Common use of Form S 3 Shelf Registration Clause in Contracts

Form S 3 Shelf Registration. (a) After the closing of the Merger, the Company shall file a resale registration statement on Form S-3 (the “Resale Registration Statement”) in accordance with and pursuant to Rule 415 promulgated under the Securities Act (or any successor rule then in effect) and shall effect any related qualification or compliance as would permit or facilitate the sale and distribution of all or any portion of the Registrable Securities owned by the Holders, including by naming such Holders as selling securityholders, and shall use its commercially reasonable efforts to cause such Resale Registration Statement to become effective under the Act no later than the first date Registrable Securities may be sold by any OnCore Holder under its Lock-Up Agreement. (b) The Company shall use its reasonable best efforts to keep such Resale Registration Statement continuously effective under the Act in order to permit the prospectus forming a part thereof to be usable by the Holders until the date as of which there are no Registrable Securities outstanding and in no event prior to the applicable period referred to in Section 4(3) of the Act and Rule 174 thereunder. During the period that the Resale Registration Statement is effective, the Company shall supplement the prospectus contained in the Resale Registration Statement or make amendments to the Resale Registration Statement (whether or not required by the form on which the Registrable Securities are being registered), if required by the Act or if requested by any Holder, including to reflect any specific plan of distribution or method of sale, and shall use its reasonable best efforts to have any such amendments declared effective as soon as practicable after filing. (c) At any time and from time to time after the Resale Registration Statement has been declared effective by the Commission, any one or more Holders of Registrable Securities that in the aggregate hold at least 40% of the then total outstanding Registrable Securities may request to sell all or any portion of their Registrable Securities in an underwritten offering (including an “at-the-market offering” or a “registered direct offering”) that is registered pursuant to the Resale Registration Statement (each, an “Underwritten Shelf Takedown”); provided that in the case of any such Underwritten Shelf Takedown such Holder or Holders will be entitled to make such demand only if the total offering price to the public of the Registrable Securities to be sold in such offering is reasonably expected to exceed $20,000,000 in the aggregate. The Company shall, within five (5) days of the receipt of such demand, give written notice thereof to all other Holders, and shall include in such Underwritten Shelf Takedown all Registrable Securities with respect to which the Company has received written requests for inclusion therein within ten (10) Business Days after sending such written notice. (d) The Company shall not be obligated to effect, or take any action to effect, an Underwritten Shelf Takedown pursuant to this Section 1.2: (i) if Form S-3 is not available for such offering by the Holders; (ii) if such Underwritten Shelf Takedown would be priced within less than ninety (90) days after the pricing of a previous Underwritten Shelf Takedown or a Piggy-Back Underwritten Offering; and (iii) if the Company has already effected two (2) Underwritten Shelf Takedowns in the preceding twelve (12) months. (e) All Holders proposing to distribute their securities through an Underwritten Shelf Takedown shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by a majority in interest of participating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 1.2, if the underwriter advises the Company that marketing factors require a limitation on the number of securities to be underwritten, then the Company shall so advise all Holders participating in the Underwritten Shelf Takedown, and the number of shares that may be included therein shall be allocated to the Holders pro rata based on the number of Registrable Securities held by all such Holders. In no event shall any Registrable Securities held by Holders be excluded from such underwriting unless all other securities are first excluded.

