Common use of Form S-3 Underwriting Procedures Clause in Contracts

Form S-3 Underwriting Procedures. In an Underwritten Shelf Take-Down, the managing underwriter or underwriters selected for such offering shall be the Approved Underwriter selected in accordance with Section 3(f) hereof. In connection with an Underwritten Shelf Take-Down, none of the Registrable Securities held by any Designated Stockholder having such Registrable Securities included pursuant to Section 5(a) hereof shall be included in such Underwritten Shelf Take-Down unless such Designated Stockholder accepts the terms of the offering as agreed upon by the Company, the Majority Shelf Take-Down Stockholders and the Approved Underwriter (including, without limitation, offering price, underwriting commissions and discounts and lock-up agreement terms) and then only in such quantity as set forth below. If the Approved Underwriter advises the Company that the aggregate amount of such Registrable Securities requested to be included in such offering is sufficiently large to have a material adverse effect on the distribution or sales price of the Registrable Securities in such offering then the Company shall include in such offering, to the extent of the amount that the Approved Underwriter believes may be sold without causing such material adverse effect, first, such number of Registrable Securities of the Designated Stockholders that are participating in such Underwritten Shelf Take-Down, which Registrable Securities shall be allocated pro rata among such Designated Stockholders participating in such Undewritten Shelf Take-Down, based on the number of Registrable Securities held by each such Designated Stockholder, second, any other securities of the Company requested by any other holders thereof to be included in such Underwritten Shelf Take-Down and third, securities offered by the Company for its own account. Notwithstanding the foregoing, immediately upon determination of the price at which such Registrable Securities are to be sold in an offering in an S-3 Registration that is an Underwritten Shelf Take-Down, if such price is below the price which the Majority Shelf Take-Down Stockholders find acceptable, then such Majority Shelf Take-Down Stockholders shall then have the right, by written notice to the Company, to withdraw their Registrable Securities from being included in such offering; provided, that such a withdrawal by such Majority Shelf Take-Down Stockholders shall constitute and effect an automatic withdrawal by all other S-3 Participating Stockholders.

Form S-3 Underwriting Procedures. In an Underwritten Shelf Take-Down, the managing underwriter or underwriters selected for such offering (the “Approved Underwriters”) shall be the Approved Underwriter selected in accordance with Section 3(f4.01(b) hereof. In connection with an Underwritten Shelf Take-Down, none of the Registrable Securities held by any Designated Stockholder having such Registrable Securities included pursuant to Section 5(a) hereof S-3 Participating Holders shall be included in such Underwritten Shelf Take-Down unless such Designated Stockholder S-3 Participating Holder accepts the terms of the offering as agreed upon by the Company, the Majority Initiating Shelf Take-Down Stockholders Holder and the Approved Underwriter (including, without limitation, offering price, underwriting commissions and discounts and lock-up agreement terms) and then only in such quantity as set forth below. If the Approved Underwriter advises the Company that the aggregate amount of such Registrable Securities requested to be included in such offering is sufficiently large to have a material adverse effect on the distribution or sales price of the Registrable Securities in such offering then the Company shall include in such offering, to the extent of the amount that the Approved Underwriter believes may be sold without causing such material adverse effect, first, such number of Registrable Securities of the Designated Stockholders S-3 Participating Holders that are participating in such Underwritten Shelf Take-Down, which Registrable Securities shall be allocated pro rata among such Designated Stockholders participating in such Undewritten Shelf Take-Downholders, based on the number of Registrable Securities held by each such Designated Stockholderholder, second, any other securities of the Company requested by any other holders thereof to be included in such Underwritten Shelf Take-Down and third, securities offered by the Company for its own account. Notwithstanding the foregoing, immediately upon determination of the price at which such Registrable Securities are to be sold in an offering in an S-3 Registration that is an Underwritten Shelf Take-Down, if such price is below the price which the Majority Initiating Shelf Take-Down Stockholders find Holder finds acceptable, then such Majority Initiating Shelf Take-Down Stockholders Holder shall then have the right, by written notice to the Company, to withdraw their Registrable Securities from being included in such offering; provided, that such a withdrawal by such Majority Shelf Take-Down Stockholders holder shall constitute and effect an automatic withdrawal by all other S-3 Participating Stockholders.

