their respective accounts in such registration if the managing underwriter states that such inclusion would not adversely affect the price at offering of Registrable Shares and if the number of Registrable Shares which would otherwise have been included in such Registrable Securities can registration and underwriting will not thereby be soldlimited or reduced.
(b) MNAC shall not be required to effect more than two registrations pursuant to paragraph (a) above. In addition, MNAC shall not be required to effect any registration within six months after the effective date of any other Registration Statement of MNAC.
(c) Notwithstanding If at the time of any request to register Registrable Shares pursuant to this Section 1.3(b)3.1, MNAC is engaged or has fixed plans to engage, within 60 days of the Company shall have time of the rightrequest, exercisable in a registered public offering as to which the holders of Registrable Shares may include Registrable Shares pursuant to Section 3.2 or in any other activity which, in the good faith determination of MNAC's Board of Directors, would be materially adversely affected by written notice the requested registration then MNAC may at its option direct that such request be delayed for a period not in excess of six months from the date of such request. Such right to the initiating Holder(s) within thirty days after receipt of delay a request to effect a registration under the Securities Act, to include the Company's shares in such registration, in which event such registration shall be deemed to be a Company-initiated registration, and the Holders shall have the right to include their Registrable Securities and shares of Class A Common Stock, as the case may be, therein to the extent permitted under Section 1.2.
(d) The Company shall not be obligated to effect exercised by MNAC more than ten registrations under this Section 1.3. Such registrations shall be on Form S-3 when the Company is eligible to use that form under SEC rules, but otherwise may be on Form S-1. No registration statement initiated by Holders hereunder shall count as a registration under this Section 1.3 unless and until it shall have been declared effective. Any registration requested under this Section 1.3 which shall not become effective solely by reason of the refusal of the Holders participating therein to proceed with the registration shall count as a registration effected under this Section 1.3 unless and until the Company shall have been reimbursed for the Registration Expenses incurred by it once in connection therewithany 12-month period.
Appears in 1 contract
Samples: Merger Agreement (Corvu Corp)
Demand Registrations. (a) At any time after and from time to time commencing on the first earlier of (i) the fifth anniversary of the Funding Date, and (ii) the date which is six months after the Initial Public Offering, upon the written request of this Agreement, if the Company receives in writing a request Holders of at least 50% of the Registrable Securities (the "Initiating Holders") that the Company effect the registration Registration under the Securities Act (such a written request being hereinafter referred to as a "Demand Registration") of any of the Registrable Securities, the Company will promptly give written notice to all other Holders of Registrable Securities that a Demand Registration has been received. For a period of 20 days following delivery of such notice, the other Holders of Registrable Securities may request that the Company also register their Registrable Securities and after the expiration of such 20 day period, the Company shall notify all Holders of Registrable Securities of the number of Registrable Securities to be registered. Thereupon, the Company will use its reasonable best efforts to cause the prompt Registration under the Securities Act, subject to the provisions of this Section 7, of all Registrable Securities which the Holders thereof have requested the Company to register, and in connection therewith, prepare and file on such appropriate form as the Company, in its reasonable discretion, shall determine, a Registration Statement under the Securities Act to effect such Registration. With respect to any Registration Statement filed, or to be filed, pursuant to this Section 7.01(a) or Section 7.03 below, if the Company shall furnish to the Holders of Registrable Securities a certified resolution of the Board of Directors stating that in the Board of Directors' good faith judgment it would (because of the existence of, or in anticipation of, any acquisition or financing, merger, sale of assets, recapitalization or other similar corporate activity, or the unavailability for reasons beyond the Company's control of any required audited financial statements, or any other event or condition of similar significance to the Company) be materially disadvantageous (a "Disadvantageous Condition") to the Company or its stockholders for such a Registration Statement to be maintained Effective, or to be filed and become Effective, and setting forth the general reasons for such judgment, the Company shall be entitled to cause such Registration Statement to be withdrawn and the effectiveness of such Registration Statement terminated, or, in the event no Registration Statement has yet been filed, shall be entitled not to file any such Registration Statement, until such Disadvantageous Condition no longer exists (notice of which the Company shall promptly deliver to all Holders of Registrable Securities); provided that the Company shall be entitled to withdraw or delay the filing of a Registration Statement in connection with a Disadvantageous Condition only once during any twelve month period. Upon receipt of any such notice of a Disadvantageous Condition, such Holders of Registrable Securities will forthwith discontinue use of the disclosure document contained in such Registration Statement and, if so directed by the Company, each such Holder will deliver to the Company all copies, other than permanent file copies then in such Holder's possession, of the disclosure document then covering such Registrable Securities current at the time of receipt of such notice, and, in the event no Registration Statement has yet been filed, all drafts of the disclosure document covering such Registrable Securities. In the event that the Company shall give any notice of a Disadvantageous Condition, the Company shall at such time as it in good faith deems appropriate file a new Registration Statement covering the Regxxxxxxxx Xxcurities that were covered by such withdrawn Registration Statement, and shall use its reasonable best efforts to file such new Registration Statement within 90 days of receipt of the resolution by the Holders of Registrable Securities, of with a minimum aggregate offering price of $20,000,000 (as determined with reference to the number of shares proposed to and such Registration Statement shall be sold in maintained Effective for such registration multiplied by the average closing price, or if no closing price is available, the mean of the bid and asked prices, over the fifteen trading days preceding the date of such written demand), the Company will:
(i) promptly give written notice of the proposed registration to all other Holders; and
(ii) as soon as practicable, prepare and file and use commercially reasonable efforts to cause to become effective such registration statement time as may be necessary so requested and as would permit or facilitate that the sale and distribution period of effectiveness of such portion of new Registration Statement, when aggregated with the Registrable Securities as is specified in period during which such requestinitial Registration Statement was Effective, together with shall be such additional portion of the Registrable Securities of any Holder(s) joining in such request time as may be specified in a written request given to the Company within twenty days after receipt of the written notice from the Company specified in otherwise required by Section 1.3(a)(i7.01(c).
(b) If the underwriter managing the offering advises the Holders who have requested inclusion of their Registrable Securities in such registration statement that marketing considerations require a limitation on the number of shares offered, such limitation shall be imposed pro rata among such Holders who requested inclusion of Registrable Securities in such registration statement according to the number of shares of Registrable Securities owned by each. Neither the Company nor any other stockholder may include shares in such registration statement without the consent of The Holders of a majority of the Registrable Securities included therein if requested to be registered may, at any time prior to the underwriter managing Effective Date of the Registration Statement relating to such offering advises Registration, revoke such request, without liability to any of the other Holders who have included Registrable Securities in such registration statement that the inclusion of such additional shares may either limit the number of Registrable Securities which can be sold or adversely affect the price at which such Registrable Securities can be sold.
(c) Notwithstanding Section 1.3(b)Securities, the Company shall have the right, exercisable by providing a written notice to the initiating Holder(s) within thirty days after receipt of a request to effect a registration under the Securities Act, to include the Company's shares in Company revoking such registration, in which event such registration shall be deemed to be a Company-initiated registration, and the Holders shall have the right to include their Registrable Securities and shares of Class A Common Stock, as the case may be, therein to the extent permitted under Section 1.2request.
(d) The Company shall not be obligated to effect more than ten registrations under this Section 1.3. Such registrations shall be on Form S-3 when the Company is eligible to use that form under SEC rules, but otherwise may be on Form S-1. No registration statement initiated by Holders hereunder shall count as a registration under this Section 1.3 unless and until it shall have been declared effective. Any registration requested under this Section 1.3 which shall not become effective solely by reason of the refusal of the Holders participating therein to proceed with the registration shall count as a registration effected under this Section 1.3 unless and until the Company shall have been reimbursed for the Registration Expenses incurred by it in connection therewith.
Appears in 1 contract
Samples: Series B Preferred Stock Purchase Agreement (Mortgage Com Inc)
Demand Registrations. (a) At any time after the first anniversary initial public offering of the date of this Agreement, if the Company receives in writing a request that the Company effect the New Holdings' Common Stock pursuant to an effective registration under the Securities Act of Registrable Securities, of with a minimum aggregate offering price of $20,000,000 (as determined with reference to the number of shares proposed to be sold in such registration multiplied by the average closing price, or if no closing price is available, the mean of the bid and asked prices, over the fifteen trading days preceding the date of such written demand"IPO"), a Majority Interest may request that New Holdings register under the Company will:
(i) promptly give written notice of the proposed registration to Securities Act all other Holders; and
(ii) as soon as practicable, prepare and file and use commercially reasonable efforts to cause to become effective such registration statement as may be so requested and as would permit or facilitate the sale and distribution of such any portion of the Registrable Securities as is specified in held by such request, together with Majority Interest; PROVIDED that all such additional portion of the Registrable Securities of any Holder(s) joining in such request as may be specified in a written request given to the Company within twenty days after receipt of the written notice from the Company specified in Section 1.3(a)(i).
(b) If the underwriter managing the offering advises the Holders who have requested inclusion of their Registrable Securities in such registration statement that marketing considerations require a limitation on the number of shares offered, such limitation requests shall be imposed pro rata among such Holders who requested inclusion of Registrable Securities made in such registration statement according to writing and shall state the number of shares of Registrable Securities owned by eachto be disposed of and the intended method of disposition of such shares; and PROVIDED, FURTHER, that such registration shall not become effective prior to the six month anniversary of the effectiveness of New Holdings' IPO. Neither Upon receipt of such request, New Holdings shall promptly deliver notice of such request to all holders of Registrable Securities, if any, who shall then have thirty (30) days to notify New Holdings in writing of their desire to be included in such registration. If the Company nor request for registration contemplates an underwritten public offering, New Holdings shall state such in the written notice and in such event the right of any other stockholder may include shares holder of Registrable Securities to participate in such registration statement without shall be conditioned upon their participation in such underwritten public offering and the consent inclusion of Holders their Registrable Securities in the underwritten public offering to the extent provided herein. New Holdings will use its best efforts to expeditiously effect the registration of all Registrable Securities whose holders request participation in such registration under the Securities Act and to qualify such Registrable Securities for sale under any state blue sky law; provided, however, that New Holdings shall not be required to effect registration pursuant to a majority request under this Section 2 more than three (3) times for the holders of the Registrable Securities included therein as a group. Notwithstanding anything to the contrary contained herein, no request may be made under this Section 2 within ninety (90) days after the effective date of a registration statement filed by New Holdings covering a firm commitment underwritten public offering in which the holders of Registrable Securities shall have been entitled to join pursuant to this Section 2 or Section 4 hereof and in which there shall have been effectively registered all shares of Registrable Securities as to which registration shall have been so requested. New Holdings may postpone the filing or the effectiveness of any registration statement pursuant to this Section 2 for a reasonable time period, provided that such postponements shall not exceed ninety (90) days in the aggregate during any twelve (12) month period, if (i) New Holdings has been advised by legal counsel that such filing or effectiveness would require disclosure of a material financing, acquisition or other corporate transaction, and the Board of Directors of New Holdings determines in good faith that such disclosure is not in the best interests of New Holdings and its stockholders, or (ii) the Board of Directors of New Holdings determines in good faith that there is a valid business purpose or reason for delaying filing or effectiveness. A registration will not count as a requested registration under this Section 2(a) until the registration statement relating to such registration has been declared effective by the Commission at the request of the initiating Majority Interest; provided, however, that if a Majority Interest shall request, in writing, that New Holdings withdraw a registration statement which has been filed under this Section 2(a) but not yet been declared effective, a Majority Interest may thereafter request New Holdings to reinstate such registration statement, if permitted under the Securities Act, or to file another registration statement, in accordance with the procedures set forth herein.
(b) If a registration requested pursuant to Section 2(a) involves an underwritten public offering and the managing underwriter managing of such offering advises determines in good faith that the Holders who have number of securities sought to be offered should be limited due to market conditions, then the number of securities to be included in such underwritten public offering shall be reduced to a number deemed satisfactory by such managing underwriter; provided, however, that the shares to be excluded shall be determined in the following sequence: (i) first, securities held by any Persons not having registration rights, (ii) second, securities held by any Persons having contractual, incidental "piggy back" registration rights to include such securities in the registration statement pursuant to an agreement which is not this Agreement, (iii) third, shares sought to be registered by New Holdings for its own account, and (iv) fourth, Registrable Securities in held by holders who requested such registration statement pursuant to Section 2(a) or who joined such requested registration pursuant to Section 2(a), it being understood that no shares shall be registered for the inclusion account of such additional shares may either limit New Holdings or any stockholder other than the holders of Registrable Securities unless all Registrable Securities for which holders thereof have requested registration have been registered. If there is a reduction of the number of Registrable Securities which can pursuant to clauses (i), (ii), or (iv), such reduction shall be sold made on a pro rata basis (based upon the aggregate number of shares of Common Stock or adversely affect the price at which such Registrable Securities can be soldheld by the holders in each tranche and subject to the priorities set forth in the preceding sentence).
(c) Notwithstanding With respect to a request for registration pursuant to Section 1.3(b)2(a) which is for an underwritten public offering, the Company managing underwriter shall have be chosen by a Majority Interest of the right, exercisable by written notice Registrable Securities to the initiating Holder(s) within thirty days after receipt of a request to effect a registration under the Securities Act, to include the Company's shares be sold in such registrationoffering, in subject to New Holdings' consent, which event such registration shall be deemed to be a Company-initiated registration, and the Holders shall have the right to include their Registrable Securities and shares of Class A Common Stock, as the case may be, therein to the extent permitted under Section 1.2.
(d) The Company consent shall not be obligated to effect more unreasonably withheld. New Holdings may not cause any other registration of securities for sale for its own account (other than ten registrations under this Section 1.3. Such registrations shall be on Form S-3 when the Company is eligible to use that form under SEC rules, but otherwise may be on Form S-1. No registration statement initiated by Holders hereunder shall count as a registration under this Section 1.3 unless and until it shall have been declared effective. Any registration requested under this Section 1.3 which shall not become effective solely by reason of the refusal of the Holders participating therein to proceed with the registration shall count as a registration effected under solely to implement an employee benefit plan or a transaction to which Rule 145 of the Securities Act is applicable) to become effective within one hundred eighty (180) days following the effective date of any registration required pursuant to this Section 1.3 unless and until the Company shall have been reimbursed for the Registration Expenses incurred by it in connection therewith2.
Appears in 1 contract
Samples: Registration Rights Agreement (Clayton Holdings Inc)
Demand Registrations. (a) At any time after the first earlier of (i) the 3rd anniversary of the date hereof or (ii) the date of this Agreementthe Company's initial public offering of its Common Stock pursuant to an effective registration under the Securities Act (the "IPO"), if a Majority Interest of the Investors may notify the Company receives in writing a that they intend to offer or cause to be offered for public sale, and request that the Company register under the Securities Act for public sale, all or any portion of the Registrable Securities held by the Investors in the manner specified in such notice; provided, however, that in the case of such a request pursuant to clause(ii) above, such registration may not become effective prior to the date which is the earlier of six (6) months after the date of the Company's IPO and the date that any applicable Holdback Period (as defined hereinafter) or other lockup period applicable to such IPO expires. Upon receipt of such request, the Company shall promptly deliver notice of such request to all Persons holding Registrable Securities who shall then have thirty (30) days to notify the Company in writing of their desire to have Registrable Securities held by them included in such registration (which response shall specify the number of Registrable Securities proposed to be included in such registration). If the request for registration contemplates an underwritten public offering, the Company shall state such in the written notice and in such event the right of any Person to include Registrable Securities in such registration shall be conditioned upon such Person's participation in such underwritten public offering and the inclusion of such Person's Registrable Securities in the underwritten public offering to the extent provided herein. The Company will use its commercially reasonable best efforts to expeditiously effect the registration under the Securities Act of all Registrable SecuritiesSecurities of each holder who requested inclusion of such holders Registrable Securities in such registration and to qualify such Registrable Securities for sale under any state blue sky law; provided, however, that the Company shall not be required to effect more than two (2) registrations pursuant to requests under this Section 2(a). Notwithstanding anything to the contrary contained herein, no request may be made under this Section 2 within sixty (60) days after the effective date of a registration statement filed by the Company covering a firm commitment underwritten public offering. The Company may postpone the filing or the effectiveness of any registration statement required to be filed pursuant to this Section 2 for a reasonable time period, provided that such postponements shall not exceed sixty (60) days in the aggregate during any twelve (12) month period, if (i) the Company has been advised by legal counsel that such filing or effectiveness would require disclosure of a material financing, acquisition or other corporate transaction, and the Board of Directors determines in good faith that such disclosure is not in the best interests of the Company and its stockholders or (ii) the Company is then in possession of material non-public information the disclosure of which the Board of Directors has determined would have a material adverse effect upon the Company or its then current business plans. A registration will not count as a requested registration under this Section 2(a) unless and until the registration statement relating to such registration has been declared effective by the Commission at the request of the initiating holders; provided, however, that a majority in interest of the participating holders of Registrable Securities may request, in writing, that the Company withdraw a registration statement which has been filed under this Section 2(a) but not yet been declared effective, and a majority in interest of such holders may thereafter request the Company to reinstate such Registration Statement, if permitted under the Securities Act, or to file another registration statement, in accordance with a minimum aggregate offering price of $20,000,000 (as determined with reference to the procedures set forth herein and without reduction in the number of shares proposed to be sold in such registration multiplied by the average closing price, or if no closing price is available, the mean of the bid and asked prices, over the fifteen trading days preceding the date of such written demanddemand registrations permitted under this Section 2(a), the Company will:
(i) promptly give written notice of the proposed registration to all other Holders; and
(ii) as soon as practicable, prepare and file and use commercially reasonable efforts to cause to become effective such registration statement as may be so requested and as would permit or facilitate the sale and distribution of such portion of the Registrable Securities as is specified in such request, together with such additional portion of the Registrable Securities of any Holder(s) joining in such request as may be specified in a written request given to the Company within twenty days after receipt of the written notice from the Company specified in Section 1.3(a)(i).;
(b) If a requested registration involves an underwritten public offering and the managing underwriter managing the of such offering advises the Holders who have requested inclusion of their Registrable Securities determines in such registration statement good faith that marketing considerations require a limitation on the number of shares offeredsecurities sought to be offered should be limited due to market conditions, such limitation shall be imposed pro rata among such Holders who requested inclusion of Registrable Securities in such registration statement according to then the number of shares of securities to be included in such underwritten public offering shall be reduced to a number, reasonably deemed satisfactory by such managing underwriter, provided that the securities to be excluded shall be determined in the following sequence: (i) first, securities held by any other Persons (other than Persons holding Registrable Securities) having contractual, incidental or "piggy-back" registration rights, (ii) second, securities sought to be registered by the Company and (iii) third, Registrable Securities owned held by each. Neither the Investors, it being understood that no shares shall be registered for the account of the Company nor or any shareholder other stockholder may include shares in such registration statement without than the consent of Holders of a majority of the Investors unless all Registrable Securities included therein if the underwriter managing such offering advises the Holders who for which Investors have included Registrable Securities in such requested registration statement that the inclusion of such additional shares may either limit the number of Registrable Securities which can be sold or adversely affect the price at which such Registrable Securities can be sold.
(c) Notwithstanding Section 1.3(b), the Company shall have the right, exercisable by written notice to the initiating Holder(s) within thirty days after receipt of a request to effect a registration under the Securities Act, to include the Company's shares in such registration, in which event such registration shall be deemed to be a Company-initiated registration, and the Holders shall have the right to include their Registrable Securities and shares of Class A Common Stock, as the case may be, therein to the extent permitted under Section 1.2.
(d) The Company shall not be obligated to effect more than ten registrations under this Section 1.3. Such registrations shall be on Form S-3 when the Company is eligible to use that form under SEC rules, but otherwise may be on Form S-1. No registration statement initiated by Holders hereunder shall count as a registration under this Section 1.3 unless and until it shall have been declared effective. Any registration requested under this Section 1.3 which shall not become effective solely by reason of the refusal of the Holders participating therein to proceed with the registration shall count as a registration effected under this Section 1.3 unless and until the Company shall have been reimbursed for the Registration Expenses incurred by it in connection therewith.been
Appears in 1 contract
Demand Registrations. (a) At any time after Subject to the first anniversary provisions and limitations of this Section 2.1, if following the date hereof the Corporation shall receive a written request (a “Demand Registration Notice”) from the BlackRock Holders or the Highfields Holders (an “Initiating Holder”) that the Corporation effect a Registration Statement under the Securities Act of the Registrable Securities held by such Sponsor Holders on the date thereof (a “Demand Registration”), then the Corporation shall, subject to the limitations of this AgreementSection 2.1, if the Company receives in writing a request that the Company use its commercially reasonable efforts to effect the registration under the Securities Act of all Registrable Securities, of with a minimum aggregate offering price of $20,000,000 Securities that such Initiating Holder requests to be registered.
(as determined with reference to b) A Demand Registration Notice shall specify (i) the number of shares proposed Registrable Securities requested to be sold in registered, (ii) the anticipated per share price range for such offering (which range may be revised from time to time by the Initiating Holder by written notice to the Corporation to that effect), (iii) the intended methods of disposition and the name of the lead underwriter, if available, and (iv) subject to Section 2.1(f), whether such registration multiplied by shall be a “shelf” registration pursuant to Rule 415 under the average closing price, or if no closing price is availableSecurities Act (a “Shelf Registration”).
(c) Within 10 days after receipt of a Demand Registration Notice, the mean of the bid and asked prices, over the fifteen trading days preceding the date of such written demand), the Company will:
(i) promptly Corporation shall give written notice (a “Registration Notice”) of the proposed requested registration to all other Holders that are holders of Registrable Securities (the “Other Holders; and
(ii”) and shall include in such registration all Registrable Securities with respect to which the Corporation has received written requests indicating the Other Holder and the number of Registrable Securities that such Other Holder elects to include in such registration within 20 days after the receipt of the Registration Notice. The Corporation shall, as soon as practicable, prepare and in any event within 90 days after the date of the Demand Registration Notice, file and use commercially reasonable efforts a Registration Statement under the Securities Act covering all Registrable Securities that the Initiating Holder requested to cause be registered, any additional Registrable Securities requested to become effective be included in such registration statement by any Other Holders, as specified by notice given timely by each such Other Holders to the Corporation, and any securities of the Corporation proposed to be included in such registration by holders of registration rights granted other than pursuant to this Agreement (“Other Registration Rights”).
(d) A Demand Registration Notice (other than a Demand Registration Notice with respect to a Demand Registration that constitutes a Shelf Registration on Form S-3) shall only be binding on the Corporation if the sale of all Registrable Securities requested to be registered (pursuant to such Demand Registration Notice and in response to the Demand Registration Notice) is reasonably expected to result in aggregate gross proceeds in excess of $25,000,000.
(e) If the managing underwriter advises the Corporation, in writing, that in its opinion the number of Registrable Securities and, if permitted hereunder, other securities requested to be included in such offering exceeds the number of Registrable Securities and other securities, if any, which can be sold therein without adversely affecting the Corporation or the marketability of the offering, the Corporation shall include in such registration (i) first, the quantity of Registrable Securities requested to be included in such Demand Registration, pro rata among the respective holders thereof on the basis of the number of Registrable Securities requested to be included in such registration by each such holder and (ii) second, other securities requested to be included in such registration, which in the opinion of such underwriters can be sold without adversely affecting the Corporation or the marketability of the offering, pro rata among the respective holders thereof on the basis of the number of shares requested to be included in such registration by each such holder. Any Person (other than Holders of Registrable Securities) that participates in Demand Registrations which are not at the Corporation’s expense must pay their share of any Registration Expenses.
(f) Notwithstanding any other provisions of this Section 2.1, in no event shall either the BlackRock Holders or the Highfields Holders be permitted to (i) request more than three Demand Registrations in any twelve-month period or within 120 days after the effective date of a Registration Statement filed by the Corporation; provided that no Demand Registration may be so requested prohibited for such 120-day period more than once in a twelve-month period; or (ii) request a Demand Registration if, at the time such request is made, a Shelf Registration is effective and as would permit or facilitate the sale and distribution of such portion of the Registrable Securities as is specified in such request, together with such additional portion both includes all of the Registrable Securities of any Holder(s) joining in such request as may be specified in a written request given to the Company within twenty days after receipt Sponsor Holder and permits an underwritten offering of the written notice from the Company specified in Section 1.3(a)(i)such Registrable Securities.
(bg) If The Corporation shall be entitled to postpone (but not more than once in any twelve-month period), for a reasonable period of time not in excess of 60 days, the underwriter managing filing of a Registration Statement (including Shelf Registration) if the offering advises Corporation delivers to the Holders who have requested inclusion Initiating Holder a resolution of their Registrable Securities the Board that, in the good faith judgment of the Board, such registration statement and offering would reasonably be expected to materially adversely affect any bona fide material financing of the Corporation or any material transaction under consideration by the Corporation or would require disclosure of information that marketing considerations require a limitation on the number of shares offered, such limitation shall be imposed pro rata among such Holders who requested inclusion of Registrable Securities in such registration statement according has not been disclosed to the number of shares of Registrable Securities owned by each. Neither the Company nor any other stockholder may include shares in such registration statement without the consent of Holders of a majority of the Registrable Securities included therein if the underwriter managing such offering advises the Holders who have included Registrable Securities in such registration statement public and is not otherwise required to be disclosed at that the inclusion of such additional shares may either limit the number of Registrable Securities which can time that would reasonably be sold or expected to materially adversely affect the price at which Corporation. Such Board resolution shall contain a statement of the reasons for such Registrable Securities can be sold.
(c) Notwithstanding Section 1.3(b)postponement and an approximation of the anticipated delay. The Holders receiving such resolution shall keep the information contained in such resolution confidential. If the Corporation shall so postpone the filing of a Registration Statement, the Company Holder who made the Demand Registration shall have the right, exercisable right to withdraw the request for registration by giving written notice to the initiating Holder(sCorporation within 20 days of the anticipated termination date of the postponement period, as provided in such resolution delivered to the Holders, and in the event of such withdrawal, such request shall not be counted for purposes of the number of Demand Registrations to which such Holder is entitled pursuant to the terms herein.
(h) within thirty If the Corporation has filed a Shelf Registration Statement and has included Registrable Securities therein, the Corporation shall be entitled to suspend (but not more than an aggregate of 90 days in any twelve-month period), for a reasonable period of time not in excess of 90 days, the offer or sale of Registrable Securities pursuant to such Registration Statement by any Holder of Registrable Securities if (i) a “road show” is not then in progress with respect to a proposed offering of Registrable Securities by such Holder pursuant to such Registration Statement and such Holder has not executed an underwriting agreement with respect to a pending sale of Registrable Securities pursuant to such Registration Statement and (ii) the Corporation delivers to the Holders included in such Registration Statement a resolution of the Board that, in the good faith judgment of the Board, such offer or sale would reasonably be expected to materially adversely affect any bona fide material financing of the Corporation or any material transaction under consideration by the Corporation or would require disclosure of information that has not been disclosed to the public and is not otherwise required to be disclosed at that time that would reasonably be expected to materially adversely affect the Corporation. Such Board resolution shall contain a statement of the reasons for such postponement and an approximation of the anticipated delay. The Holders receiving such resolution shall keep the information contained in such certificate confidential.
(i) The Corporation shall be required to maintain the effectiveness of a Registration Statement (except in the case of a Shelf Registration) with respect to any Demand Registration for a period of at least 180 days after receipt the effective date thereof or such shorter period in which all Registrable Securities included in such Registration Statement have actually been sold; provided, however, that such period shall be extended for a period of time equal to the period the Holder of Registrable Securities refrains from selling any securities included in such registration at the request of (x) an underwriter or (y) the Corporation pursuant to the provisions herein. The Corporation shall be required to maintain the effectiveness of a request Registration Statement that is a Shelf Registration with respect to effect a registration under any Demand Registration at all times after the effective date thereof until all Registrable Securities Act, to include the Company's shares included in such registrationRegistration Statement have actually been sold; provided, however, that any Holder of Registrable Securities whose shares have been included in such Shelf Registration may request that such Registrable Securities be removed from such Registration Statement, in which event the Corporation shall promptly either withdraw such registration Registration Statement or file a post-effective amendment to such Registration Statement removing such Registrable Securities.
(j) Notwithstanding anything contained herein to the contrary, the Corporation hereby agrees that (i) each Demand Registration that is a Shelf Registration shall contain all language (including on the Prospectus cover sheet, the principal stockholders’ table and the plan of distribution) as may be deemed reasonably requested by a Holder of Registrable Securities to be allow for (x) in the case of any Holder (including any BlackRock Holder or Highfields Holder), a Company-initiated registrationdistribution to, and resale by, the direct and indirect partners, members or stockholders of a Holder of Registrable Securities and (y) in the case of any BlackRock Holder or Highfields Member, a distribution to, and resale by, any BlackRock Charitable Entities or Highfields Charitable Entities, as applicable ((x) and (y) above, a “Partner/Charitable Distribution”) and (ii) the Corporation shall, at the reasonable request of any Holder of Registrable Securities seeking to effect a Partner/Charitable Distribution, file any prospectus supplement or post-effective amendments and otherwise take any action reasonably necessary to include such language, if such language was not included in the initial Registration Statement, or revise such language if deemed reasonably necessary by such Holder to effect such Partner/Charitable Distribution.
(k) The Initiating Holders shall have the right to include their Registrable Securities select the investment banker and shares of Class A Common Stockmanager to administer the offering relating to such Demand Registration, as the case may be, therein subject to the extent permitted under Section 1.2approval of the Board, which shall not be unreasonably withheld, delayed or conditioned.
(dl) The Company For purposes of this Section 2.1, a registration shall not be obligated to effect more than ten registrations under this Section 1.3. Such registrations counted as “effected” and shall not be on Form S-3 when the Company is eligible to use that form under SEC rulesconsidered a Demand Registration if, but otherwise may be on Form S-1. No registration statement initiated by Holders hereunder shall count as a registration under this Section 1.3 unless and until it shall have been declared effective. Any registration requested under this Section 1.3 which shall not become effective solely by reason result of an exercise of any cutback, fewer than a majority of the refusal total number of Registrable Securities that the Holders participating therein Initiating Holder has requested to proceed with the registration shall count as a registration effected under this Section 1.3 unless and until the Company shall have been reimbursed for the be included in such Registration Expenses incurred by it in connection therewithStatement are actually included.
Appears in 1 contract
Samples: Registration Rights Agreement (PennyMac Financial Services, Inc.)
Demand Registrations. (a) At any time Commencing upon the earlier of (x) one year after the first completion of an underwritten public offering of Class B Common Stock or (y) the second anniversary of the date of this Agreementhereof, if and until such time as the Company receives becomes eligible to file a Registration Statement on Form S-3 (or any successor form relating to secondary offerings), the Holders of 40% of the Registrable Shares then outstanding may request, in writing a request writing, that the Company effect the registration under the Securities Act on Form S-1 or Form S-2 (or any successor form) of Registrable SecuritiesShares owned by the Holders; PROVIDED, of with a HOWEVER, that the minimum aggregate offering price of the Class B Common Stock to be registered by such Holders equals $20,000,000 10,000,000 (as determined with reference prior to deductions for underwriting discounts and commissions). Any such request pursuant to Section 2(a) shall be in writing and shall state the number of shares proposed of Registrable Shares to be sold in such registration multiplied by disposed of and the average closing price, or if no closing price is available, the mean intended method of the bid and asked prices, over the fifteen trading days preceding the date disposition of such written demand)shares by such Holder. If a Holder elects to distribute its Registrable Shares by means of an underwriting, it shall so advise the Company in its request. Thereupon, the Company will:
shall, as expeditiously as possible, use its best efforts to effect the registration, on Form S-1 or Form S-2 (ior any successor form), of all Registrable Shares which the Company has been requested so to register. The Company shall not be required to effect more than two (2) promptly give written notice registrations pursuant to this Section 2(a) (each, a "Permitted Registration"). A registration shall not count as one of the proposed Permitted Registrations under this Section 2(a) until it has become effective, and any registration pursuant to all other Holders; and
(iiSection 2(a) shall not count as soon as practicable, prepare one of the Permitted Registrations unless the Holders of Registrable Shares are able to register and file and use commercially reasonable efforts to cause to become effective such registration statement as may be so requested and as would permit sell 75% or facilitate the sale and distribution of such portion more of the Registrable Securities as is specified Shares requested to be included in such request, together with such additional portion registration. The Company shall not be required to effect any registration pursuant to this Section 2(a) within six months after the effective date of any other Registration Statement of the Registrable Securities Company for an underwritten offering of any Holder(s) joining in such request as may be specified in a written request given to the Company within twenty days after receipt of the written notice from the Company specified in Section 1.3(a)(i)Class B Common Stock.
(b) If the underwriter managing the offering advises Company is eligible to use Form S-3, or any similar short-form registration statement, the Holders who of Registrable Shares shall have requested inclusion of their Registrable Securities in such registration statement that marketing considerations require a limitation on the right to request an unlimited number of shares offeredregistrations on Form S-3, or any similar short-form registration statement, (such limitation requests shall be imposed pro rata among such Holders who requested inclusion of Registrable Securities in such registration statement according to writing and shall state the number of shares of Registrable Securities owned Shares to be disposed of and the intended methods of disposition of such shares by each. Neither such Holder), PROVIDED, HOWEVER, that the Company nor shall not be obligated to effect any such registration if (i) the Holders, together with the holders of any other stockholder may include shares securities of the Company entitled to inclusion in such registration, propose to sell Registrable Shares and such other securities (if any) on Form S-3 at an aggregate price to the public of less than $2,500,000 (prior to deductions for underwriting discounts and commissions), or (ii) in a given twelve-month period, after the Company has effected three (3) registrations pursuant to Sections 2(a) and/or 2(b) in any such period. If a Holder elects to distribute its Registrable Shares by means of an underwriting, it shall so advise the Company in its request. Thereupon, the Company shall, as expeditiously as possible, use its best efforts to effect the registration, on Form S-3 (or any successor form), of all Registrable Shares which the Company has been requested so to register.
(c) In connection with any registration pursuant to Section 2, the Company shall keep such registration effective for a period of ninety (90) days or until the Holder has completed its distribution described in the Registration Statement relating thereto, whichever first occurs; PROVIDED, HOWEVER, that (i) such 90-day period shall be extended for a period of time equal to the period the Holder refrains from selling any securities included in such registration statement at the request of the Company or of an underwriter of common stock (or other securities) of the Company, provided, however, that in no event shall such extension be more than 180 days, and (ii) in the case of any registration of Registrable Shares on Form S-3 (or any other applicable form) which are intended to be offered on a continuous or delayed basis, such 90-day period shall be extended, if necessary, to keep the Registration Statement effective until all such Registrable Shares are sold, provided that Rule 415, or any successor rule under the Securities Act, permits an offering on a continuous or delayed basis, and provided further that applicable rules under the Securities Act governing the obligation to file a post-effective amendment permit, in lieu of filing a post-effective amendment that (I) includes any prospectus required by Section 10(a)(3) of the Securities Act or (II) reflects facts or events representing a material or fundamental change in the information set forth in the Registration Statement, the incorporation by reference of information required to be included in (I) and (II) above to be contained in periodic reports filed pursuant to Section 13 or 15(d) of the Exchange Act in the Registration Statement.