Form S 3 Shelf Registration. (a) After the closing of the Merger, the Company Instinet shall file a resale use all reasonable efforts to qualify for registration statement on Form S-3 or any comparable or successor form or forms. After Instinet has qualified for the use of Form S-3, in addition to the rights contained in the foregoing provisions of this Article III, the Holders of Registrable Securities, shall have the right at any time, and from time to time, to request that Instinet prepare and file with the SEC a "shelf" registration statement (the “Resale "Shelf Registration Statement”") in accordance with and on the appropriate form for an offering to be made, covering all or part of the Registrable Securities, on a continuous or delayed basis pursuant to Rule 415 promulgated under the Securities Act (or any successor rule or similar provision then in effect) and shall effect any related qualification in the manner or compliance as would permit or facilitate manners designated by the sale and distribution of all or any portion Holders of the Registrable Securities owned participating in such offering (including, without limitation, one or more underwritten offerings). Instinet shall use all reasonable efforts to have the Shelf Registration Statement declared effective by the SEC as soon as practicable after such request is made and to keep such Shelf Registration Statement continuously effective and free of material misstatements or omissions (including the preparation and filing of any amendments and supplements necessary for that purpose) until the earlier of (i) the date on which all Holders have consummated the sale of all of such Holders' Registrable Securities registered under the Shelf Registration Statement or (ii) two years from the date the Shelf Registration Statement first became effective. Notwithstanding any other provision contained herein, including there shall be no limitation on the number of registrations on Form S-3 that may be requested and obtained by naming Holders pursuant to this Section 3.3. (b) With respect to any Shelf Registration Statement filed, or to be filed, pursuant to this Section 3.3, (i) if Instinet determines in the good faith judgment of the Board of Directors, such Holders registration would cause Instinet to disclose material non-public information which disclosure would be materially detrimental to Instinet or would materially interfere with any material financing, acquisition, corporate reorganization or merger or other transaction involving Instinet and any of its Subsidiaries and the Board of Directors concludes, as selling securityholdersa result of such potential disclosure or interference, that it is in the best interests of Instinet to defer the filing of such Shelf Registration Statement at such time, and (ii) Instinet shall furnish to the Holders' Representative a certificate signed by the chief executive officer of Instinet stating that in the good faith judgment of the Board of Directors, it would be materially detrimental to Instinet for such Shelf Registration Statement to be filed in the near future and that it is, therefore, in the best interests of Instinet to defer the filing of such Shelf Registration Statement, then Instinet shall have the right to defer such filing, provided that such deferral, together with any other deferral or suspension of its obligations under Section 3.1 or Section 3.3, shall not be effected more than twice in any twelve-month period or for a period of more than one hundred and twenty (120) days, in the aggregate, for all such deferrals or suspensions over such twelve-month period. (c) Instinet agrees, if necessary, to supplement or amend the Shelf Registration Statement, as required by the rules, regulations or instructions applicable to the registration form used by Instinet for such Shelf Registration Statement or by the Securities Act or as otherwise required by this Agreement, and shall use its commercially all reasonable efforts to cause have such Resale Registration Statement to become effective under the Act no later than the first date Registrable Securities may be sold by any OnCore Holder under its Lock-Up Agreement. (b) The Company shall use its reasonable best efforts to keep such Resale Registration Statement continuously effective under the Act in order to permit the prospectus forming a part thereof to be usable by the Holders until the date as of which there are no Registrable Securities outstanding supplements and in no event prior to the applicable period referred to in Section 4(3) of the Act and Rule 174 thereunder. During the period that the Resale Registration Statement is amendments declared effective, the Company shall supplement the prospectus contained in the Resale Registration Statement or make amendments to the Resale Registration Statement (whether or not required by the form on which the Registrable Securities are being registered)if required, if required by the Act or if requested by any Holder, including to reflect any specific plan of distribution or method of sale, and shall use its reasonable best efforts to have any such amendments declared effective as soon as practicable after filing. (cd) At any time and from