Form S-3 Underwriting Procedures. In an Underwritten Shelf Take-Down, the managing underwriter or underwriters selected for such offering shall be the Approved Underwriter selected in accordance with Section 3(f) hereof. In connection with an Underwritten Shelf Take-Down, none of the Registrable Securities held by any Designated Stockholder Shareholder having such Registrable Securities included pursuant to Section 5(a) hereof shall be included in such Underwritten Shelf Take-Down unless such Designated Stockholder Shareholder accepts the terms of the offering as agreed upon by the CompanyInsmed, the Majority Shelf Take-Down Stockholders Shareholders and the Approved Underwriter (including, without limitation, offering price, underwriting commissions and discounts and lock-up agreement terms) and then only in such quantity as set forth below. If the Approved Underwriter advises the Company Insmed that the aggregate amount of such Registrable Securities requested to be included in such offering is sufficiently large to have a material adverse effect on the distribution or sales price of the Registrable Securities in such offering then the Company Insmed shall include in such offering, to the extent of the amount that the Approved Underwriter believes may be sold without causing such material adverse effect, first, such number of Registrable Securities of the Designated Stockholders Shareholders that are participating in such Underwritten Shelf Take-Down, which Registrable Securities shall be allocated pro rata among such Designated Stockholders Shareholders participating in such Undewritten Shelf Take-Down, based on the number of Registrable Securities held by each such Designated StockholderShareholder, second, any other securities of the Company Insmed requested by any other holders thereof to be included in such Underwritten Shelf Take-Down and third, securities offered by the Company Insmed for its own account. Notwithstanding the foregoing, immediately upon determination of the price at which such Registrable Securities are to be sold in an offering in an S-3 Registration that is an Underwritten Shelf Take-Down, if such price is below the price which the Majority Shelf Take-Down Stockholders Shareholders find acceptable, then such Majority Shelf Take-Down Stockholders Shareholders shall then have the right, by written notice to the CompanyInsmed, to withdraw their Registrable Securities from being included in such offering; provided, that such a withdrawal by such Majority Shelf Take-Down Stockholders Shareholders shall constitute and effect an automatic withdrawal by all other S-3 Participating StockholdersShareholders.

Form S-3 Underwriting Procedures. In an Underwritten Shelf Take-DownIf the S-3 Initiating Holders holding a majority of the Registrable Securities held by all of the S-3 Initiating Holders so elect, the Company shall use its reasonable best efforts to cause such S-3 Registration pursuant to this Article VI to be in the form of a firm commitment underwritten offering and the managing underwriter or underwriters selected for such offering shall be the Approved Underwriter selected in accordance with Section 3(f) hereof4.6. In connection with any S-3 Registration under Section 6.1 involving an Underwritten Shelf Take-Downunderwritten offering, none of the Company shall not be required to include any Registrable Securities held by any Designated Stockholder having such Registrable Securities included pursuant to Section 5(a) hereof shall be included in such Underwritten Shelf Take-Down underwritten offering unless such the Designated Stockholder accepts Holders thereof accept the terms of the underwritten offering as agreed upon by between the Company, the Majority Shelf Take-Down Stockholders Approved Underwriter and the Approved Underwriter (includingS-3 Initiating Holders, without limitation, offering price, underwriting commissions and discounts and lock-up agreement terms) and then only in such quantity as set forth belowsuch underwriter believes will not jeopardize the success of such offering by the S-3 Initiating Holders. If the Approved Underwriter advises the Company that and the aggregate amount of such Registrable Securities requested to be included in such offering is sufficiently large to have a material adverse effect on the distribution or sales price Holders of the Registrable Securities which the S-3 Initiating Holders and the other Designated Holders have requested to be registered in writing that in its opinion the number of Registrable Securities proposed to be sold in any registration under this Article VI exceeds the number that can be sold in such offering then registration without (A) creating a substantial risk that the proceeds or price per share that will be derived from such registration will be materially reduced or that the number of Registrable Securities to be registered is too large a number to be reasonably sold, or (B) materially and adversely affecting such registration in any other respect, the Company shall will include in such offering, to the extent of the amount that the Approved Underwriter believes may be sold without causing such material adverse effect, first, registration (x) such number of Registrable Securities of the S-3 Initiating Holders and any other Designated Stockholders that are Holders participating in such Underwritten Shelf Take-Downthe offering pursuant to this Article VI, which Registrable Securities shall be allocated pro rata among such S-3 Initiating Holders and such other Designated Stockholders participating in such Undewritten Shelf Take-DownHolders, based on the number of Registrable