(d) Upon receipt of any such request, the Company shall promptly give written notice of such proposed registration to all Holders. Each Holder shall have the right, by giving written notice to the Company within 30 days after the Company provides its notice, to elect to have included in such registration such of the Holder's Registrable Shares as such Holder may request in such notice of election. Thereupon, the Company shall, as expeditiously as possible, use its best efforts to effect the registration of all Registrable Shares which the Company has been requested to register.
(e) If at the time of any request to register Registrable Shares pursuant to this Section 2, the Company is engaged or has fixed plans to engage within 60 days of the time of the request in a registered public offering as to which the Holders may include Registrable Shares pursuant to Section 4 or is engaged in any other activity which, in the good faith determination of the Company's Board of Directors, would be adversely affected by the requested registration to the material detriment of the Company, then the Company may at its option direct that such request be delayed for a period not in excess of six months from the date the Company received the request to register such Registrable Shares, such right to delay a request to be exercised by the Company not more than once in any 18-month period.
(f) If, after a Registration Statement becomes effective pursuant to Section 2, the Company advises the Holders of any Registrable Shares registered pursuant to such Registration Statement that the Company, on the basis of a written opinion of outside counsel, considers it appropriate for the Registration Statement to be amended, the Holders of such shares shall suspend any further sales of their registered shares until the Company advises them that the applicable amendment to the Registration Statement has been filed and is then effective; provided that the Company shall use its best efforts to promptly file any such amendment. The 90-day time period referred to herein during which the Registration Statement must be kept current after its effective date shall be extended for an additional number of business days equal to the number of business days during which the rights to sell shares was suspended pursuant to the preceding sentence.
(g) In the event that Registrable Shares are sold pursuant to a Registration Statement in an underwritten offering pursuant to this Section 2, the Company agrees to enter into an underwriting agreement containing customary representations and warranties with respect to the business and operations of an issuer of the securities being registered and customary covenants and agreements to be performed by such issuer, including without limitation customary provisions with respect to indemnification by the consent Company of the underwriters of such offering.
(h) In the case of any registration effected pursuant to this Section 2, the Holders of a majority of the Registrable Securities included therein if Shares being offered in the underwriter managing such offering advises the Holders who have included Registrable Securities in such registration statement that the inclusion of such additional shares may either limit the number of Registrable Securities which can be sold or adversely affect the price at which such Registrable Securities can be sold.
(c) Notwithstanding Section 1.3(b), the Company shall have the right, exercisable by written notice to the initiating Holder(s) within thirty days after receipt of a request to effect a registration under the Securities Act, to include the Company's shares in such registration, in which event such registration shall be deemed to be a Company-initiated registration, and the Holders shall have the right to include their Registrable Securities and shares of Class A Common Stockdesignate the managing underwriter in any underwritten offering, as the case may be, therein subject to the extent permitted under Section 1.2.
(d) The Company shall approval of the Company, which approval may not be obligated to effect more than ten registrations under this Section 1.3. Such registrations shall be on Form S-3 when the Company is eligible to use that form under SEC rules, but otherwise may be on Form S-1. No registration statement initiated by Holders hereunder shall count as a registration under this Section 1.3 unless and until it shall have been declared effective. Any registration requested under this Section 1.3 which shall not become effective solely by reason of the refusal of the Holders participating therein to proceed with the registration shall count as a registration effected under this Section 1.3 unless and until the Company shall have been reimbursed for the Registration Expenses incurred by it in connection therewithunreasonably withheld or delayed.
Appears in 1 contract
Samples: Registration Rights Agreement (Commerce Security Bancorp Inc)
Demand Registrations. (ai) At Subject to Section 2.1(d), at any time beginning 180 days after the first anniversary date on which the Partnership, the General Partner or any other Alternative IPO Entity (as defined in Section 4.11) (each an “Issuer”) shall have effected the registration under the Securities Act of any Registrable Securities, one or more Holders shall have the right to require the Issuer to file a registration statement on Form S-1 or Form S-11, as applicable, or any successor forms thereto (each, a “Long-Form Registration”) or on Form S-3 or any successor form thereto (each, a “Short-Form Registration” and together with the Long-Form Registrations, the “Demand Registrations”) under the Securities Act covering all or a portion of the then outstanding Registrable Securities beneficially owned by the Holders, by delivering a written request therefor to the Issuer specifying the number of Registrable Securities to be included in such registration by such Holders and the intended method of distribution thereof. All such requests by any Holder pursuant to this Section 2.1(a)(i) are referred to as “Demand Registration Requests,” and the Holders making such demand for registration are referred to as the “Initiating Holders.” As promptly as practicable, but no later than 10 days after receipt of a Demand Registration Request, the Issuer shall give written notice (a “Demand Exercise Notice”) of such Demand Registration Request to all other Holders.
(ii) The Issuer, subject to Sections 2.3 and 2.6, shall include in a Demand Registration (A) the Registrable Securities of the Initiating Holders and (B) the Registrable Securities of any other Holder of Registrable Securities that shall have validly made a written request to the MC Partnership Parties within the time limits specified below for inclusion in such registration (together with the Initiating Holders, the “Participating Holders”). Any such request from the other Holders must be delivered to the Issuer within 15 days after the receipt of the Demand Exercise Notice and must specify the maximum number of Registrable Securities intended to be disposed of by such other Holders.
(iii) The Issuer, as expeditiously as possible but subject to Section 2.1(d), shall use their commercially reasonable efforts to file a Registration Statement, and cause such Registration Statement to be declared effective after the filing thereof under the Securities Act, covering all of the Registrable Securities that the Holders have requested to register for distribution in accordance with such intended method of distribution.
(b) Registrations under this Section 2.1 shall be on such appropriate registration form of the SEC for the disposition of such Registrable Securities in accordance with the intended method of disposition thereof, which form shall be selected by the Issuer and shall be reasonably acceptable to the Majority Participating Holders.
(c) Without limiting the foregoing, within ten Business Days after the Issuer becomes eligible to file a shelf registration statement that permits sales of Registrable Securities on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration Statement”), the Issuer shall give written notice (the “Shelf Notice”) to all Holders and shall include in such registration all Registrable Securities of the Holders. The Issuer shall as promptly as practicable, and in any event within twenty Business Days after the giving of the Shelf Notice, file with the SEC a Shelf Registration Statement with respect to such Registrable Securities to be included in accordance with the foregoing sentence and shall amend such Shelf Registration Statement at such times and as reasonably requested by Holders so as to permit the inclusion of any Registrable Securities therein. With respect to any Shelf Registration Statement covering Registrable Securities, the Issuer shall use their commercially reasonable efforts (if the Issuer is not eligible to use an automatic shelf registration statement as defined in Rule 405 under the Securities Act (an “automatic shelf registration statement”) to keep such Shelf Registration Statement continuously effective under the Securities Act in order to permit the prospectus forming a part thereof to be usable by the applicable Holder until the date as of which all Registrable Securities included in such Shelf Registration Statement either (1) have been sold pursuant to the Shelf Registration Statement or another Registration Statement filed under the Securities Act (but in no event prior to the applicable period referred to in Section 4(a)(3) of the Securities Act and Rule 174 thereunder), or (2) cease to be Registrable Securities.
(d) The Demand Registration rights granted in Section 2.1(a) to the Holders are subject to the following limitations:
(i) the Issuer shall not be required to cause a registration pursuant to Section 2.1(a) to be filed within 90 days or to be declared effective within a period of 180 days after the effective date of any other registration statement of the Issuer filed pursuant to the Securities Act;
(ii) if in the opinion of outside counsel to the Issuer, any registration of Registrable Securities would require disclosure of information not otherwise then required by law to be publicly disclosed and, in the good faith judgment of the board of directors of the Issuer, such disclosure is reasonably likely to adversely affect any material financing, acquisition, corporate reorganization or merger or other material transaction or event involving the Issuer or otherwise have a material adverse effect on the Issuer (a “Valid Business Reason”), the Issuer may postpone or withdraw a filing of a registration statement relating to a Demand Registration Request until such Valid Business Reason no longer exists, but in no event shall the Issuer avail itself of such right for more than 90 days, in the aggregate, in any period of 365 consecutive days (such period of postponement or withdrawal under this clause (ii), the “Postponement Period”); and the Issuer shall give notice of its determination to postpone or withdraw a registration statement and of the fact that the Valid Business Reason for such postponement or withdrawal no longer exists, in each case, promptly after the occurrence thereof; and
(iii) In connection with the provisions of this Section 2, the Holders shall have three Demand Registration Requests, in each case with respect to Long-Form Registrations which they are permitted to deliver (or cause to be delivered) to the Issuer hereunder. The Holders shall have an unlimited number of Demand Registration Requests with respect to Short-Form Registrations which they are permitted to deliver (or cause to be delivered) to the Issuer hereunder. If the Issuer shall give any notice of postponement or withdrawal of any registration statement pursuant to clause (ii) above, the Issuer shall not register any equity security of the Issuer during the period of postponement or withdrawal. Each Holder of Registrable Securities agrees that, upon receipt of any notice from the Issuer that the Issuer has determined to withdraw any registration statement pursuant to clause (ii) above, such Holder will discontinue its disposition of Registrable Securities pursuant to such registration statement. If the Issuer shall have withdrawn or prematurely terminated a registration statement filed under Section 2.1(a)(i), the Issuer shall not be considered to have effected an effective registration for the purposes of this Agreement until the Issuer shall have filed a new registration statement covering the Registrable Securities covered by the withdrawn registration statement and such registration statement shall have been declared effective and shall not have been withdrawn. If the Issuer shall give any notice of withdrawal or postponement of a registration statement, at such time as the Valid Business Reason that caused such withdrawal or postponement no longer exists (but in no event more than 90 days after the date of this Agreementthe postponement or withdrawal), if the Company receives in writing a request that the Company Issuer shall use its commercially reasonable efforts to effect the registration under the Securities Act of the Registrable SecuritiesSecurities covered by the withdrawn or postponed registration statement in accordance with this Section 2.1.
(e) The Issuer, subject to Sections 2.3 and 2.6, may elect to include in any registration statement and offering made pursuant to Section 2.1(a)(i), (i) authorized but unissued Common Units of with a minimum aggregate offering price of $20,000,000 the Partnership and (as determined with reference to the number of shares proposed ii) any other Common Units that are requested to be sold included in such registration multiplied pursuant to the exercise of piggyback rights granted by the average closing priceIssuer that are not inconsistent with the rights granted in, or otherwise conflict with the terms of, this Agreement (“Additional Piggyback Rights”); provided, however, that such inclusion shall be permitted only to the extent pursuant to and subject to the terms of the underwriting agreement or arrangements, if no closing price is availableany, entered into by the Participating Holders.
(f) A Holder may withdraw its Registrable Securities from a Demand Registration at any time. If all such Holders do so, the mean Issuer shall cease all efforts to secure registration and such registration nonetheless shall be deemed a Demand Registration for purposes of this Section 2.1 unless (i) the withdrawal is made following withdrawal or postponement of such registration by the Issuer pursuant to a Valid Business Reason as contemplated by Section 2.1(d), (ii) the withdrawal is based on the reasonable determination of the bid and asked pricesHolders who requested such registration that there has been, over the fifteen trading days preceding since the date of the Demand Registration Request, a material adverse change in the business or prospects of the Issuer or (iii) the Holders who requested such written demand), registration shall have paid or reimbursed the Company will:Issuer for all of the reasonable out-of-pocket fees and expenses incurred by the Issuer in connection with the withdrawn registration.
(g) A Demand Registration shall not be deemed to have been effected and shall not count as such (i) promptly give written notice unless a registration statement with respect thereto has become effective and has remained effective for a period of at least 180 days or such shorter period during which all Registrable Securities covered by such Registration Statement either (x) have been sold or withdrawn, (y) cease to be Registrable Securities or, (z) if such Registration Statement relates to an underwritten offering, such longer period as, in the proposed registration to all other Holders; and
opinion of counsel for the underwriter(s), is required by law for delivery of a prospectus in connection with the sale of Registrable Securities by an underwriter or dealer, (ii) as soon as practicableif, prepare and file and use commercially reasonable efforts to cause to become effective such after the registration statement as may be so requested and as would permit with respect thereto has become effective, it becomes subject to any stop order, injunction or facilitate the sale and distribution of such portion other order or requirement of the Registrable Securities SEC or other governmental agency or court for any reason, (iii) if it is withdrawn by the Issuer pursuant to a Valid Business Reason as is contemplated by Section 2.1(d) or (iv) if the conditions to closing specified in such request, together the purchase agreement or underwriting agreement entered into in connection with such additional portion Demand Registration are not satisfied, other than solely by reason of some act or omission of the Registrable Securities of any Holder(s) joining in such request as may be specified in a written request given to the Company within twenty days after receipt of the written notice from the Company specified in Section 1.3(a)(i)Participating Holders.
(bh) If In connection with any Demand Registration, the Majority Participating Holders may designate the lead managing underwriter managing the offering advises the Holders who have requested inclusion of their Registrable Securities in connection with such registration statement that marketing considerations require a limitation on the number of shares offered, such limitation shall be imposed pro rata among such Holders who requested inclusion of Registrable Securities in such registration statement according to the number of shares of Registrable Securities owned by each. Neither the Company nor any and each other stockholder may include shares in such registration statement without the consent of Holders of a majority of the Registrable Securities included therein if the managing underwriter managing such offering advises the Holders who have included Registrable Securities in such registration statement that the inclusion of such additional shares may either limit the number of Registrable Securities which can be sold or adversely affect the price at which such Registrable Securities can be sold.
(c) Notwithstanding Section 1.3(b), the Company shall have the right, exercisable by written notice to the initiating Holder(s) within thirty days after receipt of a request to effect a registration under the Securities Act, to include the Company's shares in for such registration, provided, that, in which event each case, each such registration shall be deemed underwriter is reasonably satisfactory to be a Company-initiated registrationthe Issuer. Notwithstanding the foregoing, and the Holders shall Issuer will have the right to include their Registrable Securities and shares designate the underwriters in connection with any registration of Class A Common Stock, as the case may be, therein equity securities to the extent permitted under Section 1.2.
(d) The Company shall not be obligated to effect more than ten registrations under this Section 1.3. Such registrations shall be on Form S-3 when the Company is eligible to use that form under SEC rules, but otherwise may be on Form S-1. No registration statement initiated by Holders hereunder shall count as a registration under this Section 1.3 unless and until it shall have been declared effective. Any registration requested under this Section 1.3 which shall not become effective solely by reason of the refusal of the Holders participating therein to proceed with the registration shall count as a registration effected under this Section 1.3 unless and until the Company shall have been reimbursed sold for the Registration Expenses incurred by it in connection therewithaccount of any Issuer.
Appears in 1 contract
Samples: Registration Rights Agreement (Mack Cali Realty L P)
Demand Registrations. (a) At In the event that any Holder shall receive an Offering Notice in accordance with Section 8.1 of the Purchase Agreement, an Offering Notice in accordance with Section 2.3(b)(ii) of the Purchase Agreement or a Change of Control Offer in which Conversion Shares or Repriced Converts of a Designated Acquiring Person that is a Public Company are being offered to the Holders in accordance with Section 6.15(a)(ii), then the IPO Entity or Designated Acquiring Person either, as elected by the Holders of the Majority of Registrable Securities, (i) include all of the Repriced Converts and Conversion Shares in the IPO of the IPO Entity or Designated Acquiring Entity as an Incidental Registration in accordance with the provisions of Section 2.2 hereof, or (ii) cause the registration of all of the Repriced Converts and Conversion Shares in a registration by the IPO Entity or Designated Acquiring Entity separate from the registration of the IPO as a Demand Registration in accordance with the provisions of Section 2.1(b) hereof, such Demand Registration to become effective at the same time as the date on which the IPO of the IPO Entity or Designated Acquiring Person, or the Change of Control, as the case may be, is consummated.
(i) In connection with a Demand Registration contemplated by Section 2.1(a) or (ii) in the event that, in their sole discretion, the Holders have consented to receiving on the closing date of the IPO or Change of Control Conversion Shares or Repriced Converts (including Conversion Shares issuable upon conversion thereof) that are registered and freely tradable under the Securities Act, the Holders shall have the right to request in writing that an IPO Entity register all or part of such Holders' Registrable Securities (a "Request") (which Request shall specify the amount of Registrable Securities intended to be disposed of by such Holders and the intended method of disposition thereof) by filing with the SEC a Demand Registration Statement. As promptly as practicable, but no later than 10 days after receipt of a Request, the relevant IPO Entity shall give written notice of such requested registration to all Holders of Registrable Securities. Subject to Section 2.1(b), the relevant IPO Entity shall include in a Demand Registration (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 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 relevant IPO Entity for inclusion thereof in such registration within 20 days after the first anniversary receipt of such written notice from such IPO Entity. The IPO Entity shall, as expeditiously as possible following a Request, cause to be filed with the date of this Agreement, if the Company receives in writing SEC a request that the Company effect Demand Registration Statement providing for the registration under the Securities Act of the Registrable SecuritiesSecurities which the relevant IPO Entity has been so requested to register by all such Holders, of with a minimum aggregate offering price of $20,000,000 (as determined with reference to the number extent necessary to permit the disposition of shares proposed such Registrable Securities so to be registered in accordance with the intended methods of disposition thereof specified in such Request or further requests (including, without limitation, by means of a shelf registration pursuant to Rule 415 under the Securities Act (a "Shelf Registration") if so requested and if such IPO Entity is then eligible to use such a registration). The Company shall cause such Demand Registration Statement to be 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 3.1(b). Notwithstanding anything contained herein to the contrary pursuant to clause (ii) of Section 2.1(b), if a Request is made within 90 days of the effective date (the "Applicable Effective Date") of a Registration Statement for an Initial Public Offering, the Company shall cause the applicable Demand Registration Statement to be declared effective (and the associated offering to be consummated), at the earliest possible time, and as soon as market conditions permit, but no later than six months following the Applicable Effective Date. A Request may be withdrawn prior to the filing of the Demand Registration Statement by the Majority Holders of the Registration (a "Withdrawn Request") and a Demand Registration Statement may be withdrawn prior to the effectiveness thereof by the Majority Holders of the Registration (a "Withdrawn Demand Registration"), and such withdrawals shall be treated as a Demand Registration which shall have been effected pursuant to this Section 2.1, unless the Holders of Registrable Securities to be included in such Registration Statement reimburse the Company for its reasonable out-of-pocket Registration Expenses relating to the preparation and filing of such Demand Registration Statement (to the extent actually incurred); provided, however, that if a Withdrawn Request or Withdrawn Registration Statement is made (A) because of a material adverse change in the business, financial condition or prospects of the relevant IPO Entity or (B) because the sole or lead managing Underwriter advises that the amount of Registrable Securities to be sold in such registration multiplied offering be reduced pursuant to Section 2.1(b) by the average closing price, or if no closing price is available, the mean of the bid and asked prices, over the fifteen trading days preceding the date of such written demand), the Company will:
(i) promptly give written notice of the proposed registration to all other Holders; and
(ii) as soon as practicable, prepare and file and use commercially reasonable efforts to cause to become effective such registration statement as may be so requested and as would permit or facilitate the sale and distribution of such portion more than 15% of the Registrable Securities as is specified to be included in such requestRegistration Statement, together with then such additional portion withdrawal shall not be treated as a Demand Registration effected pursuant to this Section 2.1 and such IPO Entity 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 Registrable Securities of Demand Registration Statement (and for any Holder(sreason) joining in revoke such request as may be specified in a written request given to the Company within twenty days after receipt of the written notice from the Company specified in Section 1.3(a)(i).
(b) If the underwriter managing the offering advises the Holders who have requested inclusion of their Registrable Securities in such registration statement that marketing considerations require a limitation on the number of shares offered, such limitation shall be imposed pro rata among such Holders who requested inclusion of Registrable Securities in such registration statement according to the number of shares of Registrable Securities owned by each. Neither the Company nor any other stockholder may include shares in such registration statement without the consent of Holders of a majority of the Registrable Securities included therein if the underwriter managing such offering advises the Holders who have included Registrable Securities in such registration statement that the inclusion of such additional shares may either limit the number of Registrable Securities which can be sold or adversely affect the price at which such Registrable Securities can be sold.
(c) Notwithstanding Section 1.3(b), the Company shall have the right, exercisable by delivering written notice to the initiating Holder(s) within thirty days after receipt of a request to effect a registration under the Securities Act, to include the Company's shares in such registration, in which event IPO Entity revoking such registration shall be deemed to be a Company-initiated registration, and the Holders shall have the right to include their Registrable Securities and shares of Class A Common Stock, as the case may be, therein to the extent permitted under Section 1.2requested inclusion.
(d) The Company shall not be obligated to effect more than ten registrations under this Section 1.3. Such registrations shall be on Form S-3 when the Company is eligible to use that form under SEC rules, but otherwise may be on Form S-1. No registration statement initiated by Holders hereunder shall count as a registration under this Section 1.3 unless and until it shall have been declared effective. Any registration requested under this Section 1.3 which shall not become effective solely by reason of the refusal of the Holders participating therein to proceed with the registration shall count as a registration effected under this Section 1.3 unless and until the Company shall have been reimbursed for the Registration Expenses incurred by it in connection therewith.
Appears in 1 contract
Demand Registrations. (a) At any time after the first anniversary of the date of this Agreement, if the Company receives in writing a Any Designated Shareholder may request that the Company effect the registration under the Securities Act on Form S-1 or Form S-2 (or any successor form) of Registrable SecuritiesShares owned by such Designated Shareholder. If such Designated Shareholder elects to distribute its Registrable Shares by means of an underwriting, of with a minimum aggregate offering price of $20,000,000 (as determined with reference to it shall so advise the number of shares proposed to be sold Company in such registration multiplied by the average closing price, or if no closing price is available, the mean of the bid and asked prices, over the fifteen trading days preceding the date of such written demand)its request. Thereupon, the Company will:shall, as expeditiously as possible, use its best efforts to effect the registration, on Form S-1 or Form S-2 (or any successor form), of all Registrable Shares (whether owned by a Designated Shareholder or owned by Other Shareholders requesting registration pursuant to Section 3 hereof) which the Company has been requested so to register.
(ib) The Company shall not be required to effect more than 2 registrations pursuant to paragraph (a) above; PROVIDED, HOWEVER, that a registration effected under paragraph (a) above shall not be counted for the purpose of this limitation unless the Designated Shareholder and any Other Shareholders who have requested registration pursuant to Section 3 hereof shall have succeeded in selling at least 80% of the Registrable Shares requested to be included in such registration. In addition, the Company shall not be required to effect any registration (other than on Form S-3 or any successor form relating to secondary offerings) within six months after the effective date of any other Registration Statement of the Company.
(c) At any time after the Company becomes eligible to file a Registration Statement on Form S-3 (or any successor form relating to secondary offerings), a Designated Shareholder may request the Company, in writing, to effect the registration on Form S-3 (or such successor form), of Registrable Shares owned by a Designated Shareholder. Upon receipt of any such request, the Company shall promptly give written notice of the such proposed registration to all other Holders; and
(ii) as soon as practicable, prepare and file and use commercially reasonable efforts to cause to become effective Other Shareholders. Each such registration statement as may be so requested and as would permit or facilitate the sale and distribution of such portion of the Registrable Securities as is specified in such request, together with such additional portion of the Registrable Securities of any Holder(s) joining in such request as may be specified in a written request given to the Company within twenty days after receipt of the written notice from the Company specified in Section 1.3(a)(i).
(b) If the underwriter managing the offering advises the Holders who have requested inclusion of their Registrable Securities in such registration statement that marketing considerations require a limitation on the number of shares offered, such limitation shall be imposed pro rata among such Holders who requested inclusion of Registrable Securities in such registration statement according to the number of shares of Registrable Securities owned by each. Neither the Company nor any other stockholder may include shares in such registration statement without the consent of Holders of a majority of the Registrable Securities included therein if the underwriter managing such offering advises the Holders who have included Registrable Securities in such registration statement that the inclusion of such additional shares may either limit the number of Registrable Securities which can be sold or adversely affect the price at which such Registrable Securities can be sold.
(c) Notwithstanding Section 1.3(b), the Company Other Shareholders shall have the right, exercisable by giving written notice to the initiating Holder(s) Company within thirty 30 days after receipt the Company provides its notice, to elect to have included in such registration such of a its Registrable Shares as such Other Shareholder may request in its notice of election. Thereupon, the Company shall, as expeditiously as possible, use its best efforts to effect the registration on Form S-3, or such successor form, of all Registrable Shares which the Company has been requested to register.
(d) If at the time of any request to effect register Registrable Shares pursuant to this Section 2, the Company is engaged or has fixed plans to engage within 60 days of the time of the request in a registration under registered public offering as to which the Securities ActShareholders may include Registrable Shares pursuant to Section 4 or is engaged in any other activity which, to include in the good faith determination of the Company's shares Board of Directors, would be adversely affected by the requested registration to the material detriment of the Company, then the Company may at its option direct that such request be delayed for a period not in excess of six months from the effective date of such registration, in which event offering or the date of commencement of such registration shall be deemed to be a Company-initiated registration, and the Holders shall have the right to include their Registrable Securities and shares of Class A Common Stockother material activity, as the case may be, therein such right to delay a request to be exercised by the extent permitted under Section 1.2Company not more than once in any 18-month period.
(de) The In the event that Registrable Shares are sold pursuant to a Registration Statement in an underwritten offering pursuant to this Section 2, the Company agrees to enter into an underwriting agreement containing customary representations and warranties with respect to the business and operations of an issuer of the securities being registered and customary covenants and agreements to be performed by such issuer, including without limitation customary provisions with respect to indemnification by the Company of the underwriters of such offering.
(f) In the case of any registration effected pursuant to this Section 2, the Designated Shareholder shall have the right to designate the managing underwriter in any underwritten offering, subject to the approval of the Company, which approval may not be obligated to effect more than ten registrations under this Section 1.3. Such registrations shall be on Form S-3 when the Company is eligible to use that form under SEC rules, but otherwise may be on Form S-1. No registration statement initiated by Holders hereunder shall count as a registration under this Section 1.3 unless and until it shall have been declared effective. Any registration requested under this Section 1.3 which shall not become effective solely by reason of the refusal of the Holders participating therein to proceed with the registration shall count as a registration effected under this Section 1.3 unless and until the Company shall have been reimbursed for the Registration Expenses incurred by it in connection therewithunreasonably withheld or delayed.
Appears in 1 contract
Samples: Registration Rights Agreement (Commerce Security Bancorp Inc)
Demand Registrations. (a) At On any time six (6) occasions after the date which is one hundred eighty (180) days after the date of the execution of this Agreement, subject to the conditions set forth in this Agreement, one or more Holders holding at least forty percent (40%) of the Registrable Securities then held by all Holders (the "Demand Threshold") may request (the "Initiating Holders") that the Company cause to be filed with the Commission and cause to become effective a registration statement (a "Demand Registration Statement") under the Securities Act relating to the sale by such Holders of their Registrable Securities in accordance with the terms hereof; provided, however, that until the first anniversary of the date of this Agreementhereof, if only a Richmont Party can make any such demand; and provided further that any Richmont Party may request the Company receives in writing to file and cause to become effective a Demand Registration Statement if such request is for the registration of all of such Richmont Party's Registrable Securities, notwithstanding the fact that such Richmont Party's Registrable Securities are less than the Demand Threshold. Upon receipt of any such request, the Company effect the shall give written notice of such proposed registration under the Securities Act to all Holders of Registrable Securities. Such Holders shall have the right, by giving written notice to the Company within fifteen (15) business days after such notice referred to in the preceding sentence has been given by the Company, to elect to have included in the Demand Registration Statement such of their Registrable Securities as each Holder may request in such notice of election. Thereupon, the Company shall as soon as practicable thereafter cause such Demand Registration Statement to be filed and declared effective by the Commission for all Registrable Securities which the Company has been requested to register. The Company shall in no event be obligated to effect under this Section 2 more than six (6) demand registrations. If the managing underwriter of an underwritten offering with a minimum aggregate offering price of $20,000,000 (as determined with reference respect to which registration has been requested by any Holder pursuant to this Section 2 has advised the Company that, in such underwriter's good faith judgment, the number of shares proposed securities to be sold in such registration multiplied offering by the average closing price, or if no closing price is available, the mean of the bid Company and asked prices, over the fifteen trading days preceding the date of such written demand), persons other than the Company will:
(icollectively, "Selling Stockholders") promptly give written notice of is greater than the proposed registration to all other Holders; and
(ii) as soon as practicablenumber which can be offered without adversely affecting such offering, prepare and file and use commercially reasonable efforts to cause to become effective such registration statement as may be so requested and as would permit or facilitate the sale and distribution of such portion of the Registrable Securities as is specified in such request, together with such additional portion of the Registrable Securities of any Holder(s) joining in such request as may be specified in a written request given to then the Company within twenty days after receipt of the written notice from the Company specified in Section 1.3(a)(i).
(b) If the underwriter managing the offering advises the Holders who have requested inclusion of their Registrable Securities in such registration statement that marketing considerations require a limitation on may reduce the number of shares offeredsecurities to be included in such offering to a number deemed satisfactory by the managing under writer, such limitation provided, however, that the securities to be excluded shall be imposed determined in the following order of priority: first, securities held by any Selling Stockholder not having contractual, incidental registration rights; second, securities held by any Selling Stockholder (not including the Holders) participating in such offering pursuant to the exercise of contractual piggyback registration rights (other than pursuant to the Merkxxx Xxxeement or the Monroe Agreement), as determined on a pro rata among such Holders who requested inclusion of Registrable Securities in such registration statement according to basis (based upon the aggregate number of shares of Registrable Securities owned securities held by each. Neither the Company nor any other stockholder may include shares in such registration statement without the consent of Holders of a majority of the Registrable Securities included therein if the underwriter managing such offering advises the Holders who have included Registrable Securities in such registration statement that the inclusion of such additional shares may either limit the number of Registrable Securities which can be sold or adversely affect the price at which such Registrable Securities can be sold.
(c) Notwithstanding Section 1.3(bSelling Stockholders), the Company shall have the right, exercisable by written notice to the initiating Holder(s) within thirty days after receipt of a request to effect a registration under the Securities Act, to include the Company's shares in such registration, in which event such registration shall be deemed to be a Company-initiated registration, and the Holders shall have the right to include their Registrable Securities and shares of Class A Common Stock, as the case may be, therein to the extent permitted under Section 1.2.
(d) The Company shall not be obligated to effect more than ten registrations under this Section 1.3. Such registrations shall be on Form S-3 when the Company is eligible to use that form under SEC rules, but otherwise may be on Form S-1. No registration statement initiated by Holders hereunder shall count as a registration under this Section 1.3 unless and until it shall have been declared effective. Any registration requested under this Section 1.3 which shall not become effective solely by reason of the refusal of the Holders participating therein to proceed with the registration shall count as a registration effected under this Section 1.3 unless and until the Company shall have been reimbursed for the Registration Expenses incurred by it in connection therewith.;
Appears in 1 contract
Samples: Registration Rights Agreement (Marketing Specialists Corp)
Demand Registrations. On any two (a2) At any time occasions after the first anniversary date which is one hundred eighty (180) days after the consummation by the Company of an initial public offering of Common Stock, subject to the date of conditions set forth in this Agreement, if including without limitation the Company receives conditions set forth in writing a Section 2(b) below, Holders holding at least forty percent (40%) of the Registrable Securities then held by all Holders may request that the Company effect cause to be filed with the Commission and cause to become effective a registration statement (a "Demand Registration Statement") under the Securities Act relating to the sale by such Holders of their Registrable Securities in accordance with the terms hereof. Upon receipt of any such request, the Company shall give written notice of such proposed registration to all Holders of Registrable Securities. Such Holders shall have the right, by giving written notice to the Company within fifteen (15) business days after such notice referred to in the preceding sentence has been given by the Company, to elect to have included in the Demand Registration Statement such of their Registrable Securities as each Holder may request in such notice of election. Thereupon, the Company shall as soon as practicable thereafter cause such Demand Registration Statement to be filed and declared effective by the Commission for all Registrable Securities which the Company has been requested to register. The Company shall in no event be obligated to effect under this Section 2 more than two (2) demand registrations. If the managing underwriter of an underwritten offering with a minimum aggregate offering price of $20,000,000 (as determined with reference respect to which registration has been requested by any Holder pursuant to this Section 2 has advised the Company that, in such underwriter's good faith judgment, the number of shares proposed securities to be sold in such registration multiplied offering by persons other than the Company (collectively, "Selling Stockholders") is greater than the number which can be offered without adversely affecting such offering, then the Company may reduce the number of securities to be included in such offering for the accounts of Selling Stockholders to a number deemed satisfactory by the average closing pricemanaging underwriter, or if no closing price is availableprovided, however, that the mean securities -------- ------- to be excluded shall be determined in the following order of priority: first, securities held by any Selling Stockholder not having contractual, incidental registration rights; second, securities held by any Selling Stockholder (not including the bid Holders) participating in such offering pursuant to the exercise of contractual piggyback registration rights (other than pursuant to the Registration Rights Agreement by and asked pricesamong the Company and the stockholders of Xxxxxxx Enterprises, over Inc. (the fifteen trading days preceding the date of such written demand"Xxxxxxx Agreement"), as determined on a pro rata basis (based upon the Company will:
aggregate number of securities held by such Selling Stockholders); and third, securities held by (i) promptly give written notice any Selling Stockholder participating in such offering pursuant to the exercise of piggyback registration rights under the proposed registration to all other Holders; and
Xxxxxxx Agreement and (ii) as soon as practicable, prepare and file and use commercially reasonable efforts to cause to become effective such registration statement as may be so requested and as would permit or facilitate the sale and distribution of such portion of the Registrable Securities as is specified in such request, together with such additional portion of the Registrable Securities of any Holder(s) joining in such request as may be specified in a written request given to the Company within twenty days after receipt of the written notice from the Company specified in Section 1.3(a)(i).
(b) If the underwriter managing the offering advises the Holders who have requested inclusion of their Registrable Securities Holder participating in such registration statement that marketing considerations require pursuant to the exercise of the demand registration rights set forth in this Section 2, as determined on a limitation on pro rata basis (based upon the aggregate number of shares offered, securities held by such limitation shall be imposed pro rata among Selling Stockholders and such Holders who requested inclusion of Registrable Securities in such registration statement according to the number of shares of Registrable Securities owned by each. Neither the Company nor any other stockholder may include shares in such registration statement without the consent of Holders of a majority of the Registrable Securities included therein if the underwriter managing such offering advises the Holders who have included Registrable Securities in such registration statement that the inclusion of such additional shares may either limit the number of Registrable Securities which can be sold or adversely affect the price at which such Registrable Securities can be soldHolders).