time A registration will not be deemed to time after the Resale have been effected pursuant to a Shelf Registration Statement unless the Shelf Registration Statement with respect thereto has been declared effective by the CommissionSEC and Instinet has complied in all material respects with its obligations under this Agreement with respect thereto; provided, any one or more Holders however, that if after the Shelf Registration Statement has been declared effective, the offering of Registrable Securities pursuant to such Shelf Registration Statement is interfered with by any stop order, injunction, or other order or requirement of the SEC or any other governmental agency or court, such Shelf Registration Statement will be deemed not to have been effective during the period of such interference until the offering of Registrable Securities pursuant to such Shelf Registration Statement may legally resume. (i) If Instinet determines in the good faith judgment of the Board of Directors, the availability of the Shelf Registration Statement for use would cause Instinet to disclose material non-public information which disclosure would be materially detrimental to Instinet or would materially interfere with any material financing, acquisition, corporate reorganization or merger or other transaction involving Instinet and any of its Subsidiaries and the Board of Directors concludes, as a result of such potential disclosure or interference, that it is in the best interests of Instinet to suspend the use of such Shelf Registration Statement at such time, and (ii) Instinet shall furnish to each Holder a certificate signed by the chief executive officer of Instinet stating that in the aggregate hold at least 40% good faith judgment of the Board of Directors, it would be materially detrimental to Instinet for such Shelf Registration Statement to be available for use in the near future and that it is, therefore, in the best interests of Instinet to suspend the use of such Shelf Registration Statement, then total outstanding Registrable Securities may request Instinet shall have the right to sell suspend the use of such Shelf Registration Statement, provided that such suspension, together with any other suspension or deferral of its obligations under Section 3.1 or Section 3.3, shall not be effected more than twice in any twelve-month period or for a period of more than one hundred and twenty (120) days, in the aggregate, for all such suspensions or deferrals over such twelve-month period. (f) In the event that any portion of their Registrable Securities registration pursuant to this Section 3.3 shall involve, in whole or in part, an underwritten offering (including an “at-the-market offering” or , the Holders of a “registered direct offering”) that is registered pursuant to majority of the Resale Registration Statement (each, an “Underwritten Shelf Takedown”); provided that in the case of any such Underwritten Shelf Takedown such Holder or Holders will be entitled to make such demand only if the total offering price to the public aggregate number of the Registrable Securities to be sold in such offering is reasonably expected registered shall have the right to exceed $20,000,000 in the aggregate. The Company shall, within five (5) days of the receipt of such demand, give written notice thereof to all other Holders, and shall include in such Underwritten Shelf Takedown all Registrable Securities with respect to which the Company has received written requests for inclusion therein within ten (10) Business Days after sending such written notice. (d) The Company shall not be obligated to effect, or take any action to effect, designate an Underwritten Shelf Takedown pursuant to this Section 1.2: (i) if Form S-3 is not available for such offering by the Holders; (ii) if such Underwritten Shelf Takedown would be priced within less than ninety (90) days after the pricing of a previous Underwritten Shelf Takedown or a Piggy-Back Underwritten Offering; and (iii) if the Company has already effected two (2) Underwritten Shelf Takedowns in the preceding twelve (12) months. (e) All Holders proposing to distribute their securities through an Underwritten Shelf Takedown shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by from the List, which List shall be delivered to the Holders' Representative as promptly as practicable upon determination that an underwritten offering will be conducted. The Holders of a majority in interest of participating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 1.2, if the underwriter advises the Company that marketing factors require a limitation on the aggregate number of securities to be underwritten, then the Company shall so advise all Holders participating in the Underwritten Shelf Takedown, and the number of shares that may be included therein shall be allocated to the Holders pro rata based on the number of Registrable Securities held by all such shall notify Instinet in writing of their selection of the Holders. In no event shall any Registrable Securities held by Holders be excluded from such underwriting unless all other securities are first excluded' Underwriters as promptly as practicable following receipt of the List.