Securities held by each such Designated Stockholder, second, any other securities of the Company requested by any other holders thereof to be included in such Underwritten Shelf Take-Down offering by each such S-3 Initiating Holder and thirdDesignated Holder and (y) not allow any securities other than Registrable Securities to be included in such registration unless all Registrable Securities requested to be included have been included therein, securities offered and then only to the extent recommended by the Approved Underwriter or determined by the Company for its own account. Notwithstanding after consultation with an investment banker of nationally recognized standing (notification of which number shall be given by the foregoing, immediately upon determination of the price at which such Registrable Securities are to be sold in an offering in an S-3 Registration that is an Underwritten Shelf Take-Down, if such price is below the price which the Majority Shelf Take-Down Stockholders find acceptable, then such Majority Shelf Take-Down Stockholders shall then have the right, by written notice Company to the Company, to withdraw their Holders of Registrable Securities from being included in such offering; provided, that such a withdrawal by such Majority Shelf Take-Down Stockholders shall constitute and effect an automatic withdrawal by all other S-3 Participating StockholdersSecurities).

Form S-3 Underwriting Procedures. In an Underwritten Shelf Take-DownIf the S-3 Initiating Holders holding a majority of the Registrable Securities held by all of the S-3 Initiating Holders so elect, the Company shall use its reasonable best efforts to cause such S-3 Registration pursuant to this Section 5 to be in the form of a firm commitment underwritten offering and the managing underwriter or underwriters selected for such offering shall be the Approved Underwriter selected in accordance with Section 3(f) hereof). In connection with any S-3 Registration under this Section 5 involving an Underwritten Shelf Take-Downunderwritten offering, none of the Company shall not be required to include any Registrable Securities held by any Designated Stockholder having such Registrable Securities included pursuant to Section 5(a) hereof shall be included in such Underwritten Shelf Take-Down underwritten offering unless such the Designated Stockholder accepts Holders thereof accept the terms of the underwritten offering as agreed upon by between the Company, the Majority Shelf Take-Down Stockholders Approved Underwriter and the Approved Underwriter (includingS-3 Initiating Holders, without limitation, offering price, underwriting commissions and discounts and lock-up agreement terms) and then only in such quantity as set forth belowwill not, in the opinion of the Approved Underwriter, jeopardize the success of such offering by the S-3 Initiating Holders. If the Approved Underwriter advises the Company that the aggregate amount registration of such all or part of (i) the Registrable Securities which the S-3 Initiating Holders and the other Designated Holders have requested to be included in or (ii) the shares of Common Stock which any Other Stockholder has requested to be included would materially adversely affect the success of such offering is sufficiently large to have a material adverse effect on the distribution or sales price of the Registrable Securities in such offering public offering, then the Company shall be required to include in such the underwritten offering, to the extent of the amount that the Approved Underwriter believes may be sold without causing such material adverse effect, first, such number all of the Registrable Securities to be offered for the account of the Designated Stockholders that are participating in such Underwritten Shelf Take-DownS-3 Initiating Holders, which Registrable Securities shall be allocated pro rata among such Designated Stockholders participating in such Undewritten Shelf Take-Down, based on the number of Registrable Securities held owned by each such Designated Stockholder, S-3 Initiating Holders; and second, any other securities (x) the Registrable Securities to be offered for the account of the Company other Designated Holders who requested by inclusion of their Registrable Securities pursuant to Section 5(a) and (y) the shares of Common Stock to be offered for the account of any other holders thereof Other Stockholder who requested to be included in such Underwritten Shelf Take-Down offering, in the case of foregoing clauses (x) and third, securities offered by (y) pro rata based on the Company for its own account. Notwithstanding the foregoing, immediately upon determination number of the price at which such Registrable Securities are owned by each such Designated Holder and the number of shares of Common Stock owned by each such Other Stockholder. No Other Stockholder may participate in any offering under this Section 5 unless it satisfies all requirements under this Section 5 that a Designated Holder exercising rights under Section 5(a) to be sold in an offering include some or all of its Registrable Securities in an S-3 Registration that is an Underwritten Shelf Take-Down, if such price is below the price which the Majority Shelf Take-Down Stockholders find acceptable, then such Majority Shelf Take-Down Stockholders shall then would have the right, by written notice to the Company, to withdraw their Registrable Securities from being included in such offering; provided, that such a withdrawal by such Majority Shelf Take-Down Stockholders shall constitute and effect an automatic withdrawal by all other S-3 Participating Stockholderssatisfy.