(c) Notwithstanding Section 1.3(b), the Company shall have the right, exercisable by written notice to the initiating Holder(s) within thirty days after receipt of a request to effect a registration under the Securities Act, to include the Company's shares in such registration, in which event such registration shall be deemed to be a Company-initiated registration, and the Holders shall have the right to include their Registrable Securities and shares of Class A Common Stock, as the case may be, therein to the extent permitted under Section 1.2.
(d) The Company shall not be obligated to effect more than ten registrations under this Section 1.3. Such registrations shall be on Form S-3 when the Company is eligible to use that form under SEC rules, but otherwise may be on Form S-1. No registration statement initiated by Holders hereunder shall count as a registration under this Section 1.3 unless and until it shall have been declared effective. Any registration requested under this Section 1.3 which shall not become effective solely by reason of the refusal of the Holders participating therein to proceed with the registration shall count as a registration effected under this Section 1.3 unless and until the Company shall have been reimbursed for the Registration Expenses incurred by it in connection therewith.
Appears in 1 contract
Demand Registrations. (a) At any time after Subject to the first anniversary of the date provisions and limitations of this AgreementSection 2.1, if the Company receives in writing Corporation shall receive a written request (a “Demand Registration Notice”) from any Holder (an “Initiating Holder”) that the Company Corporation effect a Registration Statement under the Securities Act of the Registrable Securities held by such Initiating Holder on the date thereof (a “Demand Registration”), then the Corporation shall, subject to the limitations of this Section 2.1, use its commercially reasonable efforts to effect the registration under the Securities Act of all Registrable Securities, of with a minimum aggregate offering price of $20,000,000 Securities that such Initiating Holder requests to be registered.
(as determined with reference to b) A Demand Registration Notice shall specify (i) the number of shares proposed Registrable Securities requested to be sold in registered, (ii) the anticipated per share price range for such offering (which range may be revised from time to time by the Initiating Holder by written notice to the Corporation to that effect), (iii) the intended methods of disposition and the name of the lead underwriter, if available, and (iv) subject to Section 2.1(f), whether such registration multiplied by shall be a “shelf” registration pursuant to Rule 415 under the average closing price, or if no closing price is availableSecurities Act (a “Shelf Registration”).
(c) Within 10 days after receipt of a Demand Registration Notice, the mean of the bid and asked prices, over the fifteen trading days preceding the date of such written demand), the Company will:
(i) promptly Corporation shall give written notice (a “Registration Notice”) of the proposed requested registration to all other Holders that are holders of Registrable Securities (the “Other Holders; ” and
, together with the Initiating Holder, the “Demanding Holders”) and shall include in such registration all Registrable Securities with respect to which the Corporation has received written requests from Other Holders (each of which requests shall specify the Other Holder, the number of Registrable Securities that such Other Holder elects to include in such registration and the intended method of disposition of such Registrable Securities) within 10 days after the receipt of the Registration Notice. The Corporation shall, as promptly as practicable, and in any event within 90 days after the date of the Demand Registration Notice, file a Registration Statement under the Securities Act covering (i) all Registrable Securities that the Initiating Holder requested to be registered (the “Demand Registrable Securities”), (ii) as soon as practicable, prepare and file and use commercially reasonable efforts any additional Registrable Securities requested to cause to become effective be included in such registration statement by any Other Holders, as may specified by notice given timely by each such Other Holders to the Corporation (the “Member Registrable Securities”), (iii) any newly issued or treasury securities of the Corporation which the Corporation seeks to have included in such registration (the “Corporation Registrable Securities”), and (iv) any securities of the Corporation proposed to be so requested and as would permit or facilitate included in such registration by holders of registration rights granted other than pursuant to this Agreement (the “Other Holder Registrable Securities”).
(d) A Demand Registration Notice (other than a Demand Registration Notice with respect to a Demand Registration that constitutes a Shelf Registration on Form S-3) shall only be binding on the Corporation if the sale of all Registrable Securities requested to be registered (pursuant to such Demand Registration Notice and distribution in response to the Demand Registration Notice) is reasonably expected to result in aggregate gross proceeds in excess of $20,000,000.
(e) If registration pursuant to this Section 2.1 involves an Underwritten Offering and the managing underwriter or underwriters advise the Corporation, in writing, that in its or their opinion the number of Registrable Securities and, if permitted hereunder, other securities requested to be included in such offering exceeds the number of Registrable Securities and other securities, if any, which can be sold therein without adversely affecting the Corporation or the marketability of the offering (an “Adverse Effect”), the Corporation shall include in such registration (i) first, subject to the following paragraph, all Demand Registrable Securities, (ii) second, subject to the following paragraph, all Member Registrable Securities, (iii) third, subject to the following paragraph, all Company Registrable Securities, and (iv) fourth, subject to the following paragraph, all Other Holder Registrable Securities. If such managing underwriter or underwriters advise the Corporation that only a portion of the Registrable Securities as is specified or shares of Class A Common Stock in such request, together with such additional portion any of the Registrable Securities of any Holder(sclauses (a) joining in such request as through (d) above may be specified in a written request given to the Company within twenty days after receipt of the written notice from the Company specified in Section 1.3(a)(i).
(b) If the underwriter managing the offering advises the Holders who have requested inclusion of their Registrable Securities included in such registration statement that marketing considerations require a limitation on the number of shares offered, without such limitation shall be imposed pro rata among such Holders who requested inclusion of Registrable Securities in such registration statement according to the number of shares of Registrable Securities owned by each. Neither the Company nor any other stockholder may include shares in such registration statement without the consent of Holders of a majority of the Registrable Securities included therein if the underwriter managing such offering advises the Holders who have included Registrable Securities in such registration statement that the inclusion of such additional shares may either limit the number of Registrable Securities which can be sold or adversely affect the price at which such Registrable Securities can be sold.
(c) Notwithstanding Section 1.3(b)Adverse Effect, the Company Corporation shall have the right, exercisable by written notice to the initiating Holder(s) within thirty days after receipt of a request to effect a registration under the Securities Act, to include the Company's shares in such registration, in which event such registration shall be deemed to be a Company-initiated registration, and the Holders shall have the right to include their Registrable Securities and shares of Class A Common Stock, as Stock from the case may be, therein holders of Registrable Securities in such clause on a pro rata basis based on the relative number of Registrable Securities requested to be so included in a registration (provided that any such amount thereby allocated to any such holder that exceeds such holder’s request shall be reallocated among the remaining requesting holders in a like manner). Any Person (other than Holders of Registrable Securities) that participates in Demand Registrations which are not at the Corporation’s expense must pay their share of any Registration Expenses. Notwithstanding anything herein to the extent permitted under Section 1.2contrary, if the managing underwriter or managing underwriters (if any) determine that the inclusion of the number of Registrable Securities proposed to be included in any such offering would have an Adverse Effect, the Corporation may exclude such number of Registrable Securities as necessary or desirable to negate such Adverse Effect.
(df) Notwithstanding any other provisions of this Section 2.1, in no event shall any Holder be permitted to (i) request more than one (1) Demand Registration in any twelve (12)-month period; provided that in no event shall the Corporation be obligated to file a Registration Statement relating to any registration request under this Section 2.1 within a period of 180 days after the effective date of any other Registration Statement relating to any registration request under this Section 2.1 or to any registration effected under Section 2.2; or (ii) request a Demand Registration if, at the time such request is made, a Shelf Registration is effective and both includes all of the Registrable Securities of such Holder and permits an Underwritten Offering of such Registrable Securities.
(g) The Company Corporation shall be entitled to postpone (but not more than once in any twelve-month period), for a reasonable period of time not in excess of 75 days, the filing of a Registration Statement (including a Shelf Registration) if the Corporation delivers to the Holders requesting registration a resolution of the Board that, in the good faith judgment of the Board, such registration and offering would reasonably be expected to materially adversely affect any bona fide material financing of the Corporation or any material transaction under consideration by the Corporation or would require disclosure of information that has not been disclosed to the public and is not otherwise required to be disclosed at that time that would reasonably be expected to materially adversely affect the Corporation. Such Board resolution shall contain a statement of the reasons for such postponement and an approximation of the anticipated delay. The Holders receiving such resolution shall keep the information contained in such resolution confidential. If the Corporation shall so postpone the filing of a Registration Statement, the Initiating Holder shall have the right to withdraw the request for registration by giving written notice to the Corporation within 20 days of the anticipated termination date of the postponement period, as provided in such resolution delivered to the Holders, and in the event of such withdrawal, such request shall not be obligated counted for purposes of the number of Demand Registrations to which such Holder is entitled pursuant to the terms herein. In addition, a Holder of Registrable Securities may not use a Shelf Registration Statement to effect the sale of any such securities unless such Holder has given the Corporation at least two (2) Business Days advance written notice of the date or dates of a proposed sale of such securities by such Holder pursuant to such Registration Statement (which notice may be given as often as such Holder desires), and upon receipt of such a notice, the Corporation agrees to provide prompt written notice to such Holder if such Shelf Registration Statement is not then usable (whether for reasons described above or otherwise).
(h) If the Corporation has filed a Shelf Registration Statement and has included Registrable Securities therein, the Corporation shall be entitled to suspend (but not more than ten registrations an aggregate of 90 days in any twelve-month period), for a reasonable period of time not in excess of 90 days, the offer or sale of Registrable Securities pursuant to such Registration Statement by any Holder of Registrable Securities if (i) a “road show” is not then in progress with respect to a proposed offering of Registrable Securities by such Holder pursuant to such Registration Statement and such Holder has not executed an underwriting agreement with respect to a pending sale of Registrable Securities pursuant to such Registration Statement and (ii) the Corporation delivers to the Holders included in such Registration Statement a resolution of the Board that, in the good faith judgment of the Board, such offer or sale would reasonably be expected to materially adversely affect any bona fide material financing of the Corporation or any material transaction under consideration by the Corporation or would require disclosure of information that has not been disclosed to the public and is not otherwise required to be disclosed at that time that would reasonably be expected to materially adversely affect the Corporation. Such Board resolution shall contain a statement of the reasons for such postponement and an approximation of the anticipated delay. The Holders receiving such resolution shall keep the information contained in such certificate confidential.
(i) The Corporation shall be required to maintain the effectiveness of a Registration Statement (except in the case of a Shelf Registration) with respect to any Demand Registration for a period of at least 180 days after the effective date thereof or such shorter period in which all Registrable Securities included in such Registration Statement have actually been sold; provided, however, that such period shall be extended for a period of time equal to the period the Holder of Registrable Securities refrains from selling any securities included in such registration at the request of (x) an underwriter or (y) the Corporation pursuant to the provisions herein. The Corporation shall be required to maintain the effectiveness of a Registration Statement that is a Shelf Registration with respect to any Demand Registration at all times after the effective date thereof until all Registrable Securities included in such Registration Statement have actually been sold; provided, however, that any Holder of Registrable Securities whose shares have been included in such Shelf Registration may request that such Registrable Securities be removed from such Registration Statement, in which event the Corporation shall promptly either withdraw such Registration Statement if the shares of Class A Common Stock of such Holder are the only shares of Class A Common Stock still covered by such Registration Statement or file a post-effective amendment to such Registration Statement removing such Registrable Securities.
(j) Notwithstanding anything contained herein to the contrary, the Corporation hereby agrees that (i) each Demand Registration that is a Shelf Registration shall contain all language (including on the Prospectus cover sheet, the principal stockholders’ table and the plan of distribution) as may be reasonably requested by a Holder of Registrable Securities to allow for a distribution to, and resale by, the direct and indirect partners, members or stockholders of a Holder of Registrable Securities (a “Partner Distribution”) and (ii) the Corporation shall, at the reasonable request of any Holder of Registrable Securities seeking to effect a Partner Distribution, file any prospectus supplement or post-effective amendments and otherwise take any action reasonably necessary to include such language, if such language was not included in the initial Registration Statement, or revise such language if deemed reasonably necessary by such Holder to effect such Partner Distribution.
(k) At the election of the Initiating Holder, a requested registration pursuant to this Section 1.3. Such registrations shall be on Form S-3 when 2.1 may involve an Underwritten Offering and, in such case, the Company is eligible to use that form under SEC rulesInitiating Holder, but otherwise may be on Form S-1. No registration statement initiated by Holders hereunder shall count as a registration under this Section 1.3 unless and until it in consultation with the Other Holders, shall have been declared effective. Any registration requested under this Section 1.3 the right to select the investment banker and manager to administer the offering relating to such Demand Registration, subject to the approval of the Board, which shall not be unreasonably withheld, delayed or conditioned.
(l) For purposes of this Section 2.1, a registration shall not be counted as “effected” and shall not be considered a Demand Registration:
(i) unless a Registration Statement with respect thereto has become effective and remained effective in compliance with the provisions of the Securities Act until the earlier of (x) such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition thereof set forth in such Registration Statement or (y) 120 days after the effective date of such Registration Statement; provided, however, that if the failure of any such Registration Statement to become or remain effective in compliance with this Section 2.1(l) is due solely to acts or omissions of the applicable Initiating Holder, such registration requested pursuant to this Section 2.1 will be deemed to have been effected;
(ii) if, after it has become effective, the Registration Statement is subject to any stop order, injunction or other order or requirement of the SEC or other governmental agency or authority prohibiting the sale of Demand Registrable Securities pursuant to such Registration Statement, other than by reason of an act or omission on the refusal part of the Holders participating therein to proceed with the registration shall count Initiating Holder; or
(iii) if, as a registration effected under this Section 1.3 unless and until result of an exercise of any cutback, a majority of the Company shall have been reimbursed for total number of Registrable Securities that the Initiating Holder has requested to be included in such Registration Expenses incurred by it in connection therewithStatement are not included.
Appears in 1 contract
Samples: Registration Rights Agreement (ZAIS Group Holdings, Inc.)
Demand Registrations. (a) At any time after If, following the first anniversary later of January 1, 2010 and the date Transfer Date, the Company is unable to file, cause to be effective or maintain the effectiveness of a Shelf Registration Statement as required under Section 5.1, the Holder shall have the right by delivering a written notice to the Company (a “Demand Notice”) to require the Company to, pursuant to the terms of this Agreement, if register under and in accordance with the Company receives in writing a request that the Company effect the registration under provisions of the Securities Act of Registrable Securities, of with a minimum aggregate offering price of $20,000,000 (as determined with reference to the number of shares proposed Registrable Securities Beneficially Owned by the Holder and requested by such Demand Notice to be sold so registered (a “Demand Registration”); provided, however, that (i) the number of Demand Registrations (together with any Shelf Offerings) in such registration multiplied any 12-month period shall not exceed one and (ii) the Company shall not be required to register the Registrable Securities requested by the average closing priceDemand Notice unless the Holder has requested to offer at least the lesser of (A) 12.5 million Conversion Shares (inclusive of Conversion Shares underlying any principal amount of the Debentures requested to offer) or (B) Registrable Securities having a fair market value (based (i) in the case of any Conversion Shares included in the request, or if no upon the closing price is available, the mean of the bid and asked prices, over Conversion Shares quoted on the fifteen principal securities exchange on which such Conversion Shares are listed on the trading days day immediately preceding the date of such written demand)upon which the Holder delivers a Demand Notice to the Company, the Company will:
(i) promptly give written notice of the proposed registration to all other Holders; and
and (ii) as soon as practicable, prepare and file and use commercially reasonable efforts to cause to become effective such registration statement as may be so requested and as would permit or facilitate in the sale and distribution case of such portion any principal amount of the Registrable Securities as is specified Debentures included in the request, upon the value of the underlying Conversion Shares based upon the closing price of the Conversion Shares quoted on the principal securities exchange on which such Conversion Shares are listed on the trading day immediately preceding the date upon which the Holder delivers a Demand Notice to the Company) of $500 million in such request, together with such additional portion Demand Registration. The Demand Notice shall also specify the expected method or methods of disposition of the applicable Registrable Securities of any Holder(s) joining in such request as may be specified in a written request given to the Company within twenty days after receipt of the written notice from the Company specified in Section 1.3(a)(i)Securities.
(b) If Subject to Section 5.4, following receipt of a Demand Notice, the underwriter managing the offering advises the Holders who have requested inclusion of their Registrable Securities in such registration statement that marketing considerations require Company shall use its reasonable best efforts to file, as promptly as reasonably practicable, a limitation on the number of shares offered, such limitation shall be imposed pro rata among such Holders who requested inclusion of Registrable Securities in such registration statement according Registration Statement relating to the number of shares of Registrable Securities owned by each. Neither the Company nor any other stockholder may include shares in such registration statement without the consent of Holders of a majority offer and sale of the Registrable Securities requested to be included therein if by the underwriter managing Holder (and any Other Securities requested to be included therein by the holders thereof) in accordance with the methods of distribution elected by the Holder in the Demand Notice (a “Demand Registration Statement”) and shall use its reasonable best efforts to cause such offering advises Registration Statement to be declared effective under the Holders who have included Registrable Securities in such registration statement that Act as promptly as practicable after the inclusion of such additional shares may either limit the number of Registrable Securities which can be sold or adversely affect the price at which such Registrable Securities can be soldfiling thereof.
(c) Notwithstanding Section 1.3(b)The Holder may withdraw its Registrable Securities from a Demand Registration at any time by providing the Company with written notice. Upon receipt of such written notice, the Company shall cease all efforts to secure registration; provided, however, such registration shall nonetheless be deemed a Demand Registration for all purposes hereunder unless (i) the withdrawal is made following the occurrence of a Material Adverse Change not known to the Holder at the time of the Demand Notice, (ii) the withdrawal is made because the registration would require the Company to make an Adverse Disclosure or (iii) the Holder has paid or reimbursed the Company for all of the reasonable out-of-pocket fees and expenses incurred by the Company in the preparation, filing and processing of the withdrawn registration.
(d) If any of the Registrable Securities to be registered pursuant to a Demand Registration Statement are to be sold in an underwritten public offering, and such offering is subject to a Share Limitation, then there shall be included in such offering the number or dollar amount of Registrable Securities of the same class requested to be included in such registration by the Holder (and any Other Securities requested to be included therein by the holders thereof) that in the opinion of the underwriter selected by the Company can be sold without adversely affecting the price, timing, distribution or marketability of such offering, and such number or dollar amount of securities shall be allocated for inclusion pro rata among the holders of all such securities (including the Registrable Securities of the Holder) on the basis of the number of such securities of the Company owned by each such holder.
(e) In connection with an underwritten public offering pursuant to a Demand Registration, the Holder shall have the right to select a nationally recognized underwriter as the lead or managing underwriter and the Company shall have the rightright to select a nationally recognized underwriter as the co-manager of such underwritten public offering, exercisable by written notice in each case, who shall be reasonably acceptable to the initiating Holder(s) within thirty days after receipt of other party. In connection with any such underwritten public offering, the Holder and the Company agree that they will each enter into a request customary underwriting agreement with the underwriters selected pursuant to effect a registration under the Securities Actpreceding sentence, such underwriting agreement to include be reasonably satisfactory in form and substance to the Company's shares in such registration, in which event such registration shall be deemed to be a Company-initiated registration, the Holder and the Holders underwriters (it being understood that the Holder shall have not be required to make any representations and warranties other than with respect to itself, its ownership of the right to include their Registrable Securities and shares its intended method of Class A Common Stock, as the case may be, therein to the extent permitted under Section 1.2.
(d) The Company distribution thereof and shall not be obligated required to effect more provide an indemnity other than ten registrations under this Section 1.3. Such registrations with respect to information it provides to the Company in writing expressly for use in such underwritten public offering pursuant to a Demand Registration, and any such indemnity shall be on Form S-3 when limited in amount to the net proceeds of such underwritten public offering pursuant to a Demand Registration actually received by the Holder). The Holder and the Company agree that (i) an equivalent number or dollar amount of Registrable Securities shall be sold through the lead or managing underwriter selected by the Holder and the underwriter selected by the Company in any underwritten public offering pursuant to a Demand Registration and (ii) all decisions regarding whether a Share Limitation is eligible to use that form under SEC rules, but otherwise may necessary shall be on Form S-1. No registration statement initiated by Holders hereunder shall count as a registration under this Section 1.3 unless and until it shall have been declared effective. Any registration requested under this Section 1.3 which shall not become effective solely by reason made in the sole discretion of the refusal of underwriter selected by the Holders participating therein to proceed with the registration shall count as a registration effected under this Section 1.3 unless and until the Company shall have been reimbursed for the Registration Expenses incurred by it in connection therewithCompany.
Appears in 1 contract
Demand Registrations. (a) At any time after the first anniversary of If, following the date hereof, the Company is unable to file, cause to be effective or maintain the effectiveness of a Shelf Registration Statement as required under Section 2.1, the Holders’ Representative shall have the right by delivering a written notice to the Company (a “Demand Notice”) to require the Company to, pursuant to the terms of this Agreement, register under and in accordance with the provisions of the Securities Act the number of Registrable Securities Beneficially Owned by any Holders and requested by such Demand Notice to be so registered (a “Demand Registration”); provided, however, that a Demand Notice may only be made if the Company receives sale of the Registrable Securities requested to be registered by the Holders’ Representative is reasonably expected to result in writing aggregate gross cash proceeds in excess of $100,000,000 (without regard to any underwriting discount or commission). A Demand Notice shall also specify the expected method or methods of disposition of the applicable Registrable Securities. Following receipt of a request that Demand Notice, the Company effect shall use its reasonable best efforts to file, as promptly as reasonably practicable, but not later than 30 days after receipt by the registration Company of such Demand Notice (subject to paragraph (d) of this Section 2.2), a Registration Statement relating to the offer and sale of the Registrable Securities requested to be included therein by the Holders thereof in accordance with the methods of distribution elected by such Holders (a “Demand Registration Statement”) and shall use its reasonable best efforts to cause such Registration Statement to be declared effective under the Securities Act as promptly as practicable after the filing thereof.
(b) If any of the Registrable Securities registered pursuant to a Demand Registration are to be sold in a firm commitment underwritten offering, and the managing underwriter(s) of such underwritten offering advise the Holders in writing that it is their good faith opinion that the total number or dollar amount of Registrable Securities, of with a minimum aggregate offering price of $20,000,000 (as determined with reference to the number of shares Securities proposed to be sold in such registration multiplied offering, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the average closing total number or dollar amount of such securities that can be sold without having an adverse effect on the price, timing or if no closing price is available, the mean distribution of the bid Registrable Securities to be so included together with all such Other Securities, then there shall be included in such firm commitment underwritten offering the number or dollar amount of Registrable Securities and asked prices, over such Other Securities that in the fifteen trading days preceding the date opinion of such written demand)managing underwriter(s) can be sold without so adversely affecting such offering, the Company willand such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
(i) promptly give written notice first, the Registrable Securities for which inclusion in such underwritten offering was requested by the Holders, pro rata (if applicable), based on the number of the proposed registration to all other HoldersRegistrable Securities Beneficially Owned by each such Holder; and
(ii) as soon as practicablesecond, prepare and file and use commercially reasonable efforts to cause to become effective such registration statement as may be so requested and as would permit or facilitate the sale and distribution among any holders of such portion of the Registrable Securities as is specified in such requestOther Securities, together with such additional portion of the Registrable Securities of any Holder(s) joining in such request as may be specified in a written request given to the Company within twenty days after receipt of the written notice from the Company specified in Section 1.3(a)(i).
(b) If the underwriter managing the offering advises the Holders who have requested inclusion of their Registrable Securities in such registration statement that marketing considerations require a limitation pro rata, based on the number of shares offered, Other Securities Beneficially Owned by each such limitation shall be imposed pro rata among such Holders who requested inclusion holder of Registrable Securities in such registration statement according to the number of shares of Registrable Securities owned by each. Neither the Company nor any other stockholder may include shares in such registration statement without the consent of Holders of a majority of the Registrable Securities included therein if the underwriter managing such offering advises the Holders who have included Registrable Securities in such registration statement that the inclusion of such additional shares may either limit the number of Registrable Securities which can be sold or adversely affect the price at which such Registrable Securities can be soldOther Securities.
(c) Notwithstanding Section 1.3(b)In the event of a Demand Registration, the Company shall have be required to maintain the right, exercisable by written notice to continuous effectiveness of the initiating Holder(s) within thirty applicable Registration Statement for a period of at least 180 days after receipt of a request to effect a registration under the effective date thereof or such shorter period in which all Registrable Securities Act, to include the Company's shares included in such registration, in which event such registration shall be deemed to be a Company-initiated registration, and the Holders shall Registration Statement have the right to include their Registrable Securities and shares of Class A Common Stock, as the case may be, therein to the extent permitted under Section 1.2actually been sold.
(d) The Company shall be entitled to postpone (but not be obligated to effect more than ten registrations once in any 6-month period), for a reasonable period of time not in excess of 30 days, the filing or initial effectiveness of, or suspend the use of, a Demand Registration Statement if the Company delivers to the Holders’ Representative a certificate signed by both the Chief Executive Officer and Chief Financial Officer of the Company certifying that, in the good faith judgment of the Board of Directors of the Company, such registration, offering or use would reasonably be expected to materially adversely affect or materially interfere with any bona fide material financing of the Company or any material transaction under this Section 1.3consideration by the Company or would require the disclosure of information that has not been, and is not otherwise required to be, disclosed to the public, the premature disclosure of which would materially adversely affect the Company. Such registrations certificate shall be on Form S-3 when contain a statement of the reasons for such postponement or suspension and an approximation of the anticipated delay.
(e) The Holders’ Representative shall have the right to notify the Company is eligible that it has determined that the Registration Statement relating to use that form under SEC rulesa Demand Registration be abandoned or withdrawn, but otherwise may be on Form S-1. No registration statement initiated by Holders hereunder shall count as a registration under this Section 1.3 unless and until it shall have been declared effective. Any registration requested under this Section 1.3 in which shall not become effective solely by reason of the refusal of the Holders participating therein to proceed with the registration shall count as a registration effected under this Section 1.3 unless and until event the Company shall have been reimbursed for the promptly abandon or withdraw such Registration Expenses incurred by it in connection therewithStatement.
Appears in 1 contract
Samples: Registration Rights Agreement (Countrywide Financial Corp)
Demand Registrations. (a) At any time after the first anniversary of If, following the date hereof, the Company is unable to file, cause to be effective or maintain the effectiveness of a Shelf Registration Statement as required under Section 5.1, the Holder shall have the right by delivering a written notice to the Company (a “Demand Notice”) to require the Company to, pursuant to the terms of this Agreement, if register under and in accordance with the Company receives in writing a request that the Company effect the registration under provisions of the Securities Act of Registrable Securities, of with a minimum aggregate offering price of $20,000,000 (as determined with reference to the number of shares proposed Registrable Securities Beneficially Owned by the Holder and requested by such Demand Notice to be sold so registered (a “Demand Registration”); provided, however, that (i) the number of Demand Registrations (together with any Shelf Offerings) in such registration multiplied any 12-month period shall not exceed one and (ii) the Company shall not be required to register the Registrable Securities requested by the average closing priceDemand Notice unless the Holder has requested to offer at least the lesser of (A) 50 million Conversion Shares (inclusive of Conversion Shares underlying any principal amount of the Notes requested to offer) or (B) Registrable Securities having a fair market value (based (i) in the case of any Conversion Shares included in the request, or if no upon the closing price is available, the mean of the bid and asked prices, over Conversion Shares quoted on the fifteen principal securities exchange on which such Conversion Shares are listed on the trading days day immediately preceding the date of such written demand)upon which the Holder delivers a Demand Notice to the Company, the Company will:
(i) promptly give written notice of the proposed registration to all other Holders; and
and (ii) as soon as practicable, prepare and file and use commercially reasonable efforts to cause to become effective such registration statement as may be so requested and as would permit or facilitate in the sale and distribution case of such portion any principal amount of the Registrable Securities as is specified Notes included in the request, upon the value of the underlying Conversion Shares based upon the closing price of the Conversion Shares quoted on the principal securities exchange on which such Conversion Shares are listed on the trading day immediately preceding the date upon which the Holder delivers a Demand Notice to the Company) of $500 million in such request, together with such additional portion Demand Registration. The Demand Notice shall also specify the expected method or methods of disposition of the applicable Registrable Securities of any Holder(s) joining in such request as may be specified in a written request given to the Company within twenty days after receipt of the written notice from the Company specified in Section 1.3(a)(i)Securities.
(b) If Subject to Section 5.4, following receipt of a Demand Notice, the underwriter managing the offering advises the Holders who have requested inclusion of their Registrable Securities in such registration statement that marketing considerations require Company shall use its reasonable best efforts to file, as promptly as reasonably practicable, a limitation on the number of shares offered, such limitation shall be imposed pro rata among such Holders who requested inclusion of Registrable Securities in such registration statement according Registration Statement relating to the number of shares of Registrable Securities owned by each. Neither the Company nor any other stockholder may include shares in such registration statement without the consent of Holders of a majority offer and sale of the Registrable Securities requested to be included therein if by the underwriter managing Holder (and any Other Securities requested to be included therein by the holders thereof) in accordance with the methods of distribution elected by the Holder in the Demand Notice (a “Demand Registration Statement”) and shall use its reasonable best efforts to cause such offering advises Registration Statement to be declared effective under the Holders who have included Registrable Securities in such registration statement that Act as promptly as practicable after the inclusion of such additional shares may either limit the number of Registrable Securities which can be sold or adversely affect the price at which such Registrable Securities can be soldfiling thereof.
(c) Notwithstanding Section 1.3(b)The Holder may withdraw its Registrable Securities from a Demand Registration at any time by providing the Company with written notice. Upon receipt of such written notice, the Company shall cease all efforts to secure registration; provided, however, such registration shall nonetheless be deemed a Demand Registration for all purposes hereunder unless (i) the withdrawal is made following the occurrence of a Material Adverse Change not known to the Holder at the time of the Demand Notice, (ii) the withdrawal is made because the registration would require the Company to make an Adverse Disclosure or (iii) the Holder has paid or reimbursed the Company for all of the reasonable out-of-pocket fees and expenses incurred by the Company in the preparation, filing and processing of the withdrawn registration.
(d) If any of the Registrable Securities to be registered pursuant to a Demand Registration Statement are to be sold in an underwritten public offering, and such offering is subject to a Share Limitation, then there shall be included in such offering the number or dollar amount of Registrable Securities of the same class requested to be included in such registration by the Holder (and any Other Securities requested to be included therein by the holders thereof) that in the opinion of the underwriter selected by the Company can be sold without adversely affecting the price, timing, distribution or marketability of such offering, and such number or dollar amount of securities shall be allocated for inclusion pro rata among the holders of all such securities (including the Registrable Securities of the Holder) on the basis of the number of such securities of the Company owned by each such holder.
(e) In connection with an underwritten public offering pursuant to a Demand Registration, the Holder shall have the right to select a nationally recognized underwriter as the lead or managing underwriter and the Company shall have the rightright to select a nationally recognized underwriter as the co-manager of such underwritten public offering, exercisable by written notice in each case, who shall be reasonably acceptable to the initiating Holder(s) within thirty days after receipt of other party. In connection with any such underwritten public offering, the Holder and the Company agree that they will each enter into a request customary underwriting agreement with the underwriters selected pursuant to effect a registration under the Securities Actpreceding sentence, such underwriting agreement to include be reasonably satisfactory in form and substance to the Company's shares in such registration, in which event such registration shall be deemed to be a Company-initiated registration, the Holder and the Holders underwriters (it being understood that the Holder shall have not be required to make any representations and warranties other than with respect to itself, its ownership of the right to include their Registrable Securities and shares its intended method of Class A Common Stock, as the case may be, therein to the extent permitted under Section 1.2.
(d) The Company distribution thereof and shall not be obligated required to effect more provide an indemnity other than ten registrations under this Section 1.3. Such registrations with respect to information it provides to the Company in writing expressly for use in such underwritten public offering pursuant to a Demand Registration, and any such indemnity shall be on Form S-3 when limited in amount to the net proceeds of such underwritten public offering pursuant to a Demand Registration actually received by the Holder). The Holder and the Company agree that (i) an equivalent number or dollar amount of Registrable Securities shall be sold through the lead or managing underwriter selected by the Holder and the underwriter selected by the Company in any underwritten public offering pursuant to a Demand Registration and (ii) all decisions regarding whether a Share Limitation is eligible to use that form under SEC rules, but otherwise may necessary shall be on Form S-1. No registration statement initiated by Holders hereunder shall count as a registration under this Section 1.3 unless and until it shall have been declared effective. Any registration requested under this Section 1.3 which shall not become effective solely by reason made in the sole discretion of the refusal of underwriter selected by the Holders participating therein to proceed with the registration shall count as a registration effected under this Section 1.3 unless and until the Company shall have been reimbursed for the Registration Expenses incurred by it in connection therewithCompany.
Appears in 1 contract
Samples: Securityholder and Registration Rights Agreement (Ford Motor Co)
Demand Registrations. (a) At any time From and after 180 days following the first anniversary completion of the date IPO, the Xxxxxx Investors holding at least a majority of this Agreement, if the Company receives Registrable Securities held by the Xxxxxx Investors may request in writing a request written notice (the "Request") that the Company effect the registration under the Securities Act of Registrable Securities, of with a minimum aggregate offering price of $20,000,000 (as determined with reference to the number of shares proposed to be sold in such registration multiplied by the average closing price, or if no closing price is available, the mean of the bid and asked prices, over the fifteen trading days preceding the date of such written demand), the Company will:
(i) promptly give written notice of the proposed registration to all other Holders; and
(ii) as soon as practicable, prepare and file and use commercially reasonable efforts to cause to become effective such registration statement as may be so requested and as would permit or facilitate the sale and distribution of such portion of the Registrable Securities owned by the Xxxxxx Investors. Following the receipt of the Request, the Company will (i) within ten days notify all other Stockholders having registration rights of such Request in writing and (ii) thereupon, will as is expeditiously as practicable, effect the registration under the Securities Act of all Registrable Securities of such Xxxxxx Investors and any Registrable Securities of any other Stockholder having registration rights as are specified in a subsequent Request received by the Company, within ten Business Days after the Company has given such requestnotice, together with and will cause such additional portion registration statement to remain effective for a period of not less than 180 days; provided, however, that the Company will not be required to effect more than one registration pursuant to this Section 4.2, unless the Xxxxxx Investors are unable to sell all of the Registrable Securities of any Holder(s) joining requested be included in such request as may be specified in a written request given to the Company within twenty days after receipt offering because of the written notice from participation by any other Stockholder (other than the Company specified Xxxxxx Investors) in Section 1.3(a)(i)such offering, in which case the Xxxxxx Investors will be entitled to have one additional demand effected.
(b) If the underwriter managing the offering advises the Holders who have requested inclusion of their Registrable Securities in such registration statement that marketing considerations require a limitation The Company and Xxxxxx will reasonably mutually agree on the number managing underwriter of shares offered, such limitation shall be imposed pro rata among such Holders who requested inclusion of Registrable Securities in such any underwritten offering effected under Section 4.2(a).