Form S 3 Shelf Registration. IXC shall have the right to request and have effected up to one registration every six months of Registrable Securities on Form S-3 or any successor form or, if Form S-3 or any successor form is not available, any appropriate form under the Act (athe "Shelf Registration Statement") After for an offering to be made on a continuous basis covering all the closing Registrable Securities (the "Shelf Registration") (such request shall be in writing and shall state the number of shares of Registrable Securities to be disposed of and the intended method of disposition of such shares by IXC) provided that the Registrable Securities for which such registration is requested are not eligible for sale by IXC under Rule 144(k) of the MergerSecurities Act. Subject to the provisions of applicable law, the Company shall will use its reasonable best efforts to (i) file a resale the Shelf Registration Statement to effect the registration statement on Form S-3 (the “Resale Registration Statement”) in accordance with and pursuant to Rule 415 promulgated under the Securities Act (or any successor rule then in effect) and shall effect any related qualification or compliance as would permit or facilitate the sale and distribution of all or any portion shares of the Registrable Securities owned by within 30 days of such request and (ii) cause the Holders, including by naming such Holders as selling securityholders, and shall use its commercially reasonable efforts to cause such Resale Shelf Registration Statement to become effective under the Act no later than on or prior to the first date Registrable Securities may be sold by any OnCore Holder under its Lock-Up Agreement. 45 days from the date of filing and (biii) The Company shall use its reasonable best efforts to keep such Resale the Shelf Registration Statement continuously effective for 60 days from the date the Registration Statement becomes effective under the Act Act. All expenses in order to permit the prospectus forming connection with a part thereof to be usable by the Holders until the date as of which there are no Registrable Securities outstanding and in no event prior to the applicable period referred to in Section 4(3) of the Act and Rule 174 thereunder. During the period that the Resale Registration Statement is effective, the Company shall supplement the prospectus contained in the Resale Registration Statement or make amendments to the Resale Registration Statement (whether or not required by the form on which the Registrable Securities are being registered), if required by the Act or if registration requested by any Holder, including to reflect any specific plan of distribution or method of sale, and shall use its reasonable best efforts to have any such amendments declared effective as soon as practicable after filing. (c) At any time and from time to time after the Resale Registration Statement has been declared effective by the Commission, any one or more Holders of Registrable Securities that in the aggregate hold at least 40% of the then total outstanding Registrable Securities may request to sell all or any portion of their Registrable Securities in an underwritten offering (including an “at-the-market offering” or a “registered direct offering”) that is registered pursuant to the Resale Registration Statement (each, an “Underwritten Shelf Takedown”); provided that in the case of any such Underwritten Shelf Takedown such Holder or Holders will be entitled to make such demand only if the total offering price to the public of the Registrable Securities to be sold in such offering is reasonably expected to exceed $20,000,000 in the aggregate. The Company shall, within five (5) days of the receipt of such demand, give written notice thereof to all other Holders, and shall include in such Underwritten Shelf Takedown all Registrable Securities with respect to which the Company has received written requests for inclusion therein within ten (10) Business Days after sending such written notice. (d) The Company shall not be obligated to effect, or take any action to effect, an Underwritten Shelf Takedown pursuant to this Section 1.2: 2.3 shall be borne by the Company; provided, however, that (i) if Form S-3 is not available the Company shall have no liability for such offering by expenses if such registration does not become effective due solely to the Holders; action or failure to act of IXC and (ii) IXC shall bear underwriting and selling discounts and commissions, if such Underwritten Shelf Takedown would be priced within less than ninety (90) days after any, attributable to its Registrable Securities being registered, transfer taxes on shares being sold by it and all fees and expenses of its counsel. The Company may postpone the pricing filing of any registration statement required hereunder for a previous Underwritten Shelf Takedown or a Piggy-Back Underwritten Offering; and (iii) reasonable period of time, not to exceed 90 days, if the Company has already effected two (2) Underwritten Shelf Takedowns been advised by legal counsel that such filing would require the disclosure of a material transaction or other factor which would not otherwise be required to be disclosed at such time and the Company determines reasonably and in good faith that such disclosure would have a material adverse effect on the preceding twelve (12) months. (e) All Holders proposing to distribute their securities through an Underwritten Shelf Takedown shall enter into an underwriting agreement in customary form Company with the underwriter or underwriters selected for such underwriting by a majority in interest of participating Holders (which underwriter or underwriters shall be reasonably acceptable respect to the Company)registration of the Registrable Securities. Notwithstanding any other provision of this Section 1.2, if the underwriter advises the Company that marketing factors require a limitation on the number of The shelf-registration statement may also include securities held or to be underwritten, then the Company shall so advise all Holders participating in the Underwritten Shelf Takedown, and the number of shares that may be included therein shall be allocated to the Holders pro rata based on the number of Registrable Securities held by all such Holders. In no event shall any Registrable Securities held by Holders be excluded from such underwriting unless all other securities are first excludedholders of the Company's securities.

