Common use of Form S-3 Demand Clause in Contracts

Form S-3 Demand. If at any time when it is eligible to use a Form S-3 registration statement, the Company receives a request from the Investor, the Company shall as soon as practicable, and in any event within thirty (30) days after the date such request is given by the Investor, file a Form S-3 registration statement under the Securities Act covering all Registrable Securities requested to be included by the Investor, subject to the limitations of Subsection 2.1(c), Subsection 2.1(d) and Subsection 2.3. Notwithstanding the foregoing obligations, if the Company furnishes to the Investor a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Company’s Board of Directors it would be materially detrimental to the Company and its stockholders for such registration statement to either become effective or remain effective for as long as such registration statement otherwise would be required to remain effective, because such action would (i) materially interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act, then the Company shall have the right to defer taking action with respect to such filing for a period of not more than sixty (60) days after the request of the Investor is given; provided, however, that the Company may not invoke this right more than once in any twelve (12) month period; and provided further that the Company shall not register any securities for its own account or that of any other stockholder during such thirty (30) day period other than an Excluded Registration. The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Subsection 2.1(a); (i) during the period that is sixty (60) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided, that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; or (ii) if the Investor proposes to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Subsection 2.1(b). The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Subsection 2.1(b) (i) during the period that is thirty (30) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration, provided, that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; or (ii) if the Company has effected two registrations pursuant to Subsection 2.1(b) within the twelve (12) month period immediately preceding the date of such request. A registration shall not be counted as “effected” for purposes of this Subsection 2.1(d) until such time as the applicable registration statement has been declared effective by the SEC.

Form S-3 Demand. If at any time when it is eligible to use a Form S-3 registration statement, the Company receives a request from Specified Stockholder(s) (the Investor“Initiating Stockholders”) to file a registration statement on Form S-3 with respect to outstanding Registrable Securities of such Stockholder(s) having an anticipated aggregate offering price, net of Selling Expenses, of at least $5,000,000, then the Company shall (i) within ten (10) days after the date such request is given, give notice pursuant to Section 2.1(b); and (ii) as soon as practicable, and in any event within thirty forty-five (3045) days after the date such request is given by the InvestorInitiating Stockholders, file a registration statement on Form S-3 registration statement under the Securities Act covering all Registrable Securities requested to be included in such registration by the InvestorInitiating Stockholders and by any other Stockholders, as specified by notice given by each such Stockholder to the Company in accordance with Section 2.1(b), and in each case, subject to the limitations of Subsection 2.1(c), Subsection Section 2.1(d) and Subsection 2.3. Section 2.1(e). (i) Notwithstanding the foregoing obligations, if the Company furnishes to the Investor Initiating Stockholders requesting a registration pursuant to this Section 2.1(a) a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Company’s Board of Directors it would be materially detrimental to the Company and its stockholders for such registration statement to either become effective or remain effective for as long as such registration statement otherwise would be required to remain effective, because such action would (i) materially interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act, then the Company shall have the right to defer taking action with respect to such filing for a period of not more than sixty (60) days after the request of the Investor Initiating Holders is given; provided, however, that the Company may not invoke this right more than once twice in any twelve (12) month period; and provided further that the Company shall not register any securities for its own account or that of any other stockholder during such thirty sixty (3060) day period other than an Excluded Registration. period. (ii) The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Subsection Section 2.1(a); (i) during the period that is sixty (60) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided, that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; or (ii) if the Investor proposes to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Subsection 2.1(b). The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Subsection 2.1(b) (ix) during the period that is thirty (30) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration, provided, that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; or (iiy) if the Company has effected two registrations pursuant to Subsection 2.1(bSection 2.1(a) within the twelve (12) month period immediately preceding the date of such request. A registration shall not be counted as “effected” for purposes of this Subsection 2.1(dSection 2.1(a)(ii) until such time as the applicable registration statement has been declared effective by the SECCommission.