Form S-3 Underwriting Procedures. In an Underwritten Shelf Take-DownIf the S-3 Initiating Holder so elects, the Company shall use its reasonable best efforts to cause such S-3 Registration pursuant to this Section 3B to be in the form of a firm commitment underwritten offering and the managing underwriter or underwriters selected for such offering shall be the Approved Underwriter selected in accordance with Section 3(f) hereof3A(e). In connection with any S-3 Registration under Section 3B(a) involving an Underwritten Shelf Take-Downunderwritten offering, none of the Company shall not be required to include any Registrable Securities held by any Designated Stockholder having such Registrable Securities included pursuant to Section 5(a) hereof shall be included in such Underwritten Shelf Take-Down underwritten offering unless such the Designated Stockholder accepts Holders thereof accept the terms of the underwritten offering as agreed upon by between the Company, the Majority Shelf Take-Down Stockholders Approved Underwriter and the Approved Underwriter (includingS-3 Initiating Holder, without limitation, offering price, underwriting commissions and discounts and lock-up agreement terms) and then only in such quantity as set forth belowsuch underwriter believes will not jeopardize the success of such offering by the S-3 Initiating Holder. In addition, the Company shall not include in any such underwritten offering any securities other than Registrable Securities unless the holders thereof accept the terms of the underwritten offering as agreed upon between the Company, the Approved Underwriter and the S-3 Initiating Holder, and then only in such quantity as such underwriter believes will not jeopardize the success of such offering by the S-3 Initiating Holder. If the Approved Underwriter advises the Company believes that the aggregate amount registration of such all or part of the Registrable Securities which the S-3 Initiating Holder and the other Designated Holders have requested to be included in would materially adversely affect the success of such offering is sufficiently large to have a material adverse effect on the distribution or sales price of the Registrable Securities in such offering public offering, then the Company shall be required to include in such the underwritten offering, to the extent of the amount that the Approved Underwriter believes may be sold without causing such material adverse effect, first, such number all of the Registrable Securities to be offered for the account of the Designated Stockholders that are participating in such Underwritten Shelf Take-DownS-3 Initiating Holder; second, which the Registrable Securities shall to be allocated offered for the account of the other Designated Holders who requested inclusion of their Registrable Securities pursuant to Section 3B(a), pro rata among such Designated Stockholders participating in such Undewritten Shelf Take-Down, based on the number of Registrable Securities held owned by each such Designated Stockholder, secondHolders; and third, any other securities of the Company requested by any other holders thereof to be included in such Underwritten Shelf Take-Down and third, securities offered by the Company for its own account. Notwithstanding the foregoing, immediately upon determination of the price at which such Registrable Securities are to be sold in an offering in an S-3 Registration that is an Underwritten Shelf Take-Down, if such price is below the price which the Majority Shelf Take-Down Stockholders find acceptable, then such Majority Shelf Take-Down Stockholders shall then have the right, by written notice to the Company, to withdraw their Registrable Securities from being included in such offering; provided, that such a withdrawal by such Majority Shelf Take-Down Stockholders shall constitute and effect an automatic withdrawal by all other S-3 Participating Stockholders.