(c) If a registration statement according pursuant to this Section 4.2 involves an underwritten offering and the number of shares of Registrable Securities owned by each. Neither managing underwriter or underwriters advise the Company nor any other stockholder may include shares in such registration statement without the consent of Holders of a majority of the Registrable Securities included therein if the underwriter managing such offering advises the Holders who have included Registrable Securities writing that, in such registration statement that the inclusion of such additional shares may either limit their opinion, the number of Registrable Securities which the Xxxxxx Investors and any other Stockholders intend to include in such registration exceeds the largest number of securities which can be sold or adversely affect in such offering without having an adverse effect on such offering (including, but not limited to, the price at which such Registrable Securities the securities can be sold.
(c) Notwithstanding Section 1.3(b), then the Company shall have the right, exercisable by written notice number of Registrable Securities of each Xxxxxx Investor to the initiating Holder(s) within thirty days after receipt of a request to effect a registration under the Securities Act, to include the Company's shares be included in such registration, in which event such registration shall offering will be deemed determined on the basis of the relative percentage relationships of (y) the number of Registrable Securities to be a Company-initiated registration, included by such Xxxxxx Investor and (z) the Holders shall have the right to include their number of Registrable Securities and shares of Class A Common Stock, as the case may be, therein to the extent permitted under Section 1.2be included by all other Stockholders.
(d) The Company shall not be obligated to effect more than ten registrations under this Section 1.3. Such registrations shall be on Form S-3 when the Company is eligible to use that form under SEC rules, but otherwise may be on Form S-1. No registration statement initiated by Holders hereunder shall count as a registration under this Section 1.3 unless and until it shall have been declared effective. Any registration requested under this Section 1.3 which shall not become effective solely by reason of the refusal of the Holders participating therein to proceed with the registration shall count as a registration effected under this Section 1.3 unless and until the Company shall have been reimbursed for the Registration Expenses incurred by it in connection therewith.
Appears in 1 contract
Samples: Stockholders' Agreement (Imperial Home Decor Group Holdings I LTD)
Demand Registrations. (a) At On any time six (6) occasions after the date which is one hundred eighty (180) days after the date of the execution of this Agreement, subject to the conditions set forth in this Agreement, one or more Holders holding at least forty percent (40%) of the Registrable Securities then held by all Holders (the "Demand Threshold") may request (the "Initiating Holders") that the Company cause to be filed with the Commission and cause to become effective a registration statement (a "Demand Registration Statement") under the Securities Act relating to the sale by such Holders of their Registrable Securities in accordance with the terms hereof; provided, however, that until the first anniversary of the date of this Agreementhereof, if only a Richmont Party can make any such demand; and provided further that any Richmont Party may request the Company receives in writing to file and cause to become effective a Demand Registration Statement if such request is for the registration of all of such Richmont Party's Registrable Securities, notwithstanding the fact that such Richmont Party's Registrable Securities are less than the Demand Threshold. Upon receipt of any such request, the Company effect the shall give written notice of such proposed registration under the Securities Act to all Holders of Registrable Securities. Such Holders shall have the right, by giving written notice to the Company within fifteen (15) business days after such notice referred to in the preceding sentence has been given by the Company, to elect to have included in the Demand Registration Statement such of their Registrable Securities as each Holder may request in such notice of election. Thereupon, the Company shall as soon as practicable thereafter cause such Demand Registration Statement to be filed and declared effective by the Commission for all Registrable Securities which the Company has been requested to register. The Company shall in no event be obligated to effect under this Section 2 more than six (6) demand registrations. If the managing underwriter of an underwritten offering with a minimum aggregate offering price of $20,000,000 (as determined with reference respect to which registration has been requested by any Holder pursuant to this Section 2 has advised the Company that, in such underwriter's good faith judgment, the number of shares proposed securities to be sold in such registration multiplied offering by the average closing priceCompany and persons other than the Company (collectively, "Selling Stockholders") is greater than the number which can be offered without adversely affecting such offering, then the Company may reduce the number of securities to be included in such offering to a number deemed satisfactory by the managing underwriter, provided, however, that the securities to be excluded shall be determined in the following order of priority: first, securities held by any Selling Stockholder not having contractual, incidental registration rights; second, securities held by any Selling Stockholder (not including the Holders) participating in such offering pursuant to the exercise of contractual piggyback registration rights (other than pursuant to the Xxxxxxx Agreement or if no closing price is availablethe Monroe Agreement), as determined on a pro rata basis (based upon the mean aggregate number of securities held by such Selling Stockholders); third, securities the Company proposes to sell and other securities of the bid and asked pricesCompany included in such registration and; fourth, over securities held by any Holder participating in such registration pursuant to the fifteen trading days preceding the date of such written demand), the Company will:
(i) promptly give written notice exercise of the proposed demand registration to all other Holders; and
(ii) as soon as practicablerights set forth in this Section 2, prepare and file and use commercially reasonable efforts to cause to become effective such registration statement as may be so requested and as would permit or facilitate the sale and distribution of such portion of the Registrable Securities as is specified any Selling Stockholder participating in such request, together with such additional portion of the Registrable Securities of any Holder(s) joining in such request as may be specified in a written request given offering pursuant to the Company within twenty days after receipt exercise of piggyback registration rights under the written notice from Xxxxxxx Agreement or the Company specified in Section 1.3(a)(iMonroe Agreement, as determined on a pro rata basis (based upon the aggregate number of securities held by such Holders or Selling Stockholders, as the case may be).
(b) If a requested registration pursuant to this Section 2 involves an underwritten offering, the underwriter managing the offering advises or underwriters thereof shall be selected by the Holders who have requested inclusion of their Registrable Securities in such registration statement that marketing considerations require at least a limitation on the majority (by number of shares offered, such limitation shall be imposed pro rata among such Holders who requested inclusion of Registrable Securities in such registration statement according to the number of shares of Registrable Securities owned by each. Neither the Company nor any other stockholder may include shares in such registration statement without the consent of Holders of a majority shares) of the Registrable Securities included therein as to which registration has been requested; provided, however, that if any Richmont Party is an Initiating Holder, then such underwriter or underwriters shall be selected by the underwriter managing such offering advises Richmont Party (or, if more than one Richmont Party, by the Holders who have included Registrable Securities in such Richmont Party requesting the registration statement that of the inclusion of such additional shares may either limit the largest number of Registrable Securities which can be sold or adversely affect the price at which such Registrable Securities can be soldSecurities).
(c) Notwithstanding Section 1.3(b), the Company shall have the right, exercisable by written notice to the initiating Holder(s) within thirty days after receipt of a request to effect a registration under the Securities Act, to include the Company's shares in such registration, in which event such registration shall be deemed to be a Company-initiated registration, and the Holders shall have the right to include their Registrable Securities and shares of Class A Common Stock, as the case may be, therein to the extent permitted under Section 1.2.
(d) The Company shall not be obligated to effect more than ten registrations under this Section 1.3. Such registrations shall be on Form S-3 when the Company is eligible to use that form under SEC rules, but otherwise may be on Form S-1. No registration statement initiated by Holders hereunder shall count as a registration under this Section 1.3 unless and until it shall have been declared effective. Any registration requested under this Section 1.3 which shall not become effective solely by reason of the refusal of the Holders participating therein to proceed with the registration shall count as a registration effected under this Section 1.3 unless and until the Company shall have been reimbursed for the Registration Expenses incurred by it in connection therewith.
Appears in 1 contract
Samples: Registration Rights Agreement (Richmont Marketing Specialists Inc)
Demand Registrations. (a) At any time after If, following the first six (6) month anniversary of the date hereof, the Company is unable to file, cause to be effective or maintain the effectiveness of a Shelf Registration Statement as required under Section 2.1, the Holders’ Representative shall have the right by delivering a written notice to the Company (a “Demand Notice”) to require the Company to, pursuant to the terms of this Agreement, register under and in accordance with the provisions of the Securities Act the number of Registrable Securities Beneficially Owned by any Holders and requested by such Demand Notice to be so registered (a “Demand Registration”); provided, however, that a Demand Notice may only be made if the Company receives sale of the Registrable Securities requested to be registered in writing a request that Demand Notice is reasonably expected to result in aggregate gross cash proceeds in excess of $50,000,000 (without regard to any underwriting discount or commission). A Demand Notice shall also specify the expected method or methods of disposition of the applicable Registrable Securities. Following receipt of a Demand Notice, the Company effect shall use its reasonable best efforts to file, as promptly as reasonably practicable, but not later than 60days after receipt by the registration Company of such Demand Notice (subject to paragraph (e) of this Section 2.2), a Registration Statement relating to the offer and sale of the Registrable Securities requested to be included therein by the Holders thereof in accordance with the methods of distribution elected by such Holders (a “Demand Registration Statement”) and shall use its reasonable best efforts to cause such Registration Statement to be declared effective under the Securities Act as promptly as practicable after the filing thereof.
(b) If any of the Registrable Securities to be registered pursuant to a Demand Registration are to be sold in a firm commitment underwritten offering, and the managing underwriter(s) of such underwritten offering advise the Holders in writing that it is their good faith opinion that the total number or dollar amount of Registrable Securities, of with a minimum aggregate offering price of $20,000,000 (as determined with reference to the number of shares Securities proposed to be sold in such registration multiplied offering, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the average closing total number or dollar amount of such securities that can be sold without having an adverse effect on the price, timing or if no closing price is available, the mean distribution of the bid Registrable Securities to be so included together with all such Other Securities, then there shall be included in such firm commitment underwritten offering the number or dollar amount of Registrable Securities and asked prices, over such Other Securities that in the fifteen trading days preceding the date opinion of such written demand)managing underwriter(s) can be sold without so adversely affecting such offering, the Company willand such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
(i) promptly give written notice of first, among the proposed registration to all other Holders; and
(ii) as soon as practicable, prepare and file and use commercially reasonable efforts to cause to become effective such registration statement as may be so requested and as would permit or facilitate the sale and distribution of such portion Holders of the Registrable Securities as is specified set forth in such requestthe Demand Notice, together with such additional portion of the Registrable Securities of any Holder(s) joining in such request as may be specified in a written request given to the Company within twenty days after receipt of the written notice from the Company specified in Section 1.3(a)(i).
(b) If the underwriter managing the offering advises the Holders who have requested inclusion of their Registrable Securities in such registration statement that marketing considerations require a limitation on the number of shares offered, such limitation shall be imposed pro rata among such Holders who requested inclusion of Registrable Securities in such registration statement according to the number of shares of Registrable Securities owned by each. Neither the Company nor any other stockholder may include shares in such registration statement without the consent of Holders of a majority of the Registrable Securities included therein (if the underwriter managing such offering advises the Holders who have included Registrable Securities in such registration statement that the inclusion of such additional shares may either limit applicable), based on the number of Registrable Securities which can be sold or adversely affect Beneficially Owned by each such Holder;
(ii) second, among the price at which such Holders of Registrable Securities can be soldexercising piggyback registration rights under Section 2.3 with respect to such Demand Registration; and
(iii) third, among any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holder of Other Securities.
(c) Notwithstanding Section 1.3(b)In the event of a Demand Registration, the Company shall have be required to maintain the right, exercisable by written notice to continuous effectiveness of the initiating Holder(s) within thirty applicable Registration Statement for a period of at least 180 days after receipt of a request to effect a registration under the effective date thereof or such shorter period in which all Registrable Securities Act, to include the Company's shares included in such registration, in which event such registration shall be deemed to be a Company-initiated registration, and the Holders shall Registration Statement have the right to include their Registrable Securities and shares of Class A Common Stock, as the case may be, therein to the extent permitted under Section 1.2actually been sold.
(d) The Company shall not be obligated to effect more than ten registrations under only two (2) Demand Registrations pursuant to this Section 1.3. Such registrations 2.2; provided, however, in case the Company shall be receive from the Holders’ Representative a Demand Notice requesting that the Company effect a registration on Form S-3 when (provided that the Company is eligible to use that form under SEC rules, but otherwise may be effect such registration on Form S-1. No registration statement initiated by Holders hereunder shall count as a registration under this Section 1.3 unless and until it shall have been declared effective. Any registration requested under this Section 1.3 which shall not become effective solely by reason of the refusal of the Holders participating therein to proceed with the registration shall count as a registration effected under this Section 1.3 unless and until S-3 at such time), the Company shall be obligated to effect any such Demand Registration without regard to the number of Demand Registrations made.
(e) The Company shall be entitled to postpone (but not more than once in any 6-month period), for a reasonable period of time not in excess of 60 days, the filing or initial effectiveness of, or suspend the use of, a Demand Registration Statement if the Company delivers to the Holders’ Representative a certificate signed by both the Chief Executive Officer and Chief Financial Officer of the Company certifying that, in the good faith judgment of the Board of Directors of the Company, such registration, offering or use would reasonably be expected to materially adversely affect or materially interfere with any bona fide material financing of the Company or any material transaction under consideration by the Company or would require the disclosure of information that has not been, and is not otherwise required to be, disclosed to the public, the premature disclosure of which would materially adversely affect the Company. Such certificate shall contain, if requested by the Holders’ Representative (and subject to their entering into a customary confidentiality obligation as to such information), a statement of the reasons for such postponement or suspension and an approximation of the anticipated delay.
(f) The Holders’ Representative shall have been reimbursed the right to notify the Company that it has determined that the Registration Statement relating to a Demand Registration be abandoned or withdrawn, in which event the Company shall promptly abandon or withdraw such Registration Statementand the Holders’ Representative shall promptly reimburse the Company for the all Registration Expenses incurred by it the Company in connection therewithwith such abandoned or withdrawn registration statement.
Appears in 1 contract
Samples: Registration Rights Agreement (E Trade Financial Corp)
Demand Registrations. (a) At any time after and from time to time commencing on the first earlier of (i) the fifth anniversary of the Closing Date, and (ii) the date which is six months after the Initial Public Offering, upon the written request of this Agreement, if the Company receives in writing a request Holders of at least 30% of the Registrable Securities (the "INITIATING HOLDERS") that the Company effect the registration Registration under the Securities Act (such a written request being hereinafter referred to as a "DEMAND REGISTRATION") of any of the Registrable Securities, of with a minimum aggregate offering price of $20,000,000 (as determined with reference to the number of shares proposed to be sold in such registration multiplied by the average closing price, or if no closing price is available, the mean of the bid and asked prices, over the fifteen trading days preceding the date of such written demand), the Company will:
(i) will promptly give written notice of the proposed registration to all other Holders; and
(ii) as soon as practicable, prepare and file and use commercially reasonable efforts to cause to become effective such registration statement as may be so requested and as would permit or facilitate the sale and distribution Holders of Registrable Securities that a Demand Registration has been received. For a period of 20 days following delivery of such portion notice, the other Holders of the Registrable Securities as is specified in may request that the Company also register their Registrable Securities and after the expiration of such request20 day period, together with such additional portion the Company shall notify all Holders of the Registrable Securities of any Holder(s) joining in such request as may be specified in a written request given to the Company within twenty days after receipt of the written notice from the Company specified in Section 1.3(a)(i).
(b) If the underwriter managing the offering advises the Holders who have requested inclusion of their Registrable Securities in such registration statement that marketing considerations require a limitation on the number of shares offered, such limitation shall be imposed pro rata among such Holders who requested inclusion of Registrable Securities in such registration statement according to the number of shares of Registrable Securities owned by each. Neither the Company nor any other stockholder may include shares in such registration statement without the consent of Holders of a majority of the Registrable Securities included therein if the underwriter managing such offering advises the Holders who have included Registrable Securities in such registration statement that the inclusion of such additional shares may either limit the number of Registrable Securities which can to be sold or adversely affect the price at which such Registrable Securities can be sold.
(c) Notwithstanding Section 1.3(b)registered. Thereupon, the Company shall have will use its reasonable best efforts to cause the right, exercisable by written notice to the initiating Holder(s) within thirty days after receipt of a request to effect a registration prompt Registration under the Securities Act, subject to include the provisions of this Section 10, of all Registrable Securities which the Holders thereof have requested the Company to register, and in connection therewith, prepare and file on such appropriate form as the Company, in its reasonable discretion, shall determine, a Registration Statement under the Securities Act to effect such Registration. With respect to any Registration Statement filed, or to be filed, pursuant to this Section 10.01(a) or Section 10.03 below, if the Company shall furnish to the Holders of Registrable Securities a certified resolution of the Board of Directors stating that in the Board of Directors' good faith judgment it would (because of the existence of, or in anticipation of, any acquisition or financing, merger, sale of assets, recapitalization or other similar corporate activity, or the unavailability for reasons beyond the Company's shares in control of any required audited financial statements, or any other event or condition of similar significance to the Company) be materially disadvantageous (a "DISADVANTAGEOUS CONDITION") to the Company or its stockholders for such registration, in which event such registration shall be deemed a Registration Statement to be a Company-initiated registrationmaintained Effective, or to be filed and become Effective, and setting forth the Holders shall have the right to include their Registrable Securities and shares of Class A Common Stockgeneral reasons for such judgment, as the case may be, therein to the extent permitted under Section 1.2.
(d) The Company shall not be obligated to effect more than ten registrations under this Section 1.3. Such registrations shall be on Form S-3 when the Company is eligible to use that form under SEC rules, but otherwise may be on Form S-1. No registration statement initiated by Holders hereunder shall count as a registration under this Section 1.3 unless and until it shall have been declared effective. Any registration requested under this Section 1.3 which shall not become effective solely by reason of the refusal of the Holders participating therein to proceed with the registration shall count as a registration effected under this Section 1.3 unless and until the Company shall have be entitled to cause such Registration Statement to be withdrawn and the effectiveness of such Registration Statement terminated, or, in the event no Registration Statement has yet been reimbursed filed, shall be entitled not to file any such Registration Statement, until such Disadvantageous Condition no longer exists (notice of which the Company shall promptly deliver to all Holders of Registrable Securities); PROVIDED that the Company shall be entitled to withdraw or delay the filing of a Registration Statement in connection with a Disadvantageous Condition for a period of not more than 90 days and only once during any twelve month period. Upon receipt of any such notice of a Disadvantageous Condition, such Holders of Registrable Securities will forthwith discontinue use of the disclosure document contained in such Registration Statement and, if so directed by the Company, each such Holder will deliver to the Company all copies, other than permanent file copies then in such Holder's possession, of the disclosure document then covering such Registrable Securities current at the time of receipt of such notice, and, in the event no Registration Statement has yet been filed, all drafts of the disclosure document covering such Registrable Securities. In the event that the Company shall give any notice of a Disadvantageous Condition, the Company shall at such time as it in good xxxxx xxxxx appropriate file a new Registration Statement covering the Registrable Securities that were covered by such withdrawn Registration Statement, and shall use its reasonable best efforts to file such new Registration Statement within 90 days of receipt of the resolution by the Holders of Registrable Securities, and such Registration Statement shall be maintained Effective for such time as may be necessary so that the period of effectiveness of such new Registration Statement, when aggregated with the period during which such initial Registration Statement was Effective, shall be such time as may be otherwise required by Section 10.01(c). The Holders of at least 66% of the Registrable Securities requested to be registered may, at any time prior to the Effective Date of the Registration Expenses incurred Statement relating to such Registration, revoke such request, without liability to any of the other Holders of Registrable Securities, by it in connection therewithproviding a written notice to the Company revoking such request.
Appears in 1 contract
Demand Registrations. (a) At any time after following the first anniversary date on which all Initial Registrable Securities have been registered for resale pursuant to Section 2 hereof (the “Permitted Request Date”), (i) a Holder or Holders owning 50% or more in interest (the “Initiating Holders”) of the date Registrable Securities (other than the Initial Registrable Securities and subject to the rights of this Agreement, if the Company receives holders of the Shell Shares as set forth in writing a the Shell Registration Rights Agreement and the Vision Shares as set forth in the Vision Registration Rights Agreement)(the “Remaining Registrable Securities”) may request that the Company effect file a Registration Statement providing for the registration resale of all Remaining Registrable Securities then held by the Initiating Holders by giving written notice (a “Demand Notice”) of such demand to the Company. The Demand Notice shall describe the number of Remaining Registrable Securities intended to be disposed of and the intended method of disposition. The Company shall then prepare and file with the Commission on or prior to the Additional Filing Date, a “resale” Registration Statement providing for the resale of all Remaining Registrable Securities included in the Demand Notice for an offering to be made on a continuous basis pursuant to Rule 415. Any such Registration Statements shall be on Form S-1. Each such Registration Statement shall cover to the extent allowable under the Securities Act and the rules promulgated thereunder (including Rules 415 and 416), such indeterminate number of additional shares of Common Stock resulting from stock splits, stock dividends or similar transactions with respect to the Registrable Securities, of with a minimum aggregate offering price of $20,000,000 (as determined with reference to the number of shares proposed to be sold in such registration multiplied by the average closing price, or if no closing price is available, the mean of the bid and asked prices, over the fifteen trading days preceding the date of such written demand), the . The Company will:
shall (i) promptly give written notice of not permit any securities other than the proposed registration Remaining Registrable Securities to all other Holders; and
be included in any such Registration Statement and (ii) as soon as practicable, prepare and file and use commercially its reasonable best efforts to cause any such Registration Statement to become be declared effective under the Securities Act as promptly as possible after the filing thereof, but in any event prior to the applicable Effectiveness Date, and to keep any such registration statement Registration Statement 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 Remaining Registrable Securities may be so requested and sold without any restriction pursuant to Rule 144 as would permit or facilitate determined by the sale and distribution of such portion of the Registrable Securities as is specified in such request, together with such additional portion of the Registrable Securities of any Holder(s) joining in such request as may be specified in a written request given counsel to the Company within twenty days after receipt pursuant to a written opinion letter, addressed to the Company’s transfer agent to such effect (the “Effectiveness Period”). The Company shall request that the effective time of any such Registration Statement is 5:00 p.m. Eastern Time on the written notice from the Company specified in Section 1.3(a)(i)effective date.
(b) If In the underwriter managing event that the offering advises Company is unable to register for resale under Rule 415 of Regulation C under the Holders who have requested inclusion Securities Act all of their the Remaining Registrable Securities in such registration statement on any of the Registration Statements that marketing considerations require a limitation on the number of shares offered, such limitation shall be imposed pro rata among such Holders who requested inclusion of Registrable Securities in such registration statement according it has agreed to file pursuant to the number first sentence of shares Section 2A(a) due to limits imposed by the Commission’s interpretation of Registrable Securities owned by each. Neither the Company nor any other stockholder may include shares in such registration statement without the consent Rule 415 of Holders of a majority of the Registrable Securities included therein if the underwriter managing such offering advises the Holders who have included Registrable Securities in such registration statement that the inclusion of such additional shares may either limit the number of Registrable Securities which can be sold or adversely affect the price at which such Registrable Securities can be sold.
(c) Notwithstanding Section 1.3(b), the Company shall have the right, exercisable by written notice to the initiating Holder(s) within thirty days after receipt of a request to effect a registration Regulation C under the Securities Act, to include the Company's shares in Company will file a Registration Statement under the Securities Act with the Commission covering the resale by the Purchaser of such registration, in which event such registration shall be deemed to be a Company-initiated registration, and lesser amount of the Holders shall have the right to include their Remaining Registrable Securities and shares of Class A Common Stock, as the case may be, therein to the extent permitted under Section 1.2.
(d) The Company shall not be obligated to effect more than ten registrations under this Section 1.3. Such registrations shall be on Form S-3 when the Company is eligible able to register pursuant to the Commission’s interpretation of Rule 415 of Regulation C under the Securities Act and use its reasonable best efforts to have such Registration Statement become effective as promptly as possible, and, when permitted to do so by the Commission, to file subsequent registration statement(s) under the Securities Act with the Commission covering the resale any Remaining Registrable Securities that form under SEC rules, but otherwise may be on Form S-1. No registration statement initiated by Holders hereunder shall count as a registration under were omitted from its prior Registration Statements filed with the Commission pursuant to this Section 1.3 unless 2A(b) and until it shall use its reasonable best efforts to have been such registration declared effectiveeffective as promptly as possible. Any registration requested under this Section 1.3 which shall not become effective solely by reason In furtherance of the refusal Company’s obligations set forth in the preceding sentence, the parties hereby agree that in the event that any Holder shall deliver to the Company a written notice at any time after the later of (x) the date which is six months after the Effectiveness Date of the Holders participating therein latest Registration Statement filed pursuant to proceed with Section 2A(a) or 2A(b) hereof, as applicable, or (y) the registration shall count as a registration effected under this date on which all Remaining Registrable Securities registered on all of the prior Registration Statements filed pursuant to Section 1.3 unless 2A(a) and until 2A(b) hereof are sold, that the Company shall have been reimbursed for file, within 30 days following the date of receipt of such written notice, an additional Registration Expenses incurred by it in connection therewithStatement registering any Remaining Registrable Securities that were the subject of the applicable Demand Notice that were omitted from such Registration Statement.
Appears in 1 contract
Samples: Registration Rights Agreement (Southern Sauce Company, Inc.)
Demand Registrations. (aSubject to Sections 1(c) At any time after and 1(d) below, during the first anniversary Effective Period, an Initiating Holder may request in writing, with a copy of such request delivered simultaneously to the date of this Agreementnon-Initiating Holder, if the Company receives in writing a request that the Company effect the registration an underwritten Public Offering by filing a Registration Statement under the Securities Act (“Demand Registration”) covering the registration of at least twenty percent (20%) of the Registrable SecuritiesSecurities (if applicable, calculated on an as converted basis) held by such Initiating Holder, the members of with its Group and any other affiliates, which request will specify the intended plan and method of disposition of such shares; provided that a minimum request for a Demand Registration shall not be effective if the Registrable Securities of the Initiating Holder and its Affiliates requested to be included in such Demand Registration do not have an aggregate offering market value of at least $10 million (if applicable, calculated on an as converted basis) (based upon the average daily closing price of $20,000,000 the Common Stock (as determined on its principal trading market), rounded to two decimal places, for the ten (10) trading days immediately preceding the date that the Initiating Holder’s request for registration is received by the Company). The making of such demand by an Initiating Holder shall be binding upon all of the holders of the Registrable Securities within the Initiating Holder’s Group with reference respect to the number of shares proposed demand registration rights provided for in Section 1(c). After the date on which the Company receives such a request, the Company shall use reasonable best efforts (i) to be sold in such registration multiplied file a Registration Statement under the Securities Act on the appropriate form therefor covering all of the Registrable Securities specified by the average closing price, or if no closing price is available, the mean of the bid and asked prices, over the fifteen trading Initiating Holder within seventy-five (75) days preceding after the date of such written demand)request; provided, however, that such seventy-five (75) day period shall be extended by the number of days having elapsed from the time the Company will:
furnishes to the Initiating Holder a reasonably complete draft of the proposed Registration Statement to be filed, and the date on which the Initiating Holder, acting as representative of the holders of Registrable Securities within the Initiating Holder’s Group to which the proposed Registration Statement relates, notifies the Company that such draft is acceptable to such Initiating Holder insofar as the draft of the proposed Registration Statement contains information that relates to them and the intended method or methods of distribution as furnished by them to the Company and (ii) to cause such Registration Statement to be declared effective as quickly as reasonably possible after the filing referenced in clause (i) promptly give written notice of above. The Company will keep the proposed registration Demand Registration current and effective for at least one hundred twenty (120) days (such 120-day period to all other Holders; and
(ii) as soon as practicablebe calculated without regard to any Deferral Period), prepare and file and use commercially reasonable efforts to cause to become effective such registration statement as may be so requested and as would permit or facilitate a shorter period during which the sale and distribution holders of such portion of the demand shall have sold all Registrable Securities as is specified in such request, together with such additional portion of covered by the Registrable Securities of any Holder(s) joining in such request as may be specified in a written request given to the Company within twenty days after receipt of the written notice from the Company specified in Section 1.3(a)(i)Demand Registration.
(b) If the underwriter managing the offering advises the Holders who have requested inclusion of their Registrable Securities in such registration statement that marketing considerations require a limitation on the number of shares offered, such limitation shall be imposed pro rata among such Holders who requested inclusion of Registrable Securities in such registration statement according to the number of shares of Registrable Securities owned by each. Neither the Company nor any other stockholder may include shares in such registration statement without the consent of Holders of a majority of the Registrable Securities included therein if the underwriter managing such offering advises the Holders who have included Registrable Securities in such registration statement that the inclusion of such additional shares may either limit the number of Registrable Securities which can be sold or adversely affect the price at which such Registrable Securities can be sold.
(c) Notwithstanding Section 1.3(b), the Company shall have the right, exercisable by written notice to the initiating Holder(s) within thirty days after receipt of a request to effect a registration under the Securities Act, to include the Company's shares in such registration, in which event such registration shall be deemed to be a Company-initiated registration, and the Holders shall have the right to include their Registrable Securities and shares of Class A Common Stock, as the case may be, therein to the extent permitted under Section 1.2.
(d) The Company shall not be obligated to effect more than ten registrations under this Section 1.3. Such registrations shall be on Form S-3 when the Company is eligible to use that form under SEC rules, but otherwise may be on Form S-1. No registration statement initiated by Holders hereunder shall count as a registration under this Section 1.3 unless and until it shall have been declared effective. Any registration requested under this Section 1.3 which shall not become effective solely by reason of the refusal of the Holders participating therein to proceed with the registration shall count as a registration effected under this Section 1.3 unless and until the Company shall have been reimbursed for the Registration Expenses incurred by it in connection therewith.
Appears in 1 contract
Samples: Registration Rights Agreement (Movie Star Inc /Ny/)
Demand Registrations. (a) At any time after the first anniversary of the date of this Agreement, if the Company receives in writing a request that the Company effect the registration under the Securities Act of Registrable Securities, of with a minimum aggregate offering price of $20,000,000 (as determined with reference to the number of shares proposed to be sold in such registration multiplied by the average closing price, or if no closing price is available, the mean of the bid and asked prices, over the fifteen trading days preceding the date of such written demand), the Company will:
(i) promptly give written notice of the proposed registration to all other Holders; and
Within ten (ii10) as soon as practicable, prepare and file and use commercially reasonable efforts to cause to become effective such registration statement as may be so requested and as would permit or facilitate the sale and distribution of such portion of the Registrable Securities as is specified in such request, together with such additional portion of the Registrable Securities of any Holder(s) joining in such request as may be specified in a written request given to the Company within twenty days after receipt of the written notice from the Company specified in Section 1.3(a)(i).
(b) If the underwriter managing the offering advises the Holders who have requested inclusion of their Registrable Securities in such registration statement that marketing considerations require a limitation on the number of shares offered, such limitation shall be imposed pro rata among such Holders who requested inclusion of Registrable Securities in such registration statement according to the number of shares of Registrable Securities owned by each. Neither the Company nor any other stockholder may include shares in such registration statement without the consent of Holders of a majority of the Registrable Securities included therein if the underwriter managing such offering advises the Holders who have included Registrable Securities in such registration statement that the inclusion of such additional shares may either limit the number of Registrable Securities which can be sold or adversely affect the price at which such Registrable Securities can be sold.
(c) Notwithstanding Section 1.3(b), the Company shall have the right, exercisable by written notice to the initiating Holder(s) within thirty days after receipt of a request for a Demand Registration pursuant to effect a registration under Section 5.2.1, the Securities Act, Company shall give written notice (the "Notice") of such request to include the Company's shares in such registration, in which event such registration shall be deemed to be a Company-initiated registration, and all other Holders. Each of the Holders shall other than the Initiating Holder(s) shall, subject to the other provisions of this Section 5.3, upon receipt of written request therefor within ten (10) days after the Notice is given (the "Election Period"), have the right to include their in such Demand Registration the number of Registrable Securities and shares registrable by such Holder pursuant to Section 5.2.1 as of Class A Common Stock, as the time such Notice is made (the "Demand Piggyback Shares").
(ii) Registration of the Demand Piggyback Shares requested to be registered by any Holder shall be subject to the following conditions: (A) in the case may beof a request by Caledonia and/or CMS in respect of a registration relating to the Minimum Year One Sale, therein the Underwriter being of the opinion that the sale by the Caledonia Group and the CMS Group of up to two million (2,000,000) Caledonia/CMS Tag Shares shall not have a material adverse effect on the Kersaf Group's ability to complete the Minimum Year One Sale in satisfaction of the terms hereof, (B) in respect of a registration relating to the Minimum Year One Sale and any other Underwritten Public Offering, (x) compliance with the "cutback" provisions contained in Section 5.3.2, (y) acceptance by such Holder of the timing and terms and conditions of the subject Underwritten Public Offering (as evidenced by each such Holder and, if applicable, any participating member of such Holder's Group, becoming a party to the applicable underwriting agreement) and (z) the Underwriter being of the opinion that the sale of Shares by such Holder and, if applicable, any participating member of such Holder's Group, would not have a material and adverse effect on the market for the Shares and, if applicable, any other securities issued by the Company. In the event that the Underwriter shall be of the opinion that the sale of the Caledonia/CMS Tag Shares shall have a material adverse effect on Kersaf's ability to complete the Minimum Year One Sale, the number of Caledonia/CMS Tag Shares shall be reduced to the extent permitted under Section 1.2recommended by such Underwriter.
(diii) The Company shall not be obligated to effect more than ten registrations under this Section 1.3. Such registrations shall be on Form S-3 when In the event that the Initiating Holder(s) requests the Company is eligible to use that form under SEC ruleswithdraw a Demand Registration, but otherwise may be on Form S-1. No registration statement initiated by Holders hereunder shall count as a registration under this Section 1.3 unless and until it who shall have been declared effective. Any registration requested under this Section 1.3 which shall not become effective solely by reason elected to register Demand Piggyback Shares as of the refusal date of such withdrawal shall have the Holders participating therein right, upon one (1) business day's prior written notice to proceed with the registration Company, to pursue such registration; provided, however, that the requirements of Section 5.2.1 shall count as a registration effected under this otherwise be satisfied.
(iv) Subject to the foregoing and Section 1.3 unless and until 5.3.2, (A) the Company shall have been reimbursed include in such registration all Registrable Securities that the Company has received written requests for inclusion therein within the Registration Expenses incurred Election Period and (B) thereafter, in the case of Demand Registration, the Company may elect to include in such registration additional Shares issued by it in connection therewiththe Company. All requests made pursuant to this Section 5.3.1 shall specify the aggregate number of Registrable Securities to be registered.