Form S-3 Demand. (a) If at any time when it is eligible to use a Form S-3 registration statement, the Company receives a request from a majority in interest of the InvestorSeries D Investors (the “Initiating Holders”) that the Company file a Form S-3 registration statement with respect to the Capital Stock of such Series D Investors having an anticipated aggregate offering price, net of all underwriting discounts, selling commissions, and stock transfer taxes applicable to the sale of such Capital Stock, of at least $5 million, then the Company shall (i) within ten (10) days after the date such request is given, give a demand notice to all other Series D Investors; and (ii) as soon as practicable, and in any event within thirty forty-five (3045) days after the date such request is given by the InvestorInitiating Holders, file a Form S-3 registration statement under the Securities Act covering all Registrable Securities Capital Stock requested to be included in such registration by any Series D Investors, as specified by notice given by each such Series D Investor to the InvestorCompany within twenty (20) days of the date such demand notice is given, and in each case, subject to the limitations of Subsection 2.1(c), Subsection 2.1(dSections 6.1(c) and Subsection 2.3. 6.3. (b) Notwithstanding the foregoing obligations, if the Company furnishes to the Investor Series D Investors requesting a registration pursuant to this Section 6.1 a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Company’s Board of Directors it would be materially detrimental to the Company and its stockholders for such registration statement to either become effective or remain effective for as long as such registration statement otherwise would be required to remain effective, because such action would (i) materially interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or the Securities Exchange Act of 1934, as amended (the “Exchange Act”), then the Company shall have the right to defer taking action with respect to such filing, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for a period of not more than sixty (60) days after the request of the Investor Initiating Holders is given; provided, however, that the Company may not invoke this right more than once in any twelve (12) month period; and provided further that the Company shall not register any securities for its own account or that of any other stockholder during such thirty sixty (3060) day period other than an Excluded Registration. period. (c) The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Subsection 2.1(a)Section 6.1; (i) during the period that is sixty (60) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is one hundred and eighty (180) days after the effective date of, a Company-initiated registration, provided, that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; or (ii) if the Investor proposes to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Subsection 2.1(b). The Company shall not be obligated to effectcomplies with Section 6.2, or to take any action to effect, any registration pursuant to Subsection 2.1(b) (i) during the period that is thirty (30) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration, provided, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; or (ii) if the Company has effected two (2) registrations pursuant to Subsection 2.1(bSection 6.1(a) within the twelve (12) month period immediately preceding the date of such request. A registration shall not be counted as “effected” for purposes of this Subsection 2.1(dSection 6.1(c) until such time as the applicable registration statement has been declared effective by the Securities and Exchange Commission (the “SEC”).

Form S-3 Demand. (a) If at any time when it is eligible to use a Form S-3 registration statement, the Company receives a request from Holders of at least twenty percent (20%) of the InvestorRegistrable Securities then outstanding (inclusive of any Registrable Securities issuable upon conversion of any Preferred Stock then outstanding) that the Company file a Form S-3 registration statement with respect to outstanding Registrable Securities of such Holders having an anticipated aggregate offering price, net of Selling Expenses, of at least $25 million, then the Company shall (i) within ten (10) days after the date such request is given, give a Demand Notice to all Holders other than the Initiating Holders; and (ii) as soon as practicable, and in any event within thirty forty-five (3045) days after the date such request is given by the InvestorInitiating Holders, file a Form S-3 registration statement under the Securities Act covering all Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the InvestorCompany within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Subsection 2.1(c), Subsection 2.1(dSections 2.1(b) and Subsection 2.3. . (b) Notwithstanding the foregoing obligations, if the Company furnishes to the Investor Holders requesting a registration pursuant to this Section 2.1, a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Company’s board of directors (the “Board of Directors Directors”) it would be materially detrimental to the Company and its stockholders for such registration statement to either become effective or remain effective for as long as such registration statement otherwise would be required to remain effective, because such action would (i) materially interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act, then the Company shall have the right to defer taking action with respect to such filing, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for a period of not more than sixty ninety (6090) days after the request of the Investor Initiating Holders is given; provided, however, that the Company may not invoke this right more than once in any twelve (12) month period; and provided further that the Company shall not register any securities for its own account or that of any other stockholder during such thirty ninety (3090) day period other than an Excluded Registration. pursuant to a registration relating to the sale of securities to employees of the Company or a subsidiary pursuant to a stock option, stock purchase, or similar plan; a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities; or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered. (c) The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Subsection Section 2.1(a); (i) during the period that is sixty (60) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided, that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; or (ii) if the Investor proposes to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Subsection 2.1(b). The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Subsection 2.1(b) (i) during the period that is thirty (30) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration, provided, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; or (ii) if the Company has effected two registrations pursuant to Subsection 2.1(bSection 2.1(a) within the twelve (12) month period immediately preceding the date of such request. A registration shall not be counted as “effected” for purposes of this Subsection 2.1(dSection 2.1(c) until such time as the applicable registration statement has been declared effective by the SEC, unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Section 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1(c).