Form S 3 Shelf Registration. (a) After the closing of the Merger, the Company Instinet shall file a resale use all reasonable efforts to qualify for registration statement on Form S-3 or any comparable or successor form or forms. After Instinet has qualified for the use of Form S-3, in addition to the rights contained in the foregoing provisions of this Article III, the Holders of Registrable Securities, shall have the right at any time, and from time to time, to request that Instinet prepare and file with the SEC a "shelf" registration statement (the “Resale "Shelf Registration Statement”") in accordance with and on the appropriate form for an offering to be made on a continuous or delayed basis pursuant to Rule 415 promulgated under the Securities Act (or any successor rule or similar provision then in effect) and shall effect any related qualification or compliance as would permit or facilitate the sale and distribution of covering all or any portion part of the Registrable Securities owned Securities. Instinet shall use all reasonable efforts to have the Shelf Registration Statement declared effective by the SEC as soon as practicable after such request is made and to keep such Shelf Registration Statement continuously effective and free of material misstatements or omissions (including the preparation and filing of any amendments and supplements necessary for that purpose) until the earlier of (i) the date on which all Holders have consummated the sale of all of such Holders' Registrable Securities registered under the Shelf Registration Statement or (ii) two years from the date the Shelf Registration Statement first became effective. Notwithstanding any other provision contained herein, including there shall be no limitation on the number of registrations on Form S-3 that may be requested and obtained by naming Holders pursuant to this Section 3.3. (b) With respect to any Shelf Registration Statement filed, or to be filed, pursuant to this Section 3.3, (i) if Instinet determines in the good faith judgment of the Board of Directors, such Holders registration would cause Instinet to disclose material non-public information which disclosure would be materially detrimental to Instinet or would materially interfere with any material financing, acquisition, corporate reorganization or merger or other transaction involving Instinet and any of its Subsidiaries and the Board of Directors concludes, as selling securityholdersa result of such potential disclosure or interference, that it is in the best interests of Instinet to defer the filing of such Shelf Registration Statement at such time, and (ii) Instinet shall furnish to such Holders' Representative a certificate signed by the chief executive officer of Instinet stating that in the good faith judgment of the Board of Directors, it would be materially detrimental to Instinet for such Shelf Registration Statement to be filed in the near future and that it is, therefore, in the best interests of Instinet to defer the filing of such Shelf Registration Statement, then Instinet shall have the right to defer such filing, provided that such deferral, together with any other deferral or suspension of its obligations under Section 3.1 or Section 3.3, shall not be effected more than twice in any twelve-month period or for a period of more than one hundred and twenty (120) days, in the aggregate, for all such deferrals or suspensions over such twelve-month period. (c) Instinet agrees, if necessary, to supplement or amend the Shelf Registration Statement, as required by the rules, regulations or instructions applicable to the registration form used by Instinet for such Shelf Registration Statement or by the Securities Act or as otherwise 15 16 required by this Agreement, and shall use its commercially all reasonable efforts to cause have such Resale Registration Statement to become effective under the Act no later than the first date Registrable Securities may be sold by any OnCore Holder under its Lock-Up Agreement. (b) The Company shall use its reasonable best efforts to keep such Resale Registration Statement continuously effective under the Act in order to permit the prospectus forming a part thereof to be usable by the Holders until the date as of which there are no Registrable Securities outstanding supplements and in no event prior to the applicable period referred to in Section 4(3) of the Act and Rule 174 thereunder. During the period that the Resale Registration Statement is amendments declared effective, the Company shall supplement the prospectus contained in the Resale Registration Statement or make amendments to the Resale Registration Statement (whether or not required by the form on which the Registrable Securities are being registered)if required, if required by the Act or if requested by any Holder, including to reflect any