Appears in 1 contract
Samples: Registration Rights and Governance Agreement (Mangalltsa LTD)
Demand Registrations. (a) At any time after The Investors may request the first anniversary of the date of this Agreement, if the Company receives in writing a request that the Company effect the registration under the Securities Act of Registrable Securities, of with a minimum aggregate offering price of $20,000,000 (as determined with reference Parent to the number of shares proposed to be sold in such registration multiplied by the average closing price, or if no closing price is available, the mean of the bid and asked prices, over the fifteen trading days preceding the date of such written demand), the Company will:
(i) promptly give written notice of the proposed registration to all other Holders; and
(ii) as soon as practicable, prepare and file and use commercially reasonable efforts to cause effect a Registration of all or part of their Registrable Shares (such Registration being hereinafter referred to become effective such as a "Demand Registration") by filing a registration statement as may be so requested under the U.S. Securities Act and as would permit or facilitate the sale and distribution of such portion a prospectus under Canadian Securities Acts (including, if eligible, a shelf registration statement under Rule 415 of the Registrable U.S. Securities as is specified Act and a shelf prospectus under National Instrument 44-102 - Shelf Distributions). Any such request shall be made by notice in writing (a "Demand Registration Request") to the Parent. To the extent such request, together with such additional portion of Demand Registration Request seeks to register Common Shares that the Registrable Securities Investors have acquired or have the right to acquire upon exchange or conversion of any Holder(sPurchased Series B Preferred Shares (such Common Shares, "Investor Series B Demand Shares"), within five (5) joining in such request as may be specified in a written request given to the Company within twenty days Business Days after receipt of such Demand Registration Request, the Parent will give written notice of such request to the Oaktree Investors and, subject to Section 5.2(b), will include in such registration all Common Shares that the Oaktree Investors have acquired or have the right to acquire upon exchange or conversion of the Series B-1 Preferred Shares and Series B-2 Preferred Shares purchased by the Oaktree Investors on the date hereof and purchased by the Oaktree Investors on the exercise of the Series B-2 Sale Option, respectively, that have not been registered pursuant to a registration statement under the U.S. Securities Act (such Common Shares, the "Oaktree Series B Demand Shares") with respect to which the Parent has received from the Company specified Oaktree Investors written requests for inclusion within ten (10) Business Days after delivery of the Parent's notice to the Oaktree Investors, specifying the number of Oaktree Series B Demand Shares intended to be registered, provided that such number requested to be registered by the Oaktree Investors may not exceed the Oaktree Pro Rata Percentage of the number of Investor Series B Demand Shares requested to be registered by the Investors in the Demand Registration Request. Subject to Section 1.3(a)(i5.2(b), the Parent shall be entitled to include for sale in any prospectus or registration statement filed pursuant to a Demand Registration any securities of the Parent to be sold by the Parent for its own account.
(b) If the lead underwriter managing or underwriters in any underwritten Demand Registration advise the offering advises the Holders who have requested inclusion of their Registrable Securities Parent in such registration statement that marketing considerations require a limitation on the number of shares offered, such limitation shall be imposed pro rata among such Holders who requested inclusion of Registrable Securities in such registration statement according to the number of shares of Registrable Securities owned by each. Neither the Company nor any other stockholder may include shares in such registration statement without the consent of Holders of a majority of the Registrable Securities included therein if the underwriter managing such offering advises the Holders who have included Registrable Securities in such registration statement writing that the inclusion of such additional shares all the securities requested to be included in a Demand Registration, including securities offered by the Parent for its own account, as applicable, may either limit have a material adverse effect on the distribution or sales price of the securities being offered unless the number of such securities is reduced (such reduced offering size, the "Maximum Offering Size"), the Parent will include in such registration, in the priority listed below, in the aggregate up to the Maximum Offering Size: first, all Registrable Shares requested to be registered in the Demand Registration by the Investors, second, the Oaktree Series B Demand Shares requested to be registered by the Oaktree Investors, and third, securities offered by the Parent for its own account. The Parent shall as soon as practical, and in any event within 65 days, in the case of a registration statement to be filed on Form S-1, and 45 days, in the case of a registration statement to be filed on Form S-3 or a prospectus to be filed under Canadian Securities which can Acts, of receipt of a Demand Registration Request, file a registration statement covering all of the Registrable Shares that the Investors requested to be sold or adversely affect registered and, as applicable, the price at which Oaktree Series B Demand Shares requested to be registered, and, as applicable, any securities offered by the Parent for its own account, and use its commercially reasonable efforts to cause such Registrable Securities can be soldregistration statement to become effective as soon as practicable.
(c) Notwithstanding Section 1.3(bThe Parent shall not be obliged to effect:
(i) more than one Demand Registration in any one 12-month period (provided, however, that a registration shall not be deemed "effected" for purposes of this section until such time as the applicable registration statement has been declared effective by the SEC and the applicable final prospectus has been receipted by the relevant Canadian Securities Commission);
(ii) a Demand Registration in the event the Parent determines in good faith that either (A) the effect of the filing of a prospectus or registration statement could impede the ability of the Parent to consummate a significant transaction (including, without limitation, a financing, an acquisition, a restructuring or a merger) or proceed with negotiations or discussions in relation thereto, or (B) there exists at the Company shall have the right, exercisable by written notice time material non-public information relating to the initiating Holder(s) within thirty Parent or its subsidiaries the disclosure of which the Parent believes would be materially adverse to the Parent and its subsidiaries, taken as a whole; in which case the Parent's obligations under this Section 5.2 shall be deferred for a period of not more than 90 days after from the date of receipt of the Demand Registration Request of the Investors, provided that the Parent shall not be permitted to defer the filing of a request prospectus under this Section 5.2 more than two times in any 12-month period;
(iii) a Demand Registration in respect of a number of Registrable Shares that is expected to effect result in gross proceeds of less than $20 million; or
(iv) a Demand Registration before the 90th day following the date on which (A) a receipt was issued to the Parent with respect to any final prospectus filed by the Parent or (B) a registration under statement filed by the Securities Act, to include the Company's shares in such registration, in which event such registration shall be deemed to be a Company-initiated registration, and the Holders shall have the right to include their Registrable Securities and shares of Class A Common Stock, as the case may be, therein to the extent permitted under Section 1.2Parent became effective.
(d) The Company Investors may request the Parent to use commercially reasonable efforts to effect a shelf registration statement or file and obtain a receipt for a shelf prospectus, which registration statement or prospectus contemplates sales or distributions of Registrable Shares, provided that any such request shall not be obligated to effect more than ten registrations under this Section 1.3. Such registrations constitute a Demand Registration, unless accompanied by a Demand Registration Request.
(e) The lead underwriter or underwriters for any offering in connection with a Demand Registration shall be on Form S-3 when selected by the Company is eligible Investors and shall be reasonably acceptable to use that form under SEC rules, but otherwise may be on Form S-1. No registration statement initiated by Holders hereunder shall count as a registration under this Section 1.3 unless and until it shall have been declared effective. Any registration requested under this Section 1.3 which shall not become effective solely by reason of the refusal of the Holders participating therein to proceed with the registration shall count as a registration effected under this Section 1.3 unless and until the Company shall have been reimbursed for the Registration Expenses incurred by it in connection therewithParent.
Appears in 1 contract
Demand Registrations. (a) At If at any time following the earlier of: (i) six months after the first anniversary closing of a public offering of the date Company's equity securities pursuant to a registration statement declared effective under the Securities Act of this Agreement1933, if as amended (the "Act"), or (ii) January 16, 2006, the Company receives in writing shall receive from one or more of the Initiating Holders a written request that the Company effect the registration under the Securities Act of Registrable Securities, of Securities with a minimum reasonably anticipated aggregate offering price of $20,000,000 (as determined with reference to the number public of shares proposed to be sold in such registration multiplied by the average closing price, or if no closing price is available, the mean of the bid and asked prices, over the fifteen trading days preceding the date of such written demand)at least $5,000,000, the Company will:
(i) promptly give written notice of the proposed registration to all other Holders; and
(ii) as soon as practicable, prepare and file and use commercially reasonable efforts to cause to become effective such registration statement as may be so requested and as would permit or facilitate the sale and distribution of such portion in any event within ninety (90) days of the Registrable Securities as is specified in receipt of such request, together with use its best efforts to effect such additional portion registration under the Act of the all Registrable Securities of any Holder(s) joining in such which the Holders request as may to be specified in a written request given registered, subject to the Company within twenty days after receipt limitations of the written notice from the Company specified in Section 1.3(a)(i5.2(d).
(b) If the underwriter managing Initiating Holders intend to distribute the offering advises Registrable Securities covered by their request by means of an underwriting, they shall so advise the Holders who have requested inclusion Company as a part of their request made pursuant to Section 5.2(a). The underwriter will be selected by the Company and shall be a nationally recognized underwriter reasonably acceptable to a majority in interest of the Initiating Holders. In such event, the right of any Holder to include Registrable Securities in such registration statement 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 (together with the Company as provided in Section 5.6(d)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding any other provision of this Section 5.2, if the underwriter advises the Company and the Initiating Holders in writing that marketing considerations factors require a limitation on of the number of shares offeredto be underwritten, such limitation then the Company shall be imposed pro rata among such so advise all Holders who requested inclusion of Registrable Securities participating in such registration statement according to registration, and the number of shares of Registrable Securities owned by each. Neither the Company nor any other stockholder that may include shares be included in such registration statement without shall be allocated among all participating Holders, including the consent Initiating Holders, in proportion (as nearly as practicable) to the amount of Holders Registrable Securities owned by each Holder; provided that all other securities are first entirely excluded from such registration; provided further, however, that if Xxxxxx Xxxxxx Capital Partners, L.P. or any of a majority its affiliates ("TWCP") shall be one of the Initiating Holders, then the number of shares of Registrable Securities to be included therein if the underwriter managing such offering advises the Holders who have included Registrable Securities by TWCP in such registration statement shall not be reduced unless all other securities are first entirely excluded from the registration. Notwithstanding the foregoing, in the event that the inclusion of such additional shares may either limit the number of Registrable Securities which can to be sold included in any such underwriting is decreased by forty percent (40%) or adversely affect more of the price at which shares requested to be registered by the Holders, such Registrable Securities can be soldregistration shall not constitute an exercise of a demand registration right for purposes of Section 5.2(d) below.
(c) Notwithstanding the foregoing, if the Company shall furnish to the Holders requesting registration pursuant to this Section 1.3(b)5.2, a certificate signed by the Chief Executive Officer of the Company stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for a registration statement to be filed and it is therefore essential to defer the filing of such registration statement, the Company shall have the right, exercisable by written notice right to the initiating Holder(sdefer taking action with respect to such filing for a period of not more than ninety (90) within thirty days after receipt of a the request to effect of the Initiating Holders; provided, however, that if the effectiveness of a registration under statement is suspended pursuant to this provision, the Securities Act, period of such suspension shall be added to include the Company's shares in such registration, in which event end of the period that such registration shall statement would otherwise be deemed required to be a Company-initiated registrationeffective hereunder so that the aggregate number of days that such registration statement is required to remain effective hereunder shall remain unchanged; provided, and further, that the Holders shall have the Company may not utilize this right to include their Registrable Securities and shares of Class A Common Stock, as the case may be, therein to the extent permitted under Section 1.2.
(d) The Company shall not be obligated to effect more than ten registrations under this Section 1.3. Such registrations shall be on Form S-3 when the Company is eligible to use that form under SEC rules, but otherwise may be on Form S-1. No registration statement initiated by Holders hereunder shall count as a registration under this Section 1.3 unless and until it shall have been declared effective. Any registration requested under this Section 1.3 which shall not become effective solely by reason of the refusal of the Holders participating therein to proceed with the registration shall count as a registration effected under this Section 1.3 unless and until the Company shall have been reimbursed for the Registration Expenses incurred by it once in connection therewithany twelve-month period.
Appears in 1 contract
Demand Registrations. (a) At any time after the first anniversary date hereof, the holders of Registrable Shares may request the Company to register for sale under the Securities Act all or any portion of the date Registrable Shares held by such requesting holder or holders for sale in the manner specified in such notice (a “Demand Registration”); provided, that each Demand Registration be at least equal to 1,000,000 shares or such lesser amount agreed to by the Company (as such number may be adjusted for stock splits, stock dividend and similar events) of the Company’s then outstanding common shares; provided further, that the number of Registrable Shares to be included in the registration shall be no greater than the amount permitted by United States federal law, state law or other law or Commission rule or policy; provided further, that the Expenses Shares shall be included for the registration prior to any other Registrable Shares. If United States federal law, state law or other law or Commission rule or policy requires a limitation of the number of Registrable Shares to be registered under this Section 3 pursuant to any particular registration statement, then Registrable Shares shall be excluded in such manner that the securities to be sold shall be allocated among the selling holders pro rata based on their ownership of Registrable Shares. In any event, all securities to be sold other than (i) Registrable Shares, (ii) shares of Common Stock held by Piraeus Bank A.E. which are subject to registration rights and (iii) shares of Common Stock held by any other security holder with registration rights pursuant to an agreement under which such holder’s demand for registration of its securities is deemed to be simultaneous with the demand to register the Registrable Shares or who otherwise has unsubordinated registration rights will be excluded prior to any exclusion of Registrable Shares, and all shares of Common Stock held by Focus Maritime Corp., any Affiliate of Focus Maritime Corp. or any direct or indirect transferee of shares previously held by Focus Maritime Corp. shall be excluded prior to any exclusion of Registrable Shares.
(b) The Obligee shall have the right to three (3) Demand Registrations pursuant to this Section 3, provided, that the Company will not be obligated to effect more than one Demand Registration in any six (6) month period; provided further, that if for any reason the Commission does not permit all of the Registrable Shares to be included in a registration statement filed pursuant to this Agreement, if (i) the Obligee shall have the right to an unlimited number of Demand Registrations pursuant to this Section 3 and (ii) the Company receives shall use its best efforts to prepare and file, as promptly as practicable but in writing no event later than ten (10) days after the date on which the Commission shall indicate as being the first date or time that such filing may be made, an additional registration statement covering the resale of all Registrable Shares not already covered by an existing and effective registration statement.
(c) Notwithstanding anything to the contrary contained herein, the Company shall not be required to effect a registration pursuant to this Section 3 during the period commencing thirty (30) calendar days prior to the estimated filing date of, and ending on the date which is within one hundred eighty (180) calendar days after the effective date of a registration statement filed by the Company covering an underwritten public offering, which includes securities to be sold for the account of the Company.
(d) Following receipt of any notice under this Section 3, the Company shall immediately notify all holders of Registrable Shares from whom notice has not been received and may notify other holders that have piggyback registration rights and such holders shall then be entitled within ten (10) business days after receipt of such notice from the Company to request the Company to include in the requested registration all or any portion of their Registrable Shares. If no request for inclusion from a holder is received within the specified time, such holder shall have no further right to participate in such registration. If all the shares of Common Stock requested to be registered by holders with registration rights are not permitted to be included in the registration statement, then Registrable Shares shall be excluded in such manner that the securities to be sold shall be allocated among the selling holders pro rata based on their ownership of Registrable Shares, provided that all securities to be sold other than (i) Registrable Shares, (ii) shares of Common Stock held by Piraeus Bank A.E. which are subject to registration rights and (iii) shares of Common Stock held by any other security holder with registration rights pursuant to an agreement under which such holder’s demand for registration of its securities is deemed to be simultaneous with the demand to register the Registrable Shares or who otherwise has unsubordinated registration rights will be excluded prior to any exclusion of Registrable Shares, and all shares of Common Stock held by Focus Maritime Corp., any Affiliate of Focus Maritime Corp. or any direct or indirect transferee of shares previously held by Focus Maritime Corp shall be excluded prior to any exclusion of Registrable Shares. The Company effect shall within ninety (90) calendar days, cause to be filed with the Commission a registration statement on an appropriate form as shall be selected by the Company providing for the registration under the Securities Act of the Registrable SecuritiesShares that the Company has been so requested to register by all such holders, of with a minimum aggregate offering price of $20,000,000 (as determined with reference to the number extent necessary to permit the disposition of shares proposed such Registrable Shares so to be registered in accordance with the intended methods of disposition thereof specified in such registration statement. The Company shall use its commercially reasonable efforts to have such registration statement declared effective by the Commission within seventy-five (75) calendar days following the filing of a registration statement pursuant to a Demand Registration if the registration statement is not reviewed by the Commission and within one hundred eighty (180) calendar days following the filing of a registration statement pursuant to a Demand Registration in the event that the registration statement is reviewed by the Commission, and to keep such registration statement continuously effective for the period specified in Section 8(b); provided however that such period shall expire as set forth in Section 5. The Company may at its option withdraw any registration statement which covers securities that are not Registrable Shares.
(e) If the holders requesting such registration intend to distribute the Registrable Shares covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 3 and the Company shall include such information in the written notice referred to in paragraph (d) above. The right of any holder to participate in an underwritten registration pursuant to this Section 3 shall be conditioned upon such holder’s agreeing to participate in such underwriting and to permit inclusion of such holder’s Registrable Shares in the underwriting. If such method of disposition is an underwritten public offering, the holders of at least a majority in interest of the Registrable Shares to be sold in such registration multiplied by offering may designate the average closing pricemanaging underwriter of such offering, or if no closing price is available, subject to the mean approval of the bid and asked pricesCompany, over which approval shall not be unreasonably withheld or delayed.
(f) In addition to Registrable Shares, a registration statement filed pursuant to this Section 3 may, subject to the fifteen trading days preceding the date of such written demand)following provisions, the Company will:
also include (i) promptly give written notice shares of Common Stock for sale by the proposed registration to all other Holders; and
Company for the Company’s own account, (ii) as soon as practicableshares of Common Stock held by officers or directors of the Company and (iii) shares of Common Stock held by Other Shareholders, prepare and file and use commercially reasonable efforts to cause to become effective in each case for sale in accordance with the method of disposition specified by the requesting holders. If such registration statement as may shall be so underwritten, each holder of Registrable Shares the Company, such officers and directors and Other Shareholders proposing to distribute their shares through such underwriting shall, if requested by the underwriter, enter into an underwriting agreement and as would permit or facilitate a lock-up agreement, each in customary form, with the sale and distribution of such portion representative of the Registrable Securities underwriter or underwriters selected for such underwriting and enter into other customary agreements (such as is specified in such request, together with such additional portion powers of the Registrable Securities of any Holder(s) joining in such request as may be specified in a written request given to the Company within twenty days after receipt of the written notice from the Company specified in Section 1.3(a)(iattorney and custody agreements).
(b) . If the managing underwriter managing the offering advises the Holders who have requested inclusion of their Registrable Securities in such registration statement determines that marketing considerations factors require a limitation on the number of shares offered, such limitation shall be imposed pro rata among such Holders who requested inclusion of Registrable Securities in such registration statement according to the number of shares of Registrable Securities owned by each. Neither the Company nor any other stockholder may include shares in such registration statement without the consent of Holders of a majority of the Registrable Securities included therein if the underwriter managing such offering advises the Holders who have included Registrable Securities in such registration statement that the inclusion of such additional shares may either limit the number of Registrable Securities which can Shares to be registered under this Section 3, then Registrable Shares shall be excluded in such manner that the securities to be sold or adversely affect shall be allocated among the price at selling holders pro rata based on their ownership of Registrable Shares. In any event, all securities to be sold other than (i) Registrable Shares, (ii) shares of Common Stock held by Piraeus Bank A.E. which are subject to registration rights and (iii) shares of Common Stock held by any other security holder with registration rights pursuant to an agreement under which such holder’s demand for registration of its securities is deemed to be simultaneous with the demand to register the Registrable Securities can Shares or who otherwise has unsubordinated registration rights will be sold.
(c) Notwithstanding Section 1.3(b)excluded prior to any exclusion of Registrable Shares, and all shares of Common Stock held by Focus Maritime Corp., any Affiliate of Focus Maritime Corp. or any direct or indirect transferee of shares previously held by Focus Maritime Corp. shall be excluded prior to any exclusion of Registrable Shares. No Registrable Shares or any other security excluded from the Company registration and underwriting by reason of the underwriter’s marketing limitation shall have be included in such registration and underwriting. If any holder of Registrable Shares, officer, director or Other Shareholder who has requested inclusion in such registration as provided above, disapproves of the rightterms of the underwriting, exercisable such holder of securities may elect to withdraw therefrom by written notice to the initiating Holder(s) within thirty days after receipt of a request to effect a registration under the Securities Act, to include the Company's shares in such registration, in which event such registration shall be deemed to be a Company-initiated registration, Company and the Holders managing underwriter. The securities so withdrawn shall have the right to include their Registrable Securities and shares of Class A Common Stock, as the case may be, therein to the extent permitted under Section 1.2also be withdrawn from registration.
(d) The Company shall not be obligated to effect more than ten registrations under this Section 1.3. Such registrations shall be on Form S-3 when the Company is eligible to use that form under SEC rules, but otherwise may be on Form S-1. No registration statement initiated by Holders hereunder shall count as a registration under this Section 1.3 unless and until it shall have been declared effective. Any registration requested under this Section 1.3 which shall not become effective solely by reason of the refusal of the Holders participating therein to proceed with the registration shall count as a registration effected under this Section 1.3 unless and until the Company shall have been reimbursed for the Registration Expenses incurred by it in connection therewith.
Appears in 1 contract
Samples: Registration Rights Agreement (NewLead Holdings Ltd.)
Demand Registrations. (a) At any time From and after the first earlier of (1) the fourth anniversary date of the Closing of the Series E Purchase Agreement or (2) 180 days after the effective date of this Agreementthe initial public offering of the Company's Common Stock, if the Company receives in writing a first request from the Holders of an aggregate of not less than a majority of the Registrable Securities then outstanding, or a second request from the Holders of an aggregate of not less than 25% of the Registrable Securities then outstanding, that the Company effect the registration under the Securities Act of Registrable Securities, of with a minimum aggregate offering price which at least 20% of $20,000,000 (as determined with reference to the number of shares proposed to then outstanding Registrable Securities shall be sold included in such registration multiplied by (which offering must have a per share price of not less than $34.02 per share (as adjusted for stock dividends, splits, combinations, reclassification and the average closing price, or if no closing price is available, the mean of the bid and asked prices, over the fifteen trading days preceding the date of such written demandlike)), the Company will:
(i) promptly give written notice of the proposed registration to all other Holders, Key Management and the Common Shareholders; and
(ii) as soon as practicable, prepare and file and use commercially its reasonable best efforts to cause to become effective such registration statement as may be so requested and as would permit or facilitate the sale and distribution of such portion of the Registrable Securities as is specified in such request, together with such additional portion of the Registrable Securities of any Holder(s) and shares of Common Stock held by Key Management and Common Shareholders joining in such request as may be specified in a written request given to the Company within twenty thirty (30) days after receipt of the written notice from the Company specified in Section 1.3(a)(i)clause (i) above.
(b) If the underwriter managing the offering advises the Holders Holders, Key Management and Common Shareholders who have requested inclusion of their Registrable Securities or Common Stock, as the case may be, in such registration statement that marketing considerations require a limitation on the number of shares offered, such limitation shall be imposed in the following order: (1) first, excluding shares to be registered by the Common Shareholders pro rata according to the number of shares of Common Stock requested to be included by each; (2) second, excluding shares to be registered by Key Management pro rata according to the number of shares of Common Stock requested to be included by each; and (3) third, pro rata among such Holders who requested inclusion of Registrable Securities in such registration statement according to the number of shares of Registrable Securities owned by each. Neither Except for shares of Common Stock held by Key Management, neither the Company nor any other stockholder shareholder may include shares in such registration statement without the consent of Holders of a majority of the Registrable Securities included therein if the underwriter managing such offering advises the Holders who have included Registrable Securities in such registration statement that the inclusion of such additional shares may either limit the number of Registrable Securities which can be sold or adversely affect the price at which such Registrable Securities can be sold.
(c) Notwithstanding Section 1.3(b)) above, the Company shall have the right, exercisable by written notice to the initiating Holder(s) Holders within thirty (30) days after receipt of a their request to effect a registration under the Securities Act, to include the Company's shares in such registration, in which event such registration shall be deemed to be a Company-initiated registration, and the Holders Holders, Key Management and Common Shareholders shall have the right to include their Registrable Securities and shares of Class A Common Stock, as the case may be, therein to the extent permitted under Section 1.21.2 above.
(d) The Company shall not be obligated to effect more than ten two (2) registrations under this Section 1.3. Such registrations shall be on Form S-3 when the Company is eligible to use that form under SEC rules, but otherwise may be on Form S-1. No registration statement initiated by Holders hereunder shall count as a registration under this Section 1.3 unless and until it shall have been declared effective. Any registration requested under this Section 1.3 which shall not become effective solely by reason of the refusal of the Holders participating therein to proceed with the registration shall count as a registration effected under this Section 1.3 unless and until the Company shall have been reimbursed for the Registration Expenses incurred by it in connection therewith.
Appears in 1 contract
Demand Registrations. (a) At any time The Company covenants and agrees with each Holder that if on or after the first anniversary of 90 days following the date of this Agreementhereof, if the Company receives in writing a written request that from Holders of not less than 30% of the Company effect the registration under the Securities Act of then outstanding Registrable Securities, then within 60 days after receipt of such notice (the 60th day after such notice, the "Filing Date") the Company shall use its reasonable best efforts to ----------- file a Registration Statement and cause such Registration Statement to become effective under the Act at the earliest possible date after such notice (such date, the "Effectiveness Date") with respect to the offering and sale or other ------------------ disposition of such Registrable Securities as such Holders desire to have covered by such Registration Statement. The Company shall use its reasonable best efforts to continuously maintain the effectiveness of such Registration Statement until the earlier of (i) 360 days after the Effectiveness Date or (ii) the consummation of the distribution by the Holders of all of the Registrable Securities covered by such Registration Statement (the "Effectiveness Period"). -------------------- If such Registration is an underwritten registration, and the managing underwriters thereof advise the Company in writing that in their opinion the number of securities requested to be included in such registration exceeds the number which can be sold in such offering without adversely affecting the marketability of the offering, the Company will include in such registration (i) first, the Registrable Securities requested to be included in such registration and (ii) second, other securities of the Company in a minimum aggregate primary offering price or requested to be included in such registration pro rata among the holders of $20,000,000 (as determined with reference to such securities on the basis of the number of shares proposed of Common Stock owned by each such holder. Notwithstanding anything in this Agreement to be sold in such registration multiplied by the average closing price, or if no closing price is available, the mean of the bid and asked prices, over the fifteen trading days preceding the date of such written demand), the Company will:contrary,
(i) promptly give written notice the Company shall not be required to effect more than one registration pursuant to this Section 3;
(ii) if the intended method of distribution is an underwritten public offering, the proposed Company shall not be required to effect such registration pursuant to all other Holdersthis Section 3.1 unless such underwriting shall be conducted on a "firm commitment" basis; and
(iiiii) as soon as practicableany Holder whose Registrable Securities were to be included in any such registration, prepare and file and use commercially reasonable efforts by written notice to cause to become effective the Company, may withdraw such registration statement as may be so requested and as would permit or facilitate the sale and distribution request and, if upon receipt of such portion notice of the withdrawal of such request the Holders that have not elected to withdraw do not hold, in the aggregate, the requisite percentage of the Registrable Securities as is specified in to initiate a request under this Section 3.1, then the Company shall not effect such request, together with registration and if the Holders of such additional portion of the Registrable Securities reimburse the Company for the out-of- pocket costs of any Holder(ssuch registration, such registration shall not be deemed effected for the purpose of clause (i) joining in such request as may be specified in a written request given above. Each notice to the Company within twenty requesting registration to be effected shall set forth (A) the number of Registrable Securities to be included; (B) the name of the Holders of such Registrable Securities and the amount to be sold; and (C) the proposed manner of sale. Within 10 days after receipt of such notice, the Company shall notify each Holder who is not a party to the written notice from served on the Company specified (or the transferee(s) of such Holder) and offer to them the opportunity to include their Registrable Securities in Section 1.3(a)(isuch registration. A Registration Statement will not be deemed to comply with the terms hereof unless it is declared effective by the Commission and remains continuously effective for the Effectiveness Period (other than during any Black-Out Period).
(b) If Each Holder agrees, if requested by the managing underwriter managing or underwriters in an underwritten offering of securities of the offering advises the Holders who have requested inclusion of their Registrable Securities in such registration statement that marketing considerations require a limitation on the number of shares offeredCompany, such limitation shall be imposed pro rata among such Holders who requested inclusion not to effect any public sale or distribution of Registrable Securities or of securities of the Company of the same class as any securities included in such registration statement according Registration Statement, including a sale pursuant to Rule 144 under the Act (except as part of such underwritten registration), during the 10-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 number of shares of Registrable Securities owned extent timely notified in writing by each. Neither the Company nor or the managing underwriter or underwriters and provided that such period is no longer than the hold-back period agreed to by any other stockholder may include shares person in connection with such registration statement without the consent of Holders of a majority of the Registrable Securities included therein if the underwriter managing such offering advises the Holders who have included Registrable Securities in such registration statement that the inclusion of such additional shares may either limit the number of Registrable Securities which can be sold or adversely affect the price at which such Registrable Securities can be soldregistration.
(c1) Notwithstanding Section 1.3(b), the Company shall have the right, exercisable by written notice to the initiating Holder(s) within thirty days after receipt of a request to effect a registration under the Securities Act, to include the Company's shares Board of Directors reasonably determines in good faith that the disclosure of such registrationevent at such time would have a material adverse effect on the business, operations or prospects of the Company and its subsidiaries, taken as a whole, or (2) the disclosure otherwise relates to a previously undisclosed pending material business transaction, the disclosure of which would, in which event such registration shall be deemed to be a Company-initiated registration, and the Holders shall have the right to include their Registrable Securities and shares of Class A Common Stock, as the case may be, therein to the extent permitted under Section 1.2.
(d) The Company shall not be obligated to effect more than ten registrations under this Section 1.3. Such registrations shall be on Form S-3 when the Company is eligible to use that form under SEC rules, but otherwise may be on Form S-1. No registration statement initiated by Holders hereunder shall count as a registration under this Section 1.3 unless and until it shall have been declared effective. Any registration requested under this Section 1.3 which shall not become effective solely by reason reasonable good faith judgment of the refusal Company's Board of Directors, impede the Holders participating therein Company's ability to proceed with the registration shall count as a registration effected under this Section 1.3 unless and until the Company shall have been reimbursed for the Registration Expenses incurred by it in connection therewithconsummate such transaction.
Appears in 1 contract
Samples: Warrant Registration Rights Agreement (Ffi International Inc)
Demand Registrations. (a) At any time after the first anniversary of the date of this Agreement, if the Company receives in writing a request that the Company effect the registration under the Securities Act of Registrable Securities, of with a minimum aggregate offering price of $20,000,000 (as determined with reference to the number of shares proposed to be sold in such registration multiplied by the average closing price, or if no closing price is available, the mean of the bid and asked prices, over the fifteen trading days preceding the date of such written demand), the Company will:
(i) promptly give Subject to the provisions of Section 4(a) and the last paragraph of Section 5, (A) the Evercore Entities shall have the right to make two written notice requests (each, an "EVERCORE DEMAND") and (B) commencing on the later of (I) six months after the SEC declares the Company's Registration Statement on Form S-3 for the registration and resale of up to an aggregate of 4,544,572 shares of Common Stock of the proposed registration Company by Evercore effective and (II) six months after termination of the Stockholder Agreement, EIF shall have the right to all other Holders; make one written request (an "EIF DEMAND" and
(ii, together with each Evercore Demand, a "DEMAND") as soon as practicable, prepare and file and on the Company to cause the Company to use commercially reasonable efforts to file and cause to become be declared effective such registration statement as may be so requested and as would permit or facilitate the sale and distribution of such portion of the Registrable Securities as is specified in such request, together with such additional portion of the Registrable Securities of any Holder(s) joining in such request as may be specified in a written request given to the Company within twenty days after receipt of the written notice from the Company specified in Section 1.3(a)(i).
(b) If the underwriter managing the offering advises the Holders who have requested inclusion of their Registrable Securities in such registration statement that marketing considerations require a limitation Registration Statement on the number of shares offered, such limitation shall be imposed pro rata among such Holders who requested inclusion of Registrable Securities in such registration statement according to the number of shares of Registrable Securities owned by each. Neither the Company nor any other stockholder may include shares in such registration statement without the consent of Holders of a majority of the Registrable Securities included therein if the underwriter managing such offering advises the Holders who have included Registrable Securities in such registration statement that the inclusion of such additional shares may either limit the number of Registrable Securities which can be sold or adversely affect the price at which such Registrable Securities can be sold.
(c) Notwithstanding Section 1.3(b), the Company shall have the right, exercisable by written notice to the initiating Holder(s) within thirty days after receipt of a request to effect a registration then appropriate form under the Securities ActAct with respect to the Eligible Common Stock, to include provided that the Company's shares in such registration, in which event such registration shall be deemed expected offering price of the Eligible Common Stock requested to be a Company-initiated registrationregistered is at least $20 million, and provided, further, that the Holders shall have the right to include their Registrable Securities and shares of Class A Common StockEvercore Entities or EIF, as the case may be, therein shall use reasonable efforts to sell such Eligible Common Stock requested to be registered. This Section 3(a)(i) shall be applicable for so long as the extent permitted Eligible Common Stock cannot be freely transferred pursuant to Rule 144 under Section 1.2the Securities Act without the imposition of volume, manner of sale and holding period limitations.
(dii) The Company shall not Each Demand will set forth the number of shares of Eligible Common Stock proposed to be obligated sold by the Evercore Entities or EIF, as the case may be, and the intended method of distribution of such shares.
(iii) In the case of an underwritten public offering of Eligible Common Stock to effect more than ten registrations under this Section 1.3. Such registrations shall be on Form S-3 when the Company is eligible so registered pursuant to use that form under SEC rules, but otherwise may be on Form S-1. No registration statement initiated by Holders hereunder shall count as a registration under this Section 1.3 unless 3(a), if the managing underwriter advises the Evercore Entities or EIF, as the case may be, and until it the Company in its opinion that the inclusion in such registration of some or all of such Common Stock requested to be registered (including without limitation, Common Stock to be registered by the Company included pursuant to incidental or "piggyback" rights heretofore or hereafter granted by the Company to Persons other than the Evercore Entities or EIF, as the case may be) exceeds the number which can be sold in such offering without a significant adverse effect on the price, timing or distribution of the Common Stock offering (a "SIGNIFICANT ADVERSE EFFECT"), the number of Common Stock to be included in such registration will be reduced as set forth below:
(A) First, the number of shares of Common Stock requested to be included in such registration by the Evercore Entities or EIF, as the case may be, shall be included in such registration, except, in the event that the number of shares of Common Stock requested to be included in such registration by the Evercore Entities or EIF, as the case may be, exceeds the number which, in the opinion of such managing underwriter, can be sold, then the Company will include in such registration such lesser number of registrable securities which is equal to the number which, in the opinion of the managing underwriter, can be sold by the Evercore Entities or EIF, as the case may be; and
(B) After all Common Stock requested to be included in such registration by the Evercore Entities or EIF, as the case may be, have been declared so included, the number of shares of Common Stock requested to be included in such registration by all parties exercising "piggyback" rights shall be so included, except, if the number of shares of Common Stock included as a result of parties exercising "piggyback" rights exceed the number which, in the opinion of the managing underwriter can be sold without causing a Significant Adverse Effect, the shares of Common Stock that the managing underwriter recommends can be included as Piggyback Securities in the Registration Statement without causing a Significant Adverse Effect shall be allocated pro rata among the persons requesting inclusion of Piggyback Securities in accordance with the relative number of shares of Common Stock each person has requested to be sold.
(iv) If (A) any offering or sale of Common Stock by the Evercore Entities or EIF, as the case may be, pursuant to a Registration Statement is not consummated due to (1) any material failure by the Company to perform its obligations under this Agreement or a material adverse change in its financial position or business or (2) the withdrawal by the Evercore Entities or EIF, as the case may be, at any time before or after the Registration Statement has become effective. Any , and the Evercore Entities or EIF, as the case may be, pay the registration requested expenses set forth in Section 6, or (B) 20% or more of Eligible Common Stock sought to be registered by the Evercore Entities or EIF, as the case may be, pursuant to any registration under this Section 1.3 which 3(a) shall not become effective solely be excluded from such registration by reason of the refusal opinion of the Holders participating therein managing underwriter that such inclusion would significantly adversely affect the price at which the securities can be sold, then the Demand with respect to proceed with which such Registration Statement was filed shall not be counted as one of the registration shall count as Demands contemplated by this Section 3(a).
(v) The Company agrees that it will not file a registration effected statement under this Section 1.3 unless and until the Securities Act, either for securities newly issued by the Company shall have been reimbursed (other than a registration statement relating to (i) an employee benefit or incentive plan of the Company existing on the date hereof or hereafter adopted by the Board of Directors or (ii) a merger, consolidation or business combination on a Form S-4) or for securities held by any of the Registration Expenses incurred by it in connection therewithCompany's security holders other than the Evercore Entities or EIF, as the case may be, until 90 days after the effective date of any registration statement filed pursuant to the request of the Evercore Entities or EIF, as the case may be."
Appears in 1 contract
Samples: Registration Rights Agreement (Energy Partners LTD)
Demand Registrations. (a) At any time after Subject to the first anniversary of the date provisions of this AgreementArticle XI, if the Company receives in writing a Apax Requesting Holders shall have the right (the “Demand Right”) to request that the Company effect the registration under the Securities Act of all or any portion of the Registrable SecuritiesSecurities held by such Person(s) by delivering a written notice to the principal business office of the Partnership, of with a minimum aggregate offering price of $20,000,000 (as determined with reference to which notice, if submitted by the Apax Requesting Holders shall identify the Apax Requesting Holders and shall specify the number of shares proposed Registrable Securities to be sold included in such registration multiplied (the “Registration Request”). Upon exercise by the average closing priceApax Requesting Holders of any Demand Right, or if no closing price is available, the mean each of the bid and asked prices, over other holders of Registrable Securities shall have the fifteen trading days preceding the date right to request registration of its Registrable Securities in connection with such Demand Registration. The Partnership shall give prompt written notice of such written demand), Registration Request (the Company will“Registration Notice”) to all other holders of Registrable Securities and shall thereupon use its best efforts to effect the registration (a “Demand Registration”) under the Securities Act on any form available to the Partnership of:
(i) promptly give the Registrable Securities requested to be registered by the Apax Requesting Holders and all other Registrable Securities which the Partnership has received a written notice request from the other holders of Registrable Securities to register within 20 days after the Registration Notice is given;
(ii) any securities of the Partnership proposed to be included in such registration to all other Holdersby the Partnership for its own account; and
(iiiii) as soon as practicable, prepare and file and use commercially reasonable efforts any Units of the Partnership proposed to cause to become effective be included in such registration statement as may be so requested and as would permit or facilitate by the sale and distribution of such portion of the Registrable Securities as is specified in such request, together with such additional portion of the Registrable Securities holders of any Holder(s) joining in such request as may be specified in a written request given registration rights granted other than pursuant to the Company within twenty days after receipt of the written notice from the Company specified in Section 1.3(a)(ithis Agreement (“Other Registration Rights”).
(b) If A registration undertaken by the underwriter managing Partnership at the offering advises request of the Apax Requesting Holders who have requested inclusion shall not count as a Demand Registration for purposes of their Registrable Securities in Section 11.2(d):
(i) if, pursuant to such registration statement that marketing considerations require a limitation on request, the number of shares offered, such limitation shall be imposed pro rata among such Apax Requesting Holders who requested inclusion of Registrable Securities in such registration statement according fail to the number of shares of Registrable Securities owned by each. Neither the Company nor any other stockholder may include shares in such registration statement without the consent of Holders of a majority register and sell at least 80% of the Registrable Securities requested to be included therein if the underwriter managing such offering advises the Holders who have included Registrable Securities in such registration statement that by such Person(s) exercising the inclusion Demand Right; or
(ii) if the Apax Requesting Holders withdraw a Registration Request (1) upon the determination of the Board of Directors to postpone the filing or effectiveness of a Registration Statement pursuant to Section 11.2(d) or (2) upon the recommendation of the managing underwriter of such additional shares may offering due to discovery of a material adverse development regarding the Partnership or its Subsidiaries or general adverse economic or market conditions which, in such underwriter’s opinion and in either limit case, are reasonably likely to materially and adversely affect the price that could be obtained for such securities or the marketability thereof.
(c) If the Demand Registration is an underwritten offering and the managing underwriter advises the Partnership in writing that in its opinion the number of Registrable Securities and other securities requested to be included exceeds the number of Registrable Securities and other securities which can be sold or in such offering without adversely affect affecting the distribution of the securities being offered, the price at which that will be paid in such offering, or the marketability of such securities, then the Partnership shall include in such registration in the following order of priority:
(i) first, the greatest number of Registrable Securities proposed to be registered by the Person(s) exercising a Demand Right and the other holders of Registrable Securities that requested to have their Registrable Securities registered in such Demand Registration, which in the opinion of such underwriters can be so sold., such amount to be allocated ratably among such holders of Registrable Securities based on the number of Registrable Securities held by such holder of Registrable Securities (or, if any holder of Registrable Securities does not request to include its ratable share, such excess shall be allocated ratably among those holders of Registrable Securities requesting to include more than their allocable share). Notwithstanding the foregoing, no Registrable Securities shall be included in the IPO without the prior written consent of the Majority Apax Holders;
(cii) Notwithstanding Section 1.3(b)second, after all Registrable Securities that such holders of Registrable Securities propose to register, the Company shall have greatest number of securities proposed to be registered by Persons with Other Registration Rights which in the rightopinion of such underwriters can be so sold, exercisable such amount to be allocated ratably among the respective holders thereof based on the amount of securities held by written notice to the initiating Holder(s) within thirty days after receipt of a each such holder (or, if any holder does not request to effect a registration under the Securities Actinclude its ratable share, such excess shall be allocated ratably among those holders requesting to include more than their allocable share); and
(iii) third, after all securities that the Company's shares in such registrationholders of Registrable Securities and then the Persons with Other Registration Rights propose to register, in which event such registration shall be deemed the greatest number of securities proposed to be a Company-initiated registrationregistered by the Partnership for its own account, and which in the Holders opinion of such underwriters can be so sold; provided, however, that the Partnership shall have the right (the “Priority Right”) to receive priority over all Persons with Other Registration Rights in any Demand Registration to be effected under this Section 11.2 with respect to securities that the Partnership proposes to include their Registrable Securities in such registration for its own account by giving written notice of its election to exercise such Priority Right to such Persons and shares of Class A Common Stock, as the case may be, therein to the extent permitted under Section 1.2Person(s) exercising a Demand Right; and thereafter, to Persons with Other Registrable Securities.
(d) The Company Partnership shall be obligated to effect a maximum of five (5) Demand Registrations on Form S-1 (or similar long-form registration forms) and an unlimited number of registrations on Form S-3 (or similar short-form registration forms) for the Apax Group. The Partnership shall not be obligated to effect any Demand Registration within a period of six (6) months after the effective date of any previous Registration Statement. The Partnership may defer not more than ten registrations under this Section 1.3. Such registrations two (2) times for a period not to exceed 90 days in the aggregate during any 12-month period from each receipt of the request to file a Registration Statement for a Demand Registration if the Board of Directors in good faith determines that such Demand Registration might reasonably be expected to have a materially adverse effect on any proposal or plan by the Partnership or any of its Subsidiaries to engage in any acquisition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other material transactions; provided, that in such event, the Apax Requesting Holders shall be on Form S-3 when the Company entitled to withdraw such request and, if such request is eligible to use that form under SEC ruleswithdrawn, but otherwise may be on Form S-1. No registration statement initiated by Holders hereunder such Demand Registration shall not count as a registration under Demand Registration of such Person(s).
(e) In connection with any Demand Registration pursuant to this Section 1.3 unless and until 11.2, each party to this Agreement shall vote, or cause to be voted, all Equity Securities over which it shall have been declared effective. Any registration requested under this Section 1.3 which shall not become effective solely by reason has the power to vote or direct the voting to effect any stock or unit split which, in the opinion of the refusal managing underwriter, is necessary to facilitate the effectiveness of such Demand Registration.
(f) Any holder of Registrable Securities shall be entitled to withdraw such holder’s request to participate in any Demand Registration that is an underwritten offering at any time prior to the execution and delivery of the Holders participating therein to proceed with the registration shall count as a registration effected under this Section 1.3 unless and until the Company shall have been reimbursed for the Registration Expenses incurred by it in connection therewithrelated underwriting agreement.
Appears in 1 contract
Samples: Limited Partnership Agreement (Epicor International Holdings, Inc.)
Demand Registrations. (a1) At any time after If the first anniversary of Corporation shall receive a written request (specifying that it is being made pursuant to this Section 2.11(b)(1)) from the date of this Agreement, if the Company receives in writing a request Berkshire Members requesting that the Company effect the Corporation file a registration statement under the Securities Act or a similar document pursuant to any other statute then in effect corresponding to the Securities Act, covering the registration of Registrable Securities, of with a minimum aggregate offering price of $20,000,000 (as determined with reference to the number of shares proposed to be sold in Shares then owned by such registration multiplied by the average closing price, or if no closing price is availableBerkshire Members, the mean of the bid and asked prices, over the fifteen trading days preceding the date Corporation shall promptly deliver a notice of such written demand), the Company will:
(i) promptly give written notice of the proposed registration request to all other Holders; and
(ii) as soon as practicableMembers. Members may, prepare and file and use commercially reasonable efforts to cause to become effective such registration statement as may be so requested and as would permit or facilitate the sale and distribution of such portion of the Registrable Securities as is specified in such request, together with such additional portion of the Registrable Securities of any Holder(s) joining in such request as may be specified in a by written request given notice to the Company Corporation given within twenty twenty-five (25) days after receipt of the written notice from the Company specified in Section 1.3(a)(i).
(b) If the underwriter managing the offering advises the Holders who have requested inclusion of their Registrable Securities in such registration statement that marketing considerations require a limitation on the number of shares offered, such limitation shall be imposed pro rata among such Holders who requested inclusion of Registrable Securities in such registration statement according to the number of shares of Registrable Securities owned by each. Neither the Company nor any other stockholder may include shares in such registration statement without the consent of Holders of a majority copy of the Berkshire Members' request, elect to include Registrable Securities included therein if Shares held by them in the underwriter managing such offering advises registration requested by the Holders who have included Registrable Securities in such registration statement that the inclusion of such additional shares may either limit the number of Registrable Securities which can be sold or adversely affect the price at which such Registrable Securities can be sold.
Berkshire Members. The Corporation shall not later than one hundred eighty (c180) Notwithstanding Section 1.3(b), the Company shall have the right, exercisable by written notice to the initiating Holder(s) within thirty days after receipt by the Corporation of such a written request to effect from the Berkshire Members, file a registration statement with the Commission relating to such Registrable Shares as to which such request for a demand registration relates and the Corporation shall use its best efforts to cause the offering of such Registrable Shares to be registered under the Securities Act, to include the Company's shares in such registration, in which event such registration . The Corporation shall be deemed to be a Company-initiated registration, and the Holders shall have the right to include their Registrable Securities and shares of Class A Common Stock, as the case may be, therein to the extent permitted under Section 1.2.
(d) The Company shall not be obligated to effect more than ten only two (2) registrations under pursuant to this Section 1.3. Such registrations shall be on Form S-3 when the Company is eligible to use 2.11(b)(1); provided, however, that form under SEC rules, but otherwise may be on Form S-1. No no registration statement initiated by Holders hereunder shall count as a registration under this Section 1.3 initiated hereunder unless and until it shall have been declared effective. Any consummated.
(2) If, pursuant to Section 2.11(c), the total amount of Registrable Shares that all Stockholders request to be included in an offering made pursuant to this Section 2.11(b) exceeds the amount of securities that the underwriters reasonably believe compatible with the success of the offering, then the Corporation will include in such registration only the number of securities which, in the good faith opinion of such underwriters, can be sold, and Stockholders who requested that Registrable Securities be included in such registration shall be entitled to include Registrable Securities pro rata based on the number of Registrable Shares each of them owns.
(3) The underwriter of any registration requested under this Section 1.3 which 2.11(b) shall not become effective solely be selected by reason of the refusal of Berkshire Members and shall be reasonably acceptable to the Holders participating therein to proceed with the Corporation.
(4) The Corporation may include shares in any registration shall count as a registration effected requested under this Section 1.3 unless 2.11(b) if the inclusion of such shares would not limit the number of Registrable Shares sought to be included by the Berkshire Members making the demand and until the Company other Members which have elected to participate in such registration, or reduce the offering price thereof; provided that if the number of shares sold by the Berkshire Members and such other Members is less than one-half of the number of shares subject to such registration as a result of the shares included by the Corporation, then such registration shall be deemed to have been reimbursed for effected under Section 2.11(c) hereof and shall not count as one of the Registration Expenses incurred two registrations which may be requested by it in connection therewiththe Berkshire Members making the demand pursuant to this Section 2.11(b).
Appears in 1 contract
Demand Registrations. (a) At any time after Subject to the first anniversary of the date terms and conditions of this AgreementSection 2.1, if the Company receives in writing a request that the Company effect the registration under the Securities Act of Registrable Securities, of with a minimum aggregate offering price of $20,000,000 (as determined with reference to the number of shares proposed to be sold in such registration multiplied by the average closing price, or if no closing price is available, the mean of the bid and asked prices, over the fifteen trading days preceding the date of such written demand), the Company will:
(i) promptly give written notice of the proposed registration to all other Holders; and
(ii) as soon as practicable, prepare and file and use commercially reasonable efforts to cause to become effective such registration statement as may be so requested and as would permit or facilitate the sale and distribution of such portion of the Registrable Securities as is specified in such request, together with such additional portion of the Registrable Securities of any Holder(s) joining in such request as may be specified in a written request given to the Company within twenty days after receipt of the written notice from the Company specified in Section 1.3(a)(i).
(b) If the underwriter managing the offering advises the Holders who have requested inclusion of their Registrable Securities in such registration statement that marketing considerations require a limitation on the number of shares offered, such limitation shall be imposed pro rata among such Holders who requested inclusion of Registrable Securities in such registration statement according to the number of shares of Registrable Securities owned by each. Neither the Company nor any other stockholder may include shares in such registration statement without the consent of Holders of a majority of the Registrable Securities included therein if the underwriter managing such offering advises the Holders who have included Registrable Securities in such registration statement that the inclusion of such additional shares may either limit the number of Registrable Securities which can be sold or adversely affect the price at which such Registrable Securities can be sold.
(c) Notwithstanding Section 1.3(b), the Company shall have the right, exercisable by written notice to the initiating Holder(s) within thirty days after receipt of a request to effect a registration under the Securities Act, to include the Company's shares in such registration, in which event such registration shall be deemed to be a Company-initiated registration, and the Holders each Original Shareholder shall have the right to include their require the Company to register under the Securities Act the offer and sale of all or a portion of such Original Shareholder's Registrable Securities (each such registration of such Registrable Securities and shares of Class A Common Stockany other securities registered together therewith, as the case may be, therein a "Demand Registration") by delivering to the extent permitted under Section 1.2.
Company a written demand therefor (deach, a "Demand Notice"); provided, however, that (i) The Company no Original Shareholder shall not be obligated entitled to effect any Demand Registration unless its Combined Percentage Entitlement is at least 5% as of the date on which it delivers the Demand Notice to the Company, (ii) no Original Shareholder shall be entitled to effect more than ten registrations under this Section 1.3four Demand Registrations, (iii) each Demand Notice must relate to Registrable Securities with a fair market value of at least US$25 million as of the date on which the Demand Notice is delivered to the Company, and (iv) once a Demand Notice has been delivered, no other Demand Notice may be delivered by any Original Shareholder or be effective until the delivered Demand Notice has been withdrawn or the distribution of the Registered Securities covered thereby has been completed. Such registrations The Original Shareholder who delivers the Demand Notice in Each Demand Notice shall specify the kind and aggregate amount of Registrable Securities to be registered and the intended methods of distribution thereof [, which must be reasonably likely to result in a wide distribution of the Registrable Securities being offered]. The Company shall be deemed to have effected a Demand Registration if (i) the Registration Statement relating to such Demand Registration is declared effective by the Commission and remains effective for at least 180 days (or such shorter period ending on Form S-3 when the first date on which all the Registrable Securities covered by such Registration Statement have been sold or such Registration Statement is withdrawn by the Demanding Shareholder); provided, however, that no Demand Registration shall be deemed to have been effected if (x) such Demand Registration, after it has become effective, is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court or (y) the conditions to closing specified in the purchase agreement or underwriting agreement entered into in connection with such registration are not satisfied or (ii) at any time after the delivery of a Demand Notice and prior to the effectiveness of the related Registration Statement, the preparation of such Registration Statement is discontinued or such Registration Statement is withdrawn or abandoned at the request of the Demanding Shareholder unless either (x) the Demanding Shareholder has elected to pay and has paid to the Company is eligible to use that form under SEC rules, but otherwise may be on Form S-1. No registration statement initiated by Holders hereunder shall count as a registration under this Section 1.3 unless and until it shall have been declared effective. Any registration requested under this Section 1.3 which shall not become effective solely by reason of the refusal of the Holders participating therein to proceed with the registration shall count as a registration effected under this Section 1.3 unless and until the Company shall have been reimbursed for in full the Registration Expenses incurred by it in connection therewithwith such Registration Statement or (y) such discontinuation, withdrawal or abandonment is requested by the Demanding Shareholder because of the occurrence of a significant negative change in market conditions or Jupiter's business, financial condition, results of operations or prospects since the date on which the Demand Notice was delivered.
Appears in 1 contract
Samples: Registration Rights Agreement (Kabuskiki Kaisha Jyupitaterekomu)
Demand Registrations. (a) At any time after the first anniversary of the date of this Agreement, if If the Company receives in writing shall receive a written request that therefor from the Initiating Holders, the Company effect the shall prepare and file as soon as practicable a registration statement under the Securities Act covering the shares of Registrable Securities, Securities which are the subject of with a minimum aggregate offering price of $20,000,000 (as determined with reference such request and shall use its reasonable best efforts to the number of shares proposed to be sold in cause such registration multiplied by the average closing price, statement to become effective; provided such registration statement covers Registrable Securities issued or if no closing price is available, the mean issuable upon conversion of not less than 25% of the bid and asked pricesShares purchased by Investor (the "Minimum Share Amount"); and, over provided, further, not more than one such request may be made in any 12-month period. In addition, upon the fifteen trading days preceding the date receipt of such written demand)request, the Company will:
(i) shall promptly give written notice of the proposed registration to all other Holders; and
(ii) as soon as practicableHolders that such registration is to be effected. The Company shall include in such registration statement such shares of Registrable Securities for which it has received written requests to register by such other record holders within 30 days after the delivery of the Company's written notice to such other record holders. The Company shall be obligated to prepare, prepare and file and use commercially reasonable efforts to cause to become effective such two registration statement as may be so requested and as would permit or facilitate statements pursuant to this Section 2.1. In the sale and distribution of such portion of event that the Registrable Securities as is specified in such request, together with such additional portion of the Registrable Securities of any Holder(s) joining in such request as may be specified in a written request given to the Company within twenty days after receipt of the written notice from the Company specified in Section 1.3(a)(i).
(b) If the underwriter managing the offering advises the Holders who have requested inclusion of their Registrable Securities in such registration statement that marketing considerations require a limitation on the number of shares offered, such limitation shall be imposed pro rata among such Holders who requested inclusion of Registrable Securities in such registration statement according to the number of shares of Registrable Securities owned by each. Neither the Company nor any other stockholder may include shares in such registration statement without the consent of Holders of a majority of the Registrable Securities included therein for which registration has been requested pursuant to this Section 2.1 determine for any reason not to proceed with a registration at any time before a registration statement has been declared effective by the Commission, and such registration statement, if theretofore filed with the underwriter managing such offering advises Commission, is withdrawn with respect to the Registrable Securities covered thereby, and the Holders who have included Registrable Securities in such registration statement that the inclusion of such additional shares may either limit the number of Registrable Securities which can be sold or adversely affect the price at which such Registrable Securities can agree to bear their own expenses incurred in connection therewith and to reimburse the Company for the Registration Fees incurred by it attributable to the registration of such Registrable Securities, then the Holders of such Registrable Securities shall not be sold.
(c) Notwithstanding deemed to have exercised their right to require the Company to register Registrable Securities pursuant to this Section 1.3(b)2.1. If, at the time any written request for registration is received by the Company pursuant to this Section 2.1, the Company shall have has determined to proceed with the right, exercisable by written notice to the initiating Holder(s) within thirty days after receipt actual preparation and filing of a request to effect a registration statement under the Securities ActAct in connection with the proposed offer and sale for cash of any of its securities by it or any of its security holders, to include the Company's shares in such registration, in which event such registration written request shall be deemed to be a Company-initiated registration, and the Holders shall have the right to include their Registrable Securities and shares of Class A Common Stock, as the case may be, therein to the extent permitted under Section 1.2.
(d) The Company shall not be obligated to effect more than ten registrations under this Section 1.3. Such registrations shall be on Form S-3 when the Company is eligible to use that form under SEC rules, but otherwise may be on Form S-1. No registration statement initiated by Holders hereunder shall count as a registration under this Section 1.3 unless and until it shall have been declared effective. Any registration requested under this given pursuant to Section 1.3 which shall not become effective solely by reason of the refusal of the Holders participating therein to proceed with the registration shall count as a registration effected under this Section 1.3 unless and until the Company shall have been reimbursed for the Registration Expenses incurred by it in connection therewith.2.2 hereof rather than this
Appears in 1 contract
Samples: Registration Rights Agreement (National Mercantile Bancorp)
Demand Registrations. (a) At any time after following the first six month anniversary of the date closing of this Agreementan IPO, if and until the Company receives fifth anniversary of the closing of an IPO, the Initiating Holders may request in writing a request that all or part of the Company effect the registration Preferred Registrable Securities shall be registered for sale under the Securities Act Act. Within twenty (20) days after receipt of Registrable Securities, of with a minimum aggregate offering price of $20,000,000 (as determined with reference to the number of shares proposed to be sold in any such registration multiplied by the average closing price, or if no closing price is available, the mean of the bid and asked prices, over the fifteen trading days preceding the date of such written demand)request, the Company will:
(i) promptly shall give written notice of the proposed registration such request to all other Holders; and
(ii) as soon as practicable, prepare and file and use commercially reasonable efforts to cause to become effective shall include in such registration statement as may be so requested all Preferred Registrable Securities held by all such Holders who wish to participate in such demand registration and as would permit or facilitate provide the sale and distribution of such portion Company with written requests for inclusion therein within fifteen (15) days after the receipt of the Company’s notice. Thereupon, the Company shall effect the registration of all Preferred Registrable Securities as is specified in such requestto which it has received requests for registration for sale, together with such additional portion of an underwriter, selected by the Registrable Securities of any Holder(s) joining in such request as may be specified in a written request given Initiating Holders and reasonably acceptable to the Company within twenty days after receipt of the written notice from the Company specified in Section 1.3(a)(i)Company.
(b) If The Company shall not be required to effect more than two (2) registrations under Section 1.2(a); provided, however, that any registration proceeding begun pursuant to Section 1.2(a) that is subsequently withdrawn at the underwriter managing request of the offering advises Initiating Holders shall count toward the two registration statements which the Initiating Holders who have requested inclusion the right to cause to effect pursuant to Section 1.2(a) unless the Initiating Holders reimburse the Company for all out-of-pocket expenses incurred by the Company in connection with such withdrawn registration; provided, however, that if at the time of such withdrawal, the Initiating Holders have learned of a material adverse change in the condition, business, or prospects of the Company from that known to the Initiating Holders at the time of their Registrable Securities in request and have withdrawn the request with reasonable promptness following disclosure by the Company of such registration statement that marketing considerations require a limitation on material adverse change, then the number Initiating Holders shall not be required to pay any of shares offeredsuch expenses, such limitation withdrawal shall be imposed pro rata among such Holders who requested inclusion of Registrable Securities in such not count as a registration statement according under Section 1.2, and the Investors shall retain their rights pursuant to the number of shares of Registrable Securities owned by each. Neither the Company nor any other stockholder may include shares in such registration statement without the consent of Holders of a majority of the Registrable Securities included therein if the underwriter managing such offering advises the Holders who have included Registrable Securities in such registration statement that the inclusion of such additional shares may either limit the number of Registrable Securities which can be sold or adversely affect the price at which such Registrable Securities can be soldSection 1.2.
(c) Notwithstanding any other provision of this Section 1.3(b)1.2, if any such registration contemplates an underwritten offering and if the managing underwriter advises the Initiating Holders in writing that in the managing underwriter’s opinion the number of securities requested to be included in such registration exceeds the number that can be sold in such offering without adversely affecting such underwriter’s ability to effect an orderly distribution of such securities, then the Company shall have so advise all Holders that would otherwise be underwritten pursuant hereto, and the rightCompany shall include in such registration, exercisable (i) first, the Preferred Registrable Securities requested to be included therein (the securities so included to be allocated between the Holders on a pro rata basis based on the number of Preferred Registrable Securities held by all such Holders), (ii) second, shares which the Company may wish to register for its own account, and (iii) third, other securities requested and entitled to be included in such registration; provided, however, that in any event all Preferred Registrable Securities must be included in such registration prior to any other securities of the Company. If any Holder disapproves of the terms of any such underwriting, such Holder may elect to withdraw therefrom by written notice to the initiating Holder(sCompany and the underwriter, delivered at least twenty (20) within thirty days after receipt prior to the effective date of a request to effect a the registration under the statement. Any Preferred Registrable Securities Act, to include the Company's shares in excluded or withdrawn from such registration, in which event such registration underwritten public offering shall be deemed to be a Company-initiated withdrawn from the registration, and the Holders shall have the right to include their Registrable Securities and shares of Class A Common Stock, as the case may be, therein to the extent permitted under Section 1.2.
(d) The Company shall be entitled to include in any registration statement referred to in this Section 1.2, for sale in accordance with the method of disposition specified by the Initiating Holders, shares of Common Stock to be sold by the Company for its own account, provided that the price per share applicable to such registration shall not, in the opinion of the managing underwriters (if such method of disposition shall be an underwritten public offering), be reduced due to such Common Stock to be sold by the Company.
(e) Notwithstanding anything to the contrary in this Agreement, the Company shall not be obligated to effect more than ten registrations file and cause to become effective any registration statement under this Section 1.3. Such registrations shall be 1.2 or under Section 1.3 below (i) within a period of 180 days after the effective date of any registration statement of the Company (other than any registration statement on Form S-3 when S-4 (or any successor form) or relating to any employee stock option or stock purchase or similar plan or relating to any dividend reinvestment plan) under the Securities Act; (ii) if the Company provides notice to the Initiating Holders within 15 days of the request for a registration that the Company is eligible engaged in pursuing an underwritten public offering of its stock (the “Competing Offering”) in which the Initiating Holders may include Preferred Registrable Securities pursuant to use that form under SEC rulesSection 1.1 hereof; provided, but otherwise may be on Form S-1. No however, the Company’s obligation to file and cause to become effective a registration statement initiated by Holders hereunder shall count as a registration under this Section 1.2 or under Section 1.3 unless below shall be reinstated if the Company does not file a registration statement with respect to the Competing Offering with the Securities and until Exchange Commission within 90 days after it so notifies the Initiating Holders) and provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective; or (iii) if the Company provides to the Initiating Holders a certificate signed by the Chief Executive Officer of the Company stating that, in the good faith judgment of the Company’s Board of Directors (the “Board”), it would be seriously detrimental to the Company and its stockholders for a prospectus or registration statement (as applicable) to be filed at such time and it is therefore appropriate to defer the filing of such prospectus or registration statement, in which case the Company may direct that such request for a registration be delayed for a period not in excess of 90 days, provided that such right to delay a request may be exercised by the Company no more than once in any twelve month period and provided further that the Company shall have been declared effective. Any not register any securities for the account of itself or any other stockholder during such ninety (90) day period.
(f) Following the effectiveness of a registration requested statement (and the filings with any state securities commissions) filed under this Section 1.2 or under Section 1.3 below, the Company may (in the good faith judgment of the Board), subject to the provisions of Section 1.2 (g), direct the Holders to suspend sales of the Preferred Registrable Securities under such registration statement for such times as the Company reasonably may determine is necessary and advisable, (i) not to exceed in any event 90 days, and (ii) not to be used more than once in any twelve (12) month period, for any event for which shall not disclosure may be required under the securities laws, including the following events (a “Suspension Event”): (i) an underwritten primary offering by the Company where the Company is advised by the underwriters for such offering that sale of Preferred Registrable Securities under the registration statement would have a material adverse effect on the primary offering, or (ii) pending negotiations relating to or consummation of, a transaction or the occurrence of an event (x) that would require additional disclosure of material information by the Company in the registration statement (or such filings), (y) as to which the Company has a bona fide business purpose for preserving confidentiality or (z) which renders the Company unable to comply with Commission requirements, or (iii) the continued effectiveness of a registration statement would have a material adverse effect on any proposed or pending acquisition, merger, business combination or other material transaction involving the Company, in each case under circumstances that would make it impractical or inadvisable to cause the registration statement (or such filings) to become effective solely by reason or to promptly amend or supplement the registration statement on a post-effective basis, as applicable.
(g) In the case of an event which causes the Company to suspend the effectiveness of a registration statement filed under Section 1.2 or under Section 1.3, the Company, if it wishes to exercise its right to suspend the sale of securities, shall give notice (a “Suspension Notice”) to the Holders to suspend sales of the refusal Preferred Registrable Securities under such registration statement so that the Company may correct or update the registration statement (or such filings). Each Holder agrees that it will not effect any sales of the Preferred Registrable Securities pursuant to such registration statement (or such filings) at any time after it has received a Suspension Notice from the Company. If so directed by the Company, each Holder will deliver to the Company all copies of the prospectus covering the Preferred Registrable Securities held by it at the time of receipt of the Suspension Notice. The Holders participating therein may recommence effecting sales of the Preferred Registrable Securities pursuant to proceed with the registration statement (or such filings) following further notice to such effect (an “End of Suspension Notice”) from the Company, which End of Suspension Notice shall count be given by the Company as a soon as practicable following the conclusion of any Suspension Event and the effectiveness of any required amendment or supplement to the registration effected statement. The period of effectiveness of the registration that is subject to suspension under this Section 1.3 unless shall be extended for a period equal to the length of the suspension. The Company may not provide a Suspension Notice and until exercise its rights of suspension hereunder if its executive officers and directors are at such time permitted to engage in trades of the Company shall have been reimbursed for the Registration Expenses incurred by it in connection therewithCompany’s Common Stock (other than pursuant to a Rule 10b5-l trading plan).
Appears in 1 contract
Samples: Investors’ Rights Agreement (Forescout Technologies, Inc)
Demand Registrations. (a) At If requested by the underwriters for any time after the first anniversary of the date of this Agreement, if the Company receives in writing a request that the Company effect the registration under the Securities Act Underwritten Offering requested by Holders of Registrable Securities, of with Securities pursuant to a minimum aggregate offering price of $20,000,000 (as determined with reference to the number of shares proposed to be sold in such registration multiplied by the average closing price, Demand Registration under Section 5.1 or if no closing price is available, the mean of the bid and asked prices, over the fifteen trading days preceding the date of such written demand)5.2, the Company will:
(i) promptly give written notice of the proposed registration to all other Holders; and
(ii) as soon as practicable, prepare and file and use commercially reasonable efforts to cause to become effective such registration statement as may be so requested and as would permit or facilitate the sale and distribution of such portion of the Registrable Securities as is specified in such request, together shall enter into an underwriting agreement with such additional portion of the Registrable Securities of any Holder(s) joining underwriters for such offering, such agreement to be satisfactory in such request as may be specified in a written request given substance and form to the Company within twenty days after receipt of the written notice from the Company specified in Section 1.3(a)(i).
(b) If the underwriter managing the offering advises the Holders who have requested inclusion of their Registrable Securities in such registration statement that marketing considerations require a limitation on the number of shares offered, such limitation shall be imposed pro rata among such Holders who requested inclusion of Registrable Securities in such registration statement according to the number of shares of Registrable Securities owned by each. Neither the Company nor any other stockholder may include shares in such registration statement without the consent of Holders of a majority of the Registrable Securities to be included therein if in such underwriting, and to contain such representations and warranties by the underwriter managing Company and such offering advises other terms as are generally prevailing in agreements of that type, including indemnities no less favorable to the recipient thereof than those provided in Section 5.3. The Holders who have included of the Registrable Securities proposed to be distributed by such underwriters shall cooperate with the Company in such registration statement that the inclusion negotiation of such additional shares may either limit the number underwriting agreement and shall give consideration to the reasonable suggestions of the Company regarding the form thereof. Such Holders of Registrable Securities to be distributed by such underwriters shall be parties to such underwriting agreement, which can be sold or adversely affect underwriting agreement shall (i) contain such representations and warranties by, and the price at which such Registrable Securities can be sold.
(c) Notwithstanding Section 1.3(b)other agreements on the part of, the Company shall have to and for the right, exercisable benefit of such Holders of Registrable Securities as are customarily made by written notice issuers to selling stockholders in secondary underwritten public offerings and (ii) provide that any or all of the conditions precedent to the initiating Holder(s) within thirty days after receipt obligations of a request to effect a registration such underwriters under the Securities Act, to include the Company's shares in such registration, in which event such registration underwriting agreement also shall be deemed conditions precedent to the obligations of such Holders of Registrable Securities. Any such Holder of Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters other than representations, warranties or agreements regarding such Holder, such Xxxxxx’s title to the Registrable Securities, such Xxxxxx’s intended method of distribution and any other representations required to be a Company-initiated registrationmade by the Holder under applicable law, and the Holders shall have aggregate amount of the right to include their Registrable Securities and shares liability of Class A Common Stock, as the case may be, therein to the extent permitted under Section 1.2.
(d) The Company such Holder shall not be obligated exceed such Holder’s net proceeds from such Underwritten Offering and with respect to effect more than ten registrations under this Section 1.3. Such registrations liability for information, shall be on Form S-3 when limited to information provided by such Holder in writing for use in the Company is eligible to use that form under SEC rules, but otherwise may be on Form S-1. No registration statement initiated by Holders hereunder shall count as a registration under this Section 1.3 unless related Prospectus and until it shall have been declared effective. Any registration requested under this Section 1.3 which shall not become effective solely by reason of the refusal of the Holders participating therein to proceed with the registration shall count as a registration effected under this Section 1.3 unless and until the Company shall have been reimbursed for the Registration Expenses incurred by it in connection therewithStatement.
Appears in 1 contract
Samples: Joint Written Consent (Hawker Beechcraft Quality Support Co)
Demand Registrations. (ai) At any time after the first anniversary of the date of this Agreement, if If the Company receives in writing shall receive a written request (specifying that it is being made pursuant to this Section 9(b)) from Two Thirds Preferred Holders that the Company effect the file a registration statement under the Securities Act covering the registration for the offer and sale of Registrable Securities, of with a minimum aggregate offering price of $20,000,000 (then as determined with reference to the number of shares proposed to be sold in such registration multiplied by the average closing price, or if no closing price is available, the mean of the bid and asked prices, over the fifteen trading days preceding the date of such written demand)soon as practicable thereafter, the Company will:shall cause all such Registrable Securities to be registered under the Securities Act. The Series B, Series C, Series D and Series E Stockholders shall not be entitled to require the Company to cause to become effective more than two (2) registration statements pursuant to which Registrable Securities are sold pursuant to this Section 9(b).
(iii) If the Holders initiating the registration intend to distribute the Registrable Securities by means of an underwriting, they shall so advise the Company in their request. In the event such registration is underwritten, the right of the other Holders to participate shall be conditioned on such Holders' participation in such underwriting. Upon receipt of any such request, the Company shall promptly give written notice of the such proposed registration to all other Holders; and
(ii) as soon as practicable, prepare and file and use commercially reasonable efforts to cause to become effective such registration statement as may be so requested and as would permit or facilitate the sale and distribution of such portion of the Registrable Securities as is specified in such request, together with such additional portion of the Registrable Securities of any Holder(s) joining in such request as may be specified in a written request given to the Company within twenty days after receipt of the written notice from the Company specified in Section 1.3(a)(i).
(b) If the underwriter managing the offering advises the Holders who have requested inclusion of their Registrable Securities in such registration statement that marketing considerations require a limitation on the number of shares offered, such limitation shall be imposed pro rata among such Holders who requested inclusion of Registrable Securities in such registration statement according to the number of shares of Registrable Securities owned by each. Neither the Company nor any other stockholder may include shares in such registration statement without the consent of Holders of a majority of the Registrable Securities included therein if the underwriter managing such offering advises the Holders who have included Registrable Securities in such registration statement that the inclusion of such additional shares may either limit the number of Registrable Securities which can be sold or adversely affect the price at which such Registrable Securities can be sold.
(c) Notwithstanding Section 1.3(b), the Company Such Stockholders shall have the right, exercisable by giving written notice to the initiating Holder(s) Company within thirty (30) days after receipt the Company provides its notice, to elect to have included in such registration such of a their Registrable Securities as such Holders may request in such notice of the offering. Thereupon, the Company shall, as expeditiously as possible, use its best efforts to effect a the registration under of all Registrable Securities which the Company has been requested to so register. In the event the Series B, Series C, Series D and Series E Holders reasonably determine that the registration of Registrable Securities Actof the other Holders would interfere with or be detrimental to such offering, to include the Company's shares in such registrationSeries B, in which event such registration shall be deemed to be a Company-initiated registrationSeries C, Series D and the Series E Holders shall have the right right, upon written notice to include their such other Holders to limit such Registrable Securities and shares of Class A Common Stock, as the case may be, therein to be registered to the extent permitted under Section 1.2largest number which would not, in the reasonable opinion of such Series B, Series C, Series D and Series E Holders, result in such interference or detriment.
(d) The Company shall not be obligated to effect more than ten registrations under this Section 1.3. Such registrations shall be on Form S-3 when the Company is eligible to use that form under SEC rules, but otherwise may be on Form S-1. No registration statement initiated by Holders hereunder shall count as a registration under this Section 1.3 unless and until it shall have been declared effective. Any registration requested under this Section 1.3 which shall not become effective solely by reason of the refusal of the Holders participating therein to proceed with the registration shall count as a registration effected under this Section 1.3 unless and until the Company shall have been reimbursed for the Registration Expenses incurred by it in connection therewith.
Appears in 1 contract
Samples: Stockholders and Registration Rights Agreement (Visual Networks Inc)
Demand Registrations. (a) At any time From and after 180 days after the first anniversary effective date of the date initial public offering of this Agreementthe Company's Common Stock, if the Company receives in writing a request that the Company effect the registration under the Securities Act of Registrable Securities, of with a minimum aggregate offering price which at least 10% of $20,000,000 (as determined with reference to the number of shares proposed to then outstanding Registrable Securities shall be sold included in such registration multiplied by (which offering must have a per share price of not less than $5.00 per share (as adjusted for stock dividends, splits, combinations, reclassification and the average closing price, or if no closing price is available, the mean of the bid and asked prices, over the fifteen trading days preceding the date of such written demandlike)), the Company will:
(i) promptly give written notice of the proposed registration to all other Holders; and
(ii) as soon as practicable, prepare and file and use commercially its reasonable best efforts to cause to become effective such registration statement as may be so requested and as would permit or facilitate the sale and distribution of such portion of the Registrable Securities as is specified in such request, together with such additional portion of the Registrable Securities of any Holder(s) joining in such request as may be specified in a written request given to the Company within twenty thirty (30) days after receipt of the written notice from the Company specified in Section 1.3(a)(i)clause (i) above.
(b) If the underwriter managing the offering advises the Holders who have requested inclusion of their Registrable Securities in such registration statement that marketing considerations require a limitation on the number of shares offered, such limitation shall be imposed pro rata among such Holders who requested inclusion of Registrable Securities in such registration statement according to the number of shares of Registrable Securities owned by each. Neither the Company nor any other stockholder shareholder may include shares in such registration statement without the consent of Holders of a majority of the Registrable Securities included therein if the underwriter managing such offering advises the Holders who have included Registrable Securities in such registration statement that the inclusion of such additional shares may either limit the number of Registrable Securities which can be sold or adversely affect the price at which such Registrable Securities can be sold.
(c) Notwithstanding Section 1.3(b)) above, the Company shall have the right, exercisable by written notice to the initiating Holder(s) Holders within thirty (30) days after receipt of a their request to effect a registration under the Securities Act, to include the Company's shares in such registration, in which event such registration shall be deemed to be a Company-initiated registration, and the Holders shall have the right to include their Registrable Securities and shares of Class A Common Stock, as the case may be, therein to the extent permitted under Section 1.21.2 above.
(d) The Company shall not be obligated to effect more than ten three (3) registrations under this Section 1.3. Such registrations shall be on Form S-3 when the Company is eligible to use that form under SEC rules, but otherwise may be on Form S-1. No registration statement initiated by Holders hereunder shall count as a registration under this Section 1.3 unless and until it shall have been declared effective. Any registration requested under this Section 1.3 which shall not become effective solely by reason of the refusal of the Holders participating therein to proceed with the registration shall count as a registration effected under this Section 1.3 unless and until the Company shall have been reimbursed for the Registration Expenses incurred by it in connection therewith.hereunder
Appears in 1 contract
Samples: Registration Rights Agreement (Penson Worldwide Inc)
Demand Registrations. (a) At any time after the first anniversary of following the date on which all Conversion Shares have been registered for resale pursuant to Section 2 hereof (the “Permitted Request Date”), the Purchaser or a Holder or Holders owning more than 25% of this Agreement, if Registrable Securities (other than the Company receives in writing a Conversion Shares) (the “Initiating Holders”) may request that the Company effect file a Registration Statement providing for the registration resale of all Registrable Securities then held by the Initiating Holders by giving written notice (a “Demand Notice”) of such demand to the Company, in which case all Holders of Registrable Securities may have all of their Registrable Securities included on such Registration Statement, by providing written notice of acceptance to the Company. The Demand Notice shall describe the number of Registrable Securities intended to be disposed of and the intended method of disposition. The Company shall then prepare and file with the Commission on or prior to the Additional Filing Date, a “resale” Registration Statement providing for the resale of all Registrable Securities included in the Demand Notice for an offering to be made on a continuous basis pursuant to Rule 415. Any such Registration Statements shall be on Form S-1 (except if the Company is not then eligible to register for resale such Registrable Securities on Form S-1, in which case such registrations shall be on another appropriate form in accordance herewith and the Securities Act and the rules promulgated thereunder). Each such Registration Statement shall cover to the extent allowable under the Securities Act and the rules promulgated thereunder (including Rules 415 and 416), such indeterminate number of additional shares of Common Stock resulting from stock splits, stock dividends or similar transactions with respect to the Registrable Securities, of with a minimum aggregate offering price of $20,000,000 (as determined with reference to the number of shares proposed to be sold in such registration multiplied by the average closing price, or if no closing price is available, the mean of the bid and asked prices, over the fifteen trading days preceding the date of such written demand), the . The Company will:
shall (i) promptly give written notice of not permit any securities other than the proposed registration Registrable Securities to all other Holders; and
be included in any such Registration Statement and (ii) as soon as practicable, prepare and file and use commercially its reasonable best efforts to cause any such Registration Statement to become be declared effective under the Securities Act as promptly as possible after the filing thereof, but in any event prior to the applicable Effectiveness Date, and to keep any such registration statement Registration Statement continuously effective under the Securities Act until such date as may be so requested and as would permit is the earlier of (x) the date when all Registrable Securities covered by such Registration Statement have been sold or facilitate (y) the sale and distribution of such portion of date on which the Registrable Securities as is specified in such request, together with such additional portion of the Registrable Securities of any Holder(s) joining in such request as may be specified in a written request given sold without any restriction pursuant to Rule 144(k) as determined by the counsel to the Company within twenty days after receipt pursuant to a written opinion letter, addressed to the Company’s transfer agent to such effect (the “Effectiveness Period”). The Company shall request that the effective time of any such Registration Statement is 5:00 p.m. Eastern Time on the written notice from the Company specified in Section 1.3(a)(i)effective date.
(b) If In the underwriter managing the offering advises the Holders who have requested inclusion of their Registrable Securities in such registration statement event that marketing considerations require a limitation on the number of shares offered, such limitation shall be imposed pro rata among such Holders who requested inclusion of Registrable Securities in such registration statement according to the number of shares of Registrable Securities owned by each. Neither the Company nor any other stockholder may include shares in such registration statement without the consent of Holders of a majority is unable to register for resale under Rule 415 all of the Registrable Securities included therein if on any of the underwriter managing such offering advises Registration Statements that it has agreed to file pursuant to the Holders who have included Registrable Securities in such registration statement that first sentence of Section 2A(a) due to limits imposed by the inclusion Commission’s interpretation of such additional shares may either limit the number Rule 415 of Registrable Securities which can be sold or adversely affect the price at which such Registrable Securities can be sold.
(c) Notwithstanding Section 1.3(b)Regulation C, the Company shall have the right, exercisable by written notice to the initiating Holder(s) within thirty days after receipt of will file a request to effect a registration Registration Statement under the Securities Act, to include Act with the Company's shares in Commission covering the resale by the Purchasers of such registration, in which event such registration shall be deemed to be a Company-initiated registration, and lesser amount of the Holders shall have the right to include their Registrable Securities and shares (in the proportions set forth in the last sentence of Class A Common Stock, as the case may be, therein to the extent permitted under Section 1.2.
(d) The Company shall not be obligated to effect more than ten registrations under this Section 1.3. Such registrations shall be on Form S-3 when 2A(b)) as the Company is eligible able to register pursuant to the Commission’s interpretation of Rule 415 and use its reasonable best efforts to have such Registration Statement become effective as promptly as possible, and, when permitted to do so by the Commission, to file subsequent registration statement(s) under the Securities Act with the Commission covering the resale of any Registrable Securities that form under SEC rules, but otherwise may be on Form S-1. No registration statement initiated by Holders hereunder shall count as a registration under were omitted from its prior Registration Statements filed with the Commission pursuant to this Section 1.3 unless 2A(b) and until it shall use its reasonable best efforts to have been such registration declared effectiveeffective as promptly as possible. Any registration requested under this Section 1.3 which shall not become effective solely by reason In furtherance of the refusal Company’s obligations set forth in the preceding sentence, the parties hereby agree that in the event that any Holder shall deliver to the Company a written notice at any time after the later of (x) the date which is six months after the Effectiveness Date of the Holders participating therein latest Registration Statement filed pursuant to proceed with Section 2A(a) or 2A(b) hereof, as applicable, or (y) the registration shall count as a registration effected under this date on which all Registrable Securities registered on all of the prior Registration Statements filed pursuant to Section 1.3 unless 2A(a) and until 2A(b) hereof are sold, that the Company shall have been reimbursed for file, within 30 days following the date of receipt of such written notice, an additional Registration Expenses incurred by it in connection therewithStatement registering any Registrable Securities that were the subject of the applicable Demand Notice, but were omitted from such prior Registration Statements.
Appears in 1 contract
Samples: Registration Rights Agreement (International Imaging Systems Inc)
Demand Registrations. (a) At any time after Subject to the first anniversary of the date provisions and limitations of this AgreementSection 2.1, if the Company receives in writing Corporation shall receive a written request (a “Demand Registration Notice”) from any Holder (an “Initiating Holder”) that the Company Corporation effect a Registration Statement under the Securities Act of the Registrable Securities held by such Initiating Holder on the date thereof (a “Demand Registration”), then the Corporation shall, subject to the limitations of this Section 2.1, use its commercially reasonable efforts to effect the registration under the Securities Act of all Registrable Securities, of with a minimum aggregate offering price of $20,000,000 Securities that such Initiating Holder requests to be registered.
(as determined with reference to b) A Demand Registration Notice shall specify (i) the number of shares proposed Registrable Securities requested to be sold in registered, (ii) the anticipated per share price range for such offering (which range may be revised from time to time by the Initiating Holder by written notice to the Corporation to that effect), (iii) the intended methods of disposition and the name of the lead underwriter, if available, and (iv) subject to Section 2.1(f), whether such registration multiplied by shall be a “shelf” registration pursuant to Rule 415 under the average closing price, or if no closing price is availableSecurities Act (a “Shelf Registration”).
(c) Within 10 days after receipt of a Demand Registration Notice, the mean of the bid and asked prices, over the fifteen trading days preceding the date of such written demand), the Company will:
(i) promptly Corporation shall give written notice (a “Registration Notice”) of the proposed requested registration to all other Holders that are holders of Registrable Securities (the “Other Holders; ” and
, together with the Initiating Holder, the “Demanding Holders”) and shall include in such registration all Registrable Securities with respect to which the Corporation has received written requests from Other Holders (each of which requests shall specify the Other Holder, the number of Registrable Securities that such Other Holder elects to include in such registration and the intended method of disposition of such Registrable Securities) within 10 days after the receipt of the Registration Notice. The Corporation shall, as promptly as practicable, and in any event within 90 days after the date of the Demand Registration Notice, file a Registration Statement under the Securities Act covering (i) all Registrable Securities that the Initiating Holder requested to be registered (the “Demand Registrable Securities”), (ii) as soon as practicable, prepare and file and use commercially reasonable efforts any additional Registrable Securities requested to cause to become effective be included in such registration statement by any Other Holders, as may specified by notice given timely by each such Other Holders to the Corporation (the “Member Registrable Securities”), (iii) any newly issued or treasury securities of the Corporation which the Corporation seeks to have included in such registration (the “Corporation Registrable Securities”), and (iv) any securities of the Corporation proposed to be so requested and as would permit or facilitate included in such registration by holders of registration rights granted other than pursuant to this Agreement (the “Other Holder Registrable Securities”).
(d) A Demand Registration Notice (other than a Demand Registration Notice with respect to a Demand Registration that constitutes a Shelf Registration on Form S-3) shall only be binding on the Corporation if the sale of all Registrable Securities requested to be registered (pursuant to such Demand Registration Notice and distribution in response to the Demand Registration Notice) is reasonably expected to result in aggregate gross proceeds in excess of $20,000,000.
(e) If registration pursuant to this Section 2.1 involves an Underwritten Offering and the managing underwriter or underwriters advise the Corporation, in writing, that in its or their opinion the number of Registrable Securities and, if permitted hereunder, other securities requested to be included in such offering exceeds the number of Registrable Securities and other securities, if any, which can be sold therein without adversely affecting the Corporation or the marketability of the offering (an “Adverse Effect”), the Corporation shall include in such registration (i) first, subject to the following paragraph, all Demand Registrable Securities, (ii) second, subject to the following paragraph, all Member Registrable Securities, (iii) third, subject to the following paragraph, all Company Registrable Securities, and (iv) fourth, subject to the following paragraph, all Other Holder Registrable Securities. If such managing underwriter or underwriters advise the Corporation that only a portion of the Registrable Securities as is specified or shares of Class A Common Stock in such request, together with such additional portion any of the Registrable Securities of any Holder(sclauses (a) joining in such request as through (d) above may be specified in a written request given to the Company within twenty days after receipt of the written notice from the Company specified in Section 1.3(a)(i).
(b) If the underwriter managing the offering advises the Holders who have requested inclusion of their Registrable Securities included in such registration statement that marketing considerations require a limitation on the number of shares offered, without such limitation shall be imposed pro rata among such Holders who requested inclusion of Registrable Securities in such registration statement according to the number of shares of Registrable Securities owned by each. Neither the Company nor any other stockholder may include shares in such registration statement without the consent of Holders of a majority of the Registrable Securities included therein if the underwriter managing such offering advises the Holders who have included Registrable Securities in such registration statement that the inclusion of such additional shares may either limit the number of Registrable Securities which can be sold or adversely affect the price at which such Registrable Securities can be sold.
(c) Notwithstanding Section 1.3(b)Adverse Effect, the Company Corporation shall have the right, exercisable by written notice to the initiating Holder(s) within thirty days after receipt of a request to effect a registration under the Securities Act, to include the Company's shares in such registration, in which event such registration shall be deemed to be a Company-initiated registration, and the Holders shall have the right to include their Registrable Securities and shares of Class A Common Stock, as Stock from the case may be, therein holders of Registrable Securities in such clause on a pro rata basis based on the relative number of Registrable Securities requested to be so included in a registration (provided that any such amount thereby allocated to any such holder that exceeds such holder’s request shall be reallocated among the remaining requesting holders in a like manner). Any Person (other than Holders of Registrable Securities) that participates in Demand Registrations which are not at the Corporation’s expense must pay their share of any Registration Expenses. Notwithstanding anything herein to the extent permitted under Section 1.2contrary, if the managing underwriter or managing underwriters (if any) determine that the inclusion of the number of Registrable Securities proposed to be included in any such offering would have an Adverse Effect, the Corporation may exclude such number of Registrable Securities as necessary or desirable to negate such Adverse Effect.
(df) The Company Notwithstanding any other provisions of this Section 2.1, in no event shall not any Holder be permitted to (i) request more than one (1) Demand Registration in any twelve (12)-month period; provided that in no event shall the Corporation be obligated to effect more than ten registrations file a Registration Statement relating to any registration request under this Section 1.3. Such registrations shall be on Form S-3 when 2.1 within a period of 180 days after the Company is eligible effective date of any other Registration Statement relating to use that form under SEC rules, but otherwise may be on Form S-1. No any registration statement initiated by Holders hereunder shall count as a registration request under this Section 1.3 unless and until it shall have been declared effective. Any registration requested under this Section 1.3 which shall not become effective solely by reason of the refusal of the Holders participating therein 2.1 or to proceed with the registration shall count as a any registration effected under this Section 1.3 unless 2.2; or (ii) request a Demand Registration if, at the time such request is made, a Shelf Registration is effective and until both includes all of the Company shall have been reimbursed for the Registration Expenses incurred by it in connection therewithRegistrable Securities of such Holder and permits an Underwritten Offering of such Registrable Securities.
Appears in 1 contract
Samples: Investment Agreement (Hf2 Financial Management Inc.)
Demand Registrations. (a) At any time Beginning on the date which is 270 days after the first anniversary of the date of this Agreement, if upon the Company receives in writing receipt of a written request from the holders of a majority of the Investor Registrable Securities ("Initiating Investors") that the Company effect Corporation file a Registration Statement under the Act covering the registration under for the Securities Act offer and sale of Registrable Securities, of with a minimum aggregate offering price of $20,000,000 (as determined with reference to the number of shares proposed to be sold in such registration multiplied by the average closing price, all or if no closing price is available, the mean of the bid and asked prices, over the fifteen trading days preceding the date part of such written demandInitiating Investors' Registrable Securities (an "Investor Demand Registration"), the Company will:
(i) promptly give written notice of the proposed registration to all other Holders; and
(ii) as soon as practicable, prepare the Corporation shall give written notice to all other Holders of such Investor Demand Registration and file shall cause all Registrable Securities that the Initiating Investors have requested be registered to be registered under the Act, subject to and use commercially reasonable efforts in accordance with the terms, conditions, procedures and limitations contained in this Agreement. A maximum of two such Investor Demand Registrations may be effected pursuant to cause this Section 2(a), and a registration requested pursuant to this Section 2(a) shall not be deemed to have been effected unless a Registration Statement with respect thereto has become effective, remained continuously effective without interruption in accordance with the provisions of Section 5(a) hereof, and the Registered Securities shall have been disposed of in accordance with the plan of distribution set forth therein. The Initiating Investors may terminate an Investor Demand Registration prior to the filing of a Registration Statement relating thereto, or require the Corporation to withdraw promptly any Registration Statement which has been filed pursuant to this Section 2 but which has not become effective under the Act, and such registration statement as may shall not be so requested deemed to be an Investor Demand Registration if either (i) it agrees to pay the costs and as would permit or facilitate the sale and distribution expenses of such portion of the Registrable Securities registration as set forth in Section 8 below or (ii) such withdrawal is specified in such request, together with such additional portion of the Registrable Securities of any Holder(s) joining in such request as may be specified in a written request given to the Company within twenty days after receipt of the written accompanied by notice from the Company specified Initiating Investors that, in Section 1.3(a)(i)the good faith exercise of its reasonable judgment, there has occurred either (x) a material adverse change in the business, results of operations, financial condition or prospects of the Corporation, (y) a material adverse change in the United States financial markets which makes it inadvisable to proceed with the registration, or (z) a misstatement or omission in any preliminary prospectus which makes it inadvisable to proceed with the registration.
(b) If the underwriter managing the offering advises the Holders who have requested inclusion of their Registrable Securities in such registration statement that marketing considerations require a limitation Beginning on the number date on which the Investors have received $35 Million of shares offeredAggregate Proceeds (as determined pursuant to Section 9(g) below), such limitation shall be imposed pro rata among such Holders who requested inclusion upon the receipt of Registrable Securities in such registration statement according to a written request from the number of shares of Registrable Securities owned by each. Neither the Company nor any other stockholder may include shares in such registration statement without the consent of Holders holders of a majority of the Management Registrable Securities included therein if ("Initiating Management Holders") that the underwriter managing Corporation file a Registration Statement under the Act covering the registration for the offer and sale of all or part of such offering advises the Holders who have included Initiating Management Holders' Registrable Securities in such registration statement that the inclusion of such additional shares may either limit the number of Registrable Securities which can be sold or adversely affect the price at which such Registrable Securities can be sold.
(c) Notwithstanding Section 1.3(ba "Management Demand Registration"), as soon as practicable, the Company Corporation shall have the right, exercisable by give written notice to all other Holders of such Management Demand Registration and shall cause all Registrable Securities that the initiating Holder(sInitiating Management Holders have requested be registered to be registered under the Act, subject to and in accordance with the terms, conditions, procedures and limitations contained in this Agreement. A maximum of two such Management Demand Registrations may be effected pursuant to this Section 2(b), and a registration requested pursuant to this Section 2(b) within thirty days after receipt shall not be deemed to have been effected unless a Registration Statement with respect thereto has become effective, remained continuously effective without interruption in accordance with the provisions of Section 5(a) hereof, and the Registered Securities shall have been disposed of in accordance with the plan of distribution set forth therein. The Initiating Management Holders may terminate a Management Demand Registration prior to the filing of a request Registration Statement relating thereto, or require the Corporation to effect a registration withdraw promptly any Registration Statement which has been filed pursuant to this Section 2(b) but which has not become effective under the Securities Act, to include the Company's shares in such registration, in which event and such registration shall not be deemed to be a Company-initiated registrationManagement Demand Registration if either (i) it agrees to pay the costs and expenses of such registration as set forth in Section 8 below or (ii) such withdrawal is accompanied by notice from the Initiating Management Holders that, and in the Holders shall have good faith exercise of its reasonable judgment, there has occurred either (x) a material adverse change in the right to include their Registrable Securities and shares business, results of Class A Common Stockoperations, as the case may be, therein to the extent permitted under Section 1.2.
(d) The Company shall not be obligated to effect more than ten registrations under this Section 1.3. Such registrations shall be on Form S-3 when the Company is eligible to use that form under SEC rules, but otherwise may be on Form S-1. No registration statement initiated by Holders hereunder shall count as a registration under this Section 1.3 unless and until it shall have been declared effective. Any registration requested under this Section 1.3 which shall not become effective solely by reason financial condition or prospects of the refusal of Corporation, (y) a material adverse change in the Holders participating therein United States financial markets which makes it inadvisable to proceed with the registration shall count as registration, or (z) a registration effected under this Section 1.3 unless and until misstatement or omission in any preliminary prospectus which makes it inadvisable to proceed with the Company shall have been reimbursed for the Registration Expenses incurred by it in connection therewithregistration.
Appears in 1 contract
Demand Registrations. (a) At any time after following the first anniversary Exercise Date (the “Permitted Request Date”), (i) a Holder or Holders owning 25% or more in interest of the date of this Agreement, if Registrable Securities (the Company receives in writing a “Initiating Holders”) may request that the Company effect file a Registration Statement providing for the registration resale of all Registrable Securities then held by the Initiating Holders by giving written notice (a “Demand Notice”) of such demand to the Company. The Demand Notice shall describe the number of Registrable Securities intended to be disposed of and the intended method of disposition. The Company shall then prepare and file with the Commission a “resale” Registration Statement providing for the resale of all Registrable Securities included in the Demand Notice for an offering to be made on a continuous basis pursuant to Rule 415. Such Registration Statement shall be on Form SB-2 (except if the Company is not then eligible to register for resale such Registrable Securities on Form SB-2, in which case such registrations shall be on another appropriate form in accordance herewith and the Securities Act and the rules promulgated thereunder). Such Registration Statement shall cover to the extent allowable under the Securities Act and the rules promulgated thereunder (including Rules 415 and 416), such indeterminate number of additional shares of Common Stock resulting from stock splits, stock dividends or similar transactions with respect to the Registrable Securities. The Company shall (i) not permit any securities other than the Registrable Securities to be included in any such Registration Statement and (ii) use its reasonable best efforts to cause any such 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 applicable Effectiveness Date, and to keep any such Registration Statement continuously effective under the Securities Act until such date as is the earlier of with a minimum aggregate offering price of $20,000,000 (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 with reference by the counsel to the number Company pursuant to a written opinion letter, addressed to the Company’s transfer agent to such effect (the “Effectiveness Period”). The Company shall request that the effective time of shares proposed any such Registration Statement is 5:00 p.m. Eastern Time on the effective date.
(b) In the event that the Company is unable to be sold in such registration multiplied register for resale under Rule 415 all of the Registrable Securities on the Registration Statement that it has agreed to file pursuant to the first sentence of this Section 2(a) due to limits imposed by the average closing price, or if no closing price is available, the mean Commission’s interpretation of the bid and asked prices, over the fifteen trading days preceding the date Rule 415 of such written demand)Regulation C, the Company will:
(i) promptly give written notice of will file a Registration Statement under the proposed registration to all other Holders; and
(ii) as soon as practicable, prepare and file and use commercially reasonable efforts to cause to become effective such registration statement as may be so requested and as would permit or facilitate Securities Act with the sale and distribution Commission covering the resale by the Holders of such portion lesser amount of the Registrable Securities as the Company is specified in able to register pursuant to the Commission’s interpretation of Rule 415 and use its reasonable best efforts to have such requestRegistration Statement become effective as promptly as possible, together and, when permitted to do so by the Commission, to file subsequent registration statement(s) under the Securities Act with the Commission covering the resale of any Registrable Securities that were omitted from its prior Registration Statements filed with the Commission pursuant to this Section 2(b) and use its reasonable best efforts to have such additional portion registration declared effective as promptly as possible. In furtherance of the Registrable Securities of Company’s obligations set forth in the preceding sentence, the parties hereby agree that in the event that any Holder(s) joining in such request as may be specified in a written request given Holder shall deliver to the Company within twenty days a written notice at any time after receipt the later of (x) the date which is six months after the Effectiveness Date of the written notice from latest Registration Statement filed pursuant to Section 2(a) or 2(b) hereof, as applicable, or (y) the Company specified in Section 1.3(a)(i).
(b) If the underwriter managing the offering advises the Holders who have requested inclusion of their date on which all Registrable Securities in such registration statement that marketing considerations require a limitation registered on the number of shares offered, such limitation shall be imposed pro rata among such Holders who requested inclusion of Registrable Securities in such registration statement according to the number of shares of Registrable Securities owned by each. Neither the Company nor any other stockholder may include shares in such registration statement without the consent of Holders of a majority all of the Registrable Securities included therein if the underwriter managing such offering advises the Holders who have included Registrable Securities in such registration statement prior Registration Statements filed pursuant to Section 2(a) and 2(b) hereof are sold, that the inclusion of such additional shares may either limit the number of Registrable Securities which can be sold or adversely affect the price at which such Registrable Securities can be sold.
(c) Notwithstanding Section 1.3(b), the Company shall have file, within 30 days following the right, exercisable by written notice to the initiating Holder(s) within thirty days after date of receipt of a request to effect a registration under the Securities Actsuch written notice, to include the Company's shares in such registration, in which event such registration shall be deemed to be a Company-initiated registration, and the Holders shall have the right to include their an additional Registration Statement registering any Registrable Securities and shares of Class A Common Stock, as that were the case may be, therein to the extent permitted under Section 1.2.
(d) The Company shall not be obligated to effect more than ten registrations under this Section 1.3. Such registrations shall be on Form S-3 when the Company is eligible to use that form under SEC rules, but otherwise may be on Form S-1. No registration statement initiated by Holders hereunder shall count as a registration under this Section 1.3 unless and until it shall have been declared effective. Any registration requested under this Section 1.3 which shall not become effective solely by reason subject of the refusal of the Holders participating therein to proceed with the registration shall count as a registration effected under this Section 1.3 unless and until the Company shall have been reimbursed for the applicable Demand Notice that were omitted from such prior Registration Expenses incurred by it in connection therewithStatements.
Appears in 1 contract
Samples: Registration Rights Agreement (Victory Divide Mining CO)
Demand Registrations. (ai) At Subject to Section 2.1(c), at any time or from time to time after the first anniversary Trigger Event, one or more members of the Xxxxxxx Group shall have the right to require the Company to file a registration statement under the Securities Act, or a prospectus supplement to an effective registration statement of the Company, if available, covering Registrable Securities with an aggregate value of $50,000,000 or greater (based on the market price of the Common Stock as of the date of this Agreementthe Demand Registration Request), if by delivering a written request therefor to the Company receives specifying the number of Registrable Securities to be included in such registration by such Holders and the intended method of distribution thereof. All such requests by any member of the Xxxxxxx Group pursuant to this Section 2.1(a)(i) are referred to as “Demand Registration Requests,” the registrations so requested are referred to as “Demand Registrations” and the Holders making such demand for registration are referred to as the “Initiating Holders.”
(ii) The Company, subject to Sections 2.1(a)(iii) and 2.5, shall include in a Demand Registration (A) the Registrable Securities of the Initiating Holders and (B) the Registrable Securities of any other Holder of Registrable Securities that shall have made a written request to the Company within the time limits specified below for inclusion in such registration (together with the Initiating Holders, the “Participating Holders”). Any such request from the other Holders must be delivered to the Company within 15 days after the initial demand is made by the Initiating Holders must specify the maximum number of Registrable Securities intended to be disposed of by such other Holders.
(iii) If any requested registration made pursuant to this Article II involves an underwritten offering and the joint lead managing underwriters of such offering shall advise the Company that, in their view, the number of securities requested to be included in such registration by the Participating Holders exceeds the largest number (the “Sale Number”) that can be sold in an orderly manner in such offering within a price range acceptable to the Majority Participating Holders, the Company shall allocate the number of such Registrable Securities (not to exceed the Sale Number) to be included in such registration in the manner designated by the Initiating Holders.
(iv) If, as a result of the proration provision of Section 2.1(a)(iii), any Holder shall not be entitled to include all Registrable Securities in a registration that such Holder has requested be included, such Holder may elect to withdraw its request to include Registrable Securities in such registration or may reduce the number requested to be included; provided, however, that (A) such request must be made in writing a request that prior to the Company earlier of the execution of the underwriting agreement or the execution of the custody agreement with respect to such registration and (B) such withdrawal shall be irrevocable and, after making such withdrawal, such Holder shall no longer have any right to include Registrable Securities in the registration as to which such withdrawal was made.
(v) The Company, as expeditiously as possible but subject to Section 2.1(c), shall use its commercially reasonable efforts to effect the such registration under the Securities Act of the Registrable SecuritiesSecurities that the Company has been so requested to register for distribution in accordance with such intended method of distribution.
(b) Registrations under this Section 2.1 shall be on such appropriate registration form of the SEC for the disposition of such Registrable Securities in accordance with the intended method of disposition thereof, of with a minimum aggregate offering price of $20,000,000 (as determined with reference which form shall be selected by the Company and shall be reasonably acceptable to the number of shares proposed Majority Participating Holders.
(c) The Demand Registration rights granted in Section 2.1(a) to be sold in such registration multiplied by the average closing price, or if no closing price is available, Holders are subject to the mean of the bid and asked prices, over the fifteen trading days preceding the date of such written demand), the Company willfollowing limitations:
(i) promptly give written notice the Company shall not be required to cause a registration pursuant to Section 2.1(a) to be filed within a period of 90 days after (A) the effective date of any other registration statement of the proposed registration Company filed pursuant to all other Holders; andthe Securities Act or (B) any registered offering of the Company’s common stock;
(ii) as soon as practicable, prepare and file and use commercially reasonable efforts to cause to become effective such registration statement as may be so requested and as would permit or facilitate if in the sale and distribution opinion of such portion of the Registrable Securities as is specified in such request, together with such additional portion of the Registrable Securities of any Holder(s) joining in such request as may be specified in a written request given outside counsel to the Company within twenty days after receipt of the written notice from the Company specified in Section 1.3(a)(i).
(b) If the underwriter managing the offering advises the Holders who have requested inclusion of their Registrable Securities in such Company, any registration statement that marketing considerations require a limitation on the number of shares offered, such limitation shall be imposed pro rata among such Holders who requested inclusion of Registrable Securities would require disclosure of information not otherwise then required by law to be publicly disclosed and, in the good faith judgment of the board of directors of the Company, such registration statement according disclosure is reasonably likely to the number of shares of Registrable Securities owned by each. Neither adversely affect any material financing, acquisition, corporate reorganization or merger or other material transaction or event involving the Company nor any other stockholder may include shares in such registration statement without or otherwise have a material adverse effect on the consent of Holders of Company (a majority of the Registrable Securities included therein if the underwriter managing such offering advises the Holders who have included Registrable Securities in such registration statement that the inclusion of such additional shares may either limit the number of Registrable Securities which can be sold or adversely affect the price at which such Registrable Securities can be sold.
(c) Notwithstanding Section 1.3(b“Valid Business Reason”), the Company shall have the right, exercisable by written notice to the initiating Holder(s) within thirty days after receipt may postpone or withdraw a filing of a request registration statement or prospectus supplement, as applicable, relating to effect a Demand Registration Request until such Valid Business Reason no longer exists, but in no event shall the Company avail itself of such right for more than 90 days, in the aggregate, in any period of 365 consecutive days; and the Company shall give notice of its determination to postpone or withdraw a registration under statement or prospectus supplement, as applicable, and of the Securities Act, to include fact that the Company's shares in Valid Business Reason for such registrationpostponement or withdrawal no longer exists, in which event such registration shall be deemed to be a Company-initiated registrationeach case, and promptly after the Holders shall have the right to include their Registrable Securities and shares of Class A Common Stock, as the case may be, therein to the extent permitted under Section 1.2.occurrence thereof;
(diii) The the Company shall not be obligated to effect more than ten registrations two (or if a Bonus Demand Event has occurred, three) Demand Registrations in the aggregate under this Section 1.3. Such registrations shall be on Form S-3 when 2.1(a) for the Holders; and
(iv) the Company is eligible shall not be obligated to use that form under SEC ruleseffect any registration after April 24, but otherwise may be on Form S-12019. No If the Company shall give any notice of postponement or withdrawal of any registration statement initiated by Holders hereunder or prospectus supplement, as applicable, pursuant to clause (ii) above, the Company shall count not register any equity security of the Company during the period of postponement or withdrawal. Each Holder of Registrable Securities agrees that, upon receipt of any notice from the Company that the Company has determined to withdraw any registration statement or prospectus supplement, as applicable, pursuant to clause (ii) above, such Holder will discontinue its disposition of Registrable Securities pursuant to such registration statement or prospectus supplement, as applicable. If the Company shall have withdrawn or prematurely terminated a registration filed under this Section 1.3 unless and until it shall have been declared effective. Any registration requested under this Section 1.3 which 2.1(a)(i), the Company shall not become be considered to have effected an effective solely by reason registration for the purposes of the refusal of the Holders participating therein to proceed with the registration shall count as a registration effected under this Section 1.3 unless and Agreement until the Company shall have filed a new registration statement or prospectus supplement, as applicable, covering the Registrable Securities covered by the withdrawn registration and, if applicable, such registration shall have been reimbursed declared effective and shall not have been withdrawn. If the Company shall give any notice of withdrawal or postponement of a registration, at such time as the Valid Business Reason that caused such withdrawal or postponement no longer exists (but in no event more than 90 days after the date of the postponement or withdrawal), the Company shall use its commercially reasonable efforts to effect the registration under the Securities Act of the Registrable Securities covered by the withdrawn or postponed registration in accordance with this Section 2.1 unless the request for such Demand Registration has been withdrawn by the requesting Holders.
(d) A Holder may withdraw its Registrable Securities from a Demand Registration at any time prior to the execution of a written commitment with an underwriter or purchaser to sell such Registrable Securities. If all such Participating Holders do so, the Company shall cease all efforts to secure registration and such registration nonetheless shall be deemed a Demand Registration for purposes of this Section 2.1 unless (i) the withdrawal is made following withdrawal or postponement of such registration by the Company pursuant to a Valid Business Reason as contemplated by Section 2.1(c), (ii) the withdrawal is based on the reasonable determination of the underwriters for the offering being made pursuant to such registration that there has been, since the date of the Demand Registration Expenses Request, a material adverse change in the business of the Company or (iii) the Holders who requested such registration shall have paid or reimbursed the Company for all of the out-of-pocket fees and expenses incurred by it the Company in connection therewithwith the withdrawn registration.
(e) A Demand Registration shall not be deemed to have been effected and shall not count as such (i) unless a registration with respect thereto has become effective and has remained effective for a period of at least 90 days or such shorter period during which all Registrable Securities covered by such registration have been sold or withdrawn, or, if such registration relates to an underwritten offering, such period as, in the opinion of counsel for the underwriter(s), is required by law for delivery of a prospectus in connection with the sale of Registrable Securities by an underwriter or dealer, (ii) if, after the applicable registration statement with respect thereto has become effective, it or the applicable prospectus supplement becomes subject to any stop order, injunction or other order or requirement of the SEC or other governmental agency or court for any reason other than solely by reason of an act or omission of the Participating Holders, (iii) if it is withdrawn by the Company pursuant to a Valid Business Reason as contemplated by Section 2.1(c) or (iv) if the conditions to closing applicable to the Company specified in the purchase agreement or underwriting agreement entered into in connection with such Demand Registration are not satisfied, other than solely by reason of some act or omission of the Participating Holders.
(f) In the case of any underwritten offering pursuant to a Demand Registration, the Majority Participating Holders and the Company shall each appoint one of two joint lead managing underwriters for such offering.
Appears in 1 contract
Demand Registrations. (a) At On any time two (2) occasions after the first anniversary of the date of this Agreement, if subject to the Company receives conditions set forth in writing a this Agreement, including without limitation the conditions set forth in Section 2(b) below, one or more Holders holding at least forty percent (40%) of the Registrable Securities then held by all Holders may request (the "Initiating Holders") that the Company effect cause to be filed with the Commission and cause to become effective a registration statement (a "Demand Registration Statement") under the Securities Act relating to the sale by such Holders of their Registrable Securities in accordance with the terms hereof. Upon receipt of any such request, the Company shall give written notice of such proposed registration to all Holders of Registrable Securities. Such Holders shall have the right, by giving written notice to the Company within fifteen (15) business days after such notice referred to in the preceding sentence has been given by the Company, to elect to have included in the Demand Registration Statement such of their Registrable Securities as each Holder may request in such notice of election. Thereupon, the Company shall as soon as practicable thereafter cause such Demand Registration Statement to be filed and declared effective by the Commission for all Registrable Securities which the Company has been requested to register. The Company shall in no event be obligated to effect under this Section 2 more than two (2) demand registrations. If the managing underwriter of an underwritten offering with a minimum aggregate offering price of $20,000,000 (as determined with reference respect to which registration has been requested by any Holder pursuant to this Section 2 has advised the Company that, in such underwriter's good faith judgment, the number of shares proposed securities to be sold in such registration multiplied offering by the average closing priceCompany and persons other than the Company (collectively, "Selling Stockholders") is greater than the number which can be offered without adversely affecting such offering, then the Company may reduce the number of securities to be included in such offering to a number deemed satisfactory by the managing underwriter, provided, however, that the securities to be excluded shall be determined in the following order of priority: first, securities held by any Selling Stockholder not having contractual, incidental registration rights; second, securities held by any Selling Stockholder (not including the Holders) participating in such offering pursuant to the exercise of contractual piggyback registration rights (other than pursuant to the Merkxxx Xxxeement or if no closing price is availablethe Richmont Agreement), as determined on a pro rata basis (based upon the mean aggregate number of securities held by such Selling Stockholders); third, securities the Company proposes to sell and other securities of the bid and asked pricesCompany included in such registration; fourth, over the fifteen trading days preceding the date of such written demand), the Company will:
securities held by (i) promptly give written notice of the proposed registration to all other Holders; and
(ii) as soon as practicable, prepare and file and use commercially reasonable efforts to cause to become effective such registration statement as may be so requested and as would permit or facilitate the sale and distribution of such portion of the Registrable Securities as is specified any Selling Stockholder participating in such request, together with such additional portion of the Registrable Securities of any Holder(s) joining in such request as may be specified in a written request given to the Company within twenty days after receipt of the written notice from the Company specified in Section 1.3(a)(i).
(b) If the underwriter managing the offering advises the Holders who have requested inclusion of their Registrable Securities in such registration statement that marketing considerations require a limitation on the number of shares offered, such limitation shall be imposed pro rata among such Holders who requested inclusion of Registrable Securities in such registration statement according to the number of shares of Registrable Securities owned by each. Neither the Company nor any other stockholder may include shares in such registration statement without the consent of Holders of a majority of the Registrable Securities included therein if the underwriter managing such offering advises the Holders who have included Registrable Securities in such registration statement that the inclusion of such additional shares may either limit the number of Registrable Securities which can be sold or adversely affect the price at which such Registrable Securities can be sold.
(c) Notwithstanding Section 1.3(b), the Company shall have the right, exercisable by written notice to the initiating Holder(s) within thirty days after receipt of a request to effect a registration under the Securities Act, to include the Company's shares in such registration, in which event such registration shall be deemed to be a Company-initiated registration, and the Holders shall have the right to include their Registrable Securities and shares of Class A Common Stock, as the case may be, therein to the extent permitted under Section 1.2.
(d) The Company shall not be obligated to effect more than ten registrations under this Section 1.3. Such registrations shall be on Form S-3 when the Company is eligible to use that form under SEC rules, but otherwise may be on Form S-1. No registration statement initiated by Holders hereunder shall count as a registration under this Section 1.3 unless and until it shall have been declared effective. Any registration requested under this Section 1.3 which shall not become effective solely by reason of the refusal of the Holders participating therein to proceed with the registration shall count as a registration effected under this Section 1.3 unless and until the Company shall have been reimbursed for the Registration Expenses incurred by it in connection therewith.offering
Appears in 1 contract
Samples: Registration Rights Agreement (Marketing Specialists Corp)
Demand Registrations. (a) At any time after Any Holders shall have the first anniversary of right, on not more than four occasions in the date of this Agreementaggregate, if the Company receives in writing a request that the Company effect the registration to require Corel to register for offer and sale under the Securities Act of Registrable Securities, of with all or a minimum aggregate offering price of $20,000,000 (as determined with reference to the number of shares proposed to be sold in such registration multiplied by the average closing price, or if no closing price is available, the mean of the bid and asked prices, over the fifteen trading days preceding the date of such written demand), the Company will:
(i) promptly give written notice of the proposed registration to all other Holders; and
(ii) as soon as practicable, prepare and file and use commercially reasonable efforts to cause to become effective such registration statement as may be so requested and as would permit or facilitate the sale and distribution of such portion of the Registrable Securities then outstanding subject to the requirements of this Section 2. As promptly as is specified in practicable after Corel receives a notice from any such Holder or Holders (a "Demand Notice") demanding that Corel register for offer and sale under the Securities Act Registrable Securities consisting, as to each Registration, of an amount of Registrable Securities held by such Holder or Holders equal to at least the lesser of (i) 25% of the aggregate amount of Registrable Securities then outstanding or issuable and (ii) Registrable Securities having an estimated market value of Cdn$50 million, subject to Section 2(b), Corel shall (i) prepare and, within 60 days after such request, together file with such additional portion the Commission a Demand Registration Statement relating to the offer and sale of the Registrable Applicable Securities of on any applicable form as the Holder(s) joining in such who delivered the Demand Notice may reasonably request as may be specified in a written request given to the Company within twenty days after receipt of the written notice from the Company specified in Section 1.3(a)(i).
(b) If the underwriter managing the offering advises the Holders who have requested inclusion of their Registrable Securities in such registration statement that marketing considerations require a limitation on the number of shares offered, such limitation shall be imposed pro rata among such Holders who requested inclusion of Registrable Securities in such registration statement according to the number of shares of Registrable Securities owned by each. Neither the Company nor any other stockholder which may include shares a "shelf" Registration Statement for use in such registration statement without the consent of Holders of connection with a majority of the Registrable Securities included therein if the underwriter managing such delayed or continuous offering advises the Holders who have included Registrable Securities in such registration statement that the inclusion of such additional shares may either limit the number of Registrable Securities which can be sold or adversely affect the price at which such Registrable Securities can be sold.
(c) Notwithstanding Section 1.3(b), the Company shall have the right, exercisable by written notice to the initiating Holder(s) within thirty days after receipt of a request to effect a registration under Rule 415 promulgated under the Securities Act) and, thereafter, (ii) use reasonable efforts to include the Company's shares in cause such registration, in which event such registration shall be deemed Demand Registration Statement to be declared effective under the Securities Act as promptly as practicable after the date of filing of such Demand Registration Statement. Subject to Section 2(b), Corel shall use reasonable efforts to keep each Demand Registration Statement continuously effective in order to permit the Prospectus forming a Company-initiated registration, part thereof to be usable by the Electing Holders for resales of Applicable Securities for an Effectiveness Period ending on the earlier of (i) two years from the Effective Time of such Registration Statement and (ii) such time as all of such Applicable Securities have been disposed of by the Holders Electing Holders. Corel shall have the right to postpone (or, if necessary or advisable, withdraw) the filing, or delay the effectiveness, of a Registration Statement or offers and sales of Applicable Securities registered under a shelf Demand Registration Statement if the board of directors of Corel determines in good faith that such Registration would interfere with any pending financing, acquisition, corporate reorganization or other corporate transaction involving Corel or any of its subsidiaries and furnishes to the Electing Holders a copy of a resolution of the board of directors of Corel certified by the secretary of Corel stating such determination; provided, however, that Corel may postpone a Demand Registration or offers and sales of Applicable Securities under a shelf Demand Registration Statement no more than once in any 12 month period and that any such postponement period shall not exceed 90 days in the aggregate.Corel shall advise the Electing Holders of any such determination as promptly as practicable. Corel may include in any registration requested pursuant to Section 2(a) hereof other securities for sale for its own account or for the account of another Person, subject to the following sentence. In connection with an underwritten offering, if the managing underwriter or underwriters advise Corel and the Electing Holders in writing that in its or their Registrable opinion the number of securities requested to be registered exceeds the number which can be sold in such offering without materially adversely affecting the pricing, timing or likely success of the offering (with respect to any offering, the "Maximum Number"), Corel shall include such Maximum Number in such Registration as follows: (i) first, the Applicable Securities requested to be registered, pro rata among the Electing Holders in proportion to their ownership of such Applicable Securities and shares (ii) second, any other securities requested to be included in such Registration. For purposes of Class A Common Stockthis agreement, as an "underwritten offering" shall be an offering pursuant to which securities are sold to a broker-dealer or other financial institution or group thereof for resale by them to investors. The Holders requesting any Registration pursuant to Section 2(a) hereof shall have the case may be, therein right to withdraw such request (i) prior to the extent permitted under time the Demand Registration Statement in respect of such Registration has been declared effective, (ii) upon the issuance by a governmental agency or the Commission of a stop order, injunction or other order which interferes with such Registration, (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 as a result of default by the Electing Holders, (iv) such withdrawal is requested by the Holders because of the occurrence of a significant negative change in market conditions or Corel's business, financial condition, results of operations or prospects since the date of the initial Demand Notice, (v) if Corel avails itself of Section 1.2.
2(b) hereof, or (dvi) The Company if the Electing Holders are prevented pursuant to Section 2(c) hereof from selling any of the Applicable Securities requested to be registered; it being understood that such Registration shall be deemed not to have been requested for purposes of Section 2(a) hereof if the Holders requesting such Registration withdraw their request pursuant to (A) clause (i) above if such Holders agree to reimburse Corel for the reasonable out-of-pocket expenses it has incurred prior to such withdrawal in effecting such Registration, (B) clauses (ii), (iii), (iv) or (v) above or (C) clause (vi) above in circumstances where the Electing Holders are prevented from selling 50% or more of the Applicable Securities requested to be included in such Registration. If the Holders withdraw a request pursuant to Section 2(a) but Corel nevertheless determines to complete, within 30 days after such withdrawal, the Registration so requested as to securities other than the Applicable Securities, the Holders shall be entitled to participate in such Registration pursuant to Section 3 hereof, but in such case the Intended Offering Notice shall be required to be given to the Holders at least 10 business days prior to the anticipated filing date of the Registration Statement and the Holders shall be required to give the Piggy-back Notice no later than 5 business days after Corel's delivery of such Intended Offering Notice. In the event that any Registration pursuant to this Section 2 shall involve, in whole or in part, an underwritten offering, the managing underwriter or underwriters shall be selected by the Holders who delivered the Demand Notice subject to the consent of Corel, which consent shall not be obligated to effect more than ten registrations under this Section 1.3. Such registrations shall be on Form S-3 when the Company is eligible to use that form under SEC rules, but otherwise may be on Form S-1. No registration statement initiated by Holders hereunder shall count as a registration under this Section 1.3 unless and until it shall have been declared effective. Any registration requested under this Section 1.3 which shall not become effective solely by reason of the refusal of the Holders participating therein to proceed with the registration shall count as a registration effected under this Section 1.3 unless and until the Company shall have been reimbursed for the Registration Expenses incurred by it in connection therewithunreasonably withheld or delayed.
Appears in 1 contract
Demand Registrations. (a) At If the Company shall receive at any time after the first anniversary a written notice from Holders holding at least fifty percent (50%) of the date of this Agreementoutstanding Registrable Securities, if the Company receives in writing a request requesting that the Company effect the a registration statement (each, a “Demand Registration Statement”) under the Securities Act of Registrable Securities, of with respect to all or a minimum aggregate offering price of $20,000,000 (as determined with reference to the number of shares proposed to be sold in such registration multiplied by the average closing price, or if no closing price is available, the mean part of the bid and asked pricesRegistrable Securities held by such Holders, over the fifteen trading days preceding the date of such written demand), then the Company will:
shall: (i) promptly within ten (10) days of the receipt thereof, give written notice of the proposed registration such request to all other Holders; and
and (ii) effect as soon as practicable, prepare and file and use commercially reasonable efforts to cause to become effective such registration statement as may be so requested and as would permit or facilitate the sale and distribution of such portion in any event within ninety (90) days of the Registrable Securities as is specified in receipt of such request, together with such additional portion the registration under the Act of the all Registrable Securities of any Holder(s) joining in which such Holders request as may to be specified in a written request given registered by notice to the Company within twenty thirty (30) days after receipt of the mailing of the notice sent by the Company (each such registration, a “Demand Registration”). If the Holders initiating the Demand Registration request (the “Initiating Holders”) intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made and the Company shall include such information in the written notice from to all Holders referred to in the Company specified preceding paragraph. The underwriter will be selected by such Holders and shall be reasonably acceptable to Company. All Holders proposing to distribute their securities through such underwriting shall (together with the Company) enter into an underwriting agreement in Section 1.3(a)(i).
(b) If customary form with the underwriter managing or underwriters selected for such underwriting. Notwithstanding any other provision of this section, if the offering underwriter advises the Initiating Holders who have requested inclusion of their Registrable Securities in such registration statement writing that marketing considerations factors require a limitation on of the number of shares offeredto be underwritten, such limitation then the Initiating Holders shall be imposed pro rata among such so advise all Holders who requested inclusion of Registrable Securities in such registration statement according to that would otherwise be underwritten pursuant hereto, and the number of shares Registrable Securities that may be included in the underwriting shall be allocated among all Holders thereof, including the Initiating Holders, in proportion (as nearly as practicable) to the amount of Registrable Securities owned by each. Neither the Company nor any other stockholder may include shares in such registration statement without the consent of Holders of a majority of the Registrable Securities included therein if the underwriter managing such offering advises the Holders who have included Registrable Securities in such registration statement each Holder; provided, however, that the inclusion of such additional shares may either limit the number of Registrable Securities which can to be sold or adversely affect included in such underwriting shall not be reduced unless all other securities (including primary securities) are first excluded in their entirety from the price at which underwriting. Notwithstanding the foregoing, if the Company shall furnish to Holders requesting a Demand Registration a certificate signed by the Chief Executive Officer of the Company stating that in the good faith judgment of the Board of Directors of the Company it would be seriously detrimental to the Company and its stockholders for a registration statement to be filed and it is therefore essential to defer the filing of such Registrable Securities can be sold.
(c) Notwithstanding Section 1.3(b)registration statement, then the Company shall have the right, exercisable by written notice to the initiating Holder(s) within thirty days after receipt of a request to effect a registration under the Securities Act, to include the Company's shares in such registration, in which event such registration shall be deemed to be a Company-initiated registration, and the Holders shall have the right to include their Registrable Securities and shares defer taking action with respect to such filing for a period of Class A Common Stocknot more than thirty (30) days in the aggregate. In addition, as the case may be, therein to the extent permitted under Section 1.2.
(d) The Company shall not be obligated to effect more than ten registrations effect, or to take any action to effect, any Demand Registration after the Company has effected four (4) Demand Registrations, such registration statements have been declared effective and the sales of Registrable Securities under such Demand Registrations have closed. No incidental right under this Section 1.3. Such registrations 2(e) shall be on Form S-3 when the Company is eligible construed to use that form under SEC rules, but otherwise may be on Form S-1. No limit any other registration statement initiated by Holders hereunder shall count as a registration under this Section 1.3 unless and until it shall have been declared effective. Any registration requested under this Section 1.3 which shall not become effective solely by reason of the refusal of the Holders participating therein to proceed with the registration shall count as a registration effected under this Section 1.3 unless and until the Company shall have been reimbursed for the Registration Expenses incurred by it in connection therewithrequired hereunder.
Appears in 1 contract
Samples: Registration Rights Agreement (Aevi Genomic Medicine, Inc.)
Demand Registrations. (a) At any time after following the first six month anniversary of the date closing of this Agreementan IPO, if and until the Company receives fifth anniversary of the closing of an IPO, the Initiating Holders may request in writing a request that all or part of the Company effect the registration Preferred Registrable Securities shall be registered for sale under the Securities Act Act. Within twenty (20) days after receipt of Registrable Securities, of with a minimum aggregate offering price of $20,000,000 (as determined with reference to the number of shares proposed to be sold in any such registration multiplied by the average closing price, or if no closing price is available, the mean of the bid and asked prices, over the fifteen trading days preceding the date of such written demand)request, the Company will:
(i) promptly shall give written notice of the proposed registration such request to all other Holders; and
(ii) as soon as practicable, prepare and file and use commercially reasonable efforts to cause to become effective shall include in such registration statement as may be so requested all Preferred Registrable Securities held by all such Holders who wish to participate in such demand registration and as would permit or facilitate provide the sale and distribution of such portion Company with written requests for inclusion therein within fifteen (15) days after the receipt of the Company’s notice. Thereupon, the Company shall effect the registration of all Preferred Registrable Securities as is specified in such requestto which it has received requests for registration for sale, together with such additional portion of an underwriter, selected by the Registrable Securities of any Holder(s) joining in such request as may be specified in a written request given Initiating Holders and reasonably acceptable to the Company within twenty days after receipt of the written notice from the Company specified in Section 1.3(a)(i)Company.
(b) If The Company shall not be required to effect more than two (2) registrations under Section 1.2(a); provided, however, that any registration proceeding begun pursuant to Section 1.2(a) that is subsequently withdrawn at the underwriter managing request of the offering advises Initiating Holders shall count toward the two registration statements which the Initiating Holders who have requested inclusion the right to cause to effect pursuant to Section 1.2(a) unless the Initiating Holders reimburse the Company for all out-of-pocket expenses incurred by the Company in connection with such withdrawn registration; provided, however, that if at the time of such withdrawal, the Initiating Holders have learned of a material adverse change in the condition, business, or prospects of the Company from that known to the Initiating Holders at the time of their Registrable Securities in request and have withdrawn the request with reasonable promptness following disclosure by the Company of such registration statement that marketing considerations require a limitation on material adverse change, then the number Initiating Holders shall not be required to pay any of shares offeredsuch expenses, such limitation withdrawal shall be imposed pro rata among such Holders who requested inclusion of Registrable Securities in such not count as a registration statement according under Section 1.2, and the Investors shall retain their rights pursuant to the number of shares of Registrable Securities owned by each. Neither the Company nor any other stockholder may include shares in such registration statement without the consent of Holders of a majority of the Registrable Securities included therein if the underwriter managing such offering advises the Holders who have included Registrable Securities in such registration statement that the inclusion of such additional shares may either limit the number of Registrable Securities which can be sold or adversely affect the price at which such Registrable Securities can be soldSection 1.2.
(c) Notwithstanding any other provision of this Section 1.3(b)1.2, if any such registration contemplates an underwritten offering and if the managing underwriter advises the Initiating Holders in writing that in the managing underwriter’s opinion the number of securities requested to be included in such registration exceeds the number that can be sold in such offering without adversely affecting such underwriter’s ability to effect an orderly distribution of such securities, then the Company shall have so advise all Holders that would otherwise be underwritten pursuant hereto, and the rightCompany shall include in such registration, exercisable (i) first, the Preferred Registrable Securities requested to be included therein (the securities so included to be allocated between the Holders on a pro rata basis based on the number of Preferred Registrable Securities held by all such Holders), (ii) second, shares which the Company may wish to register for its own account, and (iii) third, other securities requested and entitled to be included in such registration; provided, however, that in any event all Preferred Registrable Securities must be included in such registration prior to any other securities of the Company. If any Holder disapproves of the terms of any such underwriting, such Holder may elect to withdraw therefrom by written notice to the initiating Holder(sCompany and the underwriter, delivered at least twenty (20) within thirty days after receipt prior to the effective date of a request to effect a the registration under the statement. Any Preferred Registrable Securities Act, to include the Company's shares in excluded or withdrawn from such registration, in which event such registration underwritten public offering shall be deemed to be a Company-initiated withdrawn from the registration, and the Holders shall have the right to include their Registrable Securities and shares of Class A Common Stock, as the case may be, therein to the extent permitted under Section 1.2.
(d) The Company shall be entitled to include in any registration statement referred to in this Section 1.2, for sale in accordance with the method of disposition specified by the Initiating Holders, shares of Common Stock to be sold by the Company for its own account, provided that the price per share applicable to such registration shall not, in the opinion of the managing underwriters (if such method of disposition shall be an underwritten public offering), be reduced due to such Common Stock to be sold by the Company.
(e) Notwithstanding anything to the contrary in this Agreement, the Company shall not be obligated to effect more than ten registrations file and cause to become effective any registration statement under this Section 1.3. Such registrations shall be 1.2 or under Section 1.3 below (i) within a period of 180 days after the effective date of any registration statement of the Company (other than any registration statement on Form S-3 when S-4 (or any successor form) or relating to any employee stock option or stock purchase or similar plan or relating to any dividend reinvestment plan) under the Securities Act; (ii) if the Company provides notice to the Initiating Holders within 15 days of the request for a registration that the Company is eligible engaged in pursuing an underwritten public offering of its stock (the “Competing Offering”) in which the Initiating Holders may include Preferred Registrable Securities pursuant to use that form under SEC rulesSection 1.1 hereof; provided, but otherwise may be on Form S-1. No however, the Company’s obligation to file and cause to become effective a registration statement initiated by Holders hereunder shall count as a registration under this Section 1.2 or under Section 1.3 unless below shall be reinstated if the Company does not file a registration statement with respect to the Competing Offering with the Securities and until Exchange Commission within 90 days after it so notifies the Initiating Holders) and provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective; or (iii) if the Company provides to the Initiating Holders a certificate signed by the Chief Executive Officer of the Company stating that, in the good faith judgment of the Company’s Board of Directors (the “Board”), it would be seriously detrimental to the Company and its stockholders for a prospectus or registration statement (as applicable) to be filed at such time and it is therefore appropriate to defer the filing of such prospectus or registration statement, in which case the Company may direct that such request for a registration be delayed for a period not in excess of 90 days, provided that such right to delay a request may be exercised by the Company no more than once in any twelve month period and provided further that the Company shall have been declared effective. Any not register any securities for the account of itself or any other stockholder during such ninety (90) day period.
(f) Following the effectiveness of a registration requested statement (and the filings with any state securities commissions) filed under this Section 1.2 or under Section 1.3 below, the Company may (in the good faith judgment of the Board), subject to the provisions of Section 1.2(g), direct the Holders to suspend sales of the Preferred Registrable Securities under such registration statement for such times as the Company reasonably may determine is necessary and advisable, (i) not to exceed in any event 90 days, and (ii) not to be used more than once in any twelve (12) month period, for any event for which shall not disclosure may be required under the securities laws, including the following events (a “Suspension Event”): (i) an underwritten primary offering by the Company where the Company is advised by the underwriters for such offering that sale of Preferred Registrable Securities under the registration statement would have a material adverse effect on the primary offering, or (ii) pending negotiations relating to or consummation of, a transaction or the occurrence of an event (x) that would require additional disclosure of material information by the Company in the registration statement (or such filings), (y) as to which the Company has a bona fide business purpose for preserving confidentiality or (z) which renders the Company unable to comply with Commission requirements, or (iii) the continued effectiveness of a registration statement would have a material adverse effect on any proposed or pending acquisition, merger, business combination or other material transaction involving the Company, in each case under circumstances that would make it impractical or inadvisable to cause the registration statement (or such filings) to become effective solely by reason or to promptly amend or supplement the registration statement on a post-effective basis, as applicable.
(g) In the case of an event which causes the Company to suspend the effectiveness of a registration statement filed under Section 1.2 or under Section 1.3, the Company, if it wishes to exercise its right to suspend the sale of securities, shall give notice (a “Suspension Notice”) to the Holders to suspend sales of the refusal Preferred Registrable Securities under such registration statement so that the Company may correct or update the registration statement (or such filings). Each Holder agrees that it will not effect any sales of the Preferred Registrable Securities pursuant to such registration statement (or such filings) at any time after it has received a Suspension Notice from the Company. If so directed by the Company, each Holder will deliver to the Company all copies of the prospectus covering the Preferred Registrable Securities held by it at the time of receipt of the Suspension Notice. The Holders participating therein may recommence effecting sales of the Preferred Registrable Securities pursuant to proceed with the registration statement (or such filings) following further notice to such effect (an “End of Suspension Notice”) from the Company, which End of Suspension Notice shall count be given by the Company as a soon as practicable following the conclusion of any Suspension Event and the effectiveness of any required amendment or supplement to the registration effected statement. The period of effectiveness of the registration that is subject to suspension under this Section 1.3 unless shall be extended for a period equal to the length of the suspension. The Company may not provide a Suspension Notice and until exercise its rights of suspension hereunder if its executive officers and directors are at such time permitted to engage in trades of the Company shall have been reimbursed for the Registration Expenses incurred by it in connection therewithCompany’s Common Stock (other than pursuant to a Rule 10b5-l trading plan).
Appears in 1 contract
Samples: Investors’ Rights Agreement (Forescout Technologies, Inc)
Demand Registrations. (a) At any time after the first anniversary of the date of this Agreement, if the Company receives in writing a request that the Company effect the registration under the Securities Act of Registrable Securities, of with is not legally eligible to file a minimum aggregate offering price of $20,000,000 (as determined with reference to the number of shares proposed to be sold in such registration multiplied by the average closing price, or if no closing price is availableShelf Registration Statement, the mean of the bid and asked prices, over the fifteen trading days preceding the date of such written demand), the Company will:
Holders constituting (i) promptly give written notice either or both of the proposed registration to all other Holders; and
(ii) as soon as practicable, prepare and file and use commercially reasonable efforts to cause to become effective such registration statement as may be so requested and as would permit or facilitate the sale and distribution of such portion a majority in interest of the Registrable Securities as is specified then held by the Initial Advent Holders and a majority in such request, together with such additional portion interest of the Registrable Securities then held by the Initial Xxxxxx Holders or (ii) the holders of any Holder(s) joining in such request as may be specified in a written request given to the Company within twenty days after receipt of the written notice from the Company specified in Section 1.3(a)(i).
(b) If the underwriter managing the offering advises the Holders who have requested inclusion of their Registrable Securities in such registration statement that marketing considerations require a limitation on the number of shares offered, such limitation shall be imposed pro rata among such Holders who requested inclusion of Registrable Securities in such registration statement according to the number of shares of Registrable Securities owned by each. Neither the Company nor any other stockholder may include shares in such registration statement without the consent of Holders of not less than a majority of the Registrable Securities included therein if the underwriter managing such offering advises the Holders who have included Registrable Securities in such registration statement that the inclusion of such additional shares may either limit the number of Registrable Securities which can be sold or adversely affect the price at which such Registrable Securities can be sold.
(c) Notwithstanding Section 1.3(b), the Company shall have the right, exercisable then held by written notice to the initiating Holder(s) within thirty days after receipt of a request to effect a registration under the Securities Act, to include the Company's shares in such registration, in which event such registration shall be deemed to be a Company-initiated registration, and the Holders shall have the right to include their request the Company to register all or part of the Registrable Securities and shares of Class A Common Stockunder the Securities Act (each such right, a “Demand Right”); provided, that each registration made pursuant to a Demand Right must include Registrable Securities in an amount not less than the Minimum Demand Amount. Subject to Section 2.1(d), if the Company shall receive a Request specifying a registration pursuant to a Demand Right, the Company shall file with the SEC, as expeditiously as reasonably possible after the case may beinitiation of a Demand Right, therein a Registration Statement relating to the extent permitted offer and sale of the Registrable Securities requested to be included therein by the Holders thereof (each such registration, but not including a Shelf Registration, a “Demand Registration”) in accordance with the methods of distribution elected by such Holders and shall use its best efforts to cause such Registration Statement to be declared effective under the Securities Act as expeditiously as reasonably possible thereafter. The Company shall use its best efforts to keep the Registration Statement relating to such Demand Registration continuously effective in order to permit the Prospectus forming a part thereof to be usable by the Holders, the underwriters and any brokers or dealers during the period set forth in Section 1.2.
(d) The 2.1(g). Notwithstanding the foregoing provisions, the Company shall not be obligated to effect more than ten registrations under effect, or to take any action to effect, any such Demand Registration pursuant to this Section 1.3. Such registrations shall be on Form S-3 when 2.1(a) after the Company is eligible has initiated two such registrations subsequent to use that form under SEC rules, but otherwise may be on Form S-1. No registration statement initiated by Holders hereunder shall count as a registration under the date hereof pursuant to this Section 1.3 unless and until it shall 2.1(a) (counting for these purposes only registrations which have been declared effectiveeffective and registrations which have been withdrawn by the Holders as to which the Holders have not borne the registration expenses pursuant to Section 2.6). Any A registration requested under shall not be counted as “effected” for purposes of this Section 1.3 which shall not become 2.1 until such time as the applicable registration statement has been declared effective solely by reason of the refusal of the Holders participating therein to proceed with the registration shall count as a registration effected under this Section 1.3 unless and until the Company shall have been reimbursed for the Registration Expenses incurred by it in connection therewithSEC.
Appears in 1 contract
Samples: Registration Rights Agreement (Lululemon Athletica Inc.)