Form S-3 Demand. If at any time when it is eligible to use a Form S-3 registration statement, the Company receives a request from one or more Holders of any Registrable Securities then outstanding that the InvestorCompany file a Form S-3 registration statement with respect to outstanding Registrable Securities of such Holders having an anticipated aggregate offering price, net of Selling Expenses, of at least $[ ], then the Company shall (a) within ten (10) days after the date such request is given, give a Demand Notice to all Holders other than the Initiating Holders; and (b) use commercially reasonable efforts to as soon as practicable, and in any event within thirty forty-five (3045) days after the date such request is given by the InvestorInitiating Holders, file a Form S-3 registration statement under the Securities Act covering all Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the InvestorCompany within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Subsection 2.1(c), Subsection 2.1(dSection 2.2(d) and Subsection 2.3Section 2.4. Delay. Notwithstanding the foregoing obligations, if the Company furnishes to the Investor Holders requesting a registration pursuant to this Section 2.2 a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Company’s Board of Directors it would be materially detrimental to the Company and its stockholders for such registration statement to either become effective or remain effective for as long as such registration statement otherwise would be required to remain effective, because such action would (ia) materially interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company; (iib) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iiic) render the Company unable to comply with requirements under the Securities Act or Exchange Act, then the Company shall have the right to defer taking action with respect to such filing, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for a period of not more than sixty ninety (6090) days after the request of the Investor Initiating Holders is given; provided, however, that (i) the Company may not invoke this right more than once in any twelve (12) month period; period and provided further that (ii) the Company shall not register any securities for its own account or that of any other stockholder during such thirty ninety (3090) day period other than an Excluded Registration. Limitations. The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Subsection 2.1(a); (iSection 2(a) during the period that is sixty (60) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is one hundred eighty (180) days after the effective date of, a Company-initiated registrationregistration subject to Section 2.3 below, provided, that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; (b) after the Company has effected two registrations pursuant to Section 2.2(a) and such registrations have been declared or ordered effective; or (iic) if the Investor proposes Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Subsection 2.1(bSection 2.2(b). The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Subsection 2.1(bSection 2.2(b) (i) during the period that is thirty (30) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration, provided, that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; or (ii) if the Company has effected two registrations pursuant to Subsection 2.1(b) within the twelve (12) month period immediately preceding the date of such requestSection 2.2(b). A registration shall not be counted as “effected” for purposes of this Subsection 2.1(dSection 2.2(d) until such time as the applicable registration statement has been declared effective by the SEC, unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one registration on Form S-1 or S-3, as applicable, pursuant to Section 2.7, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.2(d).

Form S-3 Demand. If at any time when it is eligible to use a Form S-3 registration statement, the Company receives a request from Holders of Registrable Securities that the InvestorCompany file a Form S-3 registration statement with respect to outstanding Registrable Securities of such Holders having an anticipated aggregate offering price, net of Selling Expenses, of at least $30,000,000, then the Company shall (i) within ten (10) days after the date such request is given, give a Demand Notice to all Holders other than the Initiating Holders, if applicable, and any Other Holders; and (ii) as soon as practicable, and in any event within thirty forty-five (3045) days after the date such request is given by the InvestorInitiating Holders, file a Form S-3 registration statement under the Securities Act covering all Registrable Securities or equivalent securities requested to be included in such registration by any other Holders or Other Holders, as specified by notice given by each such Holder or Other Holder to the InvestorCompany within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the applicable limitations of Subsection 2.1(c), Subsection 2.1(dSections 2.1(f) and Subsection 2.3. (f) Notwithstanding the foregoing obligations, if the Company furnishes to the Investor Holders requesting or provided a registration pursuant to this Section 2.1 a certificate signed by the Company’s chief executive officer or chairman of the board stating that in the good faith judgment of the Company’s Board of Directors it would be materially detrimental to the Company and its stockholders for such registration statement to either become effective or remain effective for as long as such registration statement otherwise would be required to remain effective, because such action would (i) materially interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company; (ii) require premature disclosure of non-public material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) be prohibited under, or otherwise render the Company unable to comply with requirements under under, the Securities Act or Exchange Act, then the Company shall have the right to defer taking action with respect to such filing, and any time periods (and any associated liquidated damages, if any) with respect to filing or effectiveness thereof shall be tolled correspondingly, for a period of not more than sixty ninety (6090) days after the request of the Investor Initiating Holders is given; provided, however, that the Company may not invoke this right more than once twice in any twelve (12) month period; and provided further that the Company shall not register any securities for its own account or that of any other stockholder during such thirty (30) day period other than an Excluded Registration. The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Subsection 2.1(a); (i) during the period that is sixty (60) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided, that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; or (ii) if the Investor proposes to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Subsection 2.1(b). The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Subsection 2.1(b) (i) during the period that is thirty (30) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration, provided, that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; or (ii) if the Company has effected two registrations pursuant to Subsection 2.1(b) within the twelve (12) month period immediately preceding the date of such request. A registration shall not be counted as “effected” for purposes of this Subsection 2.1(d) until such time as the applicable registration statement has been declared effective by the SEC.