specific plan of distribution or method of sale, and shall use its reasonable best efforts to have any such amendments declared effective as soon as practicable after filing. (cd) At any time and from time A registration will not be deemed to time after the Resale have been effected pursuant to a Shelf Registration Statement unless the Shelf Registration Statement with respect thereto has been declared effective by the CommissionSEC and Instinet has complied in all material respects with its obligations under this Agreement with respect thereto; provided, any one or more Holders however, that if after the Shelf Registration Statement has been declared effective, the offering of Registrable Securities that in the aggregate hold at least 40% pursuant to such Shelf Registration Statement is interfered with by any stop order, injunction, or other order or requirement of the then total outstanding SEC or any other governmental agency or court, such Shelf Registration Statement will be deemed not to have been effective during the period of such interference until the offering of Registrable Securities may request to sell all or any portion of their Registrable Securities in an underwritten offering (including an “at-the-market offering” or a “registered direct offering”) that is registered pursuant to the Resale such Shelf Registration Statement (each, an “Underwritten Shelf Takedown”); provided that in the case of any such Underwritten Shelf Takedown such Holder or Holders will be entitled to make such demand only if the total offering price to the public of the Registrable Securities to be sold in such offering is reasonably expected to exceed $20,000,000 in the aggregate. The Company shall, within five (5) days of the receipt of such demand, give written notice thereof to all other Holders, and shall include in such Underwritten Shelf Takedown all Registrable Securities with respect to which the Company has received written requests for inclusion therein within ten (10) Business Days after sending such written noticemay legally resume. (d) The Company shall not be obligated to effect, or take any action to effect, an Underwritten Shelf Takedown pursuant to this Section 1.2: (i) if Form S-3 If Instinet determines in the good faith judgment of the Board of Directors, the availability of the Shelf Registration Statement for use would cause Instinet to disclose material non-public information which disclosure would be materially detrimental to Instinet or would materially interfere with any material financing, acquisition, corporate reorganization or merger or other transaction involving Instinet and any of its Subsidiaries and the Board of Directors concludes, as a result of such potential disclosure or interference, that it is not available for in the best interests of Instinet to suspend the use of such offering by the Holders; Shelf Registration Statement at such time, and (ii) if such Underwritten Shelf Takedown Instinet shall furnish to each Holder a certificate signed by the chief executive officer of Instinet stating that in the good faith judgment of the Board of Directors, it would be priced within less than ninety (90) days after the pricing of a previous Underwritten materially detrimental to Instinet for such Shelf Takedown or a Piggy-Back Underwritten Offering; and (iii) if the Company has already effected two (2) Underwritten Shelf Takedowns Registration Statement to be available for use in the preceding twelve (12) months. (e) All Holders proposing near future and that it is, therefore, in the best interests of Instinet to distribute their securities through an Underwritten suspend the use of such Shelf Takedown Registration Statement, then Instinet shall enter into an underwriting agreement in customary form have the right to suspend the use of such Shelf Registration Statement, provided that such suspension, together with the underwriter or underwriters selected for such underwriting by a majority in interest of participating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision suspension or deferral of this its obligations under Section 1.23.1 or Section 3.3, if the underwriter advises the Company that marketing factors require shall not be effected more than twice in any twelve-month period or for a limitation on the number period of securities to be underwrittenmore than one hundred and twenty (120) days, then the Company shall so advise all Holders participating in the Underwritten Shelf Takedownaggregate, and the number of shares that may be included therein shall be allocated to the Holders pro rata based on the number of Registrable Securities held by for all such Holders. In no event shall any Registrable Securities held by Holders be excluded from suspensions or deferrals over such underwriting unless all other securities are first excludedtwelve-month period.

Form S 3 Shelf Registration. (a) After the closing of the Merger, the Company Instinet shall file a resale use all reasonable efforts to qualify for registration statement on Form S-3 or any comparable or successor form or forms. After Instinet has qualified for the use of Form S-3, in addition to the rights contained in the foregoing provisions of this Article III, the Holders of Registrable Securities, shall have the right at any time, and from time to time, to request that Instinet prepare and file with the SEC a "shelf" registration statement (the “Resale "Shelf Registration Statement”") in accordance with and on the appropriate form for an offering to be made on a continuous or delayed basis pursuant to Rule 415 promulgated under the Securities Act (or any successor rule or similar provision then in effect) and shall effect any related qualification or compliance as would permit or facilitate the sale and distribution of covering all or any portion part of the Registrable Securities owned Securities. Instinet shall use all reasonable efforts to have the Shelf Registration Statement declared effective by the SEC as soon as practicable after such request is made and to 15 15 keep such Shelf Registration Statement continuously effective and free of material misstatements or omissions (including the preparation and filing of any amendments and supplements necessary for that purpose) until the earlier of (i) the date on which all Holders have consummated the sale of all of such Holders' Registrable Securities registered under the Shelf Registration Statement or (ii) two years from the date the Shelf Registration Statement first became effective. Notwithstanding any other provision contained herein, including there shall be no limitation on the number of registrations on Form S-3 that may be requested and obtained by naming Holders pursuant to this Section 3.3. (b) With respect to any Shelf Registration Statement filed, or to be filed, pursuant to this Section 3.3, (i) if Instinet determines in the good faith judgment of the Board of Directors, such Holders registration would cause Instinet to disclose material non-public information which disclosure would be materially detrimental to Instinet or would materially interfere with any material financing, acquisition, corporate reorganization or merger or other transaction involving Instinet and any of its Subsidiaries and the Board of Directors concludes, as selling securityholdersa result of such potential disclosure or interference, that it is in the best interests of Instinet to defer the filing of such Shelf Registration Statement at such time, and (ii) Instinet shall furnish to such Holders' Representative a certificate signed by the chief executive officer of Instinet stating that in the good faith judgment of the Board of Directors, it would be materially detrimental to Instinet for such Shelf Registration Statement to be filed in the near future and that it is, therefore, in the best interests of Instinet to defer the filing of such Shelf Registration Statement, then Instinet shall have the right to defer such filing, provided that such deferral, together with any other deferral or suspension of its obligations under Section 3.1 or Section 3.3, shall not be effected more than twice in any twelve-month period or for a period of more than one hundred and twenty (120) days, in the aggregate, for all such deferrals or suspensions over such twelve-month period. (c) Instinet agrees, if necessary, to supplement or amend the Shelf Registration Statement, as required by the rules, regulations or instructions applicable to the registration form used by Instinet for such Shelf Registration Statement or by the Securities Act or as otherwise required by this Agreement, and shall use its commercially all reasonable efforts to cause have such Resale Registration Statement to become effective under the Act no later than the first date Registrable Securities may be sold by any OnCore Holder under its Lock-Up Agreement. (b) The Company shall use its reasonable best efforts to keep such Resale Registration Statement continuously effective under the Act in order to permit the prospectus forming a part thereof to be usable by the Holders until the date as of which there are no Registrable Securities outstanding supplements and in no event prior to the applicable period referred to in Section 4(3) of the Act and Rule 174 thereunder. During the period that the Resale Registration Statement is amendments declared effective, the Company shall supplement the prospectus contained in the Resale Registration Statement or make amendments to the Resale Registration Statement (whether or not required by the form on which the Registrable Securities are being registered)if required, if required by the Act or if requested by any Holder, including to reflect any specific plan of distribution or method of sale, and shall use its reasonable best efforts to have any such amendments declared effective as soon as practicable after filing. (cd) At any time and from time A registration will not be deemed to time after the Resale have been effected pursuant to a Shelf Registration Statement unless the Shelf Registration Statement with respect thereto has been declared effective by the CommissionSEC and Instinet has complied in all material respects with its obligations under this Agreement with respect thereto; provided, any one or more Holders however, that if after the Shelf Registration Statement has been declared effective, the offering of Registrable Securities that in the aggregate hold at least 40% pursuant to such Shelf Registration Statement is interfered with by any stop order, injunction, or other order or requirement of the then total outstanding SEC or any other governmental agency or court, such Shelf Registration Statement will be deemed not to have been effective during the period of such interference until the offering of Registrable Securities may request to sell all or any portion of their Registrable Securities in an underwritten offering (including an “at-the-market offering” or a “registered direct offering”) that is registered pursuant to the Resale such Shelf Registration Statement (each, an “Underwritten Shelf Takedown”); provided that in the case of any such Underwritten Shelf Takedown such Holder or Holders will be entitled to make such demand only if the total offering price to the public of the Registrable Securities to be sold in such offering is reasonably expected to exceed $20,000,000 in the aggregate. The Company shall, within five (5) days of the receipt of such demand, give written notice thereof to all other Holders, and shall include in such Underwritten Shelf Takedown all Registrable Securities with respect to which the Company has received written requests for inclusion therein within ten (10) Business Days after sending such written noticemay legally resume. (d) The Company shall not be obligated to effect, or take any action to effect, an Underwritten Shelf Takedown pursuant to this Section 1.2: (i) if Form S-3 If Instinet determines in the good faith judgment of the Board of Directors, the availability of the Shelf Registration Statement for use would cause Instinet to disclose material non-public information which disclosure would be materially detrimental to Instinet or would materially interfere with any material financing, acquisition, corporate reorganization or 16 16 merger or other transaction involving Instinet and any of its Subsidiaries and the Board of Directors concludes, as a result of such potential disclosure or interference, that it is not available for in the best interests of Instinet to suspend the use of such offering by the Holders; Shelf Registration Statement at such time, and (ii) if such Underwritten Shelf Takedown Instinet shall furnish to each Holder a certificate signed by the chief executive officer of Instinet stating that in the good faith judgment of the Board of Directors, it would be priced within less than ninety (90) days after the pricing of a previous Underwritten materially detrimental to Instinet for such Shelf Takedown or a Piggy-Back Underwritten Offering; and (iii) if the Company has already effected two (2) Underwritten Shelf Takedowns Registration Statement to be available for use in the preceding twelve (12) months. (e) All Holders proposing near future and that it is, therefore, in the best interests of Instinet to distribute their securities through an Underwritten suspend the use of such Shelf Takedown Registration Statement, then Instinet shall enter into an underwriting agreement in customary form have the right to suspend the use of such Shelf Registration Statement, provided that such suspension, together with the underwriter or underwriters selected for such underwriting by a majority in interest of participating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision suspension or deferral of this its obligations under Section 1.23.1 or Section 3.3, if the underwriter advises the Company that marketing factors require shall not be effected more than twice in any twelve-month period or for a limitation on the number period of securities to be underwrittenmore than one hundred and twenty (120) days, then the Company shall so advise all Holders participating in the Underwritten Shelf Takedownaggregate, and the number of shares that may be included therein shall be allocated to the Holders pro rata based on the number of Registrable Securities held by for all such Holders. In no event shall any Registrable Securities held by Holders be excluded from suspensions or deferrals over such underwriting unless all other securities are first excludedtwelve-month period.