Form S-3 Underwriting Procedures. In an Underwritten Shelf Take-Down, the managing underwriter or underwriters selected for such offering shall be the Approved Underwriter selected in accordance with Section 3(f) hereof. In connection with an Underwritten Shelf Take-Down, none of the Registrable Securities held by any Designated Stockholder having such Registrable Securities included pursuant to Section 5(a) hereof shall be included in such Underwritten Shelf Take-Down unless such Designated Stockholder accepts the terms of the offering as agreed upon by the Company, the Majority Shelf Take-Down Stockholders and the Approved Underwriter (including, without limitation, offering price, underwriting commissions and discounts and lock-up agreement terms) and then only in such quantity as set forth below. If the Approved Underwriter advises the Company that the aggregate amount of such Registrable Securities requested to be included in such offering is sufficiently large to have a material adverse effect on the distribution or sales price of the Registrable Securities in such offering then the Company shall include in such offering, to the extent of the amount that the Approved Underwriter believes may be sold without causing such material adverse effect, first, such number of Registrable Securities of the Designated Stockholders that are participating in such Underwritten Shelf Take-Down, which Registrable Securities shall be allocated pro rata among such Designated Stockholders participating in such Undewritten Underwritten Shelf Take-Down, based on the number of Registrable Securities held by each such Designated Stockholder, second, any other securities of the Company requested by any other holders thereof to be included in such Underwritten Shelf Take-Down and third, securities offered by the Company for its own account. Notwithstanding the foregoing, immediately upon determination of the price at which such Registrable Securities are to be sold in an offering in an S-3 Registration that is an Underwritten Shelf Take-Down, if such price is below the price which the Majority Shelf Take-Down Stockholders find acceptable, then such Majority Shelf Take-Down Stockholders shall then have the right, by written notice to the Company, to withdraw their Registrable Securities from being included in such offering; provided, that such a withdrawal by such Majority Shelf Take-Down Stockholders shall constitute and effect an automatic withdrawal by all other S-3 Participating Stockholders.

Form S-3 Underwriting Procedures. In an Underwritten Shelf Take-DownIf the S-3 Initiating Holders holding a majority of the Registrable Securities held by all of the S-3 Initiating Holders so elect, the Company shall use its reasonable best efforts to cause such S-3 Registration pursuant to this Article VI to be in the form of a firm commitment underwritten offering and the managing underwriter or underwriters selected for such offering shall be the Approved Underwriter selected in accordance with Section 3(f) hereof4.6. In connection with any S-3 Registration under Section 6.1 involving an Underwritten Shelf Take-Downunderwritten offering, none of the Company shall not be required to include any Registrable Securities held by any Designated Stockholder having such Registrable Securities included pursuant to Section 5(a) hereof shall be included in such Underwritten Shelf Take-Down underwritten offering unless such the Designated Stockholder accepts Holders thereof accept the terms of the underwritten offering as agreed upon by between the Company, the Majority Shelf Take-Down Stockholders Approved Underwriter and the Approved Underwriter (includingS-3 Initiating Holders, without limitation, offering price, underwriting commissions and discounts and lock-up agreement terms) and then only in such quantity as set forth belowsuch underwriter believes will not jeopardize the success of such offering by the S-3 Initiating Holders. If the Approved Underwriter advises the Company believes that the aggregate amount registration of such all or part of the Registrable Securities which the S-3 Initiating Holders and the other Designated Holders have requested to be included in would materially adversely affect the success of such offering is sufficiently large to have a material adverse effect on the distribution or sales price of the Registrable Securities in such offering public offering, then the Company shall be required to include in such the underwritten offering, to the extent of the amount that the Approved Underwriter believes may be sold without causing such material adverse effect, first, such number of Registrable Securities of the S-3 Initiating Holders and any other Designated Stockholders that are Holders participating in such Underwritten Shelf Take-Downthe offering pursuant to this Article VI, which Registrable Securities shall be allocated pro rata among such S-3 Initiating Holders and such other Designated Stockholders participating in such Undewritten Shelf Take-DownHolders, based on the number of Registrable Securities held by each such Designated Stockholder, second, any other securities of the Company requested by any other holders thereof to be included in such Underwritten Shelf Take-Down offering by each such S-3 Initiating Holder and thirdDesignated Holder, second, securities offered by the Company for its own account. Notwithstanding the foregoing, immediately upon determination and third, any other securities of the price at which such Registrable Securities are Company requested by holders thereof to be sold in an offering in an S-3 Registration that is an Underwritten Shelf Take-Down, if such price is below the price which the Majority Shelf Take-Down Stockholders find acceptable, then such Majority Shelf Take-Down Stockholders shall then have the right, by written notice to the Company, to withdraw their Registrable Securities from being included in such offering; providedregistration, that which such a withdrawal securities shall be allocated pro rata among such stockholders, based on the number of the Company's securities requested to be included in such offering by each such Majority Shelf Take-Down Stockholders shall constitute and effect an automatic withdrawal by all other S-3 Participating Stockholdersstockholder.

Form S-3 Underwriting Procedures. In an Underwritten Shelf Take-DownIf the S-3 Initiating Holders holding a majority of the Registrable Securities held by all of the S-3 Initiating Holders so elect, the Company shall use its reasonable best efforts to cause such S-3 Registration pursuant to this Article VI to be in the form of a firm commitment underwritten offering and the managing underwriter or underwriters selected for such offering shall be the Approved Underwriter selected in accordance with Section 3(f) hereof4.6. In connection with any S-3 Registration under Section 6.1 involving an Underwritten Shelf Take-Downunderwritten offering, none of the Company shall not be required to include any Registrable Securities held by any Designated Stockholder having such Registrable Securities included pursuant to Section 5(a) hereof shall be included in such Underwritten Shelf Take-Down underwritten offering unless such the Designated Stockholder accepts Holders thereof accept the terms of the underwritten offering as agreed upon by between the Company, the Majority Shelf Take-Down Stockholders Approved Underwriter and the Approved Underwriter (includingS-3 Initiating Holders, without limitation, offering price, underwriting commissions and discounts and lock-up agreement terms) and then only in such quantity as set forth belowsuch underwriter believes will not jeopardize the success of such offering by the S-3 Initiating Holders. If the Approved Underwriter advises the Company believes that the aggregate amount registration of such all or part of the Registrable Securities which the S-3 Initiating Holders and the other Designated Holders have requested to be included in such offering is sufficiently large to have a material adverse effect on and the distribution or sales price Registrable Common Shares, if any, offered for the account of the Registrable Securities in Common Stock Holders pursuant to Section 3(a) of the Common Stock Registration Rights Agreement would materially adversely affect the success of such offering public offering, then the Company shall be required to include in such the underwritten offering, to the extent of the amount that the Approved Underwriter believes may be sold without causing such material adverse effect, firstFIRST, such number of Registrable Securities of the S-3 Initiating Holders and any other Designated Stockholders that are Holders participating in the offering pursuant to this Article VI, and such Underwritten Shelf Take-Downnumber of Registrable Common Shares, if any, offered for the account of the Common Stock Holders pursuant to Section 3(a) of the Common Stock Registration Rights Agreement which Registrable Securities and Registrable Common Shares shall be allocated pro rata PRO RATA among such S-3 Initiating Holders, such other Designated Stockholders participating in such Undewritten Shelf Take-DownHolders and the Common Stock Holders, based on the number of Registrable Securities held by each such Designated Stockholderor Registrable Common Shares, secondas the case may be, any other securities of the Company requested by any other holders thereof to be included in such Underwritten Shelf Take-Down offering by each such S-3 Initiating Holder, the Designated Holder and thirdthe Common Stock Holders, SECOND, securities offered by the Company for its own account. Notwithstanding the foregoing, immediately upon determination and THIRD, any other securities of the price at which such Registrable Securities are Company requested by holders thereof to be sold in an offering in an S-3 Registration that is an Underwritten Shelf Take-Down, if such price is below the price which the Majority Shelf Take-Down Stockholders find acceptable, then such Majority Shelf Take-Down Stockholders shall then have the right, by written notice to the Company, to withdraw their Registrable Securities from being included in such offering; providedregistration, that which such a withdrawal securities shall be allocated PRO RATA among such stockholders, based on the number of the Company's securities requested to be included in such offering by each such Majority Shelf Take-Down Stockholders shall constitute and effect an automatic withdrawal by all other S-3 Participating Stockholdersstockholder.