Form S-3 Demand. If at any time when it is eligible to use a Form S-3 S‑3 registration statement, the Company receives a request from the Investor that the Company file a Form S‑3 registration statement with respect to all or any portion of the Registrable Securities of Investor, then the Company shall as soon as reasonably practicable, and in any event within no later than thirty (30) days after the date such request is given by the Investor, file a Form S-3 S‑3 registration statement or any comparable or successor form or forms under the Securities Act covering all Registrable Securities requested to be included in such registration by the Investor, subject to the limitations of Subsection Subsections 2.1(c), Subsection 2.1(d(d) and Subsection 2.32.3 and use its best efforts to cause such registration to be effected as would permit or facilitate the sale and distribution of all of such Registrable Securities as specified in the request. Notwithstanding the foregoing obligations, if At such time as the Company furnishes to is qualified for the Investor use of a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Company’s Board of Directors it would be materially detrimental to the Company and its stockholders for such Form S-3 registration statement to either become effective or remain effective for as long as such registration statement otherwise would be required to remain effective, because such action would (i) materially interfere with a significant acquisition, corporate reorganizationstatement, or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has then appropriate form, for an offering to be made on a bona fide business purpose for preserving as confidential; or (iii) render the Company unable delayed on continuous basis pursuant to comply with requirements Rule 415 under the Securities Act or Exchange Actany successor rule thereto (a “Shelf Registration Statement”), then the Company holders of Registrable Securities shall have the right to defer taking action with respect to such filing for request registration under on a period of not more than sixty Shelf Registration Statement (60) days after a “Shelf Registration”). If the request of the Investor Shelf Registration Statement is given; provided, however, that initially filed on Form S-1 and thereafter the Company may not invoke this right more than once in any twelve (12) month period; and provided further that becomes eligible to use Form S-3 for secondary sales, the Company shall, as promptly as practicable, cause such Shelf Registration Statement to be amended, or shall not register any securities for its own account or that of any other stockholder during such thirty (30) day period other than an Excluded Registrationfile a new replacement Shelf Registration Statement on Form S-3. The Company shall not be obligated to effect, prepare and file with (or to take any action to effect, any registration pursuant to Subsection 2.1(a); (iconfidentially submit to) during the period that is sixty (60) days before the Company’s good faith estimate Commission a Shelf Registration Statement covering all of the date of filing of, and ending on a date Registrable Securities that is one hundred eighty (180) the holders thereof have requested to be included in such Shelf Registration within 30 days after the effective date of, a Company-initiated registration, provided, that on which the Company initial request is actively employing in good faith commercially given and shall use its reasonable efforts to cause such registration statement Shelf Registration Statement to become effective; or (ii) if the Investor proposes to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Subsection 2.1(b). The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Subsection 2.1(b) (i) during the period that is thirty (30) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration, provided, that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; or (ii) if the Company has effected two registrations pursuant to Subsection 2.1(b) within the twelve (12) month period immediately preceding the date of such request. A registration shall not be counted as “effected” for purposes of this Subsection 2.1(d) until such time as the applicable registration statement has been declared effective by the SECSEC as soon as practicable